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 The School of Law of Cornell University 
 
 And Prfesented February 14, 1893 
 
 IN.rtEnORY OF 
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 By his Wife and Daughter 
 A. M. BOARbMAN and ELLEN D. WILLIAMS 
 
KFN5975JS72" ImT'" '""'"'>' 
 
 ^"e New;,, York civil 
 
 (SornpU Ham ^rlynol ICibtary 
 
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 http://www.archive.org/details/cu31 924022881 928 
 
THE 
 
 NEW YORK CIVIL AND CRIMINAL 
 
 J U?S T I C E : 
 
 A COMPLETE TKEATISE ON THE 
 
 CIVIL, CRIMINAL, AND SPECIAL POWERS AND DUTIES 
 
 JUSTICES OF THE PEACE 
 
 in the state of new york; 
 
 With Numerous Forms, Adapted to the New 
 
 Code of Civil Pkooeduke, and the 
 
 Criminal and Penal Codes. 
 
 seventh edition, 
 Bt H. S. McCALL, Counsellor- at-Law. 
 
 ALBANY: 
 
 WILLIAM GOULD, Jr., & COMPANY, 
 
 LAW BOOKSELLERS AND PUBLISHERS, 
 
 1885. 
 
Entered according to Act of Congress, in the year one thousand eight hundred and fifty-three, 
 
 BY DERBY & MILLER, 
 
 In the Clerk'i Office of inc District Court of the United States for the Northern District of 
 
 New York. 
 
 Entered according to Act of Congress, in the year one thousand eight hundred and fifty-nine, 
 
 BY C. M. SAXTON, 
 
 In the Cleric's Office of tlie District Court of the United States for the Southern District »( 
 
 New York. 
 
 Entered according to Act of Congress in the year one thousand eight hundred and sixty-five. 
 
 BY H S. IVIcCALL. 
 
 In the Clerk's Office of the District Court of tlie United Slates for the Northern District of 
 
 New York. 
 
 Entered according to Act of Congress, in the year one thousand eight hundred and eighty, 
 
 Br WILLIAM GOULD & SON, 
 
 In the Office of the Librarian of Congress at Washington. 
 
 Entered according to Act of Congress, in the year one thousand eight hundred and eighty-iTC, 
 Bt WILLIAM aOULD, Jr., & COMPANY, 
 In the Office of the Librarian of Congress at Washington. 
 
1 
 
 PREFACE. 
 
 The great favor witli -which the New York Civil and 
 Criminal Justice has been received has induced the 
 preparation of the present edition. The rapid sale of 
 two large editions has shown it to be a work well suited 
 to the purpose for which it was designed. 
 
 The preparation of the first edition was commenced 
 by the late John S. Jenkins, Esq., and completed by 
 Messrs. Christopher Morgan, Samuel Blatchford and 
 Clarence A. Seward. The second edition was amended 
 and enlarged by Messrs. Abbott Brothers. The work 
 having been for some time out of print, and there being 
 a large call for it, both from Justices and members of 
 the legal profession, it was thought advisable to review 
 the whole work, make such alterations as the various 
 changes in our statutes required, bring the citation of 
 authorities down to the present time, and add quite a 
 number of forms to the already large number contained 
 in the work. It will be seen that more than thirty 
 pages have been added to the text, and the Index ren- 
 dered fuller and more complete. 
 
 Of the multitude of authorities with which our rapidly 
 increasing volumes of reports abound, it cannot be 
 expected that all or nearly all can be referred to in a 
 work of this kind. To embrace them all, would make 
 
IV PREFACE. 
 
 the work too large for the purposes for which it was 
 designed. A judicious selection of the more important 
 cases is all that can be expected or desired. Those who 
 wish to pursue the study of the difilrent topics, will 
 find them fully discussed in those books which are de- 
 voted exclusively to the several subjects; and those 
 who have not time to continue their investigations 
 further, will find the present volume well adapted to 
 their wants. 
 
 It is difficult to acquire that happy medium adapted 
 both to the wants of the Justice and the legal profes- 
 sion ; that such a medium has been reached, the large 
 demand for the former editions of the present work 
 would seem to warrant. 
 
 The present edition is submitted to the attention of 
 those who have business both as members and prac- 
 titioners in our Justices' Courts, hoping that all who 
 have occasion to use it will find it well adapted to all 
 their requirements 
 
 NOTE TO THE SEVENTH EDITION. 
 
 The great favor with which The New York Civil and Criminal Justice has 
 been received has induced the preparation of the present edition. The rapid 
 sale of six editions has given an assurance that the work is well suited to the 
 purpose Ifor which it was designed. 
 
 Since the issuing of the last edition the adoption of the Criminal and Penal 
 Codes has made many distinct changes in our criminal law, and required 
 many substantial and necessary changes in that portion of the work. 
 
 To our many friends who have used our former editions with so much sat- 
 isfaction to themselves and so much benefit to their clients we cheerfully 
 submit this edition, hoping that they will find it more useful than any of the 
 editions which have preceded it. 
 
CONTENTS. 
 
 INTRODUCTION. 
 
 Page. 
 
 Of the Office of Justice of the Peace 1 
 
 I*^RT I. 
 
 OP THE CIVIL JTJEISDICTION OP JUSTICES OP THE PEACE. 
 
 CHAPTER I. 
 
 Of the Nature and Extent of the Jurisdiction 17 
 
 CHAPTER II. 
 
 Of the Causes of Action cognizable before Justices' Courts 26 
 
 1. Amount in controversy 31 
 
 2. Territorial jurisdiction 34 
 
 3. Jurisdiction of the person 35 
 
 CHAPTER III. 
 
 Of Actions generally, their Subjects, and Incidents 37 
 
 1. Contracts generally 37 
 
 2. Contracts of sale 39 
 
 3. Statute of frauds 40 
 
 4. Sales and mortgages of chattels 50 
 
 5. Warranty 55 
 
 6. Bailment 57 
 
 7. Money paid, laid out, and expended, &c 61 
 
 8. Contracts relating to lands 63 
 
 9. Use and occupation of lands 65 
 
 10. Promissory notes 65 
 
 11. Interest 72 
 
 12. Usury 73 
 
 13. Payment 76 
 
 14. Illegal contracts 77 
 
 15. Contracts made on Sunday 80 
 
 16. Fraudulent contracts 82 
 
 17. Husband and wife 87 
 
 18. Parent and child 91 
 
 19. Infants 93 
 
VI CONTENTS. 
 
 Page. 
 
 20. Executors and administrators 94 
 
 21. Corporations 95 
 
 22. Principal and agent 97 
 
 23. Partnership 103 
 
 Limited partnership 108 
 
 24. Injuries to the person, and to real and personal property, 110 
 
 (1.) Injuries to the person 110 
 
 (2.) Injuries to real property 110 
 
 (3.) Injuries to personal property 114 
 
 25. Penalties and forfeitures 119 
 
 26. Fixtures 125 
 
 27. Mechanics' liens 128 
 
 CHAPTEE IV. 
 
 Of the time of commencing Civil Actions 136 
 
 CHAPTER V. 
 
 Of the Parties to Civil Actions 145 
 
 CHAPTER VI. 
 
 Of the Commencement of Civil Actions, and the different Forms 
 
 of Process 156 
 
 1. Long summons 156 
 
 2. Warrant 160 
 
 3. Short summons 163 
 
 4. Attachment 165 
 
 CHAPTER VII. 
 
 Of the Service and Return of Process 173 
 
 1. Summons 173 
 
 2. Warrant 174 
 
 3. Attachment 181 
 
 4. Process generally 189 
 
 5. Substituted service 191 
 
 6. Replevin 192 
 
 CHAPTER VIII. 
 
 Of the appearance of Parties 202 
 
 CHAPTER IX. nm 
 
 Of Pleadings 209 
 
 1. Pleading generally 210 
 
 2. Complaint 212 
 
 3. Demurrer 213 
 
 4. Offer to allow judgment 215 
 
 5. Answer 216 
 
 6. Amendments 218 
 
 7. Plea to the jurisdiction 220 
 
 8. Former action 222 
 
 9. Plea of payment 222 
 
 10. Plea of tender 223 
 
 (1.) Tender generally 223 
 
CONTENTS. Vll 
 
 Page. 
 
 (2.) By whom a tender may be made 225 
 
 (3.) What is a good tender 225 
 
 (4.) As to the thing tendered 226 
 
 (5.) At what place a tender must be made 228 
 
 (6.) At what time a tender must be made 229 
 
 (7.) To whom a tender must be made 230 
 
 (8.) The consequences of a tender and refusal 230 
 
 (9.) Tender, after action brought 231 
 
 11. Set-off 233 
 
 12. Recoupment 240 
 
 13. Plea of title 243 
 
 CHAPTEE X. 
 
 Of Adjournments 248 
 
 1. On motion of the Justice 248 
 
 2. On motion of the plaintiff 249 
 
 3. On motion of the defendant 252 
 
 4. Further adjournments 256 
 
 5. Irregular adjournments 257 
 
 6. Waiver of irregularity 259 
 
 7. General rules 260 
 
 CHAPTER XI. 
 
 Of Commissions and Subpoenas 261 
 
 1. Commissions 261 
 
 2. Subpoenas 270 
 
 (1.) The issuing of a subpoena 270 
 
 (2.) The service of a subpoena 271 
 
 (3.) Attachment to compel the attendance of a witness, 272 
 (4.) Duty of a witness, and what will excuse non-attend- 
 ance 274 
 
 (5.) When damages may be recovered from a defaulting 
 witness 275 
 
 (6.) When a defaulting witness may ba fined and impris- 
 oned 275 
 
 CHAPTER XII. 
 
 Of the Trial of Issues of Fact 279 
 
 1. General rules 280 
 
 2. Trial by jury 282 
 
 (1.) Venire 282 
 
 (2.) Qualifications and exemptions of jurors 285 
 
 (3.) Drawing of the jury 289 
 
 (4.) Challenges to the jurors 290 
 
 (5.) Swearing the jury 293 
 
 (6.) Statement of the cause of action 293 
 
 (7.) Evidence 294 
 
 (8.) Swearing witnesses 295 
 
 (9.) Punishment of witnesses who refuse to testify .... 296 
 
 (10.) Examination of plaintiff's witnesses 298 
 
 (11.) Nonsuit 299 
 
Vlll CONTENTS. 
 
 Pag». 
 
 (12.) Statement of the defence 300 
 
 (13.) Examination of defendant's witnesses 300 
 
 (14.) Amendment of pleadings BOO 
 
 (15.) Summing up 301 
 
 (16.) Eetiring of the jury 301 
 
 (17.) Receiving of the verdict 304 
 
 (18.) Variance 306 
 
 (19.) Contempts of Court 306 
 
 CHAPTER XIII. 
 Of Evidence 307 
 
 1. The nature and principles of evidence 307 
 
 2. Things judicially taken notice of without proof 308 
 
 3. The various kinds of evidence 309 
 
 4. Presumptive evidence 311 
 
 The relative value of direct and of circumstantial evi- 
 dence 323 
 
 5. Relevancy of evidence 325 
 
 6. Burden of proof 327 
 
 7. Amount of proof 329 
 
 8. The best evidence 330 
 
 9. Hearsay evidence 333 
 
 (1.) Matters of public or general interest 338 
 
 (2.) Ancient documents 338 
 
 (3.) Declarations of deceased persons 338 
 
 (4.) Dying declarations 339 
 
 (5.) Testimony of deceased witnesses 340 
 
 10. Admissions 343 
 
 (1.) By whom an admission may be made 343 
 
 (2.) The time and circumstances of the admission 349 
 
 (3.) Implied admissions 349 
 
 (4.) The whole admission must be given in evidence. . . . 350 
 (5.) The conclusiveness of an admission 351 
 
 11. Evidence excluded from public policy 352 
 
 12. Evidence required by the statute of frauds 353 
 
 13. Parol evidence to vary written instruments 355 
 
 (1.) Parol evidence to annul wdtten instruments 357 
 
 (2.) Parol evidence to show a subsequent variance of a 
 
 written instrument 357 
 
 (3.) Parol evidence as to the consideration of written 
 
 instruments 358 
 
 (4.) Usage 359 
 
 14. Competency of witnesses 359 
 
 (1.) Persons excluded by statute and by the common law 360 
 (2.) Persons rendered competent by special statue 363 
 
 1. Corporators 363 
 
 2. Indians 364 
 
 3. Owners of lost baggage 364 
 
 4. Persons betting and gaming 364 
 
 5. Plaintiff, where the defence is usury 364 
 
CONTENTS. IX 
 
 Page. 
 
 6. Persons interested in actions on demands bought 
 
 for suit 365 
 
 7. Parties to the action 365 
 
 8. Interested witnesses 366 
 
 15. Examination of parties 367 
 
 16. Mode of examining witnesses 372 
 
 (1.) Privilege of witnesses 372 
 
 (2.) Direct examination 374 
 
 (3.) Cross-examination 377 
 
 (4.) Impeachment of witnesses 380 
 
 (5.) Ke-direct examination 381 
 
 (6.) Sustaining impeached witnesses 382 
 
 17. Public documents 383 
 
 (1.) Public documents not judicial 383 
 
 (2.) Records and judicial writings 385 
 
 (3.) Documentary evidence generally 388 
 
 Aliens, Depositions of 388 
 
 Attorneys, Letters of 388 
 
 Certificates to documentary evidence, Form of 389 
 
 Canal maps 389 
 
 Canal contractors' bonds 390 
 
 Chattel mortgages. Copies of 390 
 
 Common Council of New York, Proceedings of . . . . 390 
 Conveyances, &c., Certificates of proof and acknowl- 
 edgment of 391 
 
 Corporations, Certificates of incorporation of 398 
 
 Corporations, Seals of 400 
 
 County clerks, Papers certifieed by 400 
 
 Depositions in perpeluam rei memoriam 400 
 
 Firemen, Certificates as to service of 400 
 
 Insolvent's discharge 401 
 
 Legislative papers 401 
 
 Land Companies, Papers and field notes of 401 
 
 Loan Commissioners, Certificates of 401 
 
 Lost papers, Certificates as to 403 
 
 Marriage certificates 403 
 
 Notary's Certificates 403 
 
 Offices of the State Gov't, Papers deposited in the 404 
 
 Plank and turnpike roads, Transfer books of 405 
 
 Printers' affidavits 405 
 
 Eedemption of real estate. Certificates of 406 
 
 Statutes of this State 406 
 
 Taxes unpaid, Certificates of 407 
 
 Town clerks, Papers in ofiiees of 407 
 
 Trustees of Absconding Debtor 407 
 
 Villages, 'Certificates of incorporation and proceed- 
 ings of 407 
 
 Wills 407 
 
 Written instruments generally. Proof or acknowl- 
 edgment of , 408 
 
CONTENTS. 
 
 Page. 
 
 18, Private writings 408 
 
 (1.) Production of private writings 408 
 
 (2.) Mode of proving private writings 411 
 
 (3.) Admissibility of shop books 413 
 
 19. Evidence in particular actions 416 
 
 (1.) Agency 416 
 
 (2.) Assumpsit 416 
 
 (3.) Common carriers 418 
 
 '4.} Damages 420 
 
 (5.) Infancy 421 
 
 (6.) Limitations 422 
 
 (7.) Partnership 423 
 
 (8.) Payment 424 
 
 (9.) Promissory notes 425 
 
 1. The existence of the note 425 
 
 2. The relation of the defendant to the note 427 
 
 3. The interest of the plaintiff in the note 427 
 
 4. The breach of contract by the defendant 428 
 
 (10.) Tender 432 
 
 (11.) Trespass 433 
 
 (12.) Trespass on the case 435 
 
 (13.) Trover 436 
 
 CHAPTEE XIV. 
 
 Of Damages 439 
 
 1. Liquidated damages 440 
 
 2. Vindictive damages 441 
 
 3. General and consequential damages 442 
 
 4. Damages for breach of contract generally 444 
 
 5. Damages on a breach of warranty 446 
 
 6. Damages for not delivering goods sold 447 
 
 7. Damages against common carriers and factors 448 
 
 CHAPTER XV. 
 
 Of Judgments, Dockets, and Transcripts 450 
 
 1. Judgments generally 450 
 
 2. Judgments by confession 451 
 
 3. Judgment of non-suit 453 
 
 4. Judgment after a trial 453 
 
 5. Transcript of Judgment 455 
 
 6. Revival of judgment 459 
 
 8. The justices' docket and papers 459 
 
 CHAPTER XVI. 
 
 Of Costs and Fees in Civil Proceedings 465 
 
 1. Costs 465 
 
 2. Pees 468 
 
 CHAPTER XVII. 
 
 Of executions 473 
 
 1. Issuing executions 473 
 
CONTENTS. XI 
 
 P»ge. 
 
 2. Kenewing executions 477 
 
 3. Executions on judgments docketed in County Court .... 478 
 
 4. Levy and sale 479 
 
 5. Property exempt from execution 491 
 
 6. Imprisonment on execution 494 
 
 7. Keturn of execution 496 
 
 CHAPTER XVIII. 
 
 Of Appeals 497 
 
 1. Appeal, when and how taken 499 
 
 2. Stay of execution 502 
 
 3. Return to appeal 503 
 
 4. Proceedings in appellate Court 505 
 
 5. Costs and fees on appeals 509 
 
 P^RT II. 
 
 OF THE CRIMINAL JUBISDICTION OF JUSTICES OF THE PEACE. 
 
 CHAPTER I. 
 
 Of Crimes in general 515 
 
 Of Persons capable of Committing Crime 517 
 
 Insanity 518 
 
 CHAPTER II. 
 Of the Criminal Jurisdiction of Justices of the Peace generally, 
 
 and of Police Justices ' 520 
 
 1. General powers 521 
 
 2. Affrays and liots 525 
 
 3. Contempts of Court 525 
 
 4. Dying Declarations 529 
 
 5. Search warrants 531 
 
 6. Searching prisoners 534 
 
 7. Stolen property 534 
 
 CHAPTER III. 
 
 Of the process for the Arrest of Offenders 536 
 
 1. The complaint or information 537 
 
 2. The warrant 556 
 
 CHAPTER IV. 
 
 Of the Execution of the warrant 562 
 
 1. Serving the warrant b6'2 
 
 (1.) Arrest 562 
 
 (2.) Escape 565 
 
 (3.) Indorsing the warrant 566 
 
 2, Bringing up the prisoner 567 
 
 CHAPTER V. 
 
 Of the Examination of Persons Arrested 570 
 
 1. Examination of the Complainant and his witnesses 572 
 
Xll CONTENTS. 
 
 2. Examination of the prisoner and his witnesses 573 
 
 3. Discharge of the prisoner 577 
 
 4. Becognizing the complainant and his witnesses 57S 
 
 CHAPTEK VI. 
 Of Commitments 582 
 
 1. Commitment, when to be made .", . 582 
 
 (1.) Crimes punishable with death 582 
 
 (2.) Crimes punishable by imprisonment in a State prison, 
 for a period exceeding five years 583 
 
 2. To what officer 601 
 
 3. The mittimus or commitment, 602 
 
 CHAPTEE VII. 
 
 Of Bail and its Incidents 608 
 
 1. What offences are bailable by a Justice , 608 
 
 2. Bail, when to be taken 623 
 
 3. Bail, by whom to be given 625 
 
 4. Contents of the recognizance 626 
 
 5. Form of the recognizance 627 
 
 CHAPTER Vm. 
 
 Of Courts of Special Sessions generally, and Trials therein 629 
 
 1. Jurisdiction of Courts of Special Sessions 629 
 
 2. By whom held 636 
 
 3. Disposition of the prisoner while awaiting trial 637 
 
 4. The trial 640 
 
 (1.) The prisoner's plea 640 
 
 (2.) Trial by the Justice 640 
 
 (3.) Trial by a jury 641 
 
 (4.) Witnesses 643 
 
 (5.) Evidence 644 
 
 (6.) Verdict of the jury 645 
 
 (7.) General rules 646 
 
 5. Proceedings subsequent to the trial 646 
 
 6. Judgment when the complaint was malicious 650 
 
 CHAPTER IX. 
 Of Courts of Snecial Sessions in Particular Localities 652 
 
 CHAPTER X. 
 Of the Compromise of Offences 665 
 
 CHAPTER XI. 
 Of Proceedings to Reverse Judgments in Criminal Cases 667 
 
 CHAPTER XII. 
 Of Surety of the Peace 673 
 
 CHAPTER XIII. 
 Of Fees in Criminal Cases 679 
 
CONTENTS. Xm 
 
 P^RT III. 
 
 OF THE SPECIAL POWBES AND DUTIES OF JUSTICES OF THE PEACE. 
 
 CHAPTEK I 
 
 Page. 
 
 Of the Acknowledgment and Proof of Conveyances and other 
 
 Written Instruments 688 
 
 CHAPTEK II. 
 Of Affidavits and Oaths 700 
 
 CHAPTER III. 
 Of Apprentices 702 
 
 CHAPTER IV. 
 Of Bastards 716 
 
 CHAPTER V. 
 Of Beggars and Vagrants 738 
 
 CHAPTER VI. 
 Of Disorderly Persons 742 
 
 CHAPTER VII. 
 
 Of the Disturbance of Religious Meetings, the Observance of 
 Sunday, and Profane Cursing and Swearing 748 
 
 1. The disturbance of religious meetings 748 
 
 2. The observance of Sunday 751 
 
 3. Profane cursing and swearing 754 
 
 CHAPTER VIII. 
 Of Dogs ■ 756 
 
 CHAPTER IX. 
 Of Draining Swamps 757 
 
 CHAPTER X. 
 Of Excise and Taverns 761 
 
 CHAPTER XI. 
 Of Fugitives from Justice 780 
 
 CHAPTER XII. 
 Of Gaming, and Lottery Tickets 785 
 
 CHAPTER XIII. 
 Of Habitual Drunkards 787 
 
 CHAPTER XIV. 
 Of Hawkers and Pedlers 792 
 
XIV CONTENTS. 
 
 CHAPTER XV. 
 
 Page. 
 
 Of Highways and Roads 795 
 
 1. Collection of fines for not working on highways 795 
 
 2. Re-assessment of damages for laying out highways 800 
 
 3. Removal of obstructions and encroachments from 
 
 highways 803 
 
 CHAPTER XVI. 
 Of Landlords and Tenants 810 
 
 1. Summary proceedings to recover possession of demised 
 
 premises 810 
 
 2. Staying proceedings 832 
 
 3. Appeal to County Court 835 
 
 CHAPTER XVn. 
 Of Marriages 837 
 
 CHAPTER XVm. 
 Of Parents Absconding 840 
 
 CHAPTER XIX. 
 Of Pawn-Brokers 843 
 
 CHAPTER XX. 
 Of Unclaimed Baggage 845 
 
 CHAPTER XXI. 
 
 Of Miscellaneous powers 846 
 
 1. Arbitrators 847 
 
 2. Depositions to be used in other States 847 
 
 3. Firemen 848 
 
 4. Firing of woods 848 
 
 5. Forcible entry and detainer 849 
 
 6. Justices of Sessions S49 
 
 7. Limited partnerships S50 
 
 8. Racing S51 
 
 9. Removal of constables S52 
 
 10. Town auditors _ §50 
 
 11. Town meeting ggg 
 
 12. Vacancies in town offices g55 
 
 13. Justice to act as Coroner egg 
 
 Index 859 
 
TABLE OF FORMS. 
 
 FORM. PASB. 
 
 1. Certificate of the election of a Justice 
 
 of the Peace 6 
 
 2. Supervisor's notice of drawing 6 
 
 3. Certificate of the drawing 7 
 
 4. Oath of office 9 
 
 PART I.- CIVIL OASES. 
 
 5. Consent to be guardian for infant 
 
 plaintiff 153 
 
 6. Description of particular character of 
 
 plaintiff 157 
 
 7. Affidavit for an attachment where de- 
 
 fendant leaves the county 170 
 
 8. Affidavit for an attachment on removal 
 
 of property 171 
 
 9. Attachment 171 
 
 10. Undertaking on all attachments 172 
 
 11. Approval of Justice on the bond 172 
 
 12. Summons 159, 163 
 
 12. Bummons In action for claim and de- 
 
 livery of personal property 197 
 
 13. Affidavit on 198 
 
 14. Notice to constable 198 
 
 15. Undertaking 198 
 
 16. Justification of bail 199 
 
 17. Approval on 199 
 
 18. Return of constable 199 
 
 19. Eetum of constable under section 2923, 200 
 90. Notice of exception to sureties 200 
 
 21. Undertaking requiring return of prop- 
 
 erty 20O 
 
 22. Affidavit of claim by third person 201 
 
 23. Undertaking to constable on claim of 
 
 third person 201 
 
 24. Affidavit of sureties 201 
 
 25. Entry in Justice's docket. 201 
 
 26. Consent to be guardian for infant de- 
 
 fendant 204 
 
 27. Demurrer to complaint 215 
 
 S8. Demurrer to answer 215 
 
 29. Ofl'er for judgment 216 
 
 30. Acceptance of offer 216 
 
 31. Answer, setting up plea of title 243 
 
 82. Undertaking on plea of title 244 
 
 33. Bond for defendant ou adjournment 
 
 where he can be imprisoned on 
 execution 255 
 
 34. Bond for defendant on adjournment 
 
 where he cannot be imprisoned on 
 
 execution 255 
 
 35 Affidavit of service of notice 263 
 
 36. Commission 265 
 
 37. Interrogatories and cross-interroga- 
 
 tories 266 
 
 38. Return to be endorsed on commission, 269 
 
 39. Subpoena 270 
 
 TOKU. PAGV. 
 
 40. Minute of conviction of defaulting 
 
 witness 277 
 
 41. Eiecutionagainsthimforfineandcests 278 
 
 42. Oath of witness upon the Gospels 295 
 
 43. The same, not on the Gospels 295 
 
 44. Affirmation of witness 296 
 
 45. Warrant of commitment against wit- 
 
 ness who refuses to testify 298 
 
 46. Confession of judgment and affidavit.. 452 
 
 47. Entry in Justice's docket 460 
 
 48. Renewal of execution 477 
 
 49. Bond to indemnify constable 488 
 
 50. Memorandum of sales of goods or 
 
 chattels 490 
 
 51. Notice of appeal in a civil action 501 
 
 52. Undertaking 502 
 
 53. Justice's return 504 
 
 PART II. -CRIMINAL CASES. 
 
 54. Warrant of arrest for contempt of 
 
 Court 527 
 
 55. Record of conviction therefor 528 
 
 56. Warrant of commitment therefor 529 
 
 57. Complaint to obtain a search warrant.. 532 
 
 58. Search warrant 532 
 
 59. Oath of complainant, or of witness on 
 
 complaint 539 
 
 60. Information for assault 540 
 
 61. Infoi-mation for grand or petit larceny, 540 
 
 62. Information for murder 541 
 
 63. Information for murder by poisoning.. 541 
 
 64. Information for murder by stabbing. .. 541 
 
 65. Information for murder by shooting. .. 541 
 
 66. Information for murder by cutting 
 
 throat 542 
 
 67. Information against an accessory after 
 
 the fact 542 
 
 68. Information for arson in the first de- 
 
 gree 542 
 
 69. Information for arson in the second 
 
 degree 542 
 
 70. Information for arson in the third de- 
 
 gree 543 
 
 71. Information for setting fire to a crop of 
 
 grain growing 543 
 
 72. Information for manslaughter, in kill- 
 
 ing another with an axe 543 
 
 73. Information for manslaughter, in kill- 
 
 ing an nnborn child, by kicking its 
 mother 543 
 
 74. Information for manslaughter, in kill- 
 
 ing an unborn child, by administering 
 drugs, &c., to its mother 544 
 
 75. Information for rape 544 
 
 76. Information for rape on a female under 
 
 ten years of age 544 
 
XVI 
 
 TABLB OF FORMS. 
 
 FOBBI. 7AOE. 
 
 77. Information for assault, with attempt 
 
 to commit a rape 544 
 
 78. Information for forcible abduction of a 
 
 woman, with intent to compel her to 
 marry, or prostitute herself 545 
 
 79. Information for taking a female under 
 
 sixteen years of age from her parent 
 or guardian 545 
 
 80. Informationfor mayhem or maiming.. 545 
 
 81. Information for child-stealing 546 
 
 82. Information for abandoning child 546 
 
 83. Information for shooting, or attempt- 
 
 ing to shoot at, with intent to klU, 
 rob, or maim 546 
 
 84. Infoi-mation for assault with deadly 
 
 weapon, with intent to kill 546 
 
 85. Information for poisoning food 547 
 
 86. Information for poisoning well 547 
 
 87. Information for assault, with intent to 
 
 rob, or commit burglary 547 
 
 88. Information for burglary 547 
 
 89. Information for felony and burglary in 
 
 shop 548 
 
 90. Information for burglary in entering 
 
 store 548 
 
 91. Information for constructive burglary, 549 
 93. Inf onnation for forgery 549 
 
 93. Information for passing, or offering to 
 
 pass, co«.ntei'feit bank notes 549 
 
 94. Information for altering or counterfeit- 
 
 ing bank notes 550 
 
 95. Information for obtaining property by 
 
 a false token, or by falsely personat- 
 ing another 550 
 
 96. Information for obtaining money, or 
 
 property, by false pretenses 550 
 
 97. Information for robbery 551 
 
 98- Information for embezzlement 551 
 
 99. Information for receiving stolen 
 
 goods 551 
 
 100. Information for perjury 552 
 
 101. Inf onnation for bigamy 552 
 
 102. Information for marrying the wife of 
 
 another 552 
 
 103. Information for malicious mischief ... 553 
 
 104. Information for malicious trespass, or 
 
 for girdling trees 553 
 
 105. Information for procuring abortion 553 
 
 106. Information for making an affray 553 
 
 107. Information for cruelty to animals ... 553 
 
 108. Information for a rout or riot 553 
 
 109. Information for selling unwholesome 
 
 food 5B4 
 
 110. Information for disturbing a religious 
 
 meeting 554 
 
 111. General form of warrant in a criminal 
 
 case 561 
 
 114. Form for backing or endorsing a war- 
 
 rant 567 
 
 115. Warrant of commitment for further 
 
 examination 571 
 
 116. Prisoner's statement 576 
 
 118. Warrant of commitment of a witness 
 
 who refuses to enter into a recogni- 
 zance 678 
 
 TOBn. PAGB. 
 
 119. Kecognizance by » witness to give 
 
 evidence 580 
 
 130. Hccognizance by a witncse, with sure- 
 
 ties 581 
 
 122. Warrant of commitment 606 
 
 133. Kecognizance on giving bail 627 
 
 134. Warrant to liberate a prisoner on giv- 
 
 ing bail 628 
 
 135. Warrant of commitment of prisoner to 
 
 await trial by Court of Special Ses- 
 sions 637 
 
 136. Order to sheriff to bring up prisoner 
 
 for trial 687 
 
 131. Venire or order 641 
 
 133. Subpoena 641 
 
 133. Oath to witness 644 
 
 134. Constable's oath, on retiring with jury, 645 
 
 135. Minutes of proceedings on trial 647 
 
 136. Certificate of conviction at Special 
 
 Sessions 648 
 
 137. Certificate of commitment, on convic- 
 
 tion at Special Sessions 649 
 
 138. Form of undertaking 651 
 
 138. Acknowledgment of satisfaction, on 
 
 the compromise of an offense 666 
 
 189. Order superseding the commitment of 
 
 the prisoner 666 
 
 140. Order discharging the recognizances of 
 
 the prisoner and the witnesses 066 
 
 141. Affidavit to obtain an appeal on appeal 
 
 from Special Sessions 670 
 
 142. Endorsement on foregoing affidavit . .. 671 
 
 143. Undertaking on appeal to Coanty 
 
 Sessions 671 
 
 144. Endorsement on the undertaking 61^ 
 
 146. Recognizance on appeal to County 
 
 Sessions 673 
 
 146. Complaintto obtain surety of the peace, 674 
 
 147. Peace warrant 075 
 
 148. Undertaking to keep the peace 675 
 
 149. Commitment for not finding sureties.. 676 
 
 150. Warrant to discharge prisoner on find- 
 
 ing sureties 677 
 
 151. Affidavit to accompany account for fees 
 
 in criminal cases 679 
 
 PART III. -SPECIAL PRO- 
 CEEDINGS. 
 
 152. Certificate of acknowledgment by a 
 
 party known to the officer 691 
 
 153. By a party, where his identity is proved 
 
 to the officer 693 
 
 154. By husband and wife, both known to 
 
 the officer 692 
 
 155. By husband and wife, both proved to 
 
 the officer 69fi 
 
 156. By husband and wife— husband known, 
 
 and wife proved, to the officer 693 
 
 157. By two husbands and their wives, all 
 
 known to the officer 693 
 
 158. By wife in separate certificate 693 
 
 169. By two or more parties 604 
 
 160. By one of several parties 694 
 
 161 . By an attorney 604 
 
 162. By an executor or trustee 694 
 
TABLE OF FORMS. 
 
 XVU 
 
 FORM. PAGE. 
 
 163. Certificate of proof by subscribing wit- 
 
 ness known to the officer 694 
 
 164. By subscribing witness, where his 
 
 identity is proved to the officer 695 
 
 165. By subscribing witness — grantors re- 
 
 siding in another State 695 
 
 166. The same, by subscribing witness 
 
 proved to the officer 695 
 
 167. By subscribing wituees as to the hus- 
 
 band, and acknowledgment by the 
 wife, both being known to the 
 officer 696 
 
 168. By subscribing witness as to the hus- 
 
 band, and acknowledgment by wife, 
 both proved to the officer 696 
 
 169. By subscribing witness to a deed execu- 
 
 ted by an aUomey 696 
 
 170. Proof of deed, by a religious corpora- 
 
 tion 697 
 
 171. Satisfaction of mortgage, and acknowl- 
 
 edgment, by individual knowu to 
 the officer (i97 
 
 172. Certificate of satisfaction of a mort- 
 
 gage, to be written thereon 698 
 
 173. Satisfaction of a mortgage, by an ex- 
 
 ecutor, administrator or trustee 698 
 
 174. Satisfaction of a j udgment in a Justice's 
 
 Court, where a transcript is filed in 
 the county clerk's office 698 
 
 175. Satisfaction of a judgment in a Court 
 
 of Record 698 
 
 17G. Oatb to be administered to a subscrib- 
 ing witness 699 
 
 177. Oatb to a witness proving the identity 
 
 of the parties, or of the subscribing 
 witness to a conveyance 699 
 
 178. Oath to a deponent 701 
 
 179. Apprentice's indenture 706, 707 
 
 180. Consent by father or mother 706 
 
 181. Justice's certificate, where the father 
 
 does not give the consent 708 
 
 182. Consent of guardian 708 
 
 183. Consent by the Overseers of the Poor. 
 
 or two Justices of the Peace of the 
 town, or the County Judge of the 
 county where the infant resides 709 
 
 184. Complaint by master against appren- 
 
 tice for refusing to serve -. 709 
 
 185. Warrant on the foregoing complaint.. 709 
 
 186. Commitment of an apprentice refusing 
 
 to serve 710 
 
 187. Complaint to two Justices concerning 
 
 any misdemeanor or ill-behavior of 
 an apprentice 710 
 
 188. Warrant on the foregoing complaint. .. 711 
 
 189. Commitment of an apprentice on the 
 
 foregoing complaint 711 
 
 190. Discharge of the apprentice from his 
 
 bervice, and of the master from his 
 
 obligations 712 
 
 391. Complaint by an apprentice to two 
 justicurf, for the cruelty or misusage 
 of his master, or his refusal to fur- 
 nish him with necessary provisions 
 or clothing 712 
 
 B 
 
 FORM. PAQB. 
 
 192. Summons on the foregoing complaint.. 712 
 
 193. Discharge of an apprentice on the fore- 
 
 going complaint 713 
 
 194. Complaint by nn apprentice against his 
 
 master, where money has been paid 
 or agreed to be paid 713 
 
 195. Summons on the foregoing complaint. 714 
 
 196. Recognizance of master and surety on 
 
 the foregoing complaint 714 
 
 197. Complaint by master against appren- 
 
 tice refusing to serve, where money 
 has been paid, or agreed to be paid. , 715 
 
 198. Summons on the foregoing complaint.. 715 
 
 199. Recognizance of an apprentice and 
 
 surety on the foregoing complaint. . . 715 
 
 200. Application of a Superintendent or 
 
 Overseer of the Poor, in a case of 
 bastardy 717 
 
 201. Examination of the mother before 
 
 birth 717 
 
 202. Examination after birth 718 
 
 203. WaiTant to apprehend reputed father.. 718 
 
 204. Endorsement on a warrant of arrest to 
 
 be executed in a foreign county 718 
 
 205. Endorsement by a Justice in a foreign 
 
 county 719 
 
 206. Bond to be taken by the Justice before 
 
 whom the reputed father Is carried. . 720 
 
 207. Certificate to be endorsed on warrant.. 721 
 
 208. Subpoena in case of bastardy 722 
 
 209. Bond on adjournment 723 
 
 210. Order of filiation 723 
 
 211. Bond on order of filiation 736 
 
 212. Warrant to commit putative father ... 727 
 
 213. Warrant to commit a mother who re- 
 
 fuses to disclose the name of the 
 
 father 713 
 
 314. Summons where the mother has prop- 
 erty in her own right 729 
 
 215. Order to compel the mother to pay for 
 
 the support of the child 730 
 
 216. Warrant to commit the mother 731 
 
 217. Bond by the mother of a bastard to 
 
 appear at the next Court of Sessions, 731 
 
 218. Order reducing the sum to be paid by 
 
 the father or mother of a bastard 
 child 732 
 
 219. Warrant to discharge putative father.. 733 
 230, Warrant to seize the property of ab- 
 sconding father of bastard 735 
 
 221. Bond to be given by party where prop- 
 erty has been seized 735 
 
 322. Order to discharge the warrant and to 
 
 restore the property 736 
 
 224. Warrant of commitment of a vagrant.. 740 
 
 226. Warrant to commit a child to the 
 
 county poor-house 741 
 
 227. Warrant to arrest a disorderly person.. 744 
 328. Recognizance of a disorderly person .. 744 
 
 229. Record of the conviction of a disorderly 
 
 person 745 
 
 230. Warrant to commit a disorderly person, 745 
 
 231. Warrant to commit a disorderly per- 
 
 son, after a recovery upon his re- 
 cognizance 746 
 
xvm 
 
 TABLE OP FORMS. 
 
 VOBJa. PAGB. 
 
 232. Discharge of a disorderly person, to be 
 
 granted by any two Justices 747 
 
 2Q3. Warrant to arrest a person for the dia- 
 
 tnrbanccof a religious meeting, etc., 749 
 234, Record of conviction for disturbing a 
 
 roligiouB meeting, etc ^ . . 749 
 
 285. Certificate of such conviction 750 
 
 289. Warrant to seize goods forfeited by 
 
 being exposed to sale on Sunday 764 
 
 243. Order to liill a dangerous dog; 756 
 
 244. Order for commissioners to determine 
 
 on opening a ditch 758 
 
 245. Oath to the commissioners 758 
 
 £46. Inquisition 759 
 
 247. Petition for inn-keeper'a license 777 
 
 248. Petition for store-keeper's license 777 
 
 349. Notice to dealer 777 
 
 250. Bond for selling 778 
 
 251, Acknowledgment of bond 778 
 
 353. Approval of commissioners 779 
 
 254. Bond of inn-keeper 779 
 
 255. Warrant to commit a fugitive from 
 
 justice 781 
 
 256. Bondby a fugitive from justice 781 
 
 257. Notice designating habitual drunkards, 
 
 etc 788 
 
 258. Notice to Overseers by Justice 788 
 
 S6S. Venffre for a jury to try the fact of 
 
 habitual drunkenness 788 
 
 260. Juror's oath 789 
 
 261. Oath to witness 789 
 
 262. Execution against the drunkard 790 
 
 263. Execution against the overseers 790 
 
 264. Revocation by the Overseers, where a 
 
 drunkard reforms 791 
 
 265. Commitment of a hawker or pedler for 
 
 refusing to pay the penalty for not 
 showing his license 793 
 
 266. Warrant to collect a penalty from a 
 
 hawker or pedler 794 
 
 267. Complaint against a person for re- 
 
 fusing to work on a highway 796 
 
 968. Complaint against a person for not fur- 
 nishing a team 79C 
 
 269. Summons for refusing to work on a 
 
 highway 797 
 
 270. Return of constable on serving sum- 
 
 mons 798 
 
 271. Conviction endorsed on the complaint, 798 
 
 272. Warrant to collect a fine for not work- 
 ing on a highway 799 
 
 373. Summons for a jury to re-assess high- 
 way damages 801 
 
 274. Oath to the jurors 801 
 
 275. Oath to witnesses 801 
 
 276. Verdict of the jury 802 
 
 277. Cerliflcftte of the Justice 802 
 
 278. Precept to summon a jury, in case of 
 
 an encroachment on a highway 805 
 
 279. Oath to jurors 806 
 
 380. Oath to witnesses 806 
 
 281. Certificate of the jury 807 
 
 262. Warrant to collect costs of proceedings, 
 
 upon an encroachment un a highway, 8 
 
 VOItDI. PAGB. 
 
 283. Certificate where no encroachment is 
 
 found 809 
 
 284. Notice of intention to re enter demised 
 
 premises 823 
 
 285. Notice requiring payment of rent, or 
 
 possession of demised premises 824 
 
 286. Petition and affidavit to recover de- 
 
 mised premises 835 
 
 287. Precept to remove tenant holding over 
 
 after expiration of lease 826 
 
 386. Precept in case of tenancy at will, or 
 
 at sufferance, terminated by notice. . 836 
 289. Precept to remove tenant for non-pay- 
 ment of rent 827 
 
 390. Affidavit of service of summons 827 
 
 291. Answer for appeal to County Court, in 
 
 proceedings to remove a tenant 828 
 
 292. Warrant to put in possession, where 
 
 tenant holds over after expiration 
 of leafle 828 
 
 293. Warrant to remove the tenant in a case 
 
 of a tenancy at will, or at sufferance, 
 terminated by notice 829 
 
 294. Warrant to put in possession, on de- 
 
 fault of payment of rent. 820 
 
 295. Return of officer to warrant 830 
 
 296. Notice to obtain trial by jury, in pro- 
 
 ceedings to remove a tenant 830 
 
 297. Precept for a jury 831 
 
 298. Oath to jurors 831 
 
 299. Officers's oath to keep jury, after evi- 
 
 dence given 881 
 
 900. Undertaking to stay proceedings 8-38 
 
 301. Approval indorsed on the undertaking, 833 
 
 302. Security for rent, to stay proceedings. 833 
 
 303. Affidavit to stay proceedings by occu- 
 
 pant of premises sold under execu- 
 tion 834 
 
 304. Undertaking to stay proceedings, by 
 
 the same 834 
 
 305. Notice of appeal 835 
 
 306. Undertaking on appeal 836 
 
 307. Order staying proceedings 836 
 
 312. Form of marriage 838 
 
 313. Marriage certificate 839 
 
 314. Justice's certificate 840 
 
 315. Warrant to sei^e the goods of an ab- 
 
 sconding father, husband or mother, 841 
 
 316. Bond to be given by party, where prop- 
 
 erty has been seized 842 
 
 317. Order to discharge thejwarrant and to 
 
 restore the property 842 
 
 818. Bond of claimant of property pledged 
 
 with a pawnbroker 844 
 
 319. Warrant to apprehend persons engaged 
 
 in racing 851 
 
 320. Recognizance by a person apprehended, 851 
 
 321. Affidavit to attach to an account 854 
 
 322. Certificate of town auditors 854 
 
 323. Abstract of claims audited by the town 
 
 auditors 854 
 
 324. Warrant appointing town officers 896 
 
 325 Notice of acceptuuce of resignation of 
 
 town officer 856 
 
THE 
 
 NEW YORK JUSTICE. 
 
 INTRODUCTION. 
 
 OF THE OFFICE OF JUSTICE OF THE PEACE. 
 
 The office of Justice of the Peace, besides being of great 
 importance in view of the magnitude of the interests upon 
 which he may be called to decide, is an ancient and an honor- 
 able one. Justices were fii'st nominated in England, in every 
 county, by William the Conqueror, in 1076. They were known 
 in English law, however, merely as Conservators of the Peace, 
 and were called Guardians or Wardens of the Peace, till 1361, 
 when the statute, 34 Edward III., chapter 1, gave them the power 
 of trying felonies; and they were then dignified with the appel- 
 lation of Justices, which term had been applied to the English 
 judges ever since the Norman Conquest. (1 Black. Comm. 351.) 
 
 Justices of the Peace, in England, were appointed by special 
 commission, issued under the great seal, though there are some 
 officers, such as the Master of the Rolls, municipal authorities, 
 and others, who are Justices of the Peace by prescription, in 
 virtue of their other offices; and as it is usual to designate two 
 or more of the Justices named in the commission, as those with- 
 out whose presence no important business can be transacted, the 
 persons thus selected are called Justices of the quorum, from the 
 language of the commission — " quorum aliquem vestrum, etc." 
 (1 Black. Comm. 351; 3 Stephen^s Comm. 40.) The first judi- 
 cial proceedings in regard to persons accused of grave offences 
 may be instituted before them, and they are also clothed, by 
 
 various statutes, with power to try certain minor offences. In 
 1 
 
NEW YORK JUSTICE. 
 
 these respects, their powers, and those of Justices of the Peace 
 in the United States, are very similar. 
 
 In France, the different departments are divided into arron- 
 dissements, and the latter into cantons, each of which has its 
 Jitsticier de JPaix, or Justice of the Peace, who possesses a limited 
 jurisdiction in the decision of cases where property is in dispute, 
 in the settlement of difficulties growing out of slander and libel, 
 and in making compromises and directing guardianshijjs. This 
 officer has jurisdiction, also, of the lower grade of oflfences againsi 
 the police regulations. 
 
 In the United States, Justices of the Peace, in addition to their 
 common-law poM'ers as Conservators of the Peace, generally 
 have jiirisdiction in civil cases. Their civil jurisdiction is differ- 
 ent in the different States, but it is usually limited to actions for 
 the recovery of debts not exceeding a certain amount, or of dam- 
 ages for injuries to property, and to suits on promises, express 
 or imijlied, or for trespasses, where the title to real estate does 
 not come in question. {JJ. 8. Digest and Supplement, Title, 
 Justices of the Peace.) This jurisdiction, in view of a single case, 
 may appear to be of minor importance; but in the aggregate it 
 is of vast consequence, and the amount annuall}' in controversy, 
 in the Justices' Courts of the State of New York alone, must 
 exceed ten millions of dollars. Their criminal jurisdiction has 
 been materially enlarged, in most of the States, by statute; and 
 they share their common-law powers in the conservation of the 
 peace, Avith municipal officers and the judges of the higher 
 courts. The tenure of the office is not the same in all the 
 States; but they are usually appointed by the executive author- 
 ity, or elected by the people in towns or cities. 
 
 In New York, under the Colonial rule. Justices of the Peace 
 were appointed by the Governor of the Province. They were 
 empowered, by acts of the General Assembly, to try all cases to 
 the amount of £5, New York currency (except where the Crown 
 was concerned, or the title to lands came in question, and actions 
 of slander); but either party might demand a jury of six men. 
 Any party aggrieved by a judgment might remove the same, by 
 certiorari, to the Supreme Court. The Provincial Legislature 
 also conferred extraordinary powers upon the Justices in regard 
 to certain offences. Any three Justices, one being of the quorum, 
 might try an offence under the degree of grand larceny, provided 
 
HISTORY OF THE OFFICE. 
 
 the oflender did not find bail in forty-eight hours after being 
 taken into custody; and, in conjunction with fiye freeholders, 
 and without a grand or petit jury, they had power to proceed 
 against and try slaves, in a summary way, in certain cases, and 
 to punish them Avith death. (1 Documentary History of New 
 York, 755, 772.) 
 
 The first State Constitution, adopted in 1777, provided for the 
 appointment of Justices of the Peace by the Council of Appoint- 
 ment, and new commissions were required to be issued to them 
 at least once in three years. {Arts, xxiii, xxviii.) Laws were 
 passed by the Legislature, in conformity with the Constitution, 
 directing the appointment and commissioning of fit and discreet 
 men, from time to time, as Justices to keep the Peace, in eveiy 
 county in the State. (2 R. L. 506.) The number of these offi- 
 cers was not limited till the act of 1818, by which the appoint- 
 ment of more than four Justices of the Peace in any town was 
 prohibited. {Laivs of 1818, chap. 60.) 
 
 The Constitution of 1821, adopted in 1822, directed that 
 Justices of the Peace should be nominated for the several towns 
 in each county, by the Board of Supervisors and the County 
 Judges thereof — each body acting separately — and if their nom- 
 inations agreed, then the persons nominated were to be the Jus- 
 tices; but if they did not agree, then the Governor of the State 
 was authorized to select from the two lists of nominations, so 
 many Justices of the Peace as might be requisite to fill the 
 vacancies. {Art. iv., § 7.) The term of office was fixed by the 
 Constitution at four years, and the Legislature provided by stat- 
 ute for the time and details of the appointment. {Laws of 1822, 
 chap. 184.) This cumbersome mode of appointment was abol- 
 ished by an amendment to the Constitution adopted in 1826 
 {Amendment, JSTo. 1), by which it was provided that Justices of 
 the Peace should be elected by ballot in the several towns, and 
 be divided into four classes, of one in each class, and hold their 
 offices for one, two, three, and four years, so that thereafter one 
 Justice should be annually elected in each town. 
 
 The Constitution of 1846, as amended in 1869, provides 
 {Art. vL, § 18), that the electors of the several towns, shall, at 
 their annual town meeting, and in such manner as the Legisla- 
 ture may direct, elect Justices of the Peace, whose term of office 
 shall be four years, and that their number and classification may 
 
NEW YORK JUSTICE. 
 
 be regulated by law. It is then provided by statute (1 R. 8. 
 110, § 35), that there shall be four Justices of the Peace in each 
 town; (except that in several towns — as, Hector, now in Schuy 
 ler County; Niagara, Niagara County; Potsdam and Canton, 
 St. Lawrence County; Ellisburgh, Jefferson County; Lenox, 
 Madison County; Champlain and Beekmantown, Clinton County; 
 Skaneateles, Onondaga County; Bath, Steuben County; Har- 
 mony, Pomfret and Hanover, Chautauqua County; Schodack. 
 Rensselaer County; and Fort Ann and Granville, Washington 
 County — there are, by special statutes, five justices; and in 
 Brookhaveu, Suffolk County, there are eight;) that they shall 
 be divided into four classes, one of whom shall be annually 
 elected; and that each Justice shall hold his office for four years, 
 except when elected to fill a vacancy, or on the erection of a 
 new town. The election must be by ballot (1 R. 8- 343, § 2; 
 Laws of 1829, chap. 356, § 1; ex-parte QxmcJcenbush, 2 Hill, 
 369), and every Justice must be an elector of the town for which 
 he is chosen. (1 R. 8. 345, § 11.) 
 
 There are also Justices of the Peace in cities, for instance : 
 four in Buffalo (Laws of 1843, chap. 132j, Schenectady {Lavjs 
 of 1848, chap. 155 ; Ld., 1873, chap. 62), and Utica {Laws of 
 1876, chap. 371) ; three in each of the cities of Rochester {Laws 
 of 1850, chap. 262; Laws of 1862, chap. 132), and Syracuse 
 {Laws of 1847, chap. 475); and four in the city of Oswego 
 {Laws of 1848, chap. 116; Laws of 1860, chap. 463); and one 
 in the city of Auburn {Laws of 1879, chap. 53). These Jus- 
 tices of the Peace have, as a general rule, the same power and 
 authority as Justices of the Peace in towns. But, where there 
 is, in any city or village, an officer known as a Police Jus- 
 tice, the Justices of the Peace generally have jurisdiction only 
 in civil cases. The Police Justices generally have exclusive 
 criminal jurisdiction, and, in some cases, they have civil jurisdic- 
 tion also. It has been held that the Legislature has the consti- 
 tutional power, under the Constitution of 1846, to provide for 
 the appointment of a Police Justice in a village, with jurisdic- 
 tion of civil actions {8ill vs. Village of Ooi-ning, 15 New York 
 R. 297). Reference must be had to the various special statutes 
 for the particular provisions in regard to these various officers. 
 
 It is the duty of the clerk of every town meeting, at which an 
 election for Justice of the Peace shall have been had, to trans- 
 
ELECTION OF JUSTICES. 
 
 mit to the clerk of his county, within ten days thereafter, a 
 certificate of the result of such election, under his hand, which 
 will be evidence of the facts therein certified {Laws of 1829, 
 chap. 356, § 2). 
 
 § 1. Certificate of the Election of a Justice of the Peace. 
 County, ? 
 Town of \ 
 
 I, E. F., Clerk of the annual town meeting, held in the town 
 of aforesaid, on the day of instant, do hereby certify 
 that the following persons were chosen Justices of the Peace for 
 said town, at such town meeting, viz. : 
 G. H. for four yeax's; 
 L. M. to fill the unexpired term of S. T. 
 Dated the day of 18 . 
 
 E. F., clerk of the ainiual town 
 meeting in the town of 
 
 After the canvass of the votes given at a town meeting is 
 completed, a statement of the result is required by law to be 
 entered at length, by the clerk of the meeting, in the minutes of 
 its proceedings, and that statement must be publicly read by him 
 to the meeting. Such reading is notice of the result of such 
 election to every person whose name has been entered on the 
 poll list as a voter. (1 R. 8. 344, § 9.) But where the name of 
 the person elected a Justice has not been entered on the poll 
 list as a voter, it is the duty of the clerk of the town meeting 
 to transmit a notice of his election to such person, within ten 
 days after the town meeting, (id. § 10.) 
 
 When a new town is erected, an election for Justices of the 
 Peace therein must be held at the next general election there- 
 after, unless a special election is directed by law. (id. Ill, § 37.) 
 If there be one or more Justices then residing in such new town, 
 they will be deemed Justices thereof, and will hold their ofiices 
 according to their respective classes; and only so many addi- 
 tional Justices are to be chosen as will be necessary to complete 
 the number of four for such town. {id. § 38.) After the elec- 
 tion of the Justices in such new town, the supervisor thereof, 
 within six days after the completion of the canvass by the 
 county canvassers, must give notice in writing, to the Justices 
 elected and to the town clerk, of the time and place where he 
 will meet them, to determine by lot the classes of such Justices, 
 
6 NEW YORK JUSTICE. 
 
 which notices must be served at least six days, and not more 
 than twelve, previous to the time appointed therein for such 
 meeting. (1 R. 8. Ill, § 39.) 
 
 § 2. Supervisor's Notice of Drawing. 
 
 Sir: Please take notice, that I will meet the Justices elected 
 for the town of , and the town clerk of said town, at the 
 
 house of O. P., in said town, on the day of instant, [jr, 
 next] at , in the noon, to determine by lot the classes of 
 such Justices, 
 
 Dated the day of , 18 . 
 
 E. F., Supervisor of the Town of 
 
 At the time and place appointed in the notice, the supervisor 
 and town clerk must cause to be written on separate pieces of 
 paper, as near alike as may be, the numbers one, two, three, four, 
 if there shall have been four justices elected. These pieces of 
 paper must then be rolled up as nearly alike as may be, and 
 deposited in a box. Each one of the persons elected Justices 
 must then draw out one of the pieces of paper, and the number 
 written thereon will be the class in which he will serve, and he 
 will hold his office for such number of years, either one, two, 
 three, or four, as corresponds with the immber so drawn, (id. 
 \ 40.) If there shall have been less than four Justices chosen, 
 the pieces of paper must correspond with the numbers of the 
 classes vacant, and each person elected must draw one as before 
 mentioned, and will be classed and hold his office according to 
 the number drawn, (id. \ 41.) If any person elected a Justice 
 neglects to attend to such drawing, the supervisor must draw 
 for him. If the supervisor is absent from his town, or unable 
 to sei-ve, or his office is vacant, the town clei'k must give the 
 notice of the drawing, and perform all the duties enjoined on 
 the supervisor, (id. \ 42.) Duplicate certificates of such draw- 
 ing, and the result thereof, must be made and certified by the 
 supervisor and town clerk, or such one of them as attends the 
 same, one of which must be filed with the town clerk and the 
 other with the county clerk, and be recorded by them in the 
 books in which the canvasses of votes are recorded. These cer- 
 tificates are conclusive evidence of the respective classes to 
 which the Justices belong, (id. 112, § 43.) 
 
ELECTION OF JUSTICES. 
 
 ^ 3. Oertificateof the Drawing. 
 County, I 
 Town of , 5 ^®- 
 
 We, the Supervisor and Town Clerk of the Town of 
 aforesaid, do hereby certify that on the day of instant, 
 
 at the house of , in said town, a drawing was had in our 
 
 presence, according to statute, to determine by lot the respec- 
 tive classes of G. H., S. T., &c., &c., elected Justices of the 
 Peace for said town, at a general \or, special] election held 
 therein, on the day of last past; and that the foUowiag 
 is the result of such drawing: 
 
 G. H. drew for the term of four years; 
 S. T. drew for the term of three years; 
 &c., &c. 
 Dated the day of , 18 . E. F., Supervisor, 
 
 E. F., Town Clerk, 
 
 If, by the erection of a new town, or the aimexing of a part 
 of one town to another, there shssuld at any time be more than 
 four Justices residing in any town, they will, notwithstanding, 
 hold and exercise their offices in the town in which they reside, 
 according to their respective classes. But on the expiration of 
 the term of office of two or more Justices, being in the same 
 class, only one person can be elected to fill the vacancy in such 
 class. (1 R. 8. 112, \ 44.) Whenever, by the erection of a new 
 town, or the annexing of part of one town to another, any town 
 is deprived of one or more Justices, by reason of their residence 
 being within the part set off, the inhabitants of such town must, 
 at the next general election, supply the vacancy so produced in 
 the classes to which such Justices belong; and if two or more 
 Justices be elected, the same proceedings must be had, as before 
 directed, to determine their respective classes, {id. § 45.) 
 
 The Legislature has no power to shorten the constitutional 
 term of office of a Jiistice of the Peace, and this cannot be done 
 indirectly, by the erection or division of counties; so, if a town 
 be transferred from one county to another, or a new county be 
 made out of several towns, the Justices residing in those towns 
 *vill continue to hold their offices. (The People vs. Garcy, 6 
 Oowen, 642: 8. C. 9 id. 640.) A Justice is not a town officer. 
 He holds a judicial office, and is as much above and beyond 
 legislative abolition as is that of a Justice of the Supreme 
 Court, {The People vs. Keller, 25 Barh. 421.) 
 
8 NEW YORK JUSTICE. 
 
 When two or more persons are elected to the office of Justice 
 of the Peace at any annual town meeting, one of whom shall be 
 an incumbent of the .office for a term not then expired, such 
 incumbent will be deemed elected for the regular term of four 
 years, which will commence on the first day of January next 
 following such election. {Laws of 1833, chap. 270, § 1.) When, 
 at any such town meeting, except the first election in a new 
 town, two or more persons are to be elected to the office of 
 Justice of the Peace, it is lawful for each of the electors not 
 Toting for a person who is then an incumbent of the office, to 
 designate on his ballot the person intended for the regular term 
 of four years, which will commence on the first day of January 
 then next following, by the words, or words and figures, "long- 
 est term," "four years," or "4 years;" and the persons having 
 the greatest number of votes, without any reference to such 
 designation, will be deemed duly elected, {id. § 2.) The person 
 elected, and having the greatest number of such designations, 
 will be deemed elected for the regular term of four years, {id. 
 \ 3.) The presiding officer or officers at any annual town meet- 
 ing at which Justices of the Peace are elected, must determine 
 whether any, and what person, in pursuance of the foregoing 
 provisions, has been elected for the regular term of four years; 
 which determination must be made at the same time, and with 
 the like efiect, as he or they may determine what persons are 
 elected to the office; and such determination must be entered in 
 the minutes of the proceedings of the meeting, and must be 
 publicly read, and will be deemed notice of the result, as in 
 other cases, {id. § 4.) Where no person is elected for the reg 
 ular term of four years, according to the foregoing provisions, 
 the classes of all the persons elected must be determined by lot, 
 within twelve days after their election, in the presence of the 
 supervisor and town clerk, in the manner before described; and 
 the same notice must be given, the same proceeding had, and the 
 same certificates of the result made and filed. (Lavjs of 1833, 
 chap. 270, § 5; Laws of 1830, chap. 290, ^ 2; 1 B. 3. 112, ^ 
 46.) Where one person is elected for the regular term, in pur- 
 suance of the foregoing provisions, the other person or persons 
 elected will be deemed elected to fill the existing vacancy or 
 vacancies; and if there be more than one existing vacancy, the 
 classes of the persons elected to fill the same must be deter- 
 
ELECTION OF JUSTICES. 
 
 9 
 
 mined by lot, within the time and in the manner before pre- 
 scribed. {Laws of 1833, chap. 270, § 6.) 
 
 Persons elected Justices of the Peace, except it be to fill 
 existing vacancies, enter upon the duties of their respective 
 offices, on the first day of January next succeeding their elec- 
 tion. {Laws of 1829, chap. 356, \ 3.) If elected to supply a 
 vacancy or vacancies at the time existing, or in any new town, 
 they may take the oath of office, and forthwith enter upon the 
 duties thereof. {Laws of 1830, chap. 290, § 1.) 
 
 Previous to the act of 1849 {Laws of 1849, chap. 28), there 
 was no provision made by law for filling vacancies in the office 
 of Justice of the Peace, except at the annual town meeting. 
 Since that statute was passed, the jDOwer to appoint to fill a 
 vacancy was vested in the governor, until the Laws of 1859, 
 chapter 476, provided the vacancy to be filled by the town offi- 
 cers; and the appointee holds office, not until the next annual 
 town meeting, but until the commencement of the political 
 year next succeeding the first annual election, after the happen- 
 pening of the vacancy, at which the officer could be by law 
 elected. {People vs. Keller, 25 Barb. 421.) If a person be 
 elected to fill a vacancy occurring before the expiration of a 
 full term, he can hold only for the residue of the unexpired 
 term. {Constitution 1846, Art. vi., § 17; Laws 1876, chap. 166.) 
 
 Before entering upon the duties of his office, a Justice of the 
 Peace must take and subscribe the constitutional oath or affirm- 
 ation {id. Art. xii.; 1 B. S. 119, § 20), before the clerk of the 
 county for which he is elected. This may be done at any time 
 after his election, and before the fifteenth day of January next 
 succeeding. (1 M. S. 119, § 23.) In some instances, however, 
 a difierent time is prescribed by special statute. 
 
 § 4. Oath of Office. 
 
 I do solemnly swear, [or, affirm,] that I will support the Con- 
 stitution of the United States, and the Constitution of the State 
 of New York, and that I will faithfully discharge the duties of 
 the office of Justice of the Peace according to the best of my 
 ability. 
 
 Sworn and subscribed, this day ? P H 
 
 of , 18 , before me, j 
 
 P. v.. Clerk of the county of 
 
10 NEW YORK JUSTICE. 
 
 The oath of office of a Justice of the Peace, duly certified by 
 the county clerk, must be deposited in the office of the county 
 clerk (except where a dififerent time is prescribed by special 
 statute), within fifteen days after he is notified of his election or 
 appointment (in case he is elected to supply an existing vacancy), 
 or within fifteen days after the commencement of his term of 
 office. (1 R. S. 119, §§ 21, 24.) Justices of the Peace are 
 required to give bonds before entering on the duties of 
 their offices, and, unless otherwise specially provided, the bond 
 must be filed in the office of the town clerk before entering 
 on the diaties of his office. {Laws of 1878, chop. 367.) In 
 case the Justice neglects to file his oath of office or bond 
 with the county clerk, within the time required by law, the 
 county clerk must immediately give notice of such neglect to 
 the supervisor of the town for which the Justice was elected. 
 (1 H. S. 119, § 27.) 
 
 A Justice who executes any of the duties or functions of his 
 office, without having taken and subscribed the oath of office 
 required by law, or, when required, without having executed 
 and filed in the proper office the bond required by law, will 
 forfeit his office, and be deemed guilty of a misdemeanor, pun- 
 ishable by fine or imprisonment, {id. 121, § 31.) But, notwith- 
 standing the omission to take the oath, he will be a Justice de 
 facto until the forfeiture is judicially declared; and his acts as 
 such, so far as they relate to the public, or to third persons, 
 will be valid. {People vs. Covert, 1 Hill, 674/ People vs. 
 Stevens, 5 id. 616; People vs. Hopson, 1 Denio, 574,- Weeks 
 vs. ElUs, 2 Bar., 320; Laws of 1880, chap. 221.) And in 
 several cases where the taking the oath has been inadvertently 
 omitted, special statutes have been passed, giving the Justice a 
 further time therefor, and confirming his intermediate acts. The 
 title of a Justice to his office cannot be questioned except by 
 indictment for the misdemeanor, quo warranto, or other proceed- 
 ings to remove him, or in an action by him for his fees. {People 
 vs. Hopson, 1 Denio, 575 ; Weeks vs. Ellis, 2 Barh. 320.) 
 
 The office of a Justice of the Peace will become vacant before 
 the expiration of his term, on the happening of either of the 
 following events (1 R. S. 122, § 34) : 
 
 1. His death. 
 
 2. His resignation. 
 
JUSTICES IN CITIEh. 11 
 
 3. His removal from office. 
 
 4. His ceasing to be an inhabitant of the town for which he 
 was elected, except in the case of the erection of a new town, or 
 the annexing of a part of one town to another. (1 R. S. 
 112, \ 44.) 
 
 5. His conviction of an infamous crime, which includes every 
 offence punishable with death, or by imprisonment in a State 
 prison (2 R. 8. 702, § 31), or of any offence involving a violation 
 of his official oath, such as treason, or malfeasance in office. 
 
 6. His refusal or neglect to take the oath of office within the 
 time required by law, or to give or renew any bond, within the 
 time prescribed by law. 
 
 7. The decision of a competent tribunal, declaring his election 
 void. 
 
 A resignation of a Justice of the Peace may be made to the 
 Supervisor of his town. (1 R. 8. 121, \ 33, subd. 5.) 
 
 The Constitution of 1846 provides that Justices of the Peace 
 may be removed after due notice, and an opportunity of being 
 heard in their defence, by such county, city, or State courts, as 
 may be prescribed by law, for causes to be assigned in the order 
 of removal {Art. vi., sec. 18); and the Legislature have pro- 
 vided, in accordance with this clause of the Constitution, that 
 such removal may be made by the Supreme Court, at any gen- 
 eral term thereof. {Laws of 1880, chap. 354, § 25.) The causes 
 of removal must be assigned by the Court in writing, and be 
 filed with the clerk thereof (1 R. 8. Ill, § 36.) 
 
 Besides the Justices elected in the several towns in the State, 
 there are other Justices in some of the cities, towns and villages, 
 some of whom are chosen in a different manner, and hold their 
 offices by a different tenure; the Constitution of 1846 authoriz- 
 ing such officers to be created by law, and to be elected at such 
 times and in such manner as the Legislature may direct. {Art. 
 vi., sec. 19.) Of this character are the Justices of the Marine 
 Court in the city of New York, the Justices of the District 
 Courts in the city of New York, the Justices of the Justices' 
 Courts in the cities of Albany and Troy, and the Police Justices 
 in certain cities, towns and villages. These last named officers 
 will be specially treated of hereafter. {Part II., Chap. I.) 
 
 The Marine Court of the city of New York is a Justices' 
 Court. {Matter of Philip Walker, 3 Barb. 162.) The Jus- 
 
12 NEW YORK JUSTICE. 
 
 tices thereof, who are three in number, are chosen by the elec- 
 tors of the city at a general election, and hold their offices for 
 six years, one being elected every two years. The clerk of the 
 Court is appointed by the supervisors of the city and county, and 
 holds his office for four years. The Justices and clerk receive 
 each an annual compensation, fixed by the supervisors, which can- 
 not be diminished during their term of office, and is in lieu of 
 all fees and perquisites. {Laws of 1852, chap. 389, §§ 1 to 5.) 
 
 The city of New York is divided into eight judicial districts, 
 in each of which there is elected, by the qualified electors there- 
 of, at the charter election, a Justice to hold the District Court in 
 the district, {id. chap. 324,- Laws of 1857, chap. 344; and 
 Laws of 1865, chap. 688.) They hold their offices for six years, 
 commencing on the first day of January next after their election. 
 {Laws of 1851, chap. 514, § 7.) Each District Court has a 
 clerk, appointed by the maj'or and board of aldermen, who 
 holds his office for four years, (id. chap. 147; Laws of 1855, 
 chap. 293.) The Justices and clerk receive each an annual com- 
 pensation, fixed by the board of supervisors, which cannot be 
 increased or diminished during their term of office. The Justi- 
 ces can receive no other fees or perquisites whatever to their 
 owai use by virtue of their offices. {Laws of 1851, chap. 514.) 
 
 The powers of these courts and the course of practice in them, 
 has lately been remodeled by a special statute {Laws of 1857, 
 and 1873), which prescribes in detail the proceedings which 
 shall be had, and abrogates all former laws providing for any 
 case provided for in the act. In so far as under that statute the 
 law governing the District Courts of the city difiers fi-om that 
 which govern Justices of the Peace, under the general law of 
 the State, the reader is referred to the act itself. The details 
 of its provisions are omitted from this work. 
 
 Three Justices of the Peace are elected in the city of Albany, 
 who hold their offices for three years, and until their successors 
 are duly chosen and qualified, one being elected each year. 
 Notice of the election of such Justices is given in the same 
 manner as is provided by law in regard to other officers. Two 
 persons elected are designated Police Justices of the city, one 
 being elected biennially, and hold their offices for four years 
 respectively. 
 
 In the city of Poughkeepsie two Justices of the Peace are 
 
JUSTICES IN CITIES. 13 
 
 elected by the city at large. They hold office for four years. 
 {Laws of 1854, chap. 90; Laws of 1858, chap. 82.) They have 
 ill general the power, authority, and jurisdiction, and are enti- 
 tled to the fees and compensation of Justices of the Peace in 
 towns; and the laws applicable to Justices of the Peace in towns 
 apply to these two Justices. They have also the powers of com- 
 missioner of deeds. Appeals from their judgments may be 
 taken to the County Court. The jurisdiction of all criminal 
 cases is, however, conferred upon the Recorder; though, in case 
 of his sickness, absence, or inability, either of the Justices of the 
 Peace of the city may act in his stead. 
 
 The Justices' Court of the city of Troy consists of two Jus- 
 tices, elected by the people, who hold their offices for three years. 
 {Lams of 1876, chap. 18.) They are Justices of the Peace 
 for the county of Rensselaer (Laws of 1844, chap. 198; Laws 
 of 1848, chaps. 56, 113), and have power to hold a Court in 
 said city, called "The Justices' Court of the city of Troy." 
 It must proceed in all respects in like manner as a single Jus 
 tice, except when otherwise provided in the special act estal)- 
 lishing it. {Laws of 1834, chap. 271, § 3.) 
 
 In the city of Hudson there is one Justice of the Peace. He 
 is elected in the same manner with the Mayor, and holds office 
 for four years. He has the same civil jurisdiction with Justices 
 of the Peace in towns, but no criminal jurisdiction. He is, by 
 virtue of his office, commissioner of deeds for the city of Hudson. 
 In case of his inability to act, it is the duty of the recorder to 
 act in his place. {Laws of 1854, chap. 179; Laws of 1857, 
 chap. 559; Laws of 1858, chap. 6; Laws of 1861, chap. 205; 
 Laws of 1864, chap. 289.) 
 
 The Justices chosen under these special laws must, of course, 
 take the oath of office before entering upon their official duties. 
 {Constitution of 1846, Ai't. xii.) 
 
PART I. 
 
 OF THE CIVIL JURISDICTION OF JUSTICES OF 
 THE PEACE. 
 
PART I. 
 
 OF THE CIVIL JURISDICTION OF JUSTICES OF THE PEACE. 
 
 CHAPTER I. 
 
 OF THE NATURE AM) EXTENT OF THE JURISDICTION. 
 
 JuRiSDiCTiojT, in the general sense of the term, is the power to 
 make and declare the law, or the right to exercise authority. 
 {BurrilVs Law Dictionary, Title, Jurisdiction.) As applied 
 to the judiciary department, it is the right of administering 
 justice according to, and through the laws; or, as defined by 
 the late Mr. Justice Baldwin, of the Supreme Court of the 
 United States, it is "the power to hear and determine a cause." 
 [United States vs. Arredondo, 6 Peters, 691, 709.) 
 
 The Jurisdiction of Justices of the Peace in the State of New 
 York is two-fold, civil and criminal, except that in the cities and 
 larger towns the authority is generally divided — one set of 
 oflScers exercising the civil jurisdiction, and another, who are 
 called Police Justices, have cognizance of criminal proceedings. 
 In the first part of this work, the civil jurisdiction of Justices 
 of the Peace will be considered, and, in the present chapter, the 
 general nature and extent of that jurisdiction. 
 
 There are two classes of courts in this State — ^those of general 
 jtirisdiction and those of special or limited jurisdiction. The 
 ccurt held by a Justice of the Peace is called a Justice's Court, 
 and is one of limited jurisdiction. But, though comparatively 
 the feeblest of our tribunals, it comes home, perhaps, nearest of 
 all, to the people, and they are deeply interested in the proper 
 administration of the law, by its officers. Although its deci. 
 sions are not final, and it is governed and directed wholly by the 
 
18 NEW YOEK JUSTICE. 
 
 statute from which its powers are derived, and to which they 
 are held in subordination, yet the authority it wields may be an 
 instrument of great good or an engine of oppression. Its pro- 
 ceedings are not conducted at a distance, but in the very locality 
 where the suitors reside, and where the difficulties and disputes 
 brought before it for adjudication have originated. Its judg- 
 ments are not pronounced with the imposing formalities of 
 higher judicatories; yet they affect most nearly the interests and 
 relations of neighbors and friends. In a word, all who are con- 
 cerned in its determinations can see the manner in which its 
 functions are exercised, and are thus enabled the better to com- 
 prehend its decisions and mandates. 
 
 There is a wide distinction between courts of general juris- 
 diction and those of limited jurisdiction. Every intendment of 
 law is in favor of the former, and they are presumed to have 
 jurisdiction until the contrary appears. But there is no pre- 
 sumption in favor of courts of limited jurisdiction, unless it be 
 the general one, that public officers are presumed to do their 
 duty (Weaver vs. Devendorf, 3 Denio, 119); and the party 
 claiming any benefit, right, or exemption, under or by virtue of 
 the proceedings of any such coui-t, must show, affirmatively, 
 that it had jurisdiction. (15 John. 141; 19 id. 33, 34, 40; Ad- 
 kins vs. Brewer, 3 Cow. 208.) Its authority, and the facts which 
 gave it jurisdiction, must clearly appear. (6 Oow. 221; 1 Hill, 
 130; 4 id. 76; 7 id. 35, 40; Coi-win vs. Merritt, 3 Barb. 341.) 
 Accordingly, it is a principle of law, of universal force, except 
 where modified by special statute, that when the proceedings of 
 a court of limited jurisdiction are pleaded, it is necessary to state 
 sufficient facts to show its jurisdiction, and to prove those facts 
 on the trial. (7 John. 78, 79; 6 Oow. 236; 8tryher vs. Kelly, 
 7 Hill, 24.) "Where the judgment of an inferior court is 
 pleaded, its authority to render the judgment, both as to siibject 
 matter and person, must be shown. Its proceedings need not, 
 however, be set forth in full, but sufficiently so to show the 
 jurisdiction. (6 Wend. 438; 5 Hill, 327; 6 id. 311; 7 id. 39; 
 1 Denio, 592; Turner vs. Roiy, 3 Com. 193.) The only 
 exception is where an action is brought on a judgment £oi costs, 
 rendered aga.inst a plaintiff in a previous suit; it being unneces- 
 sary in such case to aver that the cause of the action in the prior 
 «uit was within the jurisdiction of the court. {Turner vs. Roby, 
 
NATURE OP JURISDICTION. 19 
 
 3 Com. 193.) Where certain facts are necessary to be proved, 
 in order to confer jurisdiction on a court or officer of special or 
 linaited jurisdiction, before process can issue, the process will be 
 absolutely void unless proofs are furnished which have a legal 
 tendency to make out a proper case. (9 Wheat, 541; 8aples vs. 
 Fairchild, 3 Com. 41.) And if the record of an inferior court 
 omits to state the facts necessary to give jurisdiction, and they 
 are not shown otherwise, it will not be evidence for any purpose. 
 (8 Oow. 361, 370; 5 Wend. 292; Denning vs. Oorwin, 11 id. 
 647; hut see Sheldon vs. Wright, 1 Seld. 497.) 
 
 In this State, however, the stringency of the foregoing rule 
 has been somewhat relaxed, and it is not now necessary, in 
 pleading a judgment, or other determination, of a court or officer 
 of special jurisdiction, to state the facts confeiring jurisdiction, 
 but such judgment or determination may be stated to have been 
 duly given or made; and if this allegation be controverted, the 
 party pleading will be bound to establish on the trial the facts 
 conferring jurisdiction. {Code, § 532.) This provision formerly 
 was not made applicable to pleadings in Justices' Courts. But 
 now such Courts are brought within its operation. {See -post, 
 part J, chap. IX.) 
 
 Jurisdiction cannot be acquired by an officer, by his merely 
 deciding that he has it (19 John. 40; 3 Qow. 209; 5 Barb. 
 607; Harrington vs. The People, 6 id. 607, 613); or by his 
 falsely alleging the existence of facts on which jurisdiction 
 depends. {People vs. Oassels, 5 Hill, 168.) Without it, the 
 proceedings of no court or officer have any validity, whatsoever. 
 Where there is a clear want of jurisdiction, in any court, its 
 judgment is utterly void and of no effect. (15 John. 140; 19 
 id. 162, 164; 4 Cow. 292; 5 Wend. 148; 8humway vs. Still- 
 man, 6 id. 447.) Whether a court be of general or of limited 
 jurisdiction, if it takes cognizance of a case, without having 
 jurisdiction of the parties and of the subject matter, its proceed- 
 ings are wholly void; and in the case of a court of limited juris- 
 diction, like that of a Justice of the Peace, the magistrate who 
 attempts to enforce a judgment, founded on any such void pro- 
 ceedings, is a trespasser. (19 John. 40, 41; Adhins vs. Brewer, 
 3 Cow. 209.) So carefully does the law protect the citizen 
 from the consequences of the exercise of an unwarranted juris- 
 diction, that an inferior court, no matter how special or limited 
 
2,0 NEW YORK JUSTICE. 
 
 its own jurisdiction may be, can inquire into the jurisdiction of 
 a superior court, in all cases where its proceedihgs are relied on 
 by the party claiming the benefit of the same. (1 Hill, 130; 5 
 id. 285; Doty vs. Brown, 4 Howard's Pr. Rep. 429.) Courts 
 of inferior jurisdiction are confined strictly to the authority 
 given them, and can take nothing by implication. {Jones vs. 
 Reed, 1 Johnson's Oases, 20; Wells vs. Nevohirh, id. 228.) 
 Their jurisdiction is never presumed, but must always be proved. 
 (Bloon vs. Burdick, 1 Hill, 130.) Consent, even, will not give 
 jurisdiction as to the subject matter of a suit, though it will 
 give jurisdiction in respect of parties. (12 John. 285; 14 id. 
 432; 17 id. 63; 3 Qow. 206; 1 Wmd. 210; Onderdonk vs. 
 Ranlett, 3 Hill, 323.) 
 
 It is because jurisdiction is the essential element of the right- 
 fill exercise of authority, that an objection to the jurisdiction of 
 a court or officer is not waived by an answer omitting to raise 
 it (Cornell vs. Smith, 2 Sand. 290); and the want of jurisdic- 
 tion in tribunals of special and limited jurisdiction can always 
 be shown. (Harrington vs. People, 6 Barb. 607.) 
 
 But when jurisdiction is once gained, it will not be lost by any 
 subsequent irregularity in the proceedings; and every presump- 
 tion is ill favor of their regularity where jurisdiction has been 
 actually acquired. (8 Cow. 137, 187; 3 Denio, 168; Wesson vs. 
 Ohamberlain, 6 Barh. 621.) Jurisdiction, too, depends on the 
 state of things at the time of the commencement of a suit or 
 proceeding, and if the circumstances are then such as to give 
 jurisdiction, it cannot be ousted by any subsequent event. 
 {Mollan V. Torrance, 9 Wheat. 537.) A change in the condi- 
 tion of the parties, after the commencement of a suit, may work 
 an abatement; but a defendant cannot, by any volimtary act, 
 as by accepting the office of consul after the commencement of 
 an action in a State court, oust the court of the jurisdiction 
 which it originally had. (Koppel vs. Heinrichs, 1 Barb. 449.) 
 
 Though jurisdiction is of so much importance that without it 
 the acts and proceedings of courts and officers are absolutely 
 void, it is not a shelter for wrong, nor will the possession of it 
 excuse the errors that may be committed in exercising it. 
 Where, however, an inferior court has jurisdiction, but errs in 
 the exercise of it, its proceedings are not void, but voidable 
 only; that is, they are valid until reversed. {Ouningham v. 
 
EXTENT OF JURISDICTION. 2L 
 
 BucMin, 8 Qow. 187.) If reversed, then they become void; 
 but if not appealed from and reversed, they remain valid. 
 
 The limited jurisdiction of courts held by Justices of the Peace 
 is entirely created by statute, and beyond the powers delegated 
 to them they have no authority whatever. They can take 
 nothing by implication, and if they act in any matter over which 
 the statute has not given them jurisdiction, their proceedings are 
 utterly void. (1 Johnson's Cases, 20, 228; 1 Games, 191; 11 
 John. 175; 17 id. 145; Code section 2861 ; 3 Cow. 209.) 
 Parties cannot confer upon a Justice's Court jurisdiction in an 
 action of which the statute gives it no cognizance ; and if an action 
 for slander, libel, or assault and battery, be tried in such court, 
 the proceedings will be void, even though the parties appear 
 and consent to go to trial. {Onderdonh vs. Ranlett, 3 Hill, 323.) 
 
 Every Justice of the Peace, elected in any town in this State, 
 is authorized by statute to hold a court for the trial of certain 
 specified actions, and to hear, try, and determine the saEie, 
 according to law and equity; and for that purpose, where no 
 special provision is otherwise made by law, such court is vested 
 Avith all the necessary powers which are possessed by courts ol 
 record in this State. {Code, % 2862 ; Brace v. Benson, \(> 
 Wend. 213.) The Justices of the District Courts in the city of 
 New York, of the Marine Court in the city of New York, and of 
 the Justices' Courts in the cities of Albany and Troy, are also 
 authorized to hold courts in their respective cities, and possess 
 similar powers. {Laws of 1852, chap. 324; id. chap. 389; 2 R. 
 L. 342; Laws of 1848, chap. 70; Laws of 1844, chap. 198; 
 Laws of 1848, chaps. 56, 113.) The jurisdiction, as respects 
 parties, given to courts held by Justices, is acquired b}' the 
 service of process, or by voluntary appearance and agreement 
 of the parties. Code, § 2876; Cornell v. Barnes, 1 
 mil, 35.) 
 
 Justices of the Peace must reside in the town for which they 
 were chosen, and they cannot try a civil cause in any other town, 
 except in cases otherwise provided for by law. (1 B. S. 102, ^ 
 12.) In all other respects, except in the trial of a civil cause, 
 the territorial jurisdiction of a Justice is co-extensive with his 
 county. (1 Oow. 550; People vs. Oarey, 6 id. 642.) He may 
 issue process in any part of his county, but it must be return- 
 able in the town in which he resides; and it may be served in 
 
22 NEW YORK JUSTICE. 
 
 any part of the county, but not in a foreign county. {Ov/rnsey v. 
 Lovell, 9 Wend., 319, 322), except in the case of a subpoena, 
 which may be served in an adjoining county, {fiode, § 2969.) 
 As we have seen, the office of a Justice is not vacated in con- 
 eequence of any change in his territorial jurisdiction, by the 
 erection of a new town, or the annexing of a part of one town 
 to another, or by transferring a town from one county to 
 another. {Ante, pp. 5, 7, 8.) 
 
 In addition to the requirements of the statute in regard to the 
 residence of a Justice, and to the place where civil causes brought 
 before him must be tried, it is necessary, in order to give him 
 jurisdiction in any cause, that the parties thereto should be 
 proper ones, and that the action should be cognizable before a 
 Justice's Court. These subjects, however, will be hereafter con- 
 sidered. (Post, part I. chaps. II. and V.) It need only be 
 remarked here, that unless there be proper parties, and a proper 
 cause, a Justice has no jurisdiction. Process issued by him, 
 requiring the defendant named therein to answer in an action of 
 slander, libel, or assault and battery, is utterly void. Or, if 
 the amount claimed in the process exceeds his jurisdiction, he 
 has no jurisdiction of the case, and any judgment he renders is 
 void. (9 John. 366; 6 Bill, 631; Tiffany v. Gtibert, 4 Barb. 
 323.) Where, however, the process claimed " one hundred 
 dollars and over," it was held that the words "and over" were 
 void for uncertainty, and that the process was good. (Bock- 
 well vs. Ferine, 5 Barb. 573.) 
 
 A Justice may disqualify himself, by his own act, from exer- 
 cising civil jurisdiction in certain cases; and in others, he may 
 be disqualified because of his relationship to the parties, or on 
 the ground of interest. 
 
 No Justice of the Peace, becoming, or being an inn-holder or 
 tavern-keeper, in fact, has any power or jurisdiction under the 
 provisions of title four of the second chapter of the third part 
 of the Revised Statutes, which relates to courts held by Jus- 
 tices of the Peace; but if a judgment has been actually ren- 
 dered before a Justice, before he becomes so disqualified, he 
 may issue execution thereupon. [See Code § 2866 ; Laws of 
 1846, ckap. 140; Bice vs. Milks, 7 Barb. 337.) But this dis- 
 qualification extends only to the trial of suits between party 
 and party, and has no reference whatever to the jurisdiclion of 
 
DISQUALIFICATIONS. 23 
 
 a Justice of the Peace as a criminal magistrate or conservator 
 of the peace, nor to any other powers conferred upon him by 
 other statutes; and it has been held that a Justice of the 
 Peace is not disqualified from entertaining proceedings against 
 a person for refusing to work upon a highway, on the com- 
 plaint of an overseer of highways, although such Justice was, 
 at the time of his election, and when the proceedings were had 
 before him, a tavern-keeper. (Rice vs. Milks, 7 Barb. 337.) 
 If a Justice keeps a tavern without having a license, the dis- 
 qualification still exists. {Clayton vs. Per Dun, 13 John. 218.) 
 
 In regard to interest and relationship, the statute provides 
 that no judge of any court can sit as such, in any cause to which 
 he is a party, or in which he is interested, or in which he 
 would be excluded from being a juror by reason of consan- 
 guinity or aflinity to either of the parties. {Code, % 46.) This 
 provision applies to a Justice of the Peace and is imperative. 
 He cannot sit in any such cause, and if he does, his acts will be 
 void, and any judgment rendered by him will also be void. 
 {Baldwin vs. McArthur, 17 Ba/rb., 414 ; 17 Johns., 133 ; 21 
 Wend., 63 ; Rivenburgh vs. Heness, 4 Lans., 208.) 
 
 Eelationship is very properly a disqualifying circumstance, 
 and the consent of both of the parties to an action will not re- 
 move this disqualification, where it exists; partiality and bias 
 being presumed from relationship. {Oakley vs. Aspinwall, 3 
 Corns. 550.) Where a Justice, through inadvertence, or igno- 
 rance of the fact, has entertained a cause, one of the parties 
 to which is related to him, a due regard for the sanctity of jus- 
 tice, and respect for his own character and position, should 
 prompt him to dismiss it for want of jurisdiction the moment 
 he discovers the relationship. He ought not to wait to be reminded 
 of the disability, but should suggest it himself, if aware of the 
 fact, as must generally be the case, and promptly withdraw from 
 the cause. {Edwards vs. Russell, 21 Wend. 63.) No other 
 course is compatible with dignity or self-respect. Where a 
 cause is dismissed on account of his relationship to one of the 
 parties, he cannot even render a judgment for costs. {Foot vs. 
 Morgan, 1 Hill, 654; Hill & D. Swpp., 239.) He is divested 
 of his jurisdiction at once, and has no authority whatever to act 
 in the cause. 
 
 As to the degree of relationship, it has been said that it should 
 
24 NEW YORK JUSTICE. 
 
 be so near as to amount, of itself, to a strong presumption of 
 pai-tiality and fraud. {Egleston vs. 8miley, 17 Johns. 133.) 
 Where a judge was related to a party within the seventh degi'ee, 
 being. a second cousin, it was held that he was disqualified. 
 {Oakley vs. Aspinwall, 3 Ooms. 547.) In respect to affinity, or 
 relationship by marriage, it has been decided to be no objection 
 that the Justice is half-uncle to the plaintiff's wife (Egleston 
 vs. Smiley, 17 Johns. 133); but where the Justice was the 
 father-in-law of the plaintiff, it was held that his authority was 
 questionable. {Clayton vs. Per Dun, 13 id. 191.) In another 
 case, where a Justice of the Peace, who was the son-in-law of 
 the plaintiff, insisted on retaining jurisdiction of a cause, not- 
 withstanding it was objected to by the defendant, it was held, 
 that this was of itself evidence that the trial was not fair and 
 impartial, and the judgment was reversed. (19 Id. 172.) And 
 where the wife of the- Justice was the sister of a party in inte- 
 rest, though the suit was prosecuted in the name of another, it 
 was held that the Justice had no jurisdiction, and that his judg- 
 ment was absolutely void. {Foot vs. Morgan, 1 Hill, 654.) 
 The disqualification arising from relationship continues to exist, 
 although the party to whom the Justice is related be a mere 
 surety for the real party, and be fully indemnified against the 
 consequences of the suit. {Oakley vs. Aspinwall, 3 Corns. 547.) 
 Interest on the part of a judge, in the subject matter of a 
 cause submitted to him for decision, is wholly inconsistent with 
 fairness and impartiality. It is a maxim of every code in every 
 country, that no man shall be a judge in his own cause. And 
 it is not left to his discretion, or to his sense of decency, whether 
 he will act or not. (1 Hopkins^ Ch. Rep. 1.) The statute, 
 before cited, is express on this point. A judge cannot sit in a 
 cause to which he is a party, or in which he is interested. {Cods. 
 § 46 ; Edwards vs. Russell, 21 Wend., 63.) Consent will 
 not remove this disqualification ; and a judgment confessed 
 before a Justice of the Peace was held void, where the Justice 
 himself owned the demand and was the plaintiff in interest. (2 
 Chip., 96.) 
 
 It has been held that where a Justice has a direct interest in 
 the amount recovered his judgment will be void, though a 
 remote and contingent interest will not disqualify him {Oorwein vs. 
 Haines, 11 Johns., 76) ; but the interest must be so remote as to 
 
DISQUALIFICATIONS. 25 
 
 leave no room for presuming undue bias or pai'tiality. For this 
 reason, it is provided by statute, that no action to recover a 
 penalty given to a town, shall be brought before any of the 
 Justices of the Peace residing in the tovm for the benefit of 
 which the same is prosecuted, but that all such actions may be 
 brought before any Justice residing in any other town in the 
 same county. (1 R. S. 357, ^ 5.) This statutory provision applies 
 only, however, to penalties given to a town directly, in its cor- 
 porate capacity, and not to those which are required to be pro- 
 secuted for by town officers in their official capacity, such as the 
 penalties recoverable by overseers of the poor, for the use of 
 the poor, by commissioners of highways for the repair of roads 
 and bridges, and the like. {Wood vs. Bice, 6 Hill, 58.) 
 
 The consequences of a want of jurisdiction on the part of a 
 Justice's Court, have been already mentioned. As it is a court 
 of special and limited jurisdiction, the officer holding it cannot 
 act beyond that jurisdiction without rendering all his proceed- 
 ings absolutely void; and he will be accountable for any injuries 
 arising from his acts. (2 Oaines, 108; 11 Johns. 175; 15 Id. 
 157, 493; 17 id. 145; 3 Cow. 206; 9 id. 61; Gold ads. Bissell, 
 1 Wend. 210.) 
 
 If a Justice should issue an attachment without any of the 
 preliminary proof required by the statute, or try an action of 
 assault and battery, or one in which he was directly interested, 
 or any cause while disqualified by reason of his being a tavern- 
 keeper, any judgment he might render would be void: and, if 
 an execution should issue thereon, and the body or property of 
 a party be taken, he would be liable as a trespasser. (2 Gaines, 
 108; 11 Johns. 175; 12 id. 257; 15 id. 493; 16 id. 145; Ad- 
 kins vs. Brewer, 3 Gow. 206.) But the officer who serves 
 process issued by a Justice who has no jurisdiction, is not lia- 
 ble, unless the want of jurisdiction appears on the face of the 
 process. (3 Gow. 206; Lewis vs. Palmer, 6 Wend. 367.) 
 
 In order to render the proceedings of a Justice utterly void 
 it is necessary there should be a total want of jurisdiction; be- 
 cause, if he has jurisdiction, and merely errs in exercising it, 
 his acts are voidable only. (17 Johns. 145; Gunning/ham va. 
 BwMin, 8 Gow. 178, 187; 2 Gow. & HilVs Notes, 978, 979.) 
 The want of jurisdiction may be shown at any stage of the 
 proceedings in a suit before a Justice {Gowen's Tr. 668, 2 ed.): 
 
26 NEW YOEK JUSTICE. 
 
 but his title to the office cannot be questioned in that way, 
 because, though he be only a Justice de facto, yet his acts, so 
 far as they relate to third persons, and to the public, are valid, 
 (9 Johns. 135; 1 Hill, 674; 5 id. 616; 1 Bmio, 575; 2 Barb. 
 320; Grreenleaf \s. Low, 4 Den. 168.) 
 
 Though a Justice of the Peace has jurisdiction in a civil 
 cause, he is not obliged, in all cases, to exercise it. If he is a 
 member of the senate or assembly, or a judge of a county 
 court, he may act or not, so far as holding courts for the trial 
 of civil actions is concerned, at his discretion. {Code, § 2867.) 
 
 CHAPTER II. 
 
 OF THE CAUSES OF ACTION COGNIZABLE BEFOEE 
 JUSTICES' COUETS. 
 
 An action is defined, by the Code of Procedure, to be an 
 ordinary proceeding in a court of justice, by which a party 
 prosecutes another party for the enforcement or protection of a 
 right, the redress or prevention of a wrong, or the punishment 
 of a public offense. {Code, % 3333.) 
 
 There are but two kinds of actions known in the courts of 
 justice of this State — civil actions, and criminal actions. {Id., 
 § 3335.) 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. {Id., § 3336.) Every other action 
 is a civil action. {Id., § 3337.) Where the violation of a right 
 admits of both a civil and a criminal remedy, the right to prose- 
 cute the one is not merged in the other. {Id., % 1899.) We 
 come now to consider the civil actions, or the causes of action, 
 cognizable before Justices' Courts. 
 
 As has been before intimated, Justices of the Peace derive 
 their authority in regard to civil proceedings exclusively from 
 the statute. They have civil jurisdiction in the following actions, 
 and no other. (M, § 2862.) - 
 
"WHAT ACTIONS COGNIZABLE. 27 
 
 1. An action to recover damages upon or for breach of a con- 
 tract, express or implied, other than a promise to marry, where 
 the sum claimed does not exceed two hundred dollars. 
 
 2. An action to recover damages for a personal injury, or an 
 injury to property where the sum claimed does not exceed two 
 hundred dollars. 
 
 3. An action for a fine or penalty not exceeding two hundred 
 dollars. 
 
 4. An action upon a bond, conditioned for the payment of 
 money, where the sum claimed does not exceed two hundred 
 dollars, the judgment to be rendered for the sum actually due. 
 "Where the sum secured by the bond is to be paid in install- 
 ments, an action may be brought for each installment as it 
 becomes due. 
 
 5. An action upon a surety bond taken by any justice of the 
 peace. 
 
 6. An action upon a judgment rendered in a court of a Justice 
 of the Peace, or in a District Court of the city of ISTew York, or in 
 a Justices' Court of a city, being a court not of record. 
 
 7. An action to recover one or more chattels, with or without 
 damages for the taking, withholding or detention thereof, where 
 the value of the chattel, or of all the chattels, as stated in the 
 aflSdavit made on the part of the plaintiff, does not exceed two 
 hundred dollars. 
 
 To take and enter judgment on the confession of a defendant, 
 where the amount confessed shall not exceed five hundred dollars. 
 {id. § 2864.) 
 
 But no Justice of the Peace has cognizance of a civil action. 
 {id. § 2863.) 
 
 1. "Where the people of this State are a party, except for one 
 or more fines or penalties not exceeding two hundred dollars. 
 
 2. "Where the title to real property comes in question, as pro- 
 vided by title 3, chapter 19 of the Code. 
 
 3. "Where the action is to recover damages for an assault, 
 battery, false imprisonment, libel, slander, malicious prosecution, 
 criminal conversation or seduction. 
 
 4. "Where, in a matter of account, the sum total of the accoiints 
 of both parties, proved to the satisfaction of the Justice, exceeds 
 
28 NEW YORK JUSTICE. 
 
 four hundred dollars. But should the Justice give judgment 
 in a case where the joiut accounts exceeds four hundred dollars, 
 it would not be void, but voidable only [Lainoure vs. Ca/ryl, 4 
 Denio, 370) : 
 
 5. Where the action is brought against an executor or adminis- 
 trator, as such. 
 
 No action on a judgment, rendered by a Justice of the Peace, 
 shall be brought in the same county within five years after its 
 rendition, except in case of his death, resignation, incapacity to 
 act, or removal from the county, or that the process was not 
 personally served on the defendant, or on all the defendants, 
 or in case of the death of some of the parties, or where the 
 dockht or record of sneli judgment is or shall have been lost or 
 destroyed. {Code, §§ 1913, 3i5i.) 
 
 It is provided by the Laws of 1882 {chap. 410, §§ 1205, <fec.) 
 that the Marine Court of the city of New York shall be a court 
 of record, and have jurisdiction in the following eases : 
 
 1. In actions similar to those in which Courts of Justice of the 
 Peace have jurisdiction, but judgment not to exceed two thousand 
 dollars and interest. 
 
 2. In an action upon the charter or by-law of the corporation 
 of the city of New York. 
 
 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. 
 
 4. In an action by or against any person belonging to or on 
 board of a vessel in the merchant service, for an assault and bat- 
 tery or false imprisonment, committed on board such vessel 
 npon the high seas, or in a place without the United States. 
 But nothing in this, or the last preceding subdivision, is to be 
 constnied as giving the court power to proceed in any of the 
 cases therein referred to, as a court of admiralty or maritime 
 jurisdiction. 
 
 5. In an action to enforce a lien upon real property in the city 
 of New York, created as prescribed by statute. 
 
 6. In an action to enforce a lien, for a sum not exceeding two 
 thousand dollars, exclusive of interest upon one or more chattels. 
 
COURTS IN NEW YORK CITY. 29 
 
 7. On the taking and entry of a judgment, upon the confession of 
 one or more defendants, where the sum for which judgment is con- 
 fessed does not exceed two thousand dollars exclusive of interest. 
 
 The Court has not, nor has either of the Justices thereof, power 
 to materialize a lien. 
 
 The District Courts in the city of New York have jurisdiction 
 in the following cases : {Laws of 1882, chop. 410.) 
 
 1. In actions similar to those in which Justices of the Peace 
 have jurisdiction, as heretofore specified, where the amount 
 recovered shall not exceed two hundred and fifty dollars, not- 
 withstanding the account of both parties may exceed four hun- 
 dred dollars. It has been decided that the District Courts in 
 the city of New York are Courts of Justices of the Peace, 
 within the meaning of the section of the old Code (§ 71), which 
 prohibits the bringing of an action on a judgment rendered by 
 a Justice of the Peace, in the same county, wiljhin five years 
 after its rendition. {MoGuire v. Gallagher, 2 Sand., 4:02 ; 6\ C, 
 1 Code. Rep., 127.) 
 
 2. In an action upon the charter or a by-law of the corporation 
 of the city of New York, where the penalty or fine does not 
 exceed two hundred and fifty dollars. 
 
 The District Courts have also jurisdiction of actions in which 
 the people of this State are a party, where such actions are 
 brought by the overseers of the poor or the commissioners of 
 public charities and correction in said city, upon bastardy or 
 abandonment bonds, in an action upon a bond of a marshal of 
 the city ; in an action to foreclose a lien upon a chattel, when the 
 amount does not exceed two hundred and fifty dollars ; and in 
 action to recover a penalty under the game laws. 
 
 The Justices' Courts of the cities of Albany and Troy have 
 jurisdiction in the following cases : {Code, § 3223.) 
 
 1. In actions similar to those in which Justices of the Peace 
 have jurisdiction, as heretofore specified. 
 
 2. In an action upon the charter or by-laws of the corporations 
 of their respective cities, where the penalty or forfeiture does not 
 exceed two hundred dollars. 
 
 The foregoing are all the provisions of the statute conferring 
 civil jurisdiction upon Justices' Courts, except in the case of 
 penalties, which will be hereafter considered. {Post, part I, 
 ohap. m.) 
 
30 NEW YORK JUSTICE. 
 
 It is provided by chapter 122 of the Laws of 1884 that the 
 Justices' Court of the city of Albany shall hereafter be known 
 as the City Court of Albany. 
 
 The amount of the damages claimed or the sum sought to be 
 recovered in any action or civil proceeding of which said court 
 now has cognizance shall not exceed five hundred dollars, but 
 may equal that amount, and the said court is expressly given 
 jurisdiction to that extent. It is also given jurisdiction by this 
 act, in any action to recover one or more chattels, with or with- 
 out damages for the taking, withholding or detention thereof, 
 when the value of the chattel, or of all the chattels, as stated in 
 the affidavit of the plaintiff does not exceed the sum of five 
 hundred dollars, and also wheu in a matter of account the 
 sum total of both parties does not exceed one thousand dollars. 
 Beyond these changes the jurisdiction of the court has not 
 been otherwise altered, and tlie various statutory provisions 
 relating to this court, not inconsistent with the above, still 
 remain in force. {Laws 1884, chap. 122 ; Code Civil Pro., §§ 2, 
 2862, 3223.) 
 
 It is proper here to remark that the provisions of the Kevised 
 Statutes respecting courts held by Justices of the Peace in civil 
 cases, and the course of proceeding in them, apply to the Jus- 
 tices' Courts in cities respectively, except in the cases where 
 repugnant provisions exist in the acts organizing those courts, or 
 relating thereto. (2 R. S., 207, § 231.) But they do not apply 
 to the courts in the city of New York. (Td.) The laws gov- 
 erning those courts will be found in the special statutes already 
 cited relative to those courts ; what was formerly the Justices' 
 Court being now called the Marine Court (Laws of 1819, chap. 
 71), and what were formerly tlie Assistant Justices' Courts 
 being now called the District Courts in the city of New 
 York. {Laws of 1848, chapters 153, 276; Laws of 1852, 
 chapter 324 ; Laws of 1882, chapter 410.) It is provided, 
 however, by Code (sections 3159 and 3215) that the provi- 
 sions of the Code relating to forms of action, to pleadings, 
 to the times of commencing actions, to the rules of evi- 
 dence, to filing and docketing transcripts of judgments, to 
 their effect, and the mode of enforcing them, and to proceed- 
 ings where title to real property shall come in question, shall 
 
AMOUNT IN CONTROVEEST. 31 
 
 apply to the Marine Court and the District Courts in the city 
 of New York, and the Justices' Courts of cities; 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 for twenty-five dollars or over, exclusive of 
 costs, the transcript whereof is docketed in the office of the 
 clerk of that county, shall have the same effect as a lien, and be 
 enforced in the same manner as, and be deemed a judgment of, 
 the Court of Common Pleas for the city and county of New 
 York. 
 
 Before examining, in detail, the various causes of action cogniz- 
 able before Justices' Courts, it will be well to refer to what may 
 properly be regarded as preliminary questions in all actions 
 brought in those courts, viz: the amount in controversy, the 
 territorial jurisdiction, and jurisdiction of the persons of parties. 
 
 1. Amount in Contboversy. 
 
 It will be perceived that the Legislature, in conferring civil 
 jurisdiction upon Justices' Courts, has adopted the general rule 
 or principle, that the sum or amount claimed, or for which judg- 
 ment may be rendered, shall not exceed two hundred dollars. 
 To this rule there ai-e several exceptions. Actions upon surety 
 bonds taken by Justices of the Peace, and upon judgments 
 rendered before them not within the prohibition as to time 
 {Mills vs. Winslow, 3 Code Rep. 44), may be brought in Justi- 
 ces' Courts, and judgment rendered thereon for a sum exceeding 
 two hundred dollars. {Code, \ 53; Humphrey vs. Persons, 
 23 Barb. 313.) Justices also have the power to take and enter 
 judgment on the confession of a defendant, where the amount 
 confessed does not exceed five hundred dollars, {id.) The 
 above exceptions equally apply to the Justices' Courts in cities. 
 
 If the complaint sets forth a cause of action exceeding in 
 amount the jurisdiction of the Court, but claims danaages within 
 its limit, the Court has jurisdiction; but the complaint is bad 
 if it claims damages to an amount beyond that limit. (1 John- 
 son's Cases, 25, 333; 9 Johns. 866; 12 id. 205; Yager vs. 
 Hannah, 6 Hill, 631.) But the parties may present and prove 
 4heir demands as they are, and, if a balance is found to be due 
 
32 NEW YORK JUSTICE. 
 
 upon them, exceeding the Justice's jurisdiction, the excess may 
 be remitted, and judgment taken for the residue. [Justices 
 Manual, Zd ed. 13.) 
 
 An obligee of a bond may bring an action in a Justice's Court, 
 to enforce the condition of the bond, when the penalty exceeds 
 two hundred dollars, if the sums specified in the condition, or 
 the damages claimed for a breach, do not exceed two hundred 
 dollars; he is not bound, however, to bring his action in a 
 Justice's Court, but may bring it in a Court of Eecord. (12 
 Wend. 139; 10 id. 525; Bennett vs. Ingersoll, 24 id. 113.) 
 Before the Code it was held that a summons issued by a Justice 
 stating a cause of action exceeding in amount the jurisdiction 
 :f the Court, was a nullity, and the defendant was under no 
 obligation to appear. Neither the process issued in the cause, 
 nor the complaint, should claim an amount exceeding the juris- 
 diction of the Justice. {Yager vs. Hannah, 6 Hill, 631.) On 
 a contract to build a house, the plaintiff claimed " damages one 
 hundred dollars and over; " the defendant demurred to the de- 
 claration, on the ground that, as the plaintiff claimed damages 
 for one hundred dollars and over, the Justice had no jurisdic- 
 tion; judgment was rendered for less than one hundred dol- 
 lars; it was held that the words " and over " were void for 
 uncertainty, and had no greater effect than if an " &c." had 
 been added, but that, if the plaintiff had claimed one hundred 
 and fifty dollars, or any other sum more than one hundred, the 
 Justice would have been ousted of jurisdiction. {Rockwell vs. 
 Ferine, 5 Barb. 573.) But since the Code, it is held that the 
 jurisdiction conferred on Justices of the Peace of actions upon 
 justices' judgments, &c., is general, and is not limited to cases 
 where the amount claimed does not exceed two hundred dol- 
 lars. And that, therefore, although a summons issued by a 
 Justice claims damages to an amount exceeding one hundred 
 dollars (the limit then being one hundred dollars), the defendant 
 is bound to appear in the action, inasmuch as Justices of the 
 Peace have jurisdiction of some actions wherein amounts exceed- 
 ing one hundred dollars are claimed. It is not necessary in 
 such case that the summons should state that the complaint will 
 be on such judgment. {Humphrey vs. JPersons, 23 Barb. 313.) 
 
 Where there is one indivisible contract, as the sale at one 
 time of several barrels of pot-ashes, it cannot be made the found- 
 
TEREITOKIAL JURISDICTION. 33 
 
 ation of several suits, so as to recover part in one suit and part 
 in another, nor can a plaintiff divide an entire contract for the 
 payment of one hundred and twenty-five dollars, or any sum of 
 money exceeding the jurisdiction of a Justice of the Peace, into 
 several smaller demands, and bring a distinct action for each; 
 judgments rendered on a note thus divided would be reversed, 
 (15 Johns. 229; Willard vs. /^jjerry, 16 id. 121, 136.) If the 
 plaintiff bring an action for a part only of an entire and indi- 
 visible demand, the verdict and judgment in the action are a 
 conclusive bar to a subsequent suit for another part of the same 
 demand. (15 Johns. 432; 16 id. 136; Miller vs. Covert, 1 
 Wend. 487.) A running account for goods sold is an entire 
 demand within the rule; and so is such an account, though it 
 include items for rents due and labor. (8 Wend. 492; 13 id. 
 644; Colvin vs. Corwin, 15 id. 557.) Where there has been a 
 trespass or conversion by one single indivisible act in relation 
 to several chattels, the plaintiff cannot split his claim for dam- 
 ages, by bringing separate actions for each particular article 
 seized or converted. (15 Johns. 432; Bull vs. Colton, 22 Barb. 
 96.) This rule applies only to adversary, or what are com- 
 monly called litigated or contested suits. Parties to a large 
 demand may, by mutual agreement, divide it into any number 
 of smaller ones, and the debtor may confess separate judgments, 
 for each. {Oornell vs. Cook, 7 Cow. 310.) 
 
 Section 2863 of the Code (which is the same as the former 
 provision of the Revised Statutes), provides that in a matter of 
 account, if the sum total of the accounts of both parties, proved 
 to the satisfaction of the Justice, exceeds four hundred dollars, 
 he shall not have jurisdiction. This provision extends to those 
 accounts only which are open and unliquidated. When they 
 have been settled, the balance alone is the account between 
 them; and unless this balance, with the other accounts, exceeds 
 four hundred dollars, the Justice has jurisdiction. In order to 
 oust a Justice of his jurisdiction on the ground that the sum 
 total of both accounts exceeds four hundred dollars, that fact 
 must be proved by legal evidence, and the evidence must legi- 
 timately tend to establish it; and where the amount of the 
 accounts still subsisting is a question of fact, and the evidence 
 is conflicting, the determination of the Justice on that point is 
 
 conclusive. And if he decides that the accounts exceeds four 
 3 
 
34 NEW YORK JUSTICE. 
 
 hundred dollars, and that he has therefore no jurisdiction, the 
 County Court cannot reverse his judgment. {Parker vs. 8ours, 
 25 Barb. 122.) Under the provisions of the Revised Statutes 
 in regard to joint accounts, the language of which is almost 
 precisely like that of the Code, where the plaintiff's claim and 
 the defendant's set-off together exceeded four hundred dollars, 
 and the J ustice, instead of entering judgment of discontinuance, 
 proceeded with the cause, and gave judgment for the balance, 
 it was held that the judgment, though erroneous, was not void 
 for want of jurisdiction. {Lamour vs. Caryl, i Den. 3T0.) And 
 see ClacJein vs. Zeller, 52 Barb. Ii7; 41 Eow. 146. 
 
 2. Territorial Jurisdiction. 
 
 It has been heretofore stated, that Justices must reside in the 
 town for which they are chosen, and cannot try a civil cause in 
 any other town, except in cases otherwise provided for by law. 
 (1 E. S. 102, § 12; Oode § 2868.) 
 
 Justices of the Peace were originally mere conservators of the 
 peace, and had no jurisdiction in civil matters; but various 
 powers have been conferred upon them from time to time by 
 statute, until, as Mr. Justice Blackstone says, such an infinite 
 variety of business has been heaped upon them, that few care to 
 undertake, and fewer understand the office. {Black. Comm. 
 354.) In this State competent persons have usually been 
 elected. In England, from which country we have borrowed 
 our civil institutions, these magistrates are county officers, and 
 they have been limited in their jurisdiction here only by statute. 
 
 A Justice is limited, in the exercise of any official act which 
 he is authorized to perform, to the town for which he is chosen, 
 only in the trial of civil causes; he may send his civil process 
 into any part of the county, but he cannot hold a Court for the 
 trial of a civil cause out of his own town, nor make processes 
 returnable elsewhere than in the town where he resides. 
 {Ournsey vs. Lovell, 9 Wend. 319; 1 R. 8. 102, § 12.) 
 
 Until the Eevised Statutes, a Justice might exercise his office 
 in civil suits, anywhere in his county, and might make process 
 returnable elsewhere than in the town in which he resided; and 
 there is no law now limiting his action to his own town, except 
 in civil suits. {Schroepel vs. Taylor, 10 Wend. 196.) He 
 retains his authority during his constitutional term, in whatever 
 county it may please the Legislature to place his town. {People 
 
JURISDICTION OF THE PERSON. 35 
 
 VS. Oarey, 6 Cow. 642; S. O. 9 id. 641.) A subpoena, however, 
 may be issued by him to compel the attendance of a witness 
 being in the same county where the cause is to be tried, or being 
 in an adjoining county, and in no other case. {Code, § 2969.) 
 A summons, warrant, or attachment, can only issue to the county 
 in which the Justice resides. 
 
 Actions for injury to real property, or for the recovery of per- 
 sonal property distrained for any cause, must be tried in the 
 county in which the cause of action or some part thereof is 
 situated. {Code, %% 982, 983.) 
 
 The Code further provides, that actions for the following causes 
 must be tried in the county where the cause, or some part thereof, 
 arose {id. § 983): 1. For the recovery of a j)enalty or forfeit- 
 ure imposed b}'' statute; except, that when it is imposed for an 
 offence committed on a lake, river, or other stream of water 
 situated in two or more counties, the action may be brought in 
 any county bordering on such lake, river, or stream, and oppo- 
 site to the place where the offence was committed; 2. Against 
 a public officer or person specially appointed to execute his 
 duties, for an act done by him in vii'tue 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. 
 
 e 
 
 3. Jurisdiction of the Person. 
 
 Jurisdiction of the person is indispensable. A Justice has 
 jurisdiction over all persons residing in the town in which he 
 resides; and it is sufficient to give him jurisdiction if any one of 
 the plaintiffs or defendants resides in his town. He has juris- 
 diction, also, where either the plaintiff or defendant resides in 
 a town in the same county next adjoining his town. {Code, 
 § 2869 ; Cooj)er vs. Ball, 14 How., 295.) The Code of Civil Pro- 
 cedure further provides that if a defendant has absconded from 
 his residence, actions cognizable before a Justice may be brought 
 before a Justice of the town in which such defendant or his prop- 
 erty may be ; and if the plaintiffs be all non-residents of the 
 county, or if the defendant be a non-resident of the county, then 
 such action may be brought before any Justice of the town in 
 which such plaintiffs or defendants may be. {Code, § 2869.) 
 
 When a warrant issues in favor of a non-resident plaintiff, the 
 action may be brought before any Justice of the county, and 
 
36 NEW YOBK JUSTICE. 
 
 need not be brought before a Justice of the town where the 
 defendant resides, or of the next adjoining town. In a suit against 
 a non-resident defendant, the action must be brought before a 
 Justice of the town in which the defendant may be at the time 
 of the commencement of the suit; but it is not necessary that a 
 non-resident plaintiff should be personally in the county at the 
 time of the application for process. {Hunter vs. Burtis, 10 
 Wen. 358.) 
 
 A suit in a Justice's Court must be brought in the town, or 
 next adjoining town, wherein either the plaintiff or defendant to 
 the record resides. {Hardy vs. Row, 7 Wend. 452; 14 How. 
 295.) If defendant has absconded, it may be brought where his 
 property is, or where he can be found at the commencement of 
 the action. If the plaintiff is a non-resident then where he or 
 his attorney is at the commencement of the action. {Code, § 2869.) 
 
 Actions cognizable before a Justice may be brought by and 
 against all persons who sue or are sued in their own right; and 
 by and against all town and county officers, in their official char- 
 acter; and by and against corporations; and ly executors and 
 administrators {Code, §2865); but not against an executor or 
 administrator. {Code, § 2863.) 
 
 When a Justice has no jurisdiction whatever, and undertakes 
 to act, his acts are void; but if he has jurisdiction, and errs in 
 the exercise of it, his acts are voidable only. {Butler vs. Potter, 
 17 John. 145.) The confession of a judgment does not confer 
 jurisdiction. {Coffin vs. Tracy, 3 Caines, 129.) If a Justice 
 does not acquire jurisdiction, his proceedings ai-e void {Harring- 
 ton vs. People, 6 Barb. 607); but having once acquired it, he 
 will not lose it by a subsequent irregularity, {id. 621; Stanton 
 vs. Schell, 3 Sand. 323.) When the statute declares expressly, 
 that a Justice shall have no jurisdiction of an action if the 
 defendant be not proceeded against as the law prescribes, this 
 strips the Justice of all official authority, and he possesses no 
 more power to accept a waiver, and thus acquire jurisdiction, 
 than a private individual would have. {Robinson vs. West 11 
 Barb. 309.) 
 
CONTRACTS GENERALLY. 37 
 
 CHAPTER III. 
 
 OF ACTIONS GENERALLY, THEIE SUBJECTS, AND 
 INCIDENTS. 
 
 It will be recollected that the Code provides that Justices of 
 the Peace shall have civil jurisdiction in actions arising on con- 
 tract for the recovery of money only, if the sum claimed do not 
 exceed two hundred dollars. It will be proper, therefore, to 
 consider the various kinds of contracts which most frequently 
 constitute causes of action in Justices' Courts. 
 
 1. Contracts Generally. 
 
 A contract is an agreement, upon sufficient consideration, to 
 do or not to do a particular thing. Contracts are divided into 
 two classes, viz. : contracts by deed, and simple contracts. An 
 agreement under seal is a contract by deed, and is commonly 
 called a specialty. Simple contracts comprise all contracts, 
 whether verbal or written, of a degree inferior to a deed. A 
 contract not in writing is called a parol contract. A simple 
 contract must be voluntarily made, either verbally, or in writing 
 not under seal, upon a good consideration, between two or more 
 persons capable of contracting, to do or forbear to do some law- 
 ful act: as, if a man sells or exchanges cattle or goods for money, 
 or any other commodity, or agrees, in consideration of a sum of 
 money, to make a lease of lands, or forbear to prosecute a 
 legal claim, &c. These are valid contracts, because there is 
 quid pro quo, or one thing for another. But if a man, without 
 any other consideration than mere good will, or natural affec- 
 tion, make a voluntary promise to give to another a sum of 
 money, as for instance fifty dollars, and that he will be his debtor 
 for that sum, this is no contract, but a mere naked promise; for, 
 however a man may or may not be bound, in honor or conscience, 
 to perform such a promise, which the municipal laws of the 
 conntrj' do not take upon them to decide, those laws will not 
 compel the execution of such a promise. But if any thing, 
 
38 NEW YOEK JUSTICE. 
 
 however trifling, were done, or to be done or given for the fifty 
 dollars, it would be a valid contract, and binding upon the 
 parties. 
 
 Six things are necessary to render a contract certain and com- 
 plete: 1. A person competent to contract; 2. A person capable 
 of being contracted with; 3. A thing to be contracted for; 4. A 
 good and sufficient consideration; 5. Clear and explicit words 1o 
 express the contract or agreement; 6. The assent of both the 
 contracting parties. 
 
 The parties who enter into the contract must do so willingly, 
 and not be biased or influenced unduly in the matter. No pre- 
 cise form of words is necessary, but any words which show the 
 assent of the parties are sufficient. 
 
 Contracts are express or implied. Exjpress Contracts are where 
 the terms of the bargain, agreement, or promise, are openly 
 uttered or expressed in writing, by the contracting parties them- 
 selves; as, to pay a particular price for certain goods, or to 
 deliver a load of hay or fifty bushels of wheat. Implied Con- 
 tracts or promises are such as reason and justice' dictate, and 
 which, therefore, the law presumes that every man makes and 
 undertakes to perform. If a person employs another to transact 
 any business for him, or to perform any work, and there is no 
 express agreement as to the price of his labor, the law implies 
 that the employer undertakes to pay the person employed as 
 much as he reasonably deserves for his labor. So, if one pur- 
 chases goods of a merchant, or produce of a farmer, without any 
 agreement as to price, the law assumes that the purchaser agrees 
 to pay the seller the value of the property sold. Without any 
 express agreement between landlord and tenant as to the use 
 of a farm, the latter is bound to cultivate it in a husbandlike 
 and proper manner; and every person who undertakes any 
 office, employment, trust, or duty, contracts with those who 
 employ him, to perform it with integrity, diligence and skill. If 
 a surgeon, an attorney, or any professional person, is guilty of 
 neglect of duty, he is liable to an action on an implied promise, for 
 a reparation in damages for the injury sustained in consequence 
 of such neglect. An inn-keeper, common carrier, or other bailee, 
 is liable, on an implied contract, for the goods intrusted to his 
 care; so, a common farrier is bound to shoe a horse skillfully. 
 
CONTRACTS OF SALE. 39 
 
 and without injilry to him, and a carpenter or other workman, 
 to perform his work in a workmanlike manner. 
 
 Contracts are also called executed or executory. K one agrees 
 to exchange property with another, and they do it immediately, 
 it IS called an executed contract, and conveys an interest in pos- 
 session; but if they agree, for a good consideration, to make the 
 exchange at some future time, they convey to each other a prop- 
 erty or interest in action merely, and the contract, not being 
 performed, is called an executory contract. 
 
 As a general rule, all persons having capacity and understand 
 ing, except infants and married women, may enter into a con- 
 tract, and bind themselves and their personal representatives to a 
 performance thereof. Infants and married women may, how- 
 ever, under certain circumstances, legally enter into contracts, as 
 will be subsequently shown. {Comyn on Contracts.) 
 
 Where one party proposes by mail a contract with another 
 residing at a distance, and the latter accepts it, and deposits 
 his acceptance in the post-office, addressed to, and to be trans- 
 mitted to the former, the contract is complete. The party pro- 
 posing the contract may make it a condition of his proposal that 
 the contract shall not bind him until he receives notice of its 
 acceptance; but if he does not, it binds him from the time the 
 letter of acceptance is mailed, although he never receives it. 
 {Vccssar vs. Camp, 1 Kern. 441.) 
 
 2. Contracts of Sale. 
 
 One of the most numerous forms of contract, and one which 
 Justices are very frequently called upon to consider, is the con- 
 tract of bargain and sale. This comprises a large class of cases, 
 and as many as can be conveniently embraced in this work will 
 be referred to. 
 
 Sale or exchange is a transmutation of property from one man 
 to another, in consideration of some price or recompense in 
 value. If it be a commutation of goods for goods, it is an 
 exchange; but if it be a transferring of goods for money, it is 
 called a sale. There is no difference in the law applicable to 
 sales and exchanges. The seller is called the vendor, and the 
 buyer the vendee. {Cow. Treatise, 49.) 
 
 Independently of the Statute of Frauds, any words importing 
 a bargain, whereby the owner of a chattel should signify his 
 
40 NEW YORK JUSTICE. 
 
 willingness and consent to sell it, and whereby another person 
 should signify his willingness and consent to buy it, would be a 
 sale. {DeFonclearYS. Shottenkirk, 3 John. 170.) 
 
 3. Statute of Frauds. 
 
 By a statute, however, which is commonly called the Statute of 
 Frauds, it is enacted that in the following cases, every agree- 
 ment shall be void, unless such agreement, or some note or 
 memorandum thereof be in writing, and subscribed by the party 
 to be charged therewith : 
 
 1. Every agreement that, by its terms, is not to be performed 
 within one year from the making thereof: 
 
 2. Every special promise to answer for the debt, default, or 
 miscarriage of another person: 
 
 3. Every agreement, promise or undertaking, made upon con- 
 sideration of marriage, except mutual promises to many. (2 R. 
 8. 135, § 2; Laws of 1863, chap. MA, p. 802.) 
 
 1. Every agreement that, by its terms, is not to be performed 
 within one year from the making thereof, (id.) 
 
 To bring an agreement within the statute, it must be express 
 and specific, and not to be performed within a year. If the 
 thing promised may be performed within the year, it is not 
 within the statute. Where A promised to pay B two dollars 
 a year for his services as minister in a certain church, and had 
 paid for several years half-yearly, it was held that this was a 
 valid promise, for the jury might infer that it was a promise to 
 pay half-yearly. (Moore vs. Fox, 10 John. 244.) 
 
 An agreement by a person with the overseers of the poor, to 
 support a bastard child until it shall be five or six years old, or 
 as long as the child shall be chargeable to the town, at six shil- 
 lings per week, with the condition that the ovei'seers may have 
 their pay every week, is not within the Statute of Fi-auds 
 (McLees vs. Hale et al., 10 Wend. 426); nor is a contract to 
 take care of A so long as he shall live. {Rhodes vs. Rhodes, 3 
 Sand. Ch. Rep. 279.) If one, under a contract, not written, to 
 work for another for the term of two years, for which he is to 
 receive one hundred dollars, or fifty dollars a year, leave at the 
 expiration of six months, the employer cannot recover for the 
 non-performance, the contract being within the statute. {Diiim^ 
 mond vs. Burrell, 13 Wend. 307.) 
 
STATUTE OF FRAUDS. 41 
 
 Although one of the parties to a jjarol agreement is to perform 
 every thing on his part within the year, it is void, if a longer 
 time is stipulated for the performance by the other party. 
 Broadwell vs. Getman, 2 Benio, 87.) To be within this first 
 subdivision of the statute, the contract must be necessarily 
 incapable of performance within a year (Aricher vs. Zeh, 5 
 HiU, 200); as, an agreement to pay for improvements in one 
 year from the next month. (Lower vs. Winters, 7 Cow. 263,) 
 But an agreement that may be performed within a year, as to 
 furnish materials and build a house within fifteen months, is not 
 within the statute. {Plimpton vs. Ourtiss, 15 Wend. 336.) The 
 statute does not include a case where it is merely highly im- 
 probable that the time for performance may arrive within a 
 year; but, if the performance is commenced within the year, 
 yet if any part of the contract is, by its terms, not to be com- 
 pleted within that period, it is within the statute. (Lochwood 
 vs. Barnes, 3 Hill, 128.) A party who refuses to go on with 
 a void contract, after having derived a benefit by a part per- 
 formance, must pay for what he has received. («cZ.) 
 
 A parol lease for a year, made in January, to commence the 
 next May, is not void, although it is a contract not to be per- 
 formed within one year from the making thereof {Young vs. 
 Dake, 1 8eld. 463); but an agreement made in April, for board 
 and rooms for one year, from the first day of May then next 
 ensuing, would be void. {Wilson vs. Martin, 1 Benio, 602, 
 606.) An unwritten contract made by a parent with a third 
 person, by which his son is to serve from sixteen years of age 
 until he shall arrive at the age of twenty-one, is void. {Shute vs. 
 Bow, 5 Wend. 204.) The plaintiff entered into a parol contract 
 to labor at a factory one year for the defendants, the latter to 
 pay for the services one dollar per day, and furnish the plain- 
 tiff with employment during that time; it did not appear from 
 the evidence that the parties expressly fixed upon any precise 
 day when the services were to commence; in an action for a 
 breach, in not furnishing the plaintiff with labor, &c., it being 
 objected that the contract was void because not to be performed 
 within a year, the court held that the plaintiff had a legal right 
 to commence performance immediately upon making the con- 
 tract, and that as, from its nature, it might be completely exe- 
 
42 NEW YORK JUSTICE. 
 
 cuted within a year, the Statute of Frauds did not apply. (12 
 Connecticut JR. 455.) 
 
 2. Every special promise to answer for the debt, default, oi 
 miscarriage of another person. (2 H. S. 135, § 2.) 
 
 The promise here mentioned must be on behalf of a third 
 person originally liable to be sued, otherwise it is not within the 
 statute. It is, however, very difficult in many cases to discover 
 to whom credit for a debt was oi'iginally given. The general 
 rule in respect to the sale of goods is, that if the person for 
 whose use goods are furnished be liable at all, any promise by a 
 third pei'son to pay that debt must be in writing, otherwise it is 
 void by the statute. And the memorandum formerly must 
 express the consideration. {Qomyn on Contracts.) 
 
 A promise to indemnify another for becoming a guarantor 
 for a third person is not within the statute; the assumption of 
 the responsibility being a sufficient consideration for the prom- 
 ise. {Chapin vs. Merrill, 4 Wend. 657.) The words, "for 
 value received," in a guaranty to pay the debt of another, is a 
 sufficient expression of the consideration to render the instru- 
 ment obligatory {Watson's ExWs vs. McLaren, 19 id. 557); so, 
 too, a seal imports a consideration. (24 id. 35, 256; 10 Barb. 308; 
 Barnum vs. Childs, 1 Sand. 58; Cooper vs. Dederick, 22 Barb. 
 516.) A promise by a third person to pay the debt of another 
 need not be expressed in any particular form; hence, the signatures 
 of sureties to an instrument so drawn as to express an obligation 
 to pay on the part of their principal alone, is an effectual 
 promise in loriting by the sureties, within the statute. {Parks 
 vs. Brinkerhoff, 2 Hill, 663.) Where the maker of a note pro- 
 cures a third person to become his surety, by an endorsement 
 in these words: " I guarantee the collection of the within note," 
 the guaranty was void, because it did not express a considera- 
 tion. (5 id. 145, 161; 13 Wend. 114; 11 Barb. 144; 20 id. 
 298; 25 id. 625.) But would be otherwise under the present 
 statute. 
 
 The statute applies only when the j)romisor stands in the 
 relation of a surety for some third person who is the principal 
 debtor; therefore, a written promise to guarantee the payment 
 of a chattel note, it appearing that the defendant transferred the 
 
STATUTE OF FRAUDS. 43 
 
 note to the plaintiff, and made the guaranty, in consideratiou of 
 moneys paid by the plaintiff for the defendant at his request, waf, 
 held valid, though it expressed no consideration. {Johnson vs 
 Qilh&i't, 4 Hill, 178.) Where one who is indebted to another, 
 sells property to a third person, under an agreement that the 
 purchase money shall be paid to his creditor, the agreement 
 need not be in writing, and the creditor may maintain an action 
 against the vendee, although the consideration does not move 
 from the creditor. (2 Denio, 145; Blunt vs. Boyd, 3 Barb. 
 209.) And the contract of a commission merchant, whereby he 
 assumes the responsibility of a factor upon a del credere com- 
 mission, is not within the provision of the statute relative to 
 promises to answer for the debts of tliird persons, and is, there- 
 fore valid, though made by parol. {Shei'v:ood vs. Stone, 4 
 Kem. [14 iV: Y.]267.) 
 
 The former statute was not complied with by any thing 
 short of a statement or expression of the consideration in the 
 note or memorandum. The agreement must state the con- 
 sideration in writing ; and it cannot be implied or made out by 
 inference or conjecture. (4Z>e«. 275, 559; 4 Johns. 422; 12 id. 
 291 ; Brewster vs. Silence, 11 Barb. 144 ; S. C.4: Seld. 207.) 
 Thus, an instrument signed by a party in the following form : 
 "Mr. Henry Peters, I hereby agree to pay you the rent of the 
 part of the house hired of you by Mr. John Ward, in case he 
 fails, the rent to be paid quarterly, at the rate of thirty-seven 
 dollars for the year," is a promise to answer for the debt or de- 
 fault of another, and was void for failing to express the conside- 
 ration of the promise. (N&uocomh vs. Clark, 1 Den. 226.) A 
 guaranty, though in writing, if it express a past consideration, 
 is void ; but parol evidence to explain, is admissible, when it ia 
 doubtful whether the consideration was executed or not. (4 id. 
 559 ; Weed vs. ClarJc, 4 Sand. 31.) 
 
 It is well settled that if the whole credit be not given to the 
 person who assumes to answer for another, his undertaking is 
 collateral, and must be in writing, or it is void by the Statute of 
 Frauds. (1 Sand. 514; 5 Hill, 483; 3 Kenfs Comm. 123.) 
 Therefore, a parol promise to a vendor to endorse one's note, 
 in consideration of a sale of goods to the latter, is void. {Car- 
 ville vs. Crane, 5 Hill, 483.) 
 
 If a promise to pay the debt of another be founded on a new 
 
44 NEW YORK JUSTICE. 
 
 and distinct consideration, independent of the debt, and one 
 moving between the parties to the new promise, it is not within 
 the statute, but is an original promise. (8 Johns. 29, 376 ; 10 
 id. 242, 412 ; 11 id. 221 ; 13 id. 175 ; 4 Sand. 31, 611 ; 5 
 Barb. 501 ; 11 id. 485 ; 3 Corns. 335 ; hut see Church vs. Brown, 
 29 Barb. 486.) "Where A, being told by B on what terms he 
 would let A's nephew have newspapers to sell, said : " K my 
 nephew calls for the papers, I will be responsible for what he 
 takes," it was held that this was a valid agreement. {Chase vs. 
 Day, 17 Johns. 114.) And a promise to pay the debt of a third 
 person, in consideration that the promisee surrender property 
 levied upon by execution, is an original undertaking, and need 
 not be in writing. (Mercine vs. Andrews, 10 Wend. 461.) 
 
 A parol promise, made without consideration, to indemnify 
 and save the promisee harmless from all damages by reason 
 of his becoming bail for a third person, is void ; and to support 
 an action on a promise to answer for the debt of a third person, 
 on the ground of there being a new and original consideration 
 for it, that consideration must be such as to change the actual 
 indebtedness to the new promissor, so that, as between him and 
 the original debtor, he is bound to pay the debt as his own. 
 (4 Wend. 657 ; Kingsley ys. Balcome, 4 Barb. 131.) If a man 
 should say: " Lend John a horse, and I will undertake he shall 
 pay the hire of it"; or, " Send him goods, and I will undertake 
 he shall pay you," such a promise is void, because credit is given 
 to the person obtaining the horse or goods ; but if a man should 
 say : " Let John ride your horse, and / will pay you the hire ;" 
 or, "Deliver him the cloth, and /will pay you," the promise 
 is good, because no credit is given to the person using the horse 
 or taking the goods, and the liability is entirely on the part of 
 the person making the promise. (Oomyn on Contracts, 52.) 
 
 It has been seen that the agreement or memorandum required 
 by the statute, need not be drawn in any particulai- form. It 
 may be contained in a letter, or other writing referred to by 
 letter. But in whatever form the writing may be, the agree- 
 ment or promise formerly must contain with certainty the con- 
 sideration for the promise ; and also a specification of the terms 
 of the agreement or contract. It must also be signed with the 
 name of the party to be charged therewith, or his agent law- 
 fully authorized ; otherwise, the promise or contract will be 
 
STATUTE OF FRAUDS. 45 
 
 void. (1 Qomyn on Qontracts, 103.) Where A agreed in 
 writing to become security for silver or money, not exceeding 
 four hundred dollars, that M might from time to time, for two 
 years, put into the hands of J for the purpose of manufacturing 
 into worls, and that, if J refused to pay, A would assume and 
 pay the same with interest, the delivery of the silver to J was 
 held to be a sufficient consideration upon the face of the agree- 
 ment. {Marquand vs. Hipper, 12 Wend. 520.) 
 
 A guaranty in this form : " We guarantee the collection of 
 the within note," imposes on the person holding the guaranty 
 the duty of diligence in the collection of the note, even to its 
 prosecution out of the State, if the maker resides without the 
 State, before he can resort to the guarantor. (^Burt vs. Horner, 
 5 Barb. 501.) But if the party is living within this State and 
 absconds, he is not bound to follow him out of the State. 
 (Cooke vs. Nathan, 16 Barb. 342.) 
 
 A seal to an instrument guaranteeing the payment of a debt 
 of a third person, expresses a consideration; (11 id. 14; Rosen- 
 baum vs. Gunter, 2 JS. D. Smith, 415); and so do the words, 
 "for value received." [Watson's exrs. vs. McLaren, 19 Wend. 
 557.) A letter written to G, stating that if the owner of a 
 house will rent it to G at a given rent, he will become security 
 to G, and directing G to state the same and send the papers to 
 the writer for execution, expresses on its face a sufficient con- 
 sideration ; and the owner of the house, G having entered into 
 the occupancy, may maintain an action against the writer, on 
 his refusing to execute the proper security. (JVaterbury vs. 
 Graham, 4 Sand. 215.) 
 
 3. Every agreement, promise, or undertaldng, made upon 
 consideration of marriage, except mutual promises to marry. 
 (2 R. S. 135, ^ 2.) 
 
 Any parol agreement to pay money, or make a settlement, in 
 consideration of marriage, if not reduced to writing previous to 
 the marriage, is void ; and a subsequent marriage is not a part 
 execution of such an agreement, so as to take it out of the statute. 
 (1 Comyn on Contracts, 73.) An ante-nuptial agreement to 
 support the daughter of the wife, is void, if not in writing. 
 {Matter of Willoughby, 11 Paige, 257.) A marriage settlement 
 which authorizes a wife to control her property during cover- 
 
46 NEW YORK JUSTICE. 
 
 ture, does not authorize her to dispose of it by will. (Wad- 
 Mms vs. Home Miss. Soc. 2 Kern. 415.) 
 
 Every contract for the sale of any goods, chattels, or things 
 in action, for the price of fifty dollars or more, is made void by 
 statute, unless, 
 
 1. A note or memorandum of such contract be made in 
 writing, and be subscribed by the parties to be charged there- 
 by : or, 
 
 2. Unless the buyer shall accept and receive part of such 
 goods, or the evidences, or some of them, of such things in 
 action : or, 
 
 3. Unless the buyer shall, at the time, pay some part of the 
 purchase money. (2 li. S. 136, § 3.) 
 
 This section of the statute applies to every sale of tangible, 
 moveable property, where the price is fifty dollars or more. 
 
 1. We will first consider what note, or memorandum in 
 writing, is a compliance with the statute. The memorandum 
 should disclose who the person is with whom the contract is 
 made, as well as the person to be charged by it ; otherwise, it 
 is no memorandum of the bargain. It is not necessary that the 
 name of the party with whom the contract is made, should be 
 inserted, if there be on the face of the memorandum a sufficient 
 description to show who he is. (Blaclcburn on Contract of 
 Sale, 37.) Nor is the form of the memorandum of the bargain 
 material. It must, however, state the contract with reasonable 
 certainty, so that the substance of it can be understood from the 
 writing itself, without having recourse to parol proof [Bailey 
 vs. Ogden, 3 John. 399.) The memorandum must be in writing, 
 and must contain in itself sufficient matter to amount to the note 
 or memorandum, without calling in parol testimony to supply 
 the deficiency. It must contain the whole agreement ; that is 
 to say, the parties, the subject matter, and the promise. 
 
 Blackburn, in his treatise on the Contract of Sale, spealdUj^ 
 )f the section of the English law which, like our own, requires 
 ■,he memorandum to be signed by the parties to be charged, 
 ijays, that if the question Avere now open, it might seem that the 
 words of this section required the note or memorandum to be 
 signed on behalf of both parties to the contract, but that it is 
 well settled, that the only signature required is a signature on 
 
STATUTE OF FRAUDS. 47 
 
 behalf of the party who is sought to be charged in the proceed- 
 ing in which the question arises. Our own courts concur in 
 this opinion, and have decided that the subscription by the 
 party to be charged, or by his authorized agent, is sufficient. 
 {Davis vs. Shields, 26 Wend. 341; 2 Caines, 117; 2 R. S. 
 136, §8.) 
 
 It is necessary that the name of the pai-ty to be charged should 
 be subscribed at the bottom of the instrument; and where it is 
 in the body of the memorandum, and in the handwriting of the 
 party to be charged, it is not a compliance with the statute; as 
 a bill of sale in this form: "Albany, March, 12, 1847: Mr. 
 Thomas James, bought of M. & S. Patten, (for the relief com- 
 mittee,) 3,000 bushels of yellow corn, (fifty-six pounds per 
 bushel,) to be delivered at the opening of the Hudson river navi- 
 gation, at our store in Albany, at eighty-one cents per bushel, 
 $2430." {James vs. Patten, 2 8eld. 9.) 
 
 2. Something more than mere words is necessary to consti- 
 tute a delivery and acceptance of goods, such as the statute 
 requires. There must be some act of the parties, amounting to 
 a transfer of the possession, and an acceptance by the buyer. 
 Cumbrous articles are not exempt from tliis rule, as will be 
 seen by the following case. The parties agreed as to the price 
 of a pile of lumber, separated from other lumber, which had 
 been inspected and measured, and which was on a dock, in 
 view of the parties, at the time of the bargain. The vendor 
 said, " The lumber is yours." The vendee then told the vendor 
 to take the inspector's bill to another person, who would pay it. 
 This was done, but payment Avas refused. It was held, that 
 -"here was no delivery and acceptance of the lumber, within the 
 neaning of the statute. {Shindler vs. Houston, 1 Com. 261.) 
 
 An actual delivery of goods, or of a part of them, is not 
 always required, but a virtual or constructive delivery may be 
 sufficient. Those circumstances, however, which are tantamount 
 to an actual delivery, ought to be so strong and unequivocal, 
 as to leave no doubt of the intent of the parties. As, if the 
 vendor give the vendee an order on a depositary of the goods 
 for their delivery, this is a good delivery; and so, when the 
 chattels are not in the actual possession of any one, the owner's 
 saying to the vendee, ten miles away from them, "I deliver" 
 
48 NEW YORK JUSTICE. 
 
 the property, is a delivery within the statute. (3 John. 399; 
 3 Gaines, 182; 7 Cow. 256; Kimberly vs. Patchin, 5 E. P. 
 Smith, 330.) A contract for the sale of a boat-load of wheat, 
 to be delivered at a subsequent day, is within the statute of 
 frauds, when no part of the wheat is delivered at the time, no 
 earnest paid, and no note or memorandum of the bargain made 
 in writing. (Jackson vs. Covert, 5 Wend. 139.) 
 
 To take the case out of the statute there must be not only 
 a delivery, but an acceptance by the purchaser; for any words 
 or acts of the seller will be unavailing, without an acceptance 
 on the part of the buyer, either by himself or by his agent. 
 (2 Sand. 157; 6 Wend. 397; Gray vs. Davis, 6 Seld. 285.) 
 
 An officer who makes a sale must separate the property he 
 sells from the mass of property with which it is mixed, or the 
 title will not pass. No sale can be perfect, and no property 
 passes to the purchaser, when any act remains to be done by 
 the vendor, such as weighing, measuring or counting out of a 
 common parcel. Accordingly, when hay in the stack was sold 
 by a school collector, under a tax warrant, but was not de- 
 livered, the quantity sold being mixed with the other hay of 
 the owner, to be weighed off, or otherwise separated from the 
 general mass, by the purchaser at a future time, it was held 
 that the property in the hay did not pass to the purchaser. 
 {Stevens vs. Uno, 10 Barb. 95.) 
 
 A contract for the sale of goods, to be delivered at a future 
 day, is not invalidated by the circumstance, that at the time of 
 the contract, the vendor neither has the goods in his possession, 
 naif has entered into any contract to buy them, nor has any rea- 
 sonable expectation of becoming possessed of them at the time 
 appointed for delivering, otherwise than by purchasing them 
 after making the contract. When the goods are ponderous or 
 bulky, or cannot conveniently be delivered manually, the law 
 does not require an actual delivery, but only that they should 
 be put under the absolute power of the vendee, or that his 
 authority as owner should be formally acknowledged; or that 
 some act should be done typical of a surrender of them on the 
 one side, and of an acceptance of them on the other. The law 
 only requires such a delivery as is consistent with the nature 
 and situation of the thing sold. {Stanton vs. Small, 3 Sand. 
 230.) 
 
STATUTE OF FRAUDS. 49 
 
 3. The amount of purchase or earnest money paid is imma- 
 terial, nor need it be in money, but something must be given 
 and accepted by way of consideration, which is money, or 
 money's worth. (Artcher vs. Zeh, 2 Hill, 200.) Upon an exec- 
 utory contract for the delivery of goods sold to be paid for 
 on delivery in notes of a third person, if the third person has 
 become insolvent between the time of the contract and that of 
 the delivery, the seller is not bound to deliver on a tender of 
 the notes, even though they are not entirely worthless. {Bene- 
 dict vs. Field, 16 JV. T. 595.) 
 
 A broker for sale is a pei'son making it a trade to find pur- 
 chasers for those who wish to sell, and vendors for those who 
 wish to buy, and to negotiate and superintend the making of 
 the bargain between them, and his authority to make the con- 
 tract need not be in writing. But, in pi-actice, he who employs 
 a broker gives him a discretion as to the terms on which he is 
 to sell or buy. In the absence, however, of express directions, 
 he who emp'oys a broker (or indeed any other common agent) 
 must be tak'.n to give liim authority to act for him in the manner 
 in which su>jh agents ordinarily do act, and the other party who 
 treats with him has a right to assume that the broker has such 
 authority from his principal, and to hold the principal bound 
 by all acts of liis broker not exceeding that apparent authority, 
 If the principal does in fact limit the broker's authority more 
 than usual, it is his business to see that the other party knows 
 of such an unusual limitation. The question therefore is, what 
 is the customary authority of brokers? This was originally a 
 question of fact, and is .'."ill so to some extent; but where a 
 trade has been long established, its customs become known to 
 the law, and are judicially noticed as matters of law. (Black- 
 bum on Sales, 49; Merrit vs. Bailey, 12 Johns. 102; 8. C. 14 
 id. 484.) 
 
 It is also provided by statute, that, whenever goods shall be 
 sold at public auction, and the auctioneer shall, at the time of 
 sale, enter in a sale-book a memorandum specifying the nature 
 and price of the property sold, the terms of the sale, the name 
 of the purchaser, and the name of the person on whose account 
 the sale is made, such memorandum shall be deemed a note of 
 the contract of sale, within the meaning of the section last con- 
 sidered. (2 R. S. 136, § 4.) 
 
50 NEW YORK JUSTICE. 
 
 The memoraiiclum must be made in a sale-book at the time 
 and place of sale, or the contract cannot be enforced; it is not 
 enough that a minute in pencil is made at the place of sale, of 
 the sums bid and of the name of the highest bidder, although 
 an entry be immediately thereafter made in a sale-book, setting 
 forth all the particulars prescribed by statute, if such entry 
 be made at a place different from that where the sale was had. 
 It is not necessary that the names of the owners of the property 
 should be mentioned in the entry of the memorandum, but it is 
 sufficient if it contain the name of any factor, or agent, or per- 
 son having authority to sell, on whose account the sale is made. 
 {Hicks vs. Whitmore, 12 Wend. 548.) Where goods amounting 
 in the aggregate to one hundred dollars are purchased at auc- 
 tion, in several parcels, upon distinct and separate bids, to be 
 paid for in a note at a future day, the whole constitutes but one 
 contract, and the delivery of some of the parcels is sufficient 
 to take the case out of the Statute of Frauds as to the residue. 
 {Mills vs. Hunt, 20 id. 431; 17 id. 333.) The memorandum 
 may be made by the agent or clerk of the auctioneer. {Frost 
 vs. Hill, 3 Wend. 386.) 
 
 All deeds of gift, all conveyances, and all transfers or assign- 
 ments, verbal or written, of goods, chattels, or things in action, 
 made in trust for the use of the person making the same, are, 
 by statute, made void as against the creditors, existing or sub- 
 sequent, of such person, (2 R. S. 135, § 1.) 
 
 4. Sales and Mortgages of Chattels. 
 
 The statute declares, that every sale made by a vendor, of 
 goods and chattels in his possession, or under his control, and 
 every assignment of goods and chattels, by way of mortgage or 
 security, or upon any condition whatever, unless the same be 
 accompanied by an immediate delivery, and be followed by an 
 actual and continued change of possession of the things sold, 
 mortgaged, or assigned, shall be presumed to be fraudulent and 
 void, as against the creditors of the vendor, or the creditors of 
 the person making such assignment, or subsequent purchasers 
 in good faith; and shall be conclusive evidence of fraud, unless 
 it shall be made to appear, on the part of the persons claiming 
 under sucb sale or assignment, that the same was made in good 
 faith, and without any intent to defraud such creditors or pur- 
 
CHATTEL MORTGAGES. 51 
 
 chasers. (2 B. 8. 136, ^ 5.) The term creditors, as used in 
 the foregoing section, includes all persons who are creditors of 
 the vendor or assignor, at any time while the goods or chattels 
 remain in his possession or under his control, {id. § 6.) 
 
 This section requires an actual and continued change of pos- 
 session. The word actual is used in contradistinction to virtual 
 or constructive. An actual change, as distinguished from that 
 which, by the mere intendment of the law, follows a transfer 
 of the title, is an open, visible, public change, manifested by 
 such outward signs as render it evident that the possession of 
 the former owner, as such, has wholly ceased. It was the inten- 
 tion of the Legislature that a debtor who wishes to free himself 
 from the imputation of fraud, when he parts with his title to 
 goods, must also part with their use and enjoyment, so as to 
 exclude the hazard of his deriving a false credit from the con- 
 tinuance of his apparent ownership; and this intention, recom- 
 mended by the strongest reasons of public policy, will be en- 
 forced by the courts. Where there has been no actual and con- 
 tinued change of possession, the party asserting the validity of 
 a sale of goods must prove affirmatively that the sale was made 
 in good faith, and without any intent to defraud creditors or 
 purchasers; and both of these propositions must be proved. 
 {Groat vs. Rees, 20 Barb. 26.) The good faith of the parties, 
 in the restricted sense in which the term is here used, is evinced 
 by showing that the sale was not colorable and fictitious, but 
 was founded upon a valuable and, as the parties believed, an 
 adequate consideration, and was intended to operate as a valid 
 transfer of the ownership. Yet, even where a full considera- 
 tion is actually given, the motive of the parties may have been, 
 to prevent the application of the goods sold to the payment of 
 the debts of the vendor. Hence this intent must be disproved, 
 even where the sale is real and efiectual. {Bandall vs. Parker, 
 3 Sand. 69.) 
 
 A mortgage of goods and chattels, though unaccompanied 
 by an immediate delivery, and not followed by an actual and 
 continued change of possession of the thing mortgaged, is not 
 void, if it be made to appear on the part of the mortgagee 
 that the same was made in good faith, and without any intent 
 to defraud purchasers or creditors. Continuance of possession 
 in the mortgagor afibrds the highest presumption of fraudulent 
 
52 NEW YORK JUSTICE. 
 
 intent, and will amount to conclusive proof, unless it be rebut- 
 ted by such evidence as to make the good faith of the transac- 
 tion appear affirmatively. Guilt, and not innocence, is presumed, 
 and the burden of proof of innocence is thrown wholly upon 
 the party claiming under the mortgage. {Smith vs. Acker, 23 
 Wmd. (J53; 26 id. 511; 4 Hill, 271; 6 id. 433; 1 id. 438, 4G7, 
 473; 9 Wend. 198; 16 id. 523; 17 id. 53.) An actual removal 
 of the property from the premises in which it was at the time 
 of the assignment is not essential to a change of possession. 
 The publicity of the transfer, the exercise of an owner's au- 
 thority and control over the property by the assignee, and, 
 above all, the absence of any such control by the assignor, are 
 the true tests of the validity of the transfer. (1 Hoff. Oh. JR. 
 447, 511.) 
 
 Whether a chattel mortgage is fraudulent and void as to 
 creditors, for want of a change of possession of the property, 
 is a question for the jury to decide; and their verdict will not 
 be disturbed unless it is palpably against evidence. {8wift vs. 
 Hart, 12 Barb. 530; 1 Oo7ns. 496; 23 Wend. 653; 4: Hill, 271.) 
 The statute also provides that every mortgage, or convey- 
 ance intended to operate as a mortgage, of goods and chattels, 
 which shall not be accompanied by an immediate delivery, and 
 be foil nved by an actual and continued change of possession 
 of the things mortgaged, shall be absolutely void as against 
 the creditors of the mortgagor, and as against subsequent pur- 
 chasers and mortgagees in good faith, unless the mortgage, or 
 a true copy thereof, shall be filed in the town or city where the 
 mortgagor, if a resident of this State, shall reside at the time 
 of the execution thereof; and, if not a resident, then in the 
 city or town where the property so mortgaged shall be at the 
 time of the execution of such instrument. In the city of New 
 York, such instrument must be filed in the office of the Eeo'is- 
 ter of said city; in the several cities, other than the city of 
 New York, and in the several towns in which a county clerk's 
 office is kept, in such office; and in each of the other towns in 
 the office of the town clerk thereof. {Laws of 1833, chap. 279.) 
 Every mortgage thus filed ceases to be valid against the cred- 
 itors of the person making the same, and against subsequent, 
 purchasei-s or mortgagees in good faith, after the expiration of 
 one year from the filing thereof, unless, within thirty days 
 
CHATTEL MORTGAGES. 53 
 
 next preceding the expiration of the said term of each year, a 
 true copy of such mortgage, together with a statement exhi- 
 biting the interest of the mortgagee in the property thereby 
 claimed by him by virtue thereof, shall be again filed in the 
 office of the clerk or register of the town or city where the 
 mortgagor shall then reside. (1879, Chap. 418.) 
 
 If the mortgage be not accompanied by an actual and con- 
 tinued change of possession of the whole of the property, and 
 be not filed in the proper office, it is absolutely void, as against 
 creditors of the mortgagor. (Benedict vs. Smith, 10 Paige, 
 126.) And where, the mortgage not having been filed, the 
 mortgagor was left in possession, as the mortgagee's agent, to 
 manage the property for him, it was held, as a matter of law, 
 that there was no actual change of possession. (2 Hill, 628; 
 Otis vs. Sill, 8 Barb. 102.) 
 
 A new copy of the mortgage must be filed within thirty days 
 preceding the expiration of a year from the time of filing the 
 first mortgage or copy, and so on from year to year, if the 
 mortgagee wishes to continue his lien. {Nitchie vs. Townsend, 
 2 Sand. 299.) The protection given to purchasers by the sta- 
 tute requiring the refiling of the mortgage, is not limited to 
 purchasers from the mortgagor, but includes a purchaser from 
 his vendee, or, in case of his death, from the i^erson in whom, 
 but for the mortgage, the title to the property would have 
 vested, as an executor or administrator. (jFox vs. Burns, 12 
 Barb. 677.) The omission to refile a chattel mortgage does 
 not render it invalid as against purchasers or mortgagees interme- 
 diate the original filing and the omission to refile. (Meech vs. 
 Patchin, 4 Kern. 71.) 
 
 If one takes a mortgage, with actual notice of another which 
 is neither filed nor accompanied by change of possession, he is 
 not a bona fide mortgagee within the statute, and can gain no 
 preference by filing his mortgage. {Gregory vs. Thomas, 20 
 Wend. 17.) To show good faith in the making of a mortgage, 
 so as to avoid a prior one which was not filed, nor accompanied 
 by an actual and continued change of possession, it is essential 
 to show that it was made for a valuable consideration, or to 
 eecure an honest debt; and proving an honest debt is not suffi- 
 cient, unless it be connected with the giving of the mortgage. 
 (^Backus vs. Shannon, 3 Com. 310.) 
 
54 NEW YORK JUSTICE. 
 
 An instrument by which one party agrees to sell, and the 
 other to purchase, certain personal property, at a specified 
 price, the vendor to retain a lien upon the property until the 
 purchase price is paid, is in the nature of a chattel mortgage. 
 {JDunning vs. Stearns, 9 Barb. 630.) A mortgage of goods 
 may be valid between the parties, without writing; but it must 
 be in writing and filed when the rights of creditors and pur- 
 chasers in good faith are concerned. (BanTc of Rochester ys. 
 Jones, 4 Com. 497.) 
 
 These provisions of the statute in regard to the necessity of a 
 delivery of goods and chattels do not apply except when they 
 have an existence and can be delivered. A contract relating to 
 goods thereafter to be manufactured is not within the statute; 
 as where a mortgage is given upon barrels to be made, or ashes 
 to be manufactured into pot-ashes. {Frost vs. Willard, 9 Barb. 
 440.) In such a case, there must be fraud in fact, to render the 
 contract void. Nor does the statute extend to contracts for the 
 sale of goods which are not in a condition to be delivered, but 
 which require something to be done to get them ready for de- 
 livery or fit them for sale. {OrooJcshank vs. Burrill, 18 Johns. 
 58.) But where the purchaser of a stock of goods in a retail 
 store executed to the vendor a mortgage upon the entire stock, 
 by schedule, the mortgage including also in its terms all articles 
 of a like nature which might be in the store at the time of de- 
 fault in the condition, the mortgagor to continue in possession, 
 although forbidden by a clause in the mortgage from selling on 
 credit, it was held that the mortgage was in its terms fraudu- 
 lent and void as against creditors. {Edgell vs. Hart, 5 SeU. 
 213; 8. G. 13 Barh. 280.) 
 
 It has been held in England, that a contract for the sale of 
 goods, to be thereafter produced by work and labor, is not 
 within the statute requiring a delivery as against creditors, 
 which only relates to sales where the sale is to be immediate, 
 and the buyer immediately answerable. In one case, a coach 
 was to be made, and in another, wheat was to be thrashed; and 
 as the article contracted to be sold was to be first manufac- 
 tured, or labor bestowed upon it, the contract was deemed to 
 be one for work and labor, or preparing an article for delivery. 
 (1 Strange, 506; 4 Burrow, 2101.) If the article sold exists 
 at the time perfect and complete, and is capable of delivery 
 
WARRANTY. 55 
 
 the contract is within the statute; but if the article is to be 
 afterward manufactured, or prepared by work and labor for 
 delivery, the contract is not within the statute. (8 Cow. 215; 
 5 Wend. 139; 2 Kent's Oomm. 512; Frost vs. Willard, 9 Barb. 
 440.) 
 
 If the debt, to secure which a mortgage was given, is assigned, 
 the mortgage passes with the debt, as an incident. The whole 
 legal title to a thing mortgaged, is transferred to the mort- 
 gagee, subject only to be defeated by the performance of the 
 condition, and, on the failure of the mortgagor to perform the 
 condition, the mortgagee acquires an absolute title to the chat- 
 tel, (1 Cow. 496 ; 7 id. 290 ; 2 Wend. 596 ; id. 80 ; 12 id. 61 ; 
 1 Hill, 473 ; Fox vs. Burns, 12 Barb. 677), notwithstanding 
 the mortgage contains a power of sale ; (Burdich vs. McVan- 
 ner, 2 Den. 170) ; and a tender of the money after forfeiture, 
 does not revest the legal title. i^PatcJiin vs. Pierce, 12 Wend. 
 61.) When, however, upon a default in payment, the mort- 
 gagee sells, under the power, a part of the property, and realizes 
 enough therefrom to pay the mortgage debt, with the interest 
 and expenses, the title to the residue revests absolutely in the 
 mortgagor, and a subsequent sale of the residue is tortious; 
 {Charter vs. Stevens, 3 Den. 33;) but, if the property is fairly 
 sold, and brings less than the debt, the balance may be recov- 
 ered of the mortgagor. {Case vs. Boughton, 11 Wend. 106.) 
 And until the property is actually sold the mortgagor may 
 redeem. {Pratt vs. 8tiles, 9 Abb. 150.) 
 
 5. Warranty. 
 
 In every sale of a chattel, if the possession be at the time m 
 another, and there be no covenant or warranty of title, the rule 
 of caveat emptor, (let the purchaser beware,) applies, and the 
 party buys at his peril. But if the seller has possession of the 
 article, and he sells it as his own, and not as agent for another, 
 and for a fair price, he is understood to warrant the title. 
 (2 Kent's Comm. 478; 1 Johns. 274; Dresser vs. Ainsworth, 9 
 Barb. 619.) The general rule is, that the vendor of a chattel 
 impliedly warrants the title; yet, when it is not in the vendor's 
 possession, but in that of another, this rule does not prevail. 
 In such case the party buys at his peril, unless there be an 
 
56 NEW YOEK JUSTICE. 
 
 express warranty. (10 Barb. 445; 3 Cow. 272; 6 Johns. 5; 
 20 id. 196; Vibbard vs. Johnson, 19 id. 11). 
 
 With regard to the quality or goodness of the article sold, 
 the seller is not responsible except under special circumistances; 
 as, where he has expressly warranted the article to be sound 
 and good, or has made a fraudulent representation, or used 
 some fraudulent concealment concerning it, which amounts to 
 a warranty in law. The common law very reasonably requires 
 the purchaser to attend, when he makes his contract, to those 
 qualities of the article he buys which are supposed to be within 
 the reach of his observation and judgment. (1 Johns. 274; 5 
 id. 355; 4 id. 421; Paul vs. Hadley, 23 Barb. 521.) On a 
 general sale of merchandise for a sound price, where there is no 
 express warranty or fraud, an action will not lie against the 
 vendor on an implied warranty that the article is merchantable, 
 although it is not fit for all the purposes to which it is ( ■rdina- 
 rily applied. (1 Qow. Treatise, 355; 18 Wend. 449; Moses 
 vs. Mead, 1 Den. 378.) 
 
 If there is no express warranty by the seller, or fraud on his 
 part, the buyer, who examines the article himself, must abide 
 by all losses arising from latent defects equally unknown to 
 both parties. (2 Caines, 48; 1 Johns. 96, 129, 274; 5 id. 354, 
 395; 13 id. 392; 18 id. 403; Sweet vs. Colgate, 20 id. 196.) 
 Where goods are ordered of a particular character, and are dis- 
 covered not to answer the order given for them, or to be 
 unsound, the purchaser ought immediately to return them to 
 the vendor, or give him notice to take them back, or he will be 
 presumed to acquiesce in their quality. (2 Kenfs Comm. 480.) 
 In the case of a breach of warranty, the vendee may sue upon 
 it for damages without returning the goods; (Muller vs. Eno, 
 4 Ker. 597); but he must return them and rescind the contract 
 in a reasonable time, before he can maintain an action to recover 
 back the whole price paid. (17 Johns. 437; Waring vs. 31ason, 
 18 Wend. 425; 12 id. 14.) 
 
 If an article be sold by sample, and the sample be a fair 
 specimen of the article, and there be no deception or wari-antj' 
 on the part of the vendor, the vendee cannot rescind the sale. 
 But such sale amounts to an implied warranty that the article 
 is in bulk of the same kind, and equal in quality to the sample. 
 K the article should turn out to be unmerchantable, from the 
 
BAILMENT. 
 
 57 
 
 same latent principle of infirmity in the sample as well as in 
 the bulk of the commodity, the seller is not answerable. The 
 only warranty is, that the whole quantity answers the sample. 
 (2 Kent's Oomm. 481; 20 Johns. 196; 4 Cow. 354, 440; 9 Wend. 
 20; 12 id. 556; 18 id. 425; Moses vs. Mectd, 1 Ben. 378.) 
 
 In conti-acts for the sale of provisions, a warranty on the 
 part of the seller is implied, that they are sound and whole- 
 some, especially if the provisions be intended for domestic use. 
 (3 Black. Comm. 165; 12 Johns. 468; Wright vs. Hart, 18 
 Wend. 449; 17 id. 268.) 
 
 In general, a warranty of an article sold should be made at 
 the time of the sale; but if, when parties are first in treaty re- 
 specting the sale, the owner ofiers to warrant the article, the 
 warranty will be binding, although the sale does not take place 
 until some days afterwards. (WilmotYS. Hurd, 11 Wend. 584.) 
 
 It is not necessary that the term warrant should be used, nor 
 are any particular words required to make out a wfurranty. 
 But it is essential that the affirmation made at the time of the 
 sale should be intended by the parties as a warranty; otherwise 
 it is merely the opinion or judgment of the vendor. (20 Johns. 
 196; 19 id. 290, 484; 4 Cow. 440; 2 id. 438; 10 Wend. 413; 
 Rogers vs. Ackerman, 22 Barb. 134.) An affirmation that a 
 horse is not lame, accompanied by a declaration of the owner 
 that he would not be afraid to warrant him, is enough to estab- 
 lish a warranty. [Cook vs. Mosely, 13 Wend. 277.) In general 
 a positive affirmation in regard to an existing fact distinctly 
 made in negotiations for a trade, should be regarded as a part 
 of the contract and enforced as a warranty. {Sweet vs. Brad- 
 ley, 24 Barb. 549.) 
 
 6. Bailment. 
 
 Actions are frequently brought in Justices' Courts, upon con- 
 tracts of bailment. 
 
 Mr. Justice Story defines bailment to be a delivery of a thing 
 in trust for some special object or purpose, and upon a contract, 
 express or implied, to conform to the object or purpose of the 
 trust. Story on Bailments, § 2. . The one who delivers the 
 thing in trust, is called the bailor, and the one receiving it, the 
 bailee. 
 
68 NEW YOEK JUSTICE. 
 
 Bailments are properly divided into three kinds : 
 
 1. Those in which the trust is for the benefit of the bailor. 
 Under this division, deposits and mandates are embraced. A 
 deposit is a delivery of goods to be kept by the bailee, without 
 recompense, for the bailor, and to be returned when he shall 
 require it; as when one leaves his watch or silver with another, 
 to be kept until his return from a journey. A mandate is a de- 
 livery of goods, to be carried from place to place, or to have 
 some act performed about the'm, without reward; as when one 
 requests a friend to receive a package and deliver it for him at 
 a particular place or to a certain person. 
 
 2. Those in which the trust is for the benefit of the bailee. 
 Under this division is included a loan for use, or in other words 
 a delivery of property to be used by the bailee, for a limited 
 time, without reward; as when one gratuitously lends his horse 
 or watch to a friend. 
 
 3. Those in which the trust is for the benefit of both parties; 
 which embraces articles pledged or pawned, and articles hired 
 or let to hire. A pledge or pawn is a delivery of goods to a 
 creditor as security for some debt or engagement. A hiring is 
 a bailment, always for reward or compensation. {Story on 
 Bailments, §§ 3 to 7.) 
 
 This last subdivision embraces four classes: First. The hiring 
 of a thing for use, as the hiring of a horse; Second. The hiring 
 of work and labor, as the hiring of an assistant; Third. The 
 hiring of care and services, to be performed or bestowed on the 
 thing delivered, as the deposit of a watch with a silversmith, to 
 be repaired, or the leaving of cloth with a tailor to be made 
 into clothes; Fourth. The hiring of the carriage of goods, of 
 which freight is a familiar illustration. 
 
 It is obvious that these difierent kinds of bailments impose 
 diflerent obligations upon the bailee, {id. §§ 8, 9.) Under the 
 first subdivision, where the trust is for the benefit of the bailor, 
 the bailee is liable for gross neglect only, {Fdson vs. Weston, 
 7 Cow. 278), and is not liable at all until the property has been 
 demanded and refused. {Brown vs. Cook, 9 Johns. 361- 
 Phelps vs. Bosticick, 22 Bard. 314.) Where goods are left 
 with a factor for sale on commission, the owner has no cause of 
 action against the factor for the price or value of the o-oods 
 until a demand by him; and until such demand the statute of 
 
COMMON CAERIERS. 59 
 
 limitations does not commence running. [^Baird vs. Walker, 12 
 Barb. 298.) But if the property has been delivered to a third 
 person, proof of demand and refusal is not necessary. {Esmay 
 vs. Fanning, 9 Barb. 176.) 
 
 Under the second subdivision, where the bailee receives the 
 benefit of the trust, he is responsible for the slightest neglect. 
 He must exercise all the care and diligence that the most care- 
 ful persons are accustomed to apply to their own affairs. 
 {8cranton vs. Baxter, 4 Sand. 5.) 
 
 Under the third subdivision, where both parties are to be 
 benefitted by the trust, most of the causes of action arise. 
 
 Common carriers, who undertake to carry goods for a com- 
 pensation, are bailees under the third subdivision, and are 
 liable for any loss not occasioned by the act of God, or of the 
 public enemy. They are, therefore, liable for a loss by fire. 
 (2 Hill, 623; 4 Sand. 136, 490; 3fcArthur vs. Sears, 21 Wend. 
 190.) A common carrier cannot restrict his liability by a gen- 
 eral notice that he will not be responsible for baggage, although 
 such notice is brought home to the passenger; (19 Wend. 251, 
 324; 21 id. 354; 2"6 id. 591; 9 id. 85; 25 id. 459; Gould ys. 
 Hill, 2 Hill, 623); though he may by an express contract; 
 {The Mer. M. Ins. Co. vs. Chase, 1 E. D. Smith's O. P R. 
 115); but to subject the carrier to damage for the loss thereof, 
 it must be strictly baggage, and include neither money nor 
 merchandise. (25 Wend. 459; 6 Hill, 586; Grant vs. Newton, 
 1 E. D. Smith's O. P. li. 95.) 
 
 The rule is the same as to a carrier by water and a carrier by 
 land. (19 Wend. 329; McArthur vs. Sears, 21 id. 190.) The 
 freezing of our canals and rivers is such an interposition of 
 superior force as excuses the delay of a common carrier by 
 water; but he is bound to exercise ordinary forecast in antici- 
 pating the obstruction, and must use the proper means to over- 
 come it, and exercise due diligence to accomplish the transpor- 
 tation as soon as the obstruction is removed, and, in the mean 
 time, must not be guilty of negligence in the care of the pro- 
 perty. {Bowman vs. Teall, 23 id. 306.) 
 
 A common carrier remains liable until the actual delivery of 
 the goods to the consignee; or, if the course of business be such 
 that the delivery need not be made to the consignee, his liability 
 continues until notice of the arrival of the goods be given. He 
 
60 NEW yOEK JUSTICE. 
 
 may, however, show that it is the uiiiform custom to leave them 
 without notice. (26 Wend. 591; 17 id. 305; 14 id. 215, 225; 
 Price vs. Powell, 3 Com. 322.) The liability of the carrier as 
 insurer, does not continue beyond the period of the arrival of 
 the goods at the place of destination, and their readiness for 
 delivery, with notice of such readiness, when the consignee can 
 be found. (Goold vs. Chapin, 10 Barb. 612.) 
 
 A contract to forward goods from one place to another and 
 distant place, sx\bjects the party to liability as a common carrier 
 for the whole route, although his own transportation line ex- 
 tends only a part of the distance, and the loss occurs on a por- 
 tion of the route in which he is not interested; and, if a carrier 
 on the lakes agrees to forward by steam goods so marked, and 
 instead of doing so, sends them by a sailing vessel, and they are 
 lost in a gale, he is liable for their value. {Wilcox vs. Parmer 
 lee, 3 Sand. 610.) 
 
 Acceptance of the goods by the owner does not bar the right 
 of recovery for injury arising from negligence, but may properly 
 be shown in mitigation of damages. {Bowman vs. Teall, 23 
 Wend. 306.) 
 
 Within the third subdivision hiring is embraced; in which 
 case the bailee is answerable for ordinary neglect. One who 
 nires a horse to go a journey is bound to treat it as carefully as 
 any man of common discretion would his own; (Harrington vs. 
 Snyder, 3 Barb. 380); but for any damage hapiDcning to the 
 horse without any negligence or misconduct of the bailee, the 
 loss must be sustained by the bailor, and the burden of proof 
 lies on him to show the negligence. It is not enough that the 
 horse becomes disabled, if he is not shown to have become so 
 through the bailee's fault. {Millon vs. Salisbury, 13 Johns. 
 211; 3 Barb. 380.) 
 
 When articles are delivered to another to be repaired or re- 
 newed, the property of the articles, with the additions, remains 
 in the former owner, both during the performance of the work, 
 and after its completion; (Gregory vs. Stryker, 2 JDen. 628); 
 but the bailee has a lien upon the articles for the labor be- 
 stowed, and if a part of the articles has been redelivered, the 
 lien attaches upon the residue. (26 Wmid. 467; Morgan vs. 
 Oongdon, 4 Coins. 552.) 
 
 Property is frequently delivered to a creditor, as security for 
 
MONET PAID, ETC. 61 
 
 a precedent debt, or for a debt incurred at the time, and when 
 so delivered it is termed a pledge. (Stearns vs. Marsh, 4 Den. 
 227.) The legal property continues in the person making the 
 pledge, and therein consists the difference between a pledge 
 and a mortgage. In the latter case, the legal title is in the 
 mortgagee, and the mortgage may be good without a delivery 
 of the property; but not so in the case of a pledge. Where no 
 time has been fixed for redemption, the pawnor may redeem at 
 any time, and the right survives to his representatives, against 
 the pawnee and his representatives. Where the pawnee has 
 pai'ted with the pledge, the pawnor need not tender the sum 
 borrowed, to entitle himself to an action. (2 Caines, 200; 1 
 Sand. 351; Wilson vs. Little, 2 Corns. 443.) A creditor cannot 
 sell the property pledged without giving notice to the debtor 
 to redeem. (2 Corns. 443; Stearns vs. Marsh, 4 Den. 227.) 
 
 7. Money Paid, Laid Out, and Expended, &c. 
 
 An action may be maintained for money paid, laid out, and 
 expended for another, for money received 1)}^ him, for goods, 
 wares, and merchandise sold and delivered to him, and for ser- 
 vic'S rendered, and work and labor performed, for him, where 
 the e is no special agreement or express contract. 
 
 iJ a person has received money, or something which has 
 been converted into money, belonging to another, without any 
 valuable consideration given on the receiver's part, the law 
 construes this to be money had and received for the use of the 
 owner only, and implies that the person so receiving, pro- 
 mised and undertook to account for it to the true proprietor. 
 (2 Oomyn on Contracts, 3.) Money lent by one person to 
 another, or advanced to one at the request of another, or paid 
 out or expended for another at his request, may be recovered. 
 (id. 137, 149.) 
 
 There must always be a consideration to sustain an agree- 
 ment, but the slightest consideration is sufficient. (21 Wend. 
 588; Johnson vs. Titus, 2 Hill, 606; 2 Kent's Comm. 46.) To 
 support an action for money had and received, it is, as a general 
 rule, necessary to prove that the money or its equivalent has 
 been received by the defendant or his agent, and that he is, in 
 equity and good conscience, bound to repay it. (7 Goto. 662; 
 Buell vs. Boughton, 2 Den. 91.) 
 
62 NE"W TOEK JUSTICE. 
 
 An agent is liable for all money received for his principal, an 
 attorney for money received for his client, and a sheriff or con- 
 stable for money received on an execution. (1 Cow. Trecdise, 
 146, 147 ; Hancock vs. Gomez, 50 N. Y.., 668 ; Baker vs. Ken- 
 wortky, 41 IST. Y., 215.) 
 
 Money paid as a consideration for an agreement which is 
 rescinded, or upon a consideration which has failed, {Wheeler 
 vs. Board, id. 363,) or in pursuance of an authority which is 
 forged or void; money extorted or obtained by undue advan- 
 tage, fraud, deceit, or embezzlement, and money paid under 
 an illegal contract, by one not himself a party in the criminal- 
 ity, may be recovered back. {Burt vs. Place, 6 Cow. 431.) 
 But where a contract is entered into by two parties, the object 
 of which is to violate a public statute in its provisions, spirit, 
 or policy, money paid in execution of the contract, but unex- 
 pended, cannot be recovered back. {Perkins vs. Savage, 15 
 Wend. 412.) 
 
 Money paid by a party under a mistake of facts, without any 
 negligence imputable to him, may be recovered back; but not 
 money paid under a mistake of law. {Franklin Bank vs. 
 Raymond, 3 Wend. 69.) Money paid through a mutual mis- 
 take of facts, in relation to which both parties were equally 
 bound to inquire, may be recovered back; but the party claim- 
 ing a return of the money must prove the facts which entitle 
 him to it. (1 Hill, 287; 3 Com. 230; Wyman vs. Famswoith, 
 3 Barb. 369.) Money paid to an attorney as costs, where costs 
 were not recoverable, and through mutual ignorance of the law, 
 may be recovered back. {Moulton vs. Bennett, 18 Wend. 586.) 
 For money paid, laid out, and expended for another, at his 
 request, an action may be maintained, but it must appear that 
 money or its equivalent has been actually advanced. (8 Johns. 
 202; 7 id. 132; 1 Cowen's Treatise, 173.) The request need 
 not be express, but may be by implication. 
 
 An action cannot be maintained for a voluntary payment, 
 where there is no legal obligation; as where an oflScer, having 
 an execution to collect, or a collector, having a warrant for 
 taxes, paj^s the amount without any request from the party 
 liable to pay. (3 Johns. 434; 8 id. 436; 10 id. 361; 14 id. 
 87; Sanford vs. Mayor of JV. Y., 33 Barb. 147.) Where 
 money is paid in consequence of a legal liability to which one is 
 
CONTRACTS RELATING TO LANDS. 63 
 
 subject, but which another ought to pay, an action may be 
 maintained; as in the case of a surety who is compelled to pay 
 the debt of his principal. (4 Hill, 345; Powell vs. Smith, 8 
 Johns. 249.) 
 
 An action will lie for goods sold and delivered, or for goods 
 bargained to be sold, by one person to another. If the price 
 is agreed upon, the purchaser is bound to pay it; but if no 
 price is stipulated, the law implies that the purchaser shall pay 
 what the articles sold are reasonably worth. The plaintiff must 
 prove the contract of sale, the delivery of the goods, and their 
 value. 
 
 When the terms of sale are agreed on, and the bargain is 
 closed, and everything that the seller has to do with the goods 
 is complete, the contract of sale becomes absolute as between 
 the parties, without actual payment or delivery, and the pro- 
 perty and the risk of accident to the goods vest in the buyer. 
 He is entitled to the goods on payment or tender of the price, 
 and not otherwise, when nothing is said on the sale as to the 
 time of delivery, or the time of payment. In such cases, the 
 payment or tender of the price is a condition precedent, and 
 the buyer cannot take the goods, or sue for them, without pay- 
 ment. But if the goods are sold upon credit, and nothing is 
 agreed upon as to the time of delivering the goods, the vendee 
 is entitled to their immediate possession, and the right of pos- 
 session and property vest at once in him. This right of pos- 
 session is, however, not absolute, but is liable to be defeated, 
 if he becomes insolvent before he obtains possession. If the 
 seller has even dispatched the goods to the buyer, and insolv- 
 ency occurs, he has a right to stop them in transitu. (2 Kent's 
 Comm. 492.) 
 
 When property is sold to be paid for on delivery, the ven- 
 dee, to sustain an action for their non-delivery, must aver and 
 prove a request to deliver. (2 Ooioen's Treatise, 260; 10 Mass. 
 Rep. 230.) 
 
 8. Contracts Relating to Lands. 
 
 In this connection it will be proper to state some of the pro- 
 visions in regard to conveyances and contracts relative to lands. 
 
 No estate or interest in lands, other than leases for a term not 
 exceeding one year, nor any trust or power over or concerning 
 
64 NEW YORK JUSTICE. 
 
 lands, or in any manner relating thereto, can be created, grant- 
 ed, assigned, surrendered or declared, unless by act or opera- 
 tion of law, or by a deed or conveyance in writing, subscribed 
 by the party creating, granting, assigning, surrendering or de- 
 claring the same, or by his lawful agent thereunto authorized 
 by writing. And every contract for the leasing for a longer 
 period than one year, or for the sale of any lands or any interest 
 in lands, is void, unless the contract, or some note or memoran- 
 dum thereof, expressing the consideration thereof, be in writing, 
 and be subscribed by the party by whom the lease or sale is 
 made. (2 E. S. 134, § 6; id. 135, § 8.) 
 
 A parol contract for the leasing of lands for more than one 
 year is absolutely void, (id.) So are an agreement that one 
 may build and maintain a permanent dam upon the land of 
 another; (^Mumford vs. Whitney, 15 Wend. 380); an agreement 
 that one may build a house and occupy it for an indefinite time; 
 {Hoiightaling vs. Houghtaling , 5 Barh. 379); an agreement for 
 the exchange of lands; {Rice vs. Peet, 15 Johns. 503); a con- 
 tract to sell and deliver the improvements and possession of 
 lands; (Howard vs. Easton, 7 id. 205); an agreement to extend 
 the time of performance of a contract for the conveyance of 
 land; {Hasbrouck vs. Tappen, 15 id. 200); an agreement to 
 convey land for services, though the services be rendered in 
 pursuance of the agreement; (7 Cow. 92; King- vs. Brown, 2 
 Hill, 485); an agreement to bid in premises upon a sale for the 
 benefit of another; (5 Barh. 63; Lathrop vs. Hoyt, 7 id. 59); 
 the grant of a right to enter upon and occupy the land of an- 
 other, for a permanent purpose, or for an indefinite time; (6 
 Hill, 47; 3 Corns. 511; Pitkin vs. Long Is. B. R. Oo. 2 Barb. 
 Ch. R. 221); and the sale of growing trees, fruit and grass. 
 (1 Den. 150; 1 Barb. 542; 2 id. 613; Pierrepont vs. Barnard, 
 5 id. 364; but see S. O. 2 Seld. 279.) 
 
 The sale of a pew in a churcla is a sale of an interest in real 
 estate, and the contract for such a sale, or some note or memo- 
 randum thereof, expressing the consideration, must be in writ- 
 ing and be subscribed by the vendor, or his agent; the printed 
 name of the vendor is not a sufficient subscription. (Viele vs. 
 Osgood, 8 Barb. 130.) 
 
PROMISSORY NOTES. 65 
 
 9. Use and Occupation of Lands. 
 
 A landlord may recover, in an action on the case, a reason- 
 able satisfaction for the use and occupation of any lands or 
 tenements, by any person under any agreement not made by 
 deed; and if any parol demise or other agreement, not being by 
 deed, by which a certain rent is reserved, shall appear in evi- 
 dence on the trial of any such action, the plaintiff nhall not, on 
 that account, be debarred from a recovery, but may make use 
 thereof as evidence of the amount of the damages to be recover- 
 ed. (1 B. S. 748, § 26; 1 Wend. 134; 7 id. 109; 1 Ben. 37; 
 
 6 Johns. 46; 13 id. 240, 297; Hinsdale vs. White, 6 Hill, 507.) 
 The landlord can recover for use and occupation, only for the 
 time the tenant has actually occupied the premises, either by 
 himself or by his sub-tenant; and where he has never entered 
 under the lease or agreement, either in person or by an under- 
 tenant or agent, there can be no recovery. (Croswell vs. Crane, 
 
 7 Barb. 191.) Nor can he recover any compensation either on 
 the agreement for payment, or for use and occupation, for a part 
 of the premises occupied by the tenant, where the tenant was 
 deprived of the residue of the premises by an eviction. {Chris- 
 topher vs. Austin, 1 Kern. 216.) But there must be an actual 
 eviction. (Edgerton vs. Paige, 5 Abb. 1.) 
 
 10. Promissory Notes. 
 
 A promissory note may be defined to be a written engage- 
 ment by one person to pay another person therein named, ab- 
 solutely and unconditionally, a certain sum of money, at a time 
 specified therein. It must be for the payment of money only, 
 and not for the performance of some other act, nor can it be in 
 the alternative, or payable on any contingency, or out of a par- 
 ticular fund. {Story on Promissory JVbtes, § 1; Edwards on 
 Bills, 124.) A written instrument, payable to the estate of M. 
 L., deceased, is not a promissory note. {Lyon vs. Marshall, 11 
 Barb. 241.) 
 
 Notes are negotiable or not negotiable. " For value received, 
 Auburn, Nov. 28th, 1852, I promise to pay to Eichard Roe one 
 hundred dollars, six months from date. John Doe." — is not a 
 
 negotiable note, for it is payable to one person only. " For 
 
 5 
 
66 NEW YORK JUSTICE. 
 
 value received, Auburn, Nov. 28, 1852, I promise to pay to 
 Richard Roe, or bearer (or order), two hundred and fifty dol- 
 lars, three months from date, with interest. John Doe." — is a 
 negotiable note. 
 
 The person to whom the note is payable, is called the payee. 
 When he transfers it by endorsing his name on the paper, he is 
 called an endorser. When he simply endorses his name on the 
 note, it is called an endorsement in blank. When he endorses 
 his name and the name of the person to whom, or to whose 
 order, the note is to be paid, it is called an endorsement in full, 
 and the person to whom it is endorsed, is called the endorsee. 
 A restrictive endorsement is an endorsement made to one per- 
 son only, and not to him or his order. 
 
 Formerly, notes wanting negotiable words could not be trans- 
 ferred or negotiated so as to enable the assignee to sue upon 
 them in his own name (3 Kent's Comm. 77); but now, as the 
 Code requires all actions to be brought in the name of the 
 party in interest, the question of negotiability does not aflfect 
 the parties to, or the form of, the action. 
 
 When, however, a party takes a non-negotiable note, he takes 
 it subject to all equities between the original parties. (3 Johns. 
 439; 11 Barb. 620; Beckwith vs. Union Banh, 4 Sand. 610.) 
 A note negotiable, but not endorsed, transferred by delivery, 
 and a note not negotiable transferred by delivery, are open to 
 every equitable defence which the maker had against them at 
 the time of the transfer; and if the payee could not have re- 
 covered at that time, the holder cannot. {Hedges vs. 8ealy, 9 
 Barl. 214.) 
 
 A note payable to bearer, or order, is negotiable, and may 
 be transferred, so as to give to the holder all the rights of the 
 payee. When a note is payable to bearer, it may be transferred 
 by mere delivery without endorsement; and when it is payable 
 to order, it may be transferred by endorsing the payee's name 
 on the note, and passing the title by delivery. It is not neces- 
 sary that the endorsement should be upon the back of the note, 
 but it is sufficient if it be on the face. If it be by a mark' 
 there must be a subscribing witness. {8tory on Promissory 
 N'otes, § 152.) An endorser may exempt himself from liability 
 by adding after his endorsement the words, without recourse 
 (3 Kenfs Comm. 92; Hicks vs. Hinde, 9 Barb. 528.) 
 
PROMISSORY NOTES. 67 
 
 It is not necessary that a note should be dated. Nor need 
 the words value received he inserted, for every note imports a 
 consideration, unless the contrary appears by the note itself. 
 {Goshen Turnpike Oo. vs. Hurtin, 9 Johns. 217.) The date of 
 an instrument in writing is only presumptive evidence of the 
 time of its actual execution, and whenever fraud or mistake is 
 alleged, may be rebutted by parol evidence. {Breck vs. Cole, 
 4 Sand. 79.) Any benefit to the person making the promise, 
 or any loss, trouble, or inconvenience to, or charge upon, the 
 person to whom it is made, is a sufficient consideration. {Smith 
 on Contracts, 52.) 
 
 The maker of a note in the ordinary form, is entitled to three 
 days beyond the time expressed in the note, in wliich to pay it. 
 These are called days of grace, and are to be computed exclu- 
 sive of the day on which the note would otherwise become 
 due, and inclusive of the third day of grace. {Story on Pro- 
 missory JVotes, § 217.) Thus, a note dated the first day of 
 January, 1852, payable one month after date, would be due the 
 first day of February, 1852. But the three days of grace will 
 postpone the payment until the fourth day of February. If a 
 note thus dated were payable in thirty days from date, the 
 days of grace would begin on the first day of February, and 
 end on the third. When the last day of grace falls on a Sun- 
 day or holiday, the note becomes due and payable on the pre- 
 ceding day. {id. § 220; 2 Hill, 587; 3 Wend. 456; 4 id. 566; 
 4 Hill, 129; Edwards on Bills, 517.) The following days, viz.: 
 the first day of January, the twenty-second day of February, the 
 thirtieth day of May, the fourth day of July, the twenty-fifth day 
 of December and general election day, and any day appointed or 
 reeorameaded by the Governor of this State, or the President of 
 the United States, as a day of fast or thanksgiving, are for all 
 purposes whatsoever as regards the presenting for payment or 
 acceptance, and the protesting and giving notice of the dishonor 
 of bills of exchange, bank-checks and promissory notes, tp be 
 treated and considered as Sunday. {Laws of 1%B1, chap. 30.) 
 
 As between the original parties to a note, or the endorser and 
 endorsee, the consideration of the note may always be inquired 
 into ; but where a negotiable note has, before maturity, passed 
 into the hands of a hona fde holder for a valuable considera- 
 
68 NEW YORK JUSTICE, 
 
 tion, without notice, the original consideration of the note can- 
 not, as a general rule, be inquired into. 
 
 Possession is prima facie evidence of property in negotiable 
 paper. And a bona fide holder can recover upon it, though it 
 came to him from a person who had stolen it li'om the true 
 owner, provided he took it innocently, and without notice, in 
 the course of trade, for a valuable consideration, before matu- 
 rity, and under circumstances of due caution; and he need not 
 account for its possession, unless suspicion be raised. This 
 doctrine is founded on the commercial policy of sustaining the 
 credit and circulation of negotiable instruments. (3 Ken(s 
 Oomm. 78.) 
 
 Every note, absolutely void in its inception, is equally void 
 in the hands of an innocent holder, whether transferred before 
 or after due; as a note given upon a usurious consideration. 
 {Laws of 1837, chap. 430, § 1.) And a note, delivered by the 
 maker without consideration therefor to a third person, to enable 
 the latter to raise money thereon for the maker, or for himself, 
 has no legal inception in his hands. If he negotiates the note 
 upon a usurious consideration, it is void. {Qatlin vs. Gicnter, 1 
 Kern. 368; 2 Buer, 62; 5 id. 468; 4 id. 408.) But when two 
 persons exchange notes, each note, in judgment of law is foun- 
 ded on a valuable consideration, and is therefore valid at its 
 inception and from its first delivery. [Odell vs. Greenly, 4 
 Duer, 358.) A total failure of the consideration of a note, or 
 that it was given without consideration, may be proved on the 
 trial, under the general denial of the complaint. {Mealdn vs. 
 Anderson, 11 Barh. 215.) 
 
 An endorsee who buys a note at less than its face, can recover 
 against the endorser no more than the sum for which he bought 
 the note, with interest; but he may recover the full amount of 
 the note against the maker. {Ingalls vs. Lee, 9 Barb. 647.) 
 
 K property is sold for the purpose of defrauding creditors, 
 and a promissory note is taken to secure the payment of the 
 consideration money, the contract being illegal and void, no 
 action will lie by the payee on such note. Nor will the note 
 be rendered valid by including in it a sum honestly due, and 
 growing out of a different transaction; for, when a part is void, 
 the whole is void, and the party must sue on the original con- 
 sideration. (JSfiver vs. Best, 10 Barb. 369.) 
 
PROMISSORT NOTES. 69 
 
 As between the makers of a promissory note and the holder, 
 all are alike liable, and all principals; but, as between them- 
 selves, their rights depend upon other questions, which are the 
 proper subjects of parol evidence. The fact that one of the 
 signers of such a note adds to his signature the word " security," 
 is evidence prima facie that he signed the note as surety for 
 somebody; but even that presumption may be overcome by 
 proof that, though he signed as security, he was in fact a prin- 
 cipal debtor. (Bobinson vs. Lyle, 10 JBarb. 512.) 
 
 There is a difference between the contract made by the 
 maker, and the contract made by the endorser, of a promissory 
 note. The contract of the maker is, that he will pay the note 
 when it becomes due; and if it is payable at a particular place, 
 that he will pay it at that place. The contract of the endorser 
 is: 1st. That the instrument itself and the antecedent signar 
 iures thereon are genuine; 2d. That he, the endorser, has a good 
 title to the instrument; and, 3d. That the note will be duly 
 paid at maturity, and, if not, that he will, on due presentment 
 of it for payment to the maker, and non-payment, and due 
 notice thereof, take it up. (3 JTent's Oomm. 88; 8tory on Prom. 
 JVbtes, § 135.) The endorsement of a promissory note also im- 
 ports a guaranty by the endorser that the makers were compe- 
 tent to contract in the character in which by the terms of the 
 paper they purported to contract; {Erwin vs. Downs, 15 New 
 York li. 575), and knowledge by one who became the holder 
 of such note before maturity, and for a valuable consideration 
 that the makers were incompetent — e. g., that they were mar- 
 ried women — does not deprive him of his right to rely on the 
 implied guaranty of the endorser that they were competent, nor 
 of the privilege of a bona fide holder. 
 
 A promissory note is joint or several. It is joint, when made 
 by two or more persons, and when no words indicating a sepa- 
 rate promise appear upon it. If the words jointly and seve- 
 rally are used, it is a joint and several note. When two or 
 more persons sign a note written thus: I promise to pay, it is a 
 ioint and several note, and the makers may be sued jointly or 
 severally. If the note be signed in the name of a firm, whether 
 the name represents in form only one person, or more than one 
 person, it is the joint note of the firm, and all the partners may 
 
70 NEW YORK JUSTICE. 
 
 be jointly sued thereon, and that, whether the words be, we 
 promise, or I promise. {Story on Prom. Notes, 57.) 
 
 In a note written " we jointly or severally promise," or is 
 construed to mean and, and it is a joint and several note. If 
 the note is written we promise, and signed hj A B principal, 
 and O D surety, it is the joint note of both; and if it is writ- 
 ten I promise, and signed in the same manner, it is the joint 
 and several note of both. The word surety does not affect the 
 rights of the payee or subsequent holder; it merely indicates 
 the relation of the makers to each other. 
 
 An officer of a corporation to whose order, as such, a note 
 executed to it is payable, and who indorses the note, adding to 
 his name his official character, and negotiates it on behalf of 
 the corporation, is not personally responsible as endorser. The 
 effect of such endorsement is merely to transfer the paper. {Bai- 
 coch vs. Beman, 1 Kern. 200; 1 E. D. Smith's O. P. R. 593.) 
 Proof must be given, however, that the treasurer had authority 
 to make the transfer. {Knight vs. Laing, 2 Abh. 227.) 
 
 To maintain a suit against an endorser of a note, it is neces- 
 sary that a demand of payment be made of the maker, or, if 
 the note is payable at a particular place, at that place, and that 
 payment be refused; and the demand must be made on the 
 precise day the note falls due. {Qayuga Co. BanJc vs. Warden, 
 
 1 Com. 413; 8 Barh. 396; Story on Prom. Notes, § 201.) If 
 the note is not paid, notice must be given to the endorser; 
 {Story on Prom. Notes, \ 220;) and, at farthest, on the next 
 day after the dishonor. {Edwards on Bills, 615.) If the third 
 day of grace falls on a Sunday or a holiday, it will be sufficient 
 to give the notice on the next succeeding day. (4 Wend. 566- 
 
 2 Gaines, 343; 3 Cow. 252; Howard vs. Ives, 1 Hill, 263.) As 
 to what are holidays, see ante p. 67. 
 
 No precise form of words is necessary to give notice to an 
 endorser; all that is essential is, that it be sufficient to put him 
 on inquiry and prepare him to pay the note, or to resist its col- 
 lection. {Cayuga Go. Banh vs. Warden, 1 Com. 413; 9 Wend. 
 279; 21 id. 10; 2 Hill, 587.) 
 
 A notice dated the day on which the note is made payable, 
 and which states its amount and the names of the maker and 
 endorser, is a sufficient description of the note, in the absence 
 of proof that any other note existed to which the notice might 
 
PROMISSOET NOTES. 71 
 
 refer. And a statement in a notice of protest that the note was 
 protested for non-payment, is sufficient notice of a presentment 
 and demand of payment at the time and place for payment. 
 {Youncfs vs. Lee, 2 Kern. 551; 5 8eld. 279; 18 Barb. 187.) 
 
 The notice may be oi-al or verbal, (^Woodin vs. Foster, 16 
 Barb. 146,) or it may be in writing. It may be oral or verbal 
 in all cases where it is directly made to the person who is to 
 receive the notice; and it may also be oral or verbal when it is 
 at his place of business, or at his dwelling house; although, in 
 the latter cases it is most usually in writing. But where the 
 notice is to be sent by mail, and not by a special messenger, it 
 must be in writing; for otherwise the party could not have any 
 means accurately to ascertain its character, object, or operation. 
 {^Story on Prom. Notes, § 341.) 
 
 If the party entitled to notice, and the holder, reside in the 
 same town or city, the former nile was that notice must be 
 given to the party entitled to it, either personally or at his 
 domicil, or place of business. (10 Johns. 490; 11 id. 231; 4 
 Hill, 129; 5 id. 236.) If the holder, and the endorser entitled 
 to notice, reside in dilFerent towns, notice may be sent to the 
 latter through the mail to the place where he is actually resi- 
 dent. (13 Johns. 432; 11 id. 231.) If he resides in one town, 
 and does business in another, notice may be sent to either, (4 
 Wend. 328; 4 Sand. 93,) excepting where the known residence 
 of an endorser is in the town where the note is held and made 
 payable. In such case notice cannot be served on him by mail, 
 directed at his place of business at another town, but must be 
 served on him personally, or by leaving at his residence or 
 place of business. (3 Kern. 549.) The notice may be given 
 by a party to the note, or by a person duly authorized; (18 
 Johns. 230; 3 Wend. 173;) and, if the party be dead, the 
 notice must be given to his personal representatives. Notice 
 maybe served by mail in all cases. (^Laics of 1857, chap. 416, 
 p. 838.) 
 
 An endorser of a note does not dispense with the necessity 
 of presentment for payment and notice of non-payment, by 
 taking from the maker security against his liability. (Seacord 
 vs. Miller, 3 ITern. 55.) Nothing short of the clearest evidence 
 of assent, express or implied, on the part of an endorser, will 
 amount to a waiver of notice of protest. {Hill <& D. Supp. 122.) 
 
72 NEW YORK JUSTICE. 
 
 In a suit against the maker of a note, only his signature need 
 be proved. A demand before suit, whether the note is payable 
 at a particular place or not, i.« not necessary; but the maker 
 may plead readiness at the place, and bring the money into 
 Court, and exonerate himself from interest and costs. (17 
 Johns. 248; 8 Oow. 271; Haxtun vs. Bishop, 3 Wend. 13.) 
 
 Unless a note is payable with interest, it does not draw inter- 
 est until it becomes due, and then the interest must be computed 
 from the last day of grace. 
 
 A guaranty is either of the payment of a note, or of its col- 
 lection. If of the former, the guarantor is liable, upon the fail- 
 ure of the maker, to pay. If the guaranty is of payment upon 
 demand, the demand must be averred and proved. (2 Johns. 
 Cases, 405; Douglass vs. Rathbone, 5 Hill, 143.) If the guar- 
 anty is of collection, the holder must exhaust his remedy 
 against the maker, before he can recover from the guarantor. 
 {Cumjpston vs. McNair, 1 Wend. 457.) A guaranty is a special 
 contract, and the suit must be upon it, and not upon the note. 
 (Ellis vs. Brown, 6 Barh. 282.) If the guaranty be by the 
 payee, it operates to transfer the note, but not as an endorse- 
 ment, {yanderveer vs. Wright, id. 547.) A guarantor can- 
 not be made liable as an endorser, nor is he entitled to set up 
 want of demand and of notice. (2 id. 51; Brown vs. Ourtiss, 
 2 Corns. 225.) The true rule in the construction of guaranties 
 is, that in all cases where an absolute guaranty is endorsed in 
 full upon a note, the maker of the guaranty is to be held, 
 neither as a maker nor as an endorser, but as a guarantor simply 
 of the note. (15 Law Reporter, new series, vol. 5, 541.) 
 
 11. Interest. 
 
 The rate of interest upon the loan or forbearance of any 
 money, goods, or tilings in action, is six dollars upon one hundred 
 for one year ; and at that rate for a greater or less sum, and for a 
 longer or shorter time. {Laws of 1870, chap. 538.) 
 
 Interest is not allowed on an imliquidated account for goods 
 sold and delivered, where no time is fixed for its payment, and 
 there is no agreement, expressed or implied, to pay interest ; 
 (4 Cow., 497 ; 6 id., 193 ; 4 Barl., 36 ; 2 Corns., 135 ; Esterly vs. 
 Cole, 3 id., 602); nor is it recoverable upon an unliquidated 
 account for work, labor and services. (7 Wend., 178 ; Holmes 
 
INTEREST. 73 
 
 VS. RanJdn, 17 Barb, 454.) But, where a merchant has been 
 in the habit of charsrina; his customers interest after a limited 
 period of credit, those who deal with him with a knowledge of 
 the fact, are bound to pay interest. So, too, where there is a 
 general usage in any particular trade or branch of business, to 
 charge and allow interest, parties having knowledge of the 
 usage, are presumed to contract in reference to it. (8 id. 109; 
 4 id. 83; 1 Barb. 235; Esterly vs. Cole, 3 Corns. 502.) 
 
 The rule for calculating interest, where a partial payment has 
 been made, is, to calculate interest on the principal, up to the 
 time when the payment was made, add this interest to the prin- 
 cipal, and then deduct the payment. This rule, however, is to 
 be adopted only in cases where the payment exceeds the inter- 
 est due; otherwise it will be taking interest upon interest. 
 When a payment falls short of the interest due, it must not be 
 deducted; but interest must be calculated upon the principal, 
 up to the time when the payments, taken together, will exceed 
 the interest due, and the deduction must then be made. {Wil- 
 liams vs. Houghtaling, 3 Cow. 86.) 
 
 When a balance of an account is received, without any charge 
 for interest, interest cannot afterwards be demanded. {OoTise- 
 qua vs. Fanning, 3 Johns. Ch. R. 587.) If payment of the 
 principal is accepted in full, it is a good accord and satisfaction; 
 {Johnston vs. Brannan, 5 Johns. 268); but it must be accepted 
 in full, for payment of the amount of the principal, if made 
 generally, on an account composed of principal and interest, 
 applies first to extinguish the interest, and thus leaves a part of 
 the principal still due. {The People vs. JSfew YorJc, 5 Cow. 
 331.) The receipt of the principal debt, where interest is only 
 recoverable as damages, is a bar to an action for the interest. 
 {Jacott vs. Emmett, 11 Paige, 142.) 
 
 12. Usury. 
 
 It is provided by statute, that no person or corporation shall, 
 directly or indirectly, take or receive in money, goods or things 
 in action, or in any other way, any greater sum or greater value, 
 for the loan or forbearance of any money, goods or things in 
 action, than six dollars upon one hundred dollars for one 
 year, and afler that rate for a greater or less sum, or for a 
 longer or shorter time; (1 R. 8. 772, § 2); and every person 
 
74 NEW YORK JUSTICE. 
 
 who, for any such loan or forbearance, shall pay or deliver any 
 greater sum or value than is above allowed to be received, and 
 his personal representatives, may recover, in an action against 
 the person who shall have taken or received the same, and his 
 personal representatives, the amount of the money so paid or 
 value delivered, above the rate aforesaid, if such action be 
 brought within one year after such payment or delivery, (id. 
 § 3.) If such suit be not brought within the said one year, and 
 prosecuted with effect, the overseer of the poor of the town 
 where such payment may have been made, or any county super- 
 intendent of the poor of the county in which the payment has 
 been made, may sue for and recover the said sum with costs, at 
 any time within three years after the said one year. {id. § 4.) 
 
 All bonds, bills, notes, assurances, conveyances, and all other 
 contracts or securities whatsoever, (except bottomry and respon- 
 dentia bonds and contracts,) and all deposits of goods or other 
 things whatsoever, whereupon or whereby there shall be re- 
 served taken, or secured or agreed to be reserved or taken, any 
 greater sum or greater value, for the loan or forbearance of any 
 money, goods, or other things in action, than is above prescribed, 
 are void. {id. § 5.) Whenever, in an action at law, the de- 
 fendant pleads or gives notice of the defence of usury, and 
 verifies the truth of his plea or notice by aiBdavit, he may, for 
 the purpose of proving the usury, call and examine the plain 
 tiff as a witness, in the same manner as other witnesses may be 
 called and examined, {id. § 9.) 
 
 It is not illegal to stipulate for compound interest, or that in- 
 terest, as it liccomes due, shall be converted into principal, and 
 caiTy interest; and a note given for the balance of an account, 
 on which account interest has been annually added, is not 
 usurious. (1 Johns. Ch. li. 14; 1 Wend. 521; Forman vs. 
 Forman, 17 How. 255.) Including interest upon interest in a 
 note given upon settlement is not usury. {Kellogg vs. Hiclcok. 
 1 Wend. 521.) To take out interest in advance, as in discount> 
 ing a note, is not usurious, and there is no distinction in this 
 respect between bankers and others; (15 Johns. 162; 2 Ooio. 
 664, 678, 712; Utica Ins. Go. vs. Blbodgood, 4 Wend. 652); nor 
 is taking interest for the tlu-ee days of grace. {Bank of Utica 
 vs. Wager, 2 Cow. 712.) 
 
 A mistake in the computation of interest will not make a loan 
 
USURY. 
 
 75 
 
 usurious; and, when the mistake is trifling, the Court will pre- 
 sume that there was a mistake in calculation, i-ather than an 
 error in the principle of computation. {JV. Y. Fire Ins. Co. 
 vs. Sturges, id. 664, 678; 1 Hill <& D. Sujpp. 34.) A note pay- 
 able one year from date, with interest quarterly, is not usurious; 
 {M'jwri/ vs. Bishop, 5 Paige, 98); nor is a note presumptively 
 usurious, because it bears interest from a time prior to its date. 
 {Marvin vs. Fetter, 8 Wend. 533.) Selling uncurrent bank- 
 notes, which are two or three per cent, below par in the market, 
 for their nominal amount in current money to be paid in thirty 
 days, if a cover for a loan, is usury. {Pratt vs. Adams, 1 
 Paige, 615.) 
 
 The criterion by which to detect usury, where any thing is 
 given besides money in consummating a loan, is the market 
 value of that which is given, and the gain to the lender in 
 charging and obtaining more than such market value. {Mum- 
 ford vs. Am. L. I. & T. Co. 4 Com. 463.) 
 
 The statute prohibiting usury applies only to those loans 
 which are in substance and effect loans of money. The inten- 
 tion of the statute is, to prohibit more than six per cent, upon 
 direct loans of money, and upon loans of money made indirect- 
 ly by way of loan of goods and things in action. A loan of 
 goods, or of a chose in action, unless intended as a mere cover 
 for a loan, is not usurious. And, in all cases where the con- 
 tract is in form one of sale or exchange, if the Court, in looking 
 at the whole transaction, can see that the value secured to the 
 vendor was, in good faith, but the price of the thing sold or 
 exchanged by him, there can be no usury, whatever the price 
 may be, or the mode in which it may be secured. Where, 
 however, the object of the parties is a loan of money, and some- 
 thing else, under the form of a sale or exchange, is substituted 
 for it, the principal of the loan or debt will be the value in 
 money received by the nominal vendor. {Dnj Dock BJc. vs. 
 Am. L. I. & T. Co. 3 Corns. 344.) And where on an applica- 
 tion for the loan of money the borrower, in lieu thereof, and in 
 exchange for his own obligation, receives the negotiable obliga- 
 tions of the lender for the amount, which the parties intend 
 shall be, and which are, used by the borrower to raise the 
 money, the transaction is a loan within the usury laws. {8cher 
 merhom vs. Tallman, 4 Kern. 93.) 
 
76 NEW YORK JUSTICE. 
 
 A usurious contract is executed and extinguished by pay- 
 ment; therefore, after usurious loans and advances have been 
 paid, they cannot be recovered back, except that the excess 
 may be sued for within the year, under the statute. (10 Barb. 
 576; Seymour vs. Marvin, 11 id. 80.) 
 
 A security for the payment of money, not usurious in lis in- 
 ception, cannot be rendered usurious by any subsequent agree- 
 ment. Thus, where a note is given in renewal of a former note, 
 and a premium or interest above seven per cent, is exacted for 
 the renewal, the note is usurious and void, although a separate 
 note was given for the premium; but the old note is not there- 
 by affected. {Swariwout vs. Paine, 19 Johns. 294.) The taint 
 of usury, however, in the original security, affects all subsequent 
 •securities; {Edwards on Bills, 354;) and if a security be taken 
 for a valid loan and a prior usurious one, the usury taints the 
 whole security. [Jackson vs. Packard, 6 Wend. 415.) 
 
 To render a contract usurious, both parties must be cogni- 
 zant of the facts which constitute the usury; and, if a bona 
 fide holder of a negotiable note, which is tainted with usury 
 in the hands of the payee, receives a new security from the 
 maker, and gives up the note, without any knowledge of the 
 usury, the new security is not usurious. (1 Barb. Ch. R. 43; 
 Smedbury vs. Simpson. 2 Sand. 85.) If the payee of a note 
 made for his accommodation, transfers it as business paper, at 
 a usurious discount, to a bona fide purchaser, the maker may 
 set up the usury in defence. {Dowe vs. Schutt, 2 Ben. 621.) 
 
 13. Payment. 
 
 The law is well established, that the acceptance by a cre- 
 ditor of the note of a third person, in full satisfaction of an 
 existing debt, is an extinguishment of the original indebted- 
 ness; and this, though the note so taken is for a less sum than 
 the whole debt. (20 JoJins. 76; 1 Wend. 172; 14 id. 116; 21 
 id. 450; 22 id. 341; 10 Barb. 372; JVbel vs. Murray, 13 JV. Y. 
 167.) The law, however, is otherwise, where the note of the 
 debtor himself is taken. In the latter case the creditor, if the 
 note is not paid at maturity, may sue upon the original indebt- 
 edness, {id.; 8 Cow. 79; 3 Wend. 68; Van Steenburgh vs. 
 Hoffman, 15 Barb. 28.) 
 
 Where the note of a third person is taken in full satisfaction 
 
ILLEGAL CONTRACTS. 77 
 
 of a debt, on condition that it shall be paid at maturity, and 
 not otherwise, and the note is not paid, the creditor may insist 
 that the contract is broken, and claim the whole amount of the 
 oi'iginal debt; but if he waives the forfeiture, and retains the 
 note, and finally receives the full amount of it from the maker, 
 he cannot afterwards proceed against the debtor for the balance 
 of the original demand. {Oonkling vs. King, 10 Barb. 372.) 
 Taking the note of a third person for an existing debt is not 
 payment, unles.s* the creditor agrees to receive it in payment. 
 (Vail vs. Foster, 4 Com. 312.) 
 
 A payment in current bank bills, if accepted without objec- 
 tion, is a good payment. (^Hall vs. Fisher, 9 Barh. 17.) A 
 payment in counterfeit bank bills is a nullity, and will not dis- 
 charge the debt, though both parties suppose them to be gen- 
 uine. So, also, of payment in the genuine bills of a bank 
 which has failed, neither party being aware of the fact. But 
 in such cases the party receiving the bills must return them 
 within a reasonable time after discovering their worthlessness, 
 or he will be obliged to sustain the loss. {Thomas vs. Todd, 
 6 Hill, 340.) 
 
 14. Illegal Contracts. 
 
 There is a large class of contracts which are illegal, either 
 by common or statute law, and upon which no action can be 
 maintained. A contract is illegal at common law on three 
 grounds: because it violates morality; or because it is opposed 
 to public policy; or because it is tainted with fraud. If the 
 contract grows immediately out of or is connected with, an 
 illegal or immoral act, a court of justice will not enforce it. 
 The consideration must not only be valuable, but it must be 
 lawful, and not repugnant to law, or sound policy, or good 
 morals. (2 KenCs Coram. 466.) 
 
 Contracts for obscene prints, or for books whose tendency is 
 immoral, or for such as are libels on individuals, and for which 
 the person who published them might have been indicted for a 
 libel, are void. (4 Espinasse, 97.) A printer cannot recover 
 for publishing such prints or books; {Ohitty on Contracts, 217;) 
 nor a lessor for the use and occupation of a house, let for the 
 purposes of prostitution. (1 Espinasse, 13.) So, also, a pro- 
 mise by a putative father, to pay for the board of a woman and 
 
78 NEW YORK JUSTICE. 
 
 her bastard child, the purpose of both parties being to facili- 
 tate a continued state of cohabitation, is void. {Travinger vs. 
 McBurney, 5 Gow. 253.) In Vermont, it has been decided that 
 an action cannot be maintained for the recovery of property 
 which the owner had prepared to use in violation of law; as, 
 for pieces of German silver, representing Mexican coin. (21 
 Vermont, 1.) And where it is an offence by statute to sell 
 spirituous liquors without license, the courts will not aid the 
 vendor in enforcing payment. But in an action to recover for 
 the price of liquor sold, the lawfulness of the sale will be 
 presumed, till the defendant proves the contrary. {Smith vs. 
 Joyce, 12 Barb. 21.) 
 
 Although the statute contain no express prohibition, all con- 
 tracts which contravene the general policy of the common law, 
 are void; as, a contract to pay money for killing, robbing, steal- 
 ing, committing an assault and battery or trespass, and the like. 
 (1 Gow. Treatise, 271.) So, also, are all contracts in restraint 
 of marriage and of trade, they being against public policy. 
 
 With respect to contracts in restraint of trade, if they totally 
 prohibit the carrying on of a particular business at any place 
 within the State, they are void; for such a general restraint is 
 injurious to the public. But contracts for a limited restraint, 
 as that a man will not exercise his trade, or carry on his business, 
 in a particular place, or within certain limits, are valid, provi- 
 ded they are entered into for some good reason independent of 
 pecuniary considerations. (2 Kent's Comm. 467.) Agreements 
 between proprietors of boats running on the interior lakes of 
 this State, regulating the price of freight and fare, and prohi- 
 biting the parties from engaging in similar business out of the 
 association, have been declared void, as being in restraint of 
 trade, {id.) 
 
 When a man covenants to do a thing then lawful for him to 
 do, and a subsequent statute makes it unlawful to do it, the 
 covenant is repealed; and so, when he covenants not to do a 
 thing which is lawful, and the statute makes the not doing it 
 unlaAvful; but when he covenants not to do a thing, which was 
 then unlawful, a statute maldng it lawful does not repeal the 
 covenant. {Presb. GhurcJi, vs. Gity of New York, 5 Gow. 538.^ 
 
 When two persons apply to the Governor of the State to be 
 appointed to the same office, and it is agreed that one of them 
 
ILLEGAL CONTRACTS. 79 
 
 shall withdraw his application, and aid the other in procuring 
 the appointment, in consideration of which the fees and emolu- 
 ments of the office are to be divided between them, such con- 
 tract is illegal and void. All agreements by which one person 
 engages to pay another for his aid or influence in procuring an 
 appointment to office, are illegal and void. {Gray vs. HooJc, 
 4 Corns. 449.) 
 
 A note given in consideration of forbearance to bid at a public 
 auction is fraudulent and void, as against public policy. Cer- 
 tain articles being advertised for sale at public auction, it was 
 agreed between A and B that they would not bid against each 
 other, but that A should buy the articles, and afterwards divide 
 the same equally with B. A made the purchase, but refused 
 to deliver to B the one half of the goods. In an action brought 
 by B against A, to recover one-half of the profits of the pur- 
 chase, it was held that the agreement was without consideration 
 and void, and against public policy. (Doolin vs. Ward, 
 6 Johns. 194.) And so, where a contract or job for making a 
 road was put up for sale at auction, and A and B agreed that 
 one of them should bid, and that, if the contract should be 
 struck off to the one bidding, the other should have an equal 
 share in it, and it was struck off to B, against whom A after- 
 wards brought an action for a breach of the agreement between 
 them, it was held that the agreement was without consideration 
 and void. (^Wilbur vs. IIo2v, 8 Johns. 444.) 
 
 The same principle applies with more force to sales on execu- 
 tion. The law has regulated sales on execution Avith a jealous 
 care, and has provided a course of proceeding likely to promote 
 a fair competition, and a combination to prevent competition is 
 contrary to public policy, and to the interests of the original 
 debtor, whose property is liable to be sacrificed by such a com- 
 bination. The abstaining from bidding, upon concert and by 
 agreement, under the promise of a benefit for thus abstaining, 
 is the evil the law intends to redress. A public auction is open 
 to every one, but there must be no combination among persons 
 competent to bid, silencing such bidders, for the tendency to 
 sacrifice the debtor's property is inevitable. (13 Johns. 112; 
 4 Coiv. 732; Trowp vs. Wood, 4 Johns. Oh. R. 254.) Any 
 agreement or combination, the object and effect of which are to 
 chill a sale at auction and stifle competition, is illegal, and no 
 
80 NEW yOKK JUSTICE. 
 
 party to the agreement or combination can derive any benefit 
 therefrom. (2 Richardson\'i Eq. R. 355; 1 Stnn/s Eq. Jw". 
 ^293; 2 McLean, 211.) 
 
 Many contracts are illegal by statute, such as usury, and bet- 
 ting on elections, or on horse races, or on any game of chance. 
 And a contract which is expressly within the prohibition of a 
 statute is void, although the statute is only prohibitory in its 
 terms, and does not declare in so many words that all contracts 
 therein forbidden, shall be void. {Barton vs. Port J. & N. F. 
 P. R. Co. 17 Barb. 397.) A contract founded in part upon an 
 ■Jlegal consideration, is entirely void. (5 Cow. 547; Burt vs. 
 Place, 6 id. 431.) 
 
 15. Contracts Made on Sunday. 
 
 It was for some time unsettled whether by the common law 
 contracts made on Sunday were void. It seems now to be well 
 established, that nothing but judicial proceedings are prohibited 
 upon Sunday, by the common law, and that any other business 
 can be transacted on that day, unless prohibited by statute. 
 (8 id. 27; 12 Wend. 59; Boynton vs. Paige, 13 id. 425, 429.) 
 But although contracts may be made on Sunday, yet work per- 
 formed on that dajr cannot be recovered for, unless the parties 
 keep the last day of the week as the Sabbath, or the work is 
 one of necessity or charity. (1 Hill. 76; 2 Band. 318; Smith 
 /s. Wilcox, 25 Barh. 341.) 
 
 When the day fixed by a contract for its performance falls on 
 Sunday, the party has Monday in which to perform, except 
 where grace is allowed by the custom of merchants; {Salter vs. 
 Burt, 20 Wend. 205); but when the last day allowed by sto^M^e 
 for performing an act falls on Sunday, it must be done on Satur- 
 day. (7 Cow. 147; Browne vs. Wellington, 1 Sand. 664.) An 
 iward, being a judicial proceeding, if made and published on 
 Sunday, is void. {Story vs. Elliott, 8 Cow. 27.) 
 
 All shooting, hunting, fishing, sporting, playing, horse-racing, 
 gaming, frequenting of tippling houses, and any unlawful exer- 
 cises or pastimes, are prohibited on Sunday; also all travellino- 
 on that day, unless in cases of charity or necessity, or in goino- 
 or returning from some church or place of worship within the 
 distance of twenty miles, or in going for medical aid or medi- 
 cines, or in visiting the sick, or carrying the mail, or in goino- 
 
CONTRACTS MADE OJf SUNDAY. 81 ' 
 
 express by order of some public officer, or in removing a family 
 or furniture when the removal was commenced on some other 
 day ; and all servile labor or work, except works of necessity and 
 charity, unless done by some person who observes some other 
 day as the Sabbath. (See Penal Code, §§ 263, 264 and 265.) If 
 property is exposed to imminent danger, it is not a violation of 
 the statute prohibiting labor on the Sabbath, to preserve it on 
 Sunday and remove it to a place of safety, {Parmalee vs. Willcs, 
 22 Barh., 540.) 
 
 Every person exposing to sale, on Sunday, any wares, mer- 
 chandise, except articles of food, which may be sold before ten 
 o'clock in the morning, forfeits the articles thus offered to sale to 
 the use of the poor, and a Justice may issue a warrant for their 
 seizure upon conviction of the offender. But prepared tobacco, 
 fruit, confectionary, newspapers and medicines, may be sold. 
 {Penal Code, §§ 259 to 270.) 
 
 In Massachusetts, where the statute in regard to the observ- 
 ance of the Sabbath is substantially like our own, the following 
 case has been decided: The plaintiff let a horse, on Sunday, to 
 be driven on a pleasure drive to Chelsea. The defendant drove 
 to a different place, and by a route which varied materially 
 from the route to Chelsea, and the horse was killed by im- 
 moderate driving. In an action for the value of the horse, it 
 was decided that the plaintiff could not recover. Letting the 
 horse by the plaintiff was a matter of business, which he could 
 not do on the Lord's day, and travelling with the horse for 
 pleasure by the defendant, was doing what he could not law- 
 fully do on that day. The plaintiff, therefore, acted unlawfully 
 in letting the horse and let him knowingly for an unlawful 
 purpose. No person can maintain an action founded on an un- 
 lawful proceeding, and it cannot be maintained where the 
 plaintiff, in making out his case, is obliged to prove an illegal 
 act as a link in the chain of evidence. (14 Law Reporter (new 
 series, vol. 4), 361.) 
 
 It has lately been decided in this State that a contract to 
 publish an advertisement in a newspaper issued on Sunday is 
 an agreement to do an act prohibited by the statute relative to 
 servile labor, and the sale of wares and merchandise on that 
 day, and that, therefore, the price cannot be recovered by the 
 publisher. (Smith vs. Wilcox, 25 Barb. 341.) 
 6 
 
82 NEW YOKIl JUSTICE. 
 
 J.6. Fraudulent Contracts. 
 
 In all contracts, the law presumes that the parties act in good 
 faith, and where fraud is practised, the party who is deceived 
 is not bound by the agreement, for the fraud vitiates the con- 
 tract. {Willson vs. Force, 6 Johns. 110.) 
 
 To obtain justice is the object of the law, and fraud is what 
 it most abhors. Misrepresentation is a statement made by one 
 party to a contract to the other, that a thing relating to it is in 
 fact in a particular way, when he does not know it is so, and 
 when in truth it is not as represented; but, in order to avoid a 
 contract, the representation must be both false and fraudulent, 
 and must work an injury to the party. (1 Bouvier's Institutes, 
 301.) If a party intentionally misrepresents a material fact, or 
 produces a false impression by words or acts, in order to mis 
 lead, or to obtain an undue advantage, it is a case of manifest 
 fraud. (1 Story's Eq. Jur. § 192.) 
 
 Fraud must be proved, but it is not necessary that it should 
 be established by direct proof Eesort may be had to circum- 
 stantial or presumptive evidence. The declarations of persons 
 while engaged in accomjslisliing a fraud, are evidence equally 
 with their acts. So, too, as evidence of good faith, it is com- 
 petent for one to show that he took legal advice, upon a full 
 statement of the facts, before making a purchase. (1 Cow. 301; 
 Waterbury vs. Sturtevant, 18 Wend. 353; 12 id. 41.) 
 
 If a cout] act be entered into upon a misrepresentation, and 
 the party discovers the fraud before he enters upon the per- 
 formance, and performs instead of rescinding the contract, he 
 is concluded. But, if there is a fraud in a sale on the part of 
 the vendor, the vendee may rescind the contract and recover 
 back the consideration paid. {8ar. & Sch'y R. R. Go. vs. 
 Row, 24 id. 74.) He must first, however, restore, or ofier to 
 restore, all he has received under the contract; (2 Hill, 288; 
 IBen. 69; Fisher vs. Oonant, 3 F. D. Smith, 199;) and must 
 do so promptly. {Fisher vs. Fredendall, 21 Barb. 82.) Where 
 however several articles are sold at distinct prices, and one of 
 them proves not to agree with the contract, it is not necessary 
 to return all, but the purchaser may return the defective arti- 
 cle only, and recover back the price of that. {Manning vs. 
 Humphreys, 3 F. D. Smith's O. 218.) Yet, if the thing is 
 
FRADDULENT CONTllACTS. 83 
 
 valueless, and not the thing contracted for, the vendee may 
 maintain an action without returning it. And where the note 
 of an irresponsible third person was received through false 
 representations, as part of the price, and the defendant was 
 informed that the plaintiff looked to him for the amount, it 
 was held that an offer on the argument of the case to return 
 the note, was suiScient. {Haiohins vs. Appleby, 2 Sand. 421.) 
 A purchase of goods with a preconceived design of not paying 
 for them, is such a fraud as will avoid the sale. (Ash vs. JPut- 
 nam, 1 IHU, 302.) 
 
 A fraudulent concealment, as well as a false representation, 
 renders a contract void. Concealment is the unlawful sup- 
 pression by one of the parties to a contract, of any fact or 
 circmnstance which in justice ought to be known. It is only, 
 however, when a party is bound in justice to divulge a fact, 
 that silence or concealment is fraudulent. (1 Bouvier's Insti- 
 tute, 302.) Mr. Justice Cowen says, that the well established 
 rule, in cases of this nature is, that one party must not practise 
 any artifice to conceal defects, or make any representations for 
 the purpose of throwing the buyer off his guard. (1 Qow. Trea- 
 tise, 351.) Where, however, the means of information relative 
 to facts and circumstances affecting the value of the commodity 
 sold, are equally accessible to both parties, and neither of them 
 says or does any thing to impose upon the other, the disclosure 
 of any superior knowledge which one party may have over the 
 other, as to those facts and circumstances, is not requisite to 
 the validity of the contract. (1 Wheaton, 178.) 
 
 The common law affords to every one reasonable protection 
 against fraud in dealing; but it does not go to the romantic 
 length of giving indemnity against the consequences of indo- 
 lence and folly, or a careless indifference to the ordinary and 
 accessible means of information. It reconciles the claims of 
 convenience with the duties of good faith, to every extent 
 compatible with the interests of commerce. This it does by 
 requiring a purchaser to direct his attention to those particulars 
 which may be supposed to be within the reach of his observa- 
 tion and judgment. (2 Kenfs Oomm. 484.) And a party can- 
 not avoid a contract on the ground that he was induced to 
 enter into it by fraudulent representations, where, after dis- 
 covering the fraud, he has continued for a length of time in 
 
Si NEW YORK JUSTICE. 
 
 the enjoyment of any benefit derived from such contract. 
 {Rosenbaum vs. Ounter, 3 E. D. Smith, 203.) 
 
 If there be any intentional concealment, or suppression of 
 material facts, in the making of a contract, in cases in which 
 both parties have not equal access to the means of information, 
 it will be deemed unfair dealing, and will vitiate and avoid the 
 contract. As a general rule, each party is bound to commu- 
 nicate to the other his knowledge of material facts, provided 
 he knows the other to be ignorant of them, and they be not 
 open and naked, or equally within the reach of his observa- 
 tion. He must tell the Avhole truth fully and fairly. {Nichley 
 vs. Thomas, 22 Barh. 652.) In the sale of a ship which has a 
 defect known to the seller, and which the buyer cannot possi- 
 bly discover, the seller is bound to disclose it, and the conceal- 
 ment is a breach of honesty and good faith. So, too, selling 
 an unsound article, knowing it to be unsound, for a sound 
 price, is fraudulent. (2 Kenfs Comm. 482.) 
 
 A mere false assertion of value, when no warranty is in- 
 tended, is not fraudulent, because the assertion is a matter of 
 opinion, which does not imply knowledge, and upon which 
 men may differ. Every person relies at his peril on the 
 opinion of others, when he has an equal opportunity to form 
 and exercise his own judgment. (2 Kent^s Gomm. 4.) 
 
 Fraud, says Mr. Justice Cowen, is a crime; and whenever a 
 court and jury are convinced of its existence, to the injury of 
 another, they may and should give damages, as in other actions 
 for a wrong involving moral guilt, with a liberal and unsparing 
 hand, both to compensate the plaintiff for his extraordinary 
 trouble in vindicating himself against the injury, and to fur- 
 nish a moral lesson by the punishment of the defendant. 
 
 An action lies for a false recommendation as to the credit of 
 one person, by which another sustains damage, if such recom- 
 mendation be made with the intent to deceive and defraud 
 such other person. The information, however, must be com- 
 municated to, and be relied upon by, the party injured, and 
 must cause the damage. The false representation may consist 
 in the suppression of truth, as well as in the assertion of false- 
 hood; as, where one recommends another to be worthy of 
 credit, and suppresses the fact that he holds judgments against 
 him, and that he is in embarrassed circumstances. Nor is it 
 
FRAUDULENT CONTRACTS. 85 
 
 necessary, that the person making the false represeatatiou 
 should be benefitted by the fraud, or that the intention should 
 be to defraud any one in particular. (7 Wend. 1; ZalrisJdeys. 
 8mith, 3 Ke)^. 322.) 
 
 An action can be maintained for a false afGrmation, where a 
 certificate is given to an individual that he is an honest, indus- 
 trious, reputable, and good citizen, of good morals and habits, 
 and that, in the opinion of the person giving the certificate, 
 the individual recommended would honorably endeavor faith- 
 fully to perform every engagement he should make in any 
 matter of business or credit, and where the pex'sou recom- 
 mended on the strength of the certificate, obtains goods on 
 credit, on its being shown that the certificate was false, and so 
 known to be by the person giving it. (1 Oow. Treatise. 332.) 
 
 Fraud in the sale of horses is the ground of numerous 
 actions in Justices' Courts. Mr. Justice Cowen, in citing the 
 following case, decided in North Carolina, says, that it is a 
 true and most excellent commentary upon the doctrine of 
 fraud in the sale of horses. (1 Cow. Treatise, 371.) This 
 was an action on the case to recover damages for deceit in the 
 sale of a horse. The plaintifi" bought the horse in question 
 from the defendant. Soon after, in riding him from Windsor 
 to Newbern, the horse became perfectly blind. It appeared 
 in evidence, that the defendant had purchased the horse for 
 one hundred and twenty-eight dollars, about twelve months 
 before he sold him. His eyes were at that time defective. 
 The defendant applied a remedy, which produced temporary 
 relief But, whenever the horse was rode a journey, the dis- 
 order returned. The defendant, in bringing him from Tennes- 
 see, had discovered that he was getting blind, and was obliged 
 to drive very moderately to prevent the loss of his eyesight. 
 The plaintiif purchased Avithout being apprised of this defect. 
 The defendant had refused to warrant, saying, he was deter- 
 mined never to do so, as he had already been injured by war- 
 ranting his horses. He observed, while exposing his horse to 
 sale, that the eyes of some horses looked dull, but this was 
 occasioned by their having travelled on dusty roads. He 
 afterwards acknowledged, that he knew the horse was subject 
 to blindness, but thought he was not answerable, as he had not 
 warranted. The horse, after he became blind, was sold for 
 
86 NEW YORK JUSTICE. 
 
 sixty dollars. This was the evidence on the part of the plain- 
 tiff. The defendant endeavored, but unsuccessfully, to prove 
 that the horse, after he came to the plaintiff's possession, had 
 received some injury, by which the blindness had been occa- 
 sioned. After arguments by counsel, the Court observed, that 
 this was an action to recover damages for deceit in the sale of 
 a horse. The grounds of the action were, that the proi^erty 
 sold was defective, that this defect was known to the seller, 
 and unknown to the purchaser. If the jury believed that the 
 plaintiff did know ~if the defect at the time he bought the 
 horse, he could not complain. He had sustained no injury 
 from the defendant. It was his own folly. But, it was for the 
 jury to decide whether he did or did not know it. It was not 
 because he might possibly have known it, that the defendant 
 was to be discharged. If, indeed, the defect was so open and 
 visible that he could not well avoid discovering it, then the 
 jury must of course presume against him. In the present case, 
 skill might have been required. The plaintiff might not have 
 been possessed of this skill. If in fact he was ignorant of the 
 circumstances, though a person better acquainted with horses 
 might have discovered it, the deceit and criminality in the de- 
 fendant were still the same. He was imposing on the plaintiff 
 as sound, what he knew to be unsound. He was not acting 
 with that fairness and plain-dealing which became an honest 
 man. Again, it had been said the plaintiff placed no confidence 
 in the defendant, that he saw the horse, examined and liked 
 him. Why was the defendant bound to disclose the defects of 
 the property, which it was his interest to sell to the best 
 advantage? He was bound by the rules of good faith and 
 honesty. He was bound, as a man of truth and candor, and 
 of fair dealing. It is a principle in morals, as a maxim in the 
 municipal law, that a suppression of truth is often equal to a 
 suggestion of falsehood; a deceptioii may be as effectually 
 occasioned by the one as the other. Men must place some 
 confidence in one another, or there must be an end to civil 
 intercourse. The confidence reposed by the plaintiff in the 
 defendant in the present case, necessarily arose from the nature 
 of the transaction. It was not an unreasonable one. The 
 Courts of that country from which we derive our laws, have 
 lately gone a great way in enforcing moral obligations, and I 
 
HUSBAND AND WIFE, 
 
 87 
 
 trust we shall go at least as far. In a recent case decided in 
 England, A had sold a vessel to B, who agreed to take, her just 
 as she stood. It appeared afterward that some of her timbers 
 were unsound, and that this was known to A, but could not 
 have been known to B when he purchased. The court deter- 
 mined, that A ought, in justice and honesty, to have disclosed 
 this defect, and, as he had not done so, should be liable to B 
 in damages. Many persons in this country have considered 
 themselves loosed from the obligations of morality when they 
 were trading horses. It is time to correct this false notion. 
 If the juiy believe the evidence in the present case, and that 
 the plaintiff knew not the unsoundness of the horse at the time 
 he purchased, they will give ample and exemplary damages. 
 
 A recent statute {Lairs of 1858, chap. 314) provides, that any 
 executor, administrator, receiver, assignee, or other trustee of 
 an estate, or the property and effects of an insolvent estate, cor- 
 poration, association, partnership, or individual, may, for the 
 benefit of creditors or others interested in the estate or property 
 so held in trust, disaffirm, treat as void, and resist all acts done, 
 transfers and agreements made, in fraud of the rights of any 
 creditor, including themselves and others, interested in any 
 estate or property held by, or of right belonging to any such 
 trustee or estate. And that every person who shall, in fraud 
 of the rights of creditors and others, have received, taken, or in 
 any manner interfered with the estate, property, or effects of 
 any deceased person, or insolvent corporation, association, part- 
 nership, or individual, shall be liable in the proper action to 
 the executors, administrators, receivers, or other trustees of 
 such estate or property, for the same, or the value of any 
 property or effects so received or taken, and for all damages 
 caused by such acts to any such trust estate. 
 
 17. Husband and Wife. 
 
 Actions frequently arise in Justices' Courts growing out of 
 the relation of husband and wife, and especially in reference to 
 the liability of the former for debts contracted by the latter. 
 
 The rights of the husband in the property of the wife have 
 been materially changed in the State of New York, by a law 
 passed in 1848, and amended in 1849. The provisions of the 
 two acts, in brief, are these: 1. The property of a woman, 
 
88 NEW YORK JUSTICE. 
 
 thereafter marrying, continues her sole and separate property, 
 as if shatwere a single female, not liable to her husband's debts, 
 nor subject to his disposal; 2. A like provision as to the pro- 
 perty of a woman married at the time of the act, except so far 
 as the same may be liable for the debts of the husband previ- 
 ously contracted; 3. Any married woman may inherit, or take 
 property by gift, &c., from any person other than her husband, 
 and hold the same to her separate use, and convey and devise 
 the same, in the same manner as if she were immarried; 4. Mar- 
 ried women entitled to trust estates, are authorized to receive 
 conveyances from the trustees, of the trust property, for their 
 separate use; 5. Contracts made in contemplation of marriage 
 remain in full force after the marriage takes place. {Laws of 
 1848, chap. 200; Laws of 1849, cJiap. 375.) 
 
 A further change in the law was introduced in 1853. An act 
 passed during that year, provides that an action may be main- 
 tained against the husband and wife jointly, for any debt of 
 the wife contracted before marriage, but the execution shall 
 issue against, and the judgment bind, only the separate property 
 and estate of the wife. It further provides, however, that any 
 husband who may acquire any separate property of his wife, by 
 any antenuptial contract or otherwise, shall be liable for her 
 ante-nuptial debts in the same manner as before the act, but 
 only to the extent of the property so acquired. {Laws of 1853, 
 chap. 576.) 
 
 The statute passed in 1860, chap. 90, provides that a married 
 woman may bargam, sell, assign and transfer her separate per- 
 sonal property, and carry on any trade or business, and perform 
 any labor or services on her sole and separate account; and the 
 earnings of any married woman from her trade, business, labor 
 or services shall be her sole and separate property, and va&j be 
 used or invested by her in her own name. 
 
 By the laws of 1862, chap. 172, any married woman, may, 
 while married, sue and be sued in all matters having relation 
 to her sole and separate property, in the same manner as if she 
 were sole. And she may bring and maintain an action in her own 
 name for damages, against any person or body corporate, for 
 any injury to her person, or character, the same as if she were 
 sole, and the money recovered shall be her sole and separate 
 property'. And no bargain made by her shall be binding upon 
 
HUSBAND AND WIFE. 89 
 
 ter husband, or render him or his property in any way liable 
 therefor ; nor shall her husband be liable for costs in ^ny suit 
 brought by or against her. {Moncrief vs. Wa/rd, 25 How., 94 ; 
 Mann vs. Marsh, 35 Barb.. 68 ; see Code, § 4-50.) 
 
 These provisions make a great alteration in what has hitherto 
 been understood to be the law affecting the relation of husband 
 and wife. It is not withiu the scope of this work to inquire 
 what are the probable changes that will be produced by the 
 provisions referred to. It has, however, been decided, that the 
 act of 1848, so far as it relates to existing rights of property in 
 married persons, is unconstitutional and void; {WJiiteys. White, 
 5 Barh. 474); and also, that it was not intended to deprive the 
 husband of his estate as tenant by the curtesy in his wife's real 
 estate, in case of his surviving her, unless where she has devised 
 or conveyed it under the statute. In respect, however, to the 
 right of persons married since the act took effect, it has been 
 held in the Court of Appeals {Darby vs. CalU(jan, 16 New 
 York R. 11) that the object and intent of the act was to give 
 to married women the use, control and right to dispose of all 
 property of every description held by them at the time of the 
 marriage, or acquired subsequently, without regard to the man- 
 ner in .which, or the form of the instrument by which it was 
 transferred or conveyed, provided such transfer or conveyance 
 was not from the husband: and that the act ought to be liberally 
 construed, and so as to give effect to that intent. But the act 
 has not removed all the disabilities of a married woman. It has 
 also been decided in the Supreme Court {Coon vs. Brook, 21 
 Barb. 549) that the statutes of 1848 and 1849 did not enable 
 married women to contract debts or make notes otherwise than 
 as they could do previously. The wife's estate is vested in her 
 during coverture, and, upon her death intestate, after issue born 
 alive, leaving her husband surviving, it descends to her heirs, 
 charged with his rights as tenant by the curtesy. If there is 
 no issue of the marriage born alive, then the estate becomes 
 perfect and absolute in her heirs. {Hurd vs. Cass, 9 Barb. 366.) 
 
 The acts referred to make no alteration in the statute of 
 descent or distribution. They only authorize a married woman 
 to take, hold, convey, and devise her property, but they make 
 no change as to its disposition in case she dies intestate. 
 {McCosker vs. Golden, 1 Brad. 64.) The power of manied 
 
90 NEW YORK JUSTICE. 
 
 women to devise real and personal property is general, and not 
 limited to property acquired subseqtiently to the act of 1849. 
 (Van Wert vs. Benedict, 1 Brad. 114.) 
 
 By the common law, the husband, upon marriage, became 
 possessed of the chattels real of the wife, such as leases for 
 years. As to the debts due to the wife at the time of her mar- 
 riage, or afterwards, by bond, note or otherwise, and which are 
 termed choses in action, they were not vested absolutely in the 
 husband, but he had power to sue for and recover, or release, 
 or assign them. Their recovery, and reduction to possession by 
 him, was evidence of the conversion of the same to his own use, 
 and the money became, in most cases, absolutely liis own. (2 
 Kenfs Oomm. 135.) These principles of the common law are 
 now necessarily changed by the provisions of the statutes re- 
 ferred to. 
 
 The husband was answerable for the wife's debts conti'acted 
 before coverture, but if they were not collected during the 
 coverture, he was discharged. If the wife was indebted before 
 marriage, and the husband appropriated all her personal pro- 
 perty to himself, and she died before the creditors had collect- 
 ed their debts, the husband was no longer liable, and the credi- 
 tors were left without remedy. If the husband died before the 
 debts were collected, his representatives were not liable: but 
 the wife remained personally liable. (2 Kent's Comm. 143.) 
 
 The husband is bound to provide the wife with necessaries 
 suitable to her situation and his condition in life. {id. 146.) If 
 he turns her away, he gives her credit wherever she goes, and 
 must pay for necessaries furnished her. (11 Johns. 281; Loclc- 
 wood vs. Thomas, 12 id. 248.) If the wife voluntarily leaves 
 her husband, though not in an adulterous manner, he is not 
 liable for any of her contracts, though the person furmshinty 
 the necessaries had no notice of her elopement, {id.) The 
 adultery of the husband justifies the wife in leaving him, and he 
 remains liable for necessaries furnished her. {SyJces vs. Hal- 
 stead, 1 Sand. 483.) The husband is liable, also, for a for- 
 feiture luider a penal statute, incurred by the wife. {Hasbrouck 
 vs. Weaver, 10 Johns. 247.) Where a husband and his wife 
 have separated, and he provides a suitable separate maintenance 
 for her, which is promptly paid, he is not liable even for neces- 
 saries furnished to her. (Baker vs. Barney, 8 id. 72.) The 
 
PARENT AND CHILD. £1 
 
 husband is liable for the torts and frauds of the wife committed 
 duiing marriage; if committed in his company, or by his order, 
 he alone is liable; if not, they are jointly liable, and the wife 
 must be joined in the suit. Where the remedy for the tort is 
 only damages by suit, or a fine, both are liable ; if the remedy 
 be sought by imprisonment on execution, the husband alone is 
 liable. (2 Kenfs Convm. 149.) A husband who is present at 
 the execution of a mortgage by his mfe, of his personal pro- 
 perty, and assents to the execution, is as effectually bound by 
 the mortgage as if he executed it himself. It is in effect his 
 mortgage. {Edgerton vs. Thomas, 5 8el. 41.) 
 
 18. Parent and Child. 
 
 The liability of parents to maintain their children, is a fre- 
 quent subject of inquiry before Justices. The inability of chil- 
 dren to provide for themselves, renders it necessary that some 
 persons should maintain them, and nature as well as the com- 
 mon law point out the parents as the most proper persons. 
 
 The statute law of this State has provided, that the father, 
 mother, and children, who are of sufficient ability, of any poor 
 person who is blind, old, lame, impotent or decrepid, so as to 
 be unable by work to maintain himself, shall, at their own 
 charge, relieve and maintain such poor person, in such manner 
 as shall be approved by the overseers of the poor of the town 
 where such poor person may be. {Grim. Pro., § 914.) This pro- 
 vision is intended to protect the public against the support of 
 parent or child, when either is able to maintain the other. 
 
 A parent, during the minority of his children, is bound to 
 provide reasonably for their maintenance and education, and 
 may be sued for necessaries furnished, and schooling given to 
 them, under just and reasonable circumstances. This provision 
 the father is bound to afford, if he has the abilitj'', even though 
 the children have property of their own. {KenCs Qomm. 191.) 
 
 If a parent neglects to furnish his infant child with the neces- 
 saries of life, a third person may supply them, and the parent 
 will be liable for the amount; but the third person must take 
 notice of what is necessary for the infant according to his situa- 
 tion in life. If, however, the infant lives with his parent, and 
 is provided for by him, the parent is not chargeable, even for 
 necessaries. (13 Johns. 480; Matter of Ryder, 11 Paige, 188.) 
 
92 NEW YORK JUSTICE. 
 
 What is necessary for the child, must be left to the discretion 
 of the parent. 
 
 A recent decision in our own courts, apparently conflicting 
 with this principle of the liability of the parent, holds, that 
 there is no legal liability on the part of a parent to maintain his 
 child, independent of the statute; and that a person who sup- 
 plies an infant with necessaries, cannot maintain an action 
 against the parent therefor, unless the latter has expressly or 
 impliedly contracted to pay the amount. {Raymond vs. Loye, 
 10 Barb. 483.) In that case, the minor left his mother in 
 express disobedience of her commands, to live with the plain- 
 tiff, who furnished him with clothing, board, schooling, &c., 
 and there was no evidence to show that the mother was not able 
 and willing to provide suitably for her child. But this decision 
 may perhaps be reconciled with the law as previously held, 
 upon the principle that the relation of parent and child is suffi- 
 cient to imply a contract. 
 
 A step-father is not bound in law to support his step-children; 
 yet, if he acts the part of a father towards them, and does sup- 
 port them, the law will not imply on their part a promise to 
 pay him for such support. His assumed relation of father enti- 
 tles him on the one hand to their services without compensation, 
 and entitles them on the other to their support and education, 
 without remuneration. {Sharp vs. Oropsey, 11 Barb. 224; 
 overruling 4 Wend. 403.)] 
 
 A parent is entitled to the earnings of his minor child, where 
 there is no express or implied agreement that payment may be 
 made to the child. {Shute vs. Dorr, 5 Wend. 204.) But if a 
 minor makes a contract for his services on his own account, and 
 the father knows it, and makes no objection, it seems there is 
 an implied assent that the son shall have his earnings. {Arm- 
 strong vs. McDonald, 10 Barb. 300.) 
 
 A step-father is not entitled by law to the custody or services 
 of the children of his wife by a former husband, nor is he bound 
 to maintain them. (3 Qoms. 312; Bartley vs. RicUmyer, 
 4 Ooms. 38.) 
 
 If the parent or guardian do not notify the person employing 
 a minor child within thirty days after the commencment of such 
 service that said parent or guardian claims the wages of such 
 
INFANTS. 
 
 93 
 
 minor child, then payment to the minor would be valid, 
 {Laios of 1850, chap. 266; Clinton vs. Roicland, 24 Barb. 634.) 
 
 19. Infants. 
 
 The age of twenty-one is the period of majority for both 
 sexes. Most of the acts of infants are voidable only, and not 
 absolutely void. As a general rule, an infant may affirm or 
 disavow a contract, when he becomes of age; but, if the con 
 tract is absolutely void, the party contracting with the infant is 
 discharged as well as the infant. Where the deed or contract 
 of an infant is voidable only, it is nevertheless binding on the 
 adult with whom he deals, so long as it remains executory, and 
 is not rescinded by the infant. But, in all such contracts, an 
 infant, on coming of age, is bound to give notice of his disaffir- 
 mance of the contract in a reasonable time, and his affirmance 
 may be inferred from his positive acts in furtherance of the 
 contract, or from his tacit assent, under circumstances which do 
 not excuse his silence. (2 Rents Comm. 234 to 239.) 
 
 An infant is liable for necessaries, provided the articles are 
 necessary for him under the circumstances and condition in 
 which he is jolaced; and necessaries for an infant's wife and 
 children are understood to be necessaries for him. But if an 
 infant lives with his father or guardian, and their care and pro- 
 tection are duly exercised, he cannot bind himself even for 
 necessaries. (2 Kenfs Comm. 239; Wailing vs. Toll, 9 Johns. 
 141; 2 Paige, 419.) 
 
 If an infant pays money on his contract, and enjoj^s the bene- 
 fit of it, and then avoids it when he comes of age, he cannot 
 recover back the consideration paid; and if he avoids an exe- 
 cuted contract when he comes of age, on the ground of infancy, 
 he must restore the consideration which he has received. 
 (2 Kent's Comm. 240; Medhury vs. Watrous, 1 Hill, 110.) 
 
 An infant may have money or other property, independently 
 of his father; and the father may so far emancipate him, as to 
 allow him to labor for others, and enjoy his own earnings, 
 (7 Cow. 93; McCoy r a. Hoffman, 8 id. 85,) but he cannot so 
 far emancipate him, as to render his contracts binding. 
 
 Infancy is a personal privilege, of which no one but the 
 inftint can take advantage; so that, when an infant is sued with 
 a person of full age, the latter cannot plead the infancy of his 
 
y4 NEW YORK JUSTICE. 
 
 co-defendant. (Van Bramer vs. Cooper, 2 Johns. 279; 7 Cow. 
 181.) If a defendant plead infancy, and the Justice is of 
 opinion that he is not an infant, and the jury find that he is 
 not, the infancy cannot, on an appeal, be assigned for error, it 
 being against the record and the fact as found by the jury. 
 {IngersoU vs. Wilson, 3 Johns. 437.) 
 
 For all wrongs infants are liable, the same as adults. They 
 are liable civilly for an assault: {Bulloch vs. Babcoclc, 3 Wend. 
 391;) and, if an infant commits a trespass, without authority 
 of his father, he is himself answerable, and not the father. 
 (4 Ben. 175; ConMin vs. Thompson, 29 Barb. 218.) So, too, 
 an infant is liable for obtaining goods fraudulently, {Wallace 
 vs. Morss, 5 Hill, 391,) and may be punished by indictment. 
 {People vs. Kendall, 25 Wend. 399.) 
 
 A minor is ineligible to oiSce, and, if he be elected consta 
 ble, and execute process as such, he is a trespasser. {Green \s. 
 Burke, 23 id. 490.) 
 
 20. EXECUTOKS AND ADMINISTRATORS. 
 
 Executors and administrators are the representatives of the 
 personal property of deceased persons, among which property 
 are the debts due to the deceased, not collected at their deaths. 
 These debts executors and administrators have the power to 
 collect, and for that purpose they may bring actions against 
 the debtors. {2 Kenfs Oomm. 415, 416; Lovelass on Wills, H.) 
 
 As a general rule, and at common law, independent of sta- 
 tutory provisions, whatever actions a deceased person might 
 have had to enforce the performance of personal contracts, the 
 same actions, for the most part, the executor or administrator 
 may have also. And in such cases the right of action for a 
 breach of the contract, committed in the lifetime of the de- 
 ceased, in general survives upon his death to his executor or 
 administrator. But when the right of action is founded upon 
 some wrong done to the person or property of the deceased, 
 for Avhich damages only are recoverable, the rule of the com- 
 mon law is, that the action dies with the person against whom 
 the injury Avas committed, and cannot be maintained by his 
 personal representative, {id. 39.) 
 
 This rule has, however, been considerably modified by sta- 
 tute. It is provided that, for wrongs done to the property. 
 
coKPoiiATioisra. 
 
 95 
 
 rights or interests of another, for which an action might be 
 maintained against the wrong-doer, such action may be brought 
 by the person injured, or, after his death, by his executors or 
 administrators, against such wrong-doer, in the same manner, 
 and witla the like effect, in all respects, as actions founded upon 
 contracts. But this does not extend to actions for slander, libel, 
 assault and battery, or false imprisonment, nor to actions for 
 injuries to the person of the testator or intestate of any execu- 
 tor or administrator. The Code now provides, however, that, 
 after a verdict shall be rendered in any action for a Avrong, 
 such action shall not abate by the death of any party, but 
 the cause shall proceed thereafter in the same manner as in 
 cases where the cause of action now survives by law. {Code, 
 %% 755, 756 and 757-761.) 
 
 In this State, all letters testamentary, and letters of adminis- 
 tration, must be issued in the name of the people of this State, 
 and must be tested in the name of the Surrogate or other officer 
 granting the same, and must be signed by him, and sealed with 
 the seal of his office, or with the seal of the County Coui-t of 
 the county, when issued by the County Judge, or District 
 Attorney, {id. § 2590.) Tlie letters testamentary and of admin- 
 istration granted by any officer having jurisdiction, are conclusive 
 evidence of the authority of the persons to whom the same may 
 be granted, until the same are reversed on appeal or revoked 
 according to law. {id. § 2591.) 
 
 21. Corporations. 
 
 Justices of the Peace have jurisdiction of smts by and against 
 corporations. {Code, § 2805.) 
 
 A corpoi'ation is a franchise possessed by one or more indi- 
 viduals, who subsist as a body politic, under a special denomi- 
 nation, and are vested, by the policy of the law, with the 
 capacity of perpetual succession, and of acting in several res- 
 pects, however numerous the associates may be, as a single in- 
 dividual. The object of the institution is, to enable the mem- 
 bers to act by one imited will, and to continue their joint 
 powers and property in the same body, undisturbed by the 
 change of members, and without the necessity of perpetual con- 
 veyances, as the rights of members pass from one individual to 
 another. All the individuals composing a corporation, and 
 
96 NEW YORK JUSTICE. 
 
 their successors, are considered in law but as one moral person, 
 capable, under an artificial form, of taking and conveying pro- 
 perty, contracting debts and duties, and enjoying a variety of 
 civil and political rights. 
 
 One of the peculiar properties of a corporation is the power 
 of perpetual succession; for, in judgment of law, it is capable 
 of indefinite duration. The rights and privileges of the cor- 
 poration do not determine, or vary, upon the death or change 
 of any of the individual members. They continue as long as 
 the corporation endures. (2 Kent's Oomm. 267.) 
 
 Corporations are divided into aggregate and sole. A cor- 
 poration sole consists of a single person, who is made a body 
 corporate and politic, in order to give him some legal capaci- 
 ties and advantages, and especially that of perpetuity, which, 
 as a natural person, he could not have. But the corporations 
 generally in use are aggregate, or the union of two or more in- 
 dividuals in one body politic, with a capacity of succession and 
 perpetuity. (2 Kent's Oomm. 273, 274.) 
 
 Public corporations are such as are created by the govern- 
 ment for political purposes, as counties, cities, towns, and vil- 
 lages. But banking, insurance, canal, bridge, turnpike, rail- 
 road, and other compaiaies, whose stock is owned by private 
 persons, are private corporations, though their objects and 
 operations partake of a public nature, (id. 275.) 
 
 The ordinary incidents to a corporation are: 1. To have per- 
 petual succession, and, of course, the power of electing mem- 
 bers in the room of those removed by death or otherwise; 2. 
 To sue and be sued, and to grant and receive by their corpor- 
 ate name; 3. To purchase and hold lands and chattels; 4. To 
 have a common seal; 5. To make by-laws for the government 
 of the corporation, (id. 277.) 
 
 Private moneyed corporations are not only liable to be sued 
 like private individuals for breaches of contract, but they may 
 be sued for neglect and breaches of duty, and for damages re- 
 sultino' from trespasses and torts committed by their agents 
 under their authority, and the authority of such agent need not 
 be under seal. (id. 284.) Whenever a corporation is acting 
 within the range of the legitimate purpose of its institution, all 
 parol contracts made by its authorized agents are express and 
 bin din o- promises of the corporation; and all duties imposed on 
 
PRINCIPAL ANi; AGENT. 
 
 97 
 
 such agents by law, and all benefits conferred at their request, 
 raise implied promises, for the enforcement of which an action 
 lies against the corporation. And a corporation may be bound 
 by contracts not under its corporate seal, and by contracts made 
 in the ordinary dischai'ge of the official duty of its agents and 
 officers, {id. 289, 290.) But corporations, like natural per- 
 sons, ai-e, of course, bound only by such acts and contracts of 
 their agents as are done and made within the scope of their 
 authority, {id. 292.) 
 
 Evtiry county in this State, and every town in this State, as 
 a body corporate, has capacity, 1. To sue and be sued in the 
 manner prescribed by law; 2. To purchase and hold lands 
 within its own limits, and for the use of its inhabitants; 3. To 
 make such contracts, and to purchase and hold such personal 
 property, as may be necessary to the exercise of its corporate 
 or administrative powers; 4. To make such orders for the dis- 
 position, regulation, or use of its corporate property as may be 
 deemed conducive to the interests of its inhabitants. (1 R. S. 
 364, § 1; id. 337, § 1.) But no county or town possesses or 
 can exercise any corporate powers, except such as are specially 
 given by law, or are necessary to the exercise of the powers so 
 enumerated or given, {id. 364, § 2; id. 337, § 2.) 
 
 All acts and proceedings by and against a county in its cor- 
 porate capacity, must be in the name of the board of supervi- 
 sors of such county; {id. 364, § 3); and the powers of a county 
 as a body politic, can only be exercised by the board of super- 
 visors thereof, or in pursuance of a resolution by them adopted, 
 {id. § 4.) 
 
 All acts or proceedings by or against a town, in its corporate 
 capacity, must be in the name of such town. {id. 337, § 3.) 
 
 No action lies against a town for an injury occasioned by let- 
 ting a public highway or road remain out of repair. {Morey 
 vs. Town of JVewfane, 8 Barb. 645.) 
 
 22. Principal and Agent. 
 
 It may be stated generally, that whenever a person has power 
 hi his own right to do a thing, he may do it by an agent. Every 
 person of full age, and not otherwise disabled, has a complete 
 capacity to appoint an agent. Infants, married women, idiots 
 
 and lunatics, are either wholly or partially incapable of appoint- 
 
 7 
 
98 NEW YORK JUSTICE. 
 
 ing an agent. An infant may authorize another person to do 
 any act which is for his benefit; but he cannot authorize him 
 to do an act, which is to his prejudice. A married woman may 
 dispose of or incumber her separate estate through an agent or 
 attorney. 
 
 There are but few persons who are excluded from acting a3 
 agents, or from exercising authority delegated to them by others. 
 An infant, or a married woman, may act as agent for another; 
 and the latter may act as agent or attorney for her husband, 
 and, with his assent, may bind him by contract. (Hopkins vs. 
 Mollineux, 4 Wend. 465; 5 Seld. 40, 205.) But an idiot, luna- 
 tic, or person otherwise non compos mentis, cannot do any act 
 to bind another, for they have no legal discretion or under- 
 standing to bestow upon the afiairs of others. (Snyder vs. 
 8ponable, 1 Hill, 567.) And the same person cannot act as 
 the agent of both parties in making a contract requiring the 
 exercise of judgment or discretion. (N. Y. Central Ins. Co. 
 vs. at; Pro. Ins. Co. 4 Kern. 85; 1 U. B. Smith's R. 65.) 
 
 One who has a mere authority to act for another, cannot dele- 
 gate his power to a third person, but must execute it personal- 
 ly; for the principal selects his agent on account of the confi- 
 dence which he reposes in him personally. (Commercial Bk. 
 vs. Norton, 1 Hill, 501; Story on Agency, § 13.) Attorneys, 
 auctioneers, brokers, factors, consignees, supercargoes, masters 
 of vessels, &c., are agents, but subject to different liabilities. 
 
 As a general rule, an agent may be appointed by parol, or 
 the appointment may be deduced from acts and implications. 
 A power to convey real estate must be in writing imder seal; 
 and, whenever any act of a principal is required to be under 
 seal, the authority of the agent must be under seal. (12 Wend. 
 525; Worrall vs. Munn, 1 Seld. 229.) The appointment of an 
 agent, when not required by law to be imder seal, may be either 
 express or implied. An express appointment may be by a 
 formal written instrument, as a power of attorney; but a more 
 common mode is by some informal written instrument, as by a 
 letter, or written request. But the most usual mode is by an 
 miwritten request, or by implication from the recognition of the 
 principal, or from his acquiescence in the acts of the agent. 
 (Story on Agency, § 54.) A clerk employed in a store, has im- 
 plied authority to make sales, from his ordinary occupation and 
 
PRINCIPAL AND AGENT. 99 
 
 the acquiescence of his principal, A master is bound by the 
 acts of his servant, where the servant acts within the scope of 
 the usual business confided to him. 
 
 Agencies are of two kinds, general and special. A general 
 ngent is authorized to transact all the business of his emploj^er, 
 and he may do, generally, what his principal may do, and his 
 acts will be binding on his principal. A special agent is one 
 appointed to do some particular thing, and is limited in his 
 power to the particular thing he is authorized to perform, and 
 cannot bind his principal beyond that. 
 
 A general agent may bind his principal in all things not in- 
 consistent with the nature of his employment. A person is 
 liable for the acts of his general agent, acting within the general 
 scope of his authority; and a third person cannot be afiected by 
 any private instructions from the principal to his agent. But 
 the principal is not bound by the acts of a special agent who 
 acts beyond his authority; (15 Johns. 44; jBeals vs. Allen, 18 
 id. 363); nor can a special agent in any case bind his principal, 
 where he has disobeyed express instructions. {Scott vs. 
 McGrath, 7 Barb. 53.) Where an agent, within the scope of 
 his agency, employs a third person, the principal is liable to 
 the employee, on the contract. {Lincoln vs. Batelle, 6 Wend. 
 Alb.) 
 
 An agent to sell a particular thing, without any restriction 
 as to terms, is a general agent; {Jeff^rey vs. Bigelow, 13 id. 518;) 
 limiting the agency to a particular business, does not make it 
 special. {Anderson vs. Ooonley, 21 id. 279.) It is not neces- 
 sary, to constitute a general agent, that he should have pre- 
 viously done an act precisely the same as the one in question; 
 it is enough if he has usually done things of the same general 
 character and effect, with the assent of his principal. {Com. 
 Bank of L. Erie vs. Norton, 1 Hill, 501.) The question is 
 not so much what authority the agent had in point of fact, as 
 what powers third persons had a right to suppose he possessed, 
 judging from his acts and the acts of his principal. (4 Qow. 
 645; Lightbody vs. N. Am. Ins. Go., 23 Wend. 18.) Where 
 there is an apparent authority in the agent, the real question is, 
 what power a third person, who deals with him, has a right to 
 infer he possesses, from his own acts and those of his principal. 
 {Johnson vs. Jones, 4 Barb. 369.) Though a general agent 
 
iOO NEW YORK JUSTICE. 
 
 disregards particular instructions, his acts as agent are, never- 
 theless, binding upon his principal. {Tradesman Bank vs. 
 Astor, 11 Wend. 87.) 
 
 A power to sell does not, of itself, convey a power to war- 
 rant the title. {Nixon vs. Hyserott, 5 Johns. 58; 7 id. 390.) 
 But an agent authorized to sell an article is presumed to pos- 
 sess the power of warranting its quality and condition, unless 
 the contrary appear; and this, whether the agency be general 
 or special. {Nelson vs. Cowing, 6 Hill, 336.) A broker au- 
 thorized to sell goods without any special instructions as to 
 the manner, may sell by sample, and bind his principal by 
 warranty; (6 Cow. 354; 12 Wend. 566; Waring vs. Mason, 18 
 id. 425;) but an authority to sell does not authorize a sale on 
 credit, unless it be a known usage of trade that the particular 
 article shall be so sold. (26 Wend. 192; DelaJieldYS. State of 
 Illinois, 2 Hill, 159.) 
 
 The general rule of law is, that where an agent or factor, 
 who is duly authorized to contract for his principal, discloses 
 the fact of his agency, and the name of the person for whom 
 he is acting, he is not personally liable, if he makes the con- 
 tract in such form as to be binding upon his principal, unless 
 it satisfactorily appears that he also intended to bind himself 
 personally. (22 Weiid. 244; Calvin vs. Holbrook, 2 Com. 126.) 
 But though an agent does not disclose his name in buying for 
 his principal's use, yet if he uses the style of agent in the 
 transaction, and credit is not wholly given to him personally, 
 his principal is liable. {Pentz vs. Stanton, 10 Wend. 271.) 
 
 Where the acts of the agent will bind his principal, thex'e 
 his representations, delarations, and admissions, respecting the 
 subject matter, will also bind him, if they constitute part of 
 the transaction; {Sandford vs. Handy, 23 Wend. 260;) there- 
 fore, if an agent to sell sheep knows that they are diseased, and 
 sells them without communicating the fact, the principal is lia- 
 able for the deceit. {Jeffrey vs. Bigelow, 13 id. 518.) A gen- 
 eral authority to an agent to purchase goods on credit, is an 
 authority to make the necessary representations as to the credit 
 and solvency of the principal; and such declarations made by 
 the agent, while applying for the sale, are equally obligatory 
 upon the principal as if made by himself. (20 Barh. 493; 
 Anderson vs. Broad, 2 E. D. Smith's R. 530.) And an 
 
PRINCIPAL AND AGENT. 101 
 
 agent having a discretionary power to sell goods and collect 
 the price, has an implied authority to make any deduction from 
 the original price that could have been made by his principal. 
 {Taylor vs. JVusbaum, 2 Duer, 302.) But such agent has no 
 authority to pledge the goods to secure an antecedent debt due 
 from himself, nor can the purchaser protect himself from the 
 claim of the owner by agreement with the agent to credit the 
 price of the goods against an indebtedness of the agent to 
 himself (Henry vs. Marvin, 3 JE. JD. SmitKs R. 71.) A 
 principal who never authorizes or ratifies a wilful trespass of 
 his agent, is not liable therefor; {Vanderbilt ys. Rich. Tur. Co., 
 2 Com. 479;) but in cases of known agency, the principal alone 
 is liable to third persons for the neglect or omissions of the 
 agent in the business of his agency. [Denny v. Manhattan Co., 
 5 Den. 639; 8. C. 2 HiU, 220.) If a factor sells goods in his 
 own name, the purchaser may set oif any claim he may have 
 against him, in the suit of the principal for the price. [Mit- 
 chell vs. Bristol, 10 Wend. 492.) 
 
 The conduct of an agent on whom no fraud is chargeable 
 ought to receive a liberal and favorable construction. {Di~um- 
 mond vs. Wood, 2 Caines, 310.) An agent is liable for fraud 
 or gross neglect; but while acting with good faith, he is bound 
 to exercise ordinary diligence and attention only. Therefore, 
 if goods are consigned to the master of a vessel, on board of 
 which they are laden, and on arriving at the port of destina- 
 tion, not being able to find a purchaser, he leaves the goods 
 there and returns, he is not liable for them. (Laxvler vs. Kea- 
 quich, 1 Johns. Cases, 174.) 
 
 A factor may sell on credit, for the period usual in the mar- 
 ket, unless prohibited bj' his instructions, and, if he uses due 
 diligence to ascertain the solvency of the purchaser, he will 
 not be responsible, though the purchaser should prove insol- 
 vent; (6 Johns. 69; 3 id. 319; Robertsonrs. Livingston, 5 Coiv. 
 473); but if he neglects to comply with the directions of his 
 principal, he renders himself liable. [Ejpis. Ch. of St. Peter 
 vs. Varian, 28 Barb. 644.) If orders are given by a principal 
 to his factor, they must be pursued, or the factor becomes liable; 
 but, if none are given, or if they are not clear and explicit, he 
 is allowed to use his best discretion, and is entitled to protec- 
 tion so long as he acts according to the best of his judgment, 
 
102 NEW YORK JUSTICE. 
 
 and is innocent of fraud or gross neglect. (3 Caines, 226; 
 Bell vs. Palmer, 6 Oow, 128.) Where goods are consigned to 
 a factor for sale, with specific instructions as to price, he has no 
 right to sell below the price named, to cover his subsequent 
 advances, unless, after due notice and request, the consignor 
 neglects or refuses to pay the advances. (1 8 and. Ill; Blot 
 vs. Borceau, 3 Corns. 78.) 
 
 An agent who wrongfully refuses to surrender the goods of 
 his principal, or wholly departs from his authority in disposing 
 of them, or who pledges them for his own debt, is liable for 
 their conversion. (14 Johns. 128; McMorris vs. Simpson, 
 21 Wend. 610.) But, where an agent has, by his misconduct, 
 rendered himself liable to his principal, the acquiescence of the 
 principal in his acts will exonerate him; (1 Johns. Oases, 110; 
 Com. Bk. of Buffalo vs. Warren, 15 JST. Y. 577); and where a 
 principal is informed by his agent of what he has done, the 
 principal must express his dissatisfaction in a reasonable time, 
 otherwise his assent will be presumed. (12 Johns. 300; 2 Cow. 
 281; Cobh vs. Bows, 10 N. Y. 335.) So, if an agent compro- 
 mises a debt due his principal, with the knowledge of the prin- 
 cipal, who makes no objection, the agent will be responsible 
 for no more than the sum he received; the silence of the princi- 
 pal amounting to assent, and to a ratification of the act of the 
 agent. {Armstrong vs. Oilchrist, 2 Johns. Cases, 424.) 
 
 In the absence of any express agreement, the law implies a 
 promise by the agent to render an account to his principal; but 
 whether in a reasonable time, or on demand, is not well settled. 
 (Oooley vs. Betts, 24 Wend. 203.) As a general rule, it is the 
 duty of a collecting agent, to pay over the moneys he collects, 
 as soon as he receives them. An agent who has collected money 
 for his principal, should give him immediate notice of the fact; 
 and, after a reasonable time from the receipt of such notice, in 
 which to make a demand of it from the agent, the statute of 
 limitations will commence running, although no demand be 
 made. [Lyle vs. Murray, 4 Sand. 590.) In the case of a fac- 
 tor, an action will not lie for an omission to pay over the pro- 
 ceeds, without a previous demand of them, or instructions to 
 remit, or proof that it is the usual course of business to remit 
 without directions or demand. (Bink vs. Doeson, 8 Barh. 337.) 
 An agent who exceeds his powers in making a contract for 
 
PARTNERSfflP. 103 
 
 his principal, is liable upon it as his own contract; (Meech vs. 
 Smith, 7 Wend. 315); and, where he act« in his own name, he 
 binds himself, and not his principal. {Bk. of Rochester vs. 
 Montmth, 1 Ben. 402.) Where a person purchases goods as 
 agent for another, and the vendor, with full luiowledge of the 
 agency, takes the note of the agent for the purchase money, 
 and relies upon his credit, he cannot afterwards resort to the 
 principal. {Hyde vs. Paige, 9 Barb. 150.) 
 
 An agent who makes a contract in behalf of his principal, 
 whose name he discloses at the time to the person with whom 
 he contracts, is not personally liable. (15 Johns. 1; Oolvin vs. 
 Holhrook, 2 Co7n. 126.) But a party who would excuse him- 
 self from personal responsibility, on the ground that he acted 
 as the agent of another, must show that he communicated to 
 the other party his situation as agent, and that he acted in that 
 capacity, so as to give a remedy against his principal. {Mauri 
 vs. lleff'eman, 13 Johns., 58.) A person who purchases for 
 another at auction, but does not, at the time, nor on the day of 
 sale, disclose the fact that he is an agent merely, and the name 
 of his principal, is bound as purchaser. {McComb vs. Wright, 4 
 Johns. Ch. E., 659.) 
 
 In a contract of sale or exchange by an agent, as in all other 
 acts done by him, it is essentially requisite, in order to bind the 
 principal, that the authority should be pursued; otherwise the 
 contract is void. This is especially so, when a purchaser knows 
 that the agent is violating his instructions, and they agree to 
 conceal from the principal the fact of such violation. A trans- 
 fer of property by an agent who exceeds his authority in a 
 material point, passes no title to the thing delivered, and it 
 may be reclaimed by the owner. {Robertson vs. Ketchum, 
 11 Barb. 652.) 
 
 23. Partnership. 
 
 A partnership is a voluntary association of two or more indi- 
 viduals, for the purpose of lawful trade, in which each person 
 is to receive and bear his proportionate ratio of profit and loss. 
 It must of course consist of at least two persons, and must be 
 voluntary and lawful. 
 
 Any person of sound mind, and not under any restraint, may 
 enter into a contract of partnership. An infant may so far be 
 
104 KEW YORK JUSTICE. 
 
 a partner as to share iii the profits, though, if he chooses to take 
 advantage of his minority, he is not liable for losses; and if, on 
 coming of age, he does not make known his intention to dis- 
 continue the partnership, he will be liable for all subsequent 
 engagements made by the firm. 
 
 Contracts of partnership are usually drawn up in writing; 
 and, when this is the case, a majority of the parties have not 
 the power of entering into different projects from those ex- 
 pressly specified in the agreement, against the consent of one 
 of their number, but he may insist upon their acting fully up 
 to the articles of agreement. Partnerships may also be formed 
 by verbal agreement, or by the act of trading jointly together. 
 In such cases, the conduct of the partners must be regulated by 
 the principles of the common law and the custom of trade. 
 {Gary on Partnership, 1 to 3.) A partnership is not limited to 
 commercial business, but may be entered into for any purpose 
 not in itself illegal or forbidden by law. 
 
 Except in cases of limited or special partnerships, a partner 
 may bind the firm by a contract within the scope of the part- 
 nership business, even though another member dissent; {Wil- 
 kins vs. Pearce, 5 Den. 541); though he cannot bind the fii'm 
 by a contract not connected with the trade or business. [Div- 
 ingston vs. Roosevelt, 4 Johns. 251.) Each partner may buy 
 goods for the use of the partnership, or for its ordinary busi- 
 ness, and may sell goods belonging to it, and may pledge the 
 partnership property, or borrow money for partnership pur- 
 poses, on the credit of the company. {Story on Partnership, 
 § 126.) If one partner borrow money for the firm, the firm is 
 liable, whether he apply it in the firm business or not, and 
 though he apply it to his own use. (11 Wend. 75; Whittalcer 
 vs. Brown, 16 id. 505.) And so, where one borrows money, 
 not expressly on his individual credit, and it is shown that it 
 was borrowed for and appropriated to the use of the firm, the 
 firm is liable for it. {Church vs. Span-ow, 5 id. 223.) 
 
 A note made by one partner, in which he says, I promise to 
 pay, but subscribes the partnership name, is binding on the 
 firm, but not on the partner alone who executed it. {Doty vs. 
 Bates, 11 Johns. 544.) But, when a note is given in the name 
 of a firm, by one of the partners, for his private debt, and that 
 is known by the person taking the note, the other partners are 
 
PARTNERSHIP. 105 
 
 not bound by such note, unless they have been previously con- 
 sulted, or consent to the transaction; and the burden of proving 
 such assent of the other partners, lies upon the person who takes 
 the note. {Dob vs. Halsey, 16 Johns. 34.) 
 
 Out of two partners cannot bind another by subscribing the 
 lirm rame to a note as sureties for a third person, without the 
 authority or consent of the other partner; [Foot vs. Sabin, 19 
 id. 154); and, where co-partners have each repeatedly endorsed 
 the firm name on accommodation notes, with the knowledge 
 and assent of each other, that is no proof of the authority of 
 either to sign the firm name to a note as surety. (6 Hill, 12; 
 Bank of RocKr. vs. Bowen, 7 Wend. 159.) 
 
 To make one a partner, he must have a vested interest in the 
 profits as such. (16 Barb. 308; Fitch vs. Hall, 16 How. 175.) 
 One who stipulates for a proportion of the gross receipts of a 
 ferry by way of rent, is not a partner; (Heimstreet vs. Howland, 
 5 Den. 68); nor is one who agrees to work another's farm on 
 shares; {Putnam vs. Wise, 1 Hill, 234); nor one employed in 
 business, and to be compensated by a salary and a share of the 
 profits, and not to be liable for losses. {Vanderburgrh ys. Hull, 
 20 Wend. 70.) An agent or servant, who is to obey orders, 
 and has no interest in the capital-stock, will not be a partner, 
 even as to third persons, merely because he is to receive a share 
 of the profits of the business, as a compensation for his services. 
 {id.; 1 Den. 337; Burckle vs. Eckhart, 3 Corns. 132.) To con- 
 stitute a partnership, there must be a joint ownership of the 
 partnership funds, and an agreement to participate in the profits 
 and losses of the business. (4 Paige, 148; Ogden vs. Astor, 4 
 Sand. 311.) 
 
 The acts of a majority of the partners of a firm bind the rest; 
 {Kirk vs. Hodgson, 3 Johns. Ch. li. 400); and a partner may 
 bind the firm by a contract within the scope of the partnership 
 business, though another member dissent. Wilkins vs. Pearce, 
 5 Den. 541.) 
 
 One partner cannot confess a voluntary judgment in the 
 name of his co-partners; (1 Wend. 311; 9 id. 437; Everson 
 vs. Oehrman, 1 Abb. 167); nor can one partner, without the 
 consent of the others, introduce a third person as a partner into 
 the concern. {Murray vs. Bogert, 14 Johns. 318.) 
 
 In general one partner cannot bind another by seal. (2 Oaines, 
 
106 NEW YORK JUSTICE. 
 
 254; Gates vs. Graham, 12 Wend. 53.) A partner, however, 
 may, by a sealed instrument, empower a third person to dis- 
 charge a debt due to the firm; {Wells vs. Evans, 20 Wend. 
 251;) and an assignment of an account due to a partnership, 
 is valid, though made by one partner only, and under seal. 
 (5 Hill, 163; Everit vs. Strong, 7 id. 585.) 
 
 Where there is a general partnership, and money is borrowed 
 by one partner on the credit of the firm, whether he misapplies 
 it or not, the firm is liable to the lender. {Onondaga Co. Bank 
 vs. De Puy, 17 Wend. 47.) 
 
 A dissolution of partnership is efi"ected by the death, insan- 
 ity, or bankruptcy of one partner, and by the expiration of the 
 partnership; and any partner may, by his own act, dissolve the 
 partnership, unless constrained by the terms of the partnership 
 to continue it for a definite period. {Griswold vs. Waddington, 
 16 Johns. 438.) 
 
 After the dissolution of a partnership, one partner cannot 
 bind the others; and a note executed by one of several 
 partners, in the name of the firm, after a dissolution of the 
 partnership, will not bind the firm, unless a consent and ratifi- 
 cation by the other members of the firm is proved. (2 Johns. 
 300; 2 Hill, 520; Lusk vs. Smith, 8 Barb. 570.) After disso- 
 lution, the acknowledgment by one partner, of a debt due by 
 the firm, will not bind the other partners; (3 Johns. 536; 15 
 id. 409; Gleason vs. Clark, 9 Cow. 57;) nor can one partner 
 bind the others by an acknowledgment of a debt which is not 
 legally or equitably due, or by giving a note for such supposed 
 debt; {Brisbans v. Boyd, 4 Paige, 17;) nor can he bind them 
 bj' the renewal of a partnership note. {National Bank vs. 
 Norton, 1 Hill, 572.) But acts done by one partner, after dis- 
 solution, will bind his co-partners, in respect to all persons who 
 have previously dealt with the firm, and who have not had ac- 
 tual notice of the dissolution. ( Van Eps vs. Dillaye, 6 Barb. 
 244; 15 New York R. 471.) 
 
 A partner whose name is not used in the firm, is answerable 
 for debts contracted after his retirement with persons who 
 knew his previous connection, unless they had notice of his 
 withdrawal. (3 Com. 168; Clapp vs. Rogers, 2 Km-n. 283.) 
 After dissolution, all the partners must join in the transfer of 
 a partnership security, in order to vest the title in the trans- 
 
PARTNERSHIP. 107 
 
 feree. (Goertner vs. Trustees of Canajoharie, 2 Barb. 325.) 
 A partnership subsists after a voluntary dissolution, for the 
 purpose of closing the concern, and if one of the partners 
 thereafter dies, the others take the property and books as sur- 
 vivors, subject to account to the personal representatives of 
 the deceased. (6 Cow. 441; Jacquin vs. Buisson, WHow. 385.) 
 Surviving partners may carry on a joint business, in the name 
 of their late firm, or in any other name, and limit it to the 
 winding up the business of the late firm, or carry on the busi- 
 ness generally. {Staats vs. Hoiclett, 4 Den. 559.) But they 
 cannot carry on the business generally if the representative of 
 the deceased partner object. {Fenn vs. Bolles, 7 Abb. 202.) 
 
 Payment of a debt by one partner extinguishes it, and the 
 creditor cannot authorize such partner to keep it alive and en- 
 force it by action against his co-partners; [Le Page vs. McOrea, 
 1 Wend. 164;) nor can one partner, who has paid a judgment 
 recovered for a firm debt, call upon the others to contribute, 
 if the partnership accounts are unadjusted. (1 id. 532; Patti- 
 son vs. Blanchard, 6 Barb. 537.) 
 
 One partner may sue the others on the promise to pay a bal- 
 ance struck, though, through accident or otherwise, some tri- 
 fling matters were left unadjusted; (Qlarh vs. Bobble, 16 Wend. 
 601; Powel vs. Noye, 23 Barb. 184;) but he cannot maintain 
 an action against the others, except upon an express promise 
 to pay a struck balance. (6 Barb. 537; Attwater vs. Towler, 
 1 Hall, 180.) 
 
 Where two persons sign a joint note, that is no evidence of 
 a partnership between them. {Hopkins vs. Smith, 11 Johns. 
 161.) But general reputation, connected with corroborating 
 circumstances, is sufficient, at least prima facie, to establish the 
 fact of partnership; {Whitney vs. Stirling, 14 id. 215;) when 
 uncorroborated by facts, it is not sufficient evidence of a part- 
 nership. (20 Wend. 81; 22 id. 264; Smith vs. Oriffith, 3 Hill, 
 333,) 
 
 As a general rule, entries made in the firm books during the 
 continuance of the partnership, are evidence as between the 
 partners, on a partnership accounting; and a partner impeach- 
 ing them must prove fraud or mistake. {Caldwell vs. Leiber, 
 1 Paige, 483.) 
 
 Partners are not entitled to charge each other for services 
 
108 NEW YORK JUSTICE. 
 
 rendered in the care and management of the joint property, 
 unless there is a special agreement to that effect. (1 Johns. 
 Oh. J?. 158; 3 id. 431; Qourson vs. Hamlin, 2 Duer, 513.) 
 
 If a partner withdraws, and uses the partnership funds in 
 his own private trade or speculations, he must account not 
 only for the interest on the money so withdrawn, but for the 
 profits of that trade. (Stonghton vs. Lynch, 1 Johns. Oh. 467.) 
 
 Partnership property must first be applied to the payment 
 of partnership debts. {Wilder vs. Keeler, 3 Paige, 167.) 
 
 If, after dissolution, a partner pays demands against the firm, 
 he cannot maintain an action at law against his co-partners to 
 recover back the whole or any part of the money. (Qridley 
 vs. Dole, 4 Oom. 486.) 
 
 LiTnited Partnership. 
 
 Limited partnerships, for the transaction of any mercantile, 
 mechaiaical, or manufacturing business within this State, may 
 be formed by two or more persons. Such partnerships may 
 consist of one or more persons, who are called general partners, 
 and are jointly and severally responsible as general partners 
 are in other cases; and of one or more persons, who contribute to 
 the common stock, in actual cash payments, a specific sum as 
 capital, who are called special partners, and are not liable for 
 the debts of the partnership, beyond the fund so contributed 
 by him or them to the capital. The general partners only are 
 authorized to transact business, and sign for the partnership, 
 and to bind it. To form this partnership, a certificate must be 
 signed by all the partners, containing, 1. The name or firm 
 under which the partnership is to be conducted; 2. The gene- 
 ral nature of the business intended to be transacted; 3. The 
 names of all the general and special partners intended, distin- 
 guishing which are general and which special, and their respec- 
 tive places of residence; 4. The amount of capital which each 
 special partner shall have contributed to the common stock; 
 5. The period at which the partnership is to commence, and 
 when it will terminate. One or more of the general partners 
 must make an affidavit, that the sums specified in the certificate 
 as having been contributed by each of the special partners to 
 the common stock, have been actually, and in good faith, paid 
 in cash, which affidavit must be filed with the original certifi- 
 
PARTNERSHIP. 
 
 109 
 
 cate. The certificate must be acknowledged or proved in like 
 manner, as a conveyance of lands, and filed in the office of the 
 clerk of the county in which the principal place of business of 
 the partnership is situated. If it has places of business situated 
 in different counties, a duly certified transcript of the certificate, 
 and of the proof or acknowledgment, must be filed in the 
 clerk's ofBce of every such county. After such registry, the 
 terms of the partnership must be published for at least six 
 jveeks thereafter, in two newspapers to be designated by the 
 clerk of the county in which such registry is made, and in the 
 senate district or city or town in which the business is carried 
 on. If such publication is not made, the partnership is general. 
 (1 R. 8. 764, 765, §§ 1 to 9, Laws of 1862, chap. 476.) The busi- 
 ness of the partnership must be conducted under a firm in 
 which the names of the general partners only are inserted, and 
 the word company must not be used. {id. § 13.) But if there 
 are two or more general partners the firm name may consist of 
 either one of such general partners with the addition of the 
 words "and company." {Laws of 1864, cliap. iS, p. 71.) 
 
 The business of the partnership is to be transacted by the 
 general partners exclusively. The special partner must ueithei' 
 be named as a member of the firm, nor transact any business 
 on account of the partnership. He may examine and advise in 
 relation to the management of the partnership concerns, but he 
 must not transact any business on account of the partnership 
 nor be employed for that purpose as agent, attorney, or other- 
 wise; else ho will be deemed a general partner, and be liable 
 as such. {Madison Co. Bk. vs. Gould, 5 Hill, 309.) 
 
 Where a limited partnership is dissolved by the agreement 
 of the parties before the period fixed for its termination by the 
 original certificate, it continues as to persons crediting the firm 
 without actual notice of such dissolution until the notice 
 required by the statute has been filed, recorded and published 
 for four weeks, as prescribed. And if any alteration is made in 
 the capital or shares, and the partnership is in any manner there- 
 after carried on before the publication of the notice is completed, 
 the special partner becomes liable as a general partner. {Beers 
 vs. Reynolds, 1 Kern. 97.) 
 
110 NEW YORK JUSTICE. 
 
 24. Injuries to the Person, and to Real and Personal 
 
 Property. 
 
 By section two thousand eight hundred and sixty-two of the 
 Code, Justices of the Peace have civil jurisdiction in actions for 
 damages for an injury to the person, or to real property, or for 
 taking, detaining or injuring personal property, if the damages 
 claimed do not exceed two hundred dollars. This general author- 
 ity, however, is limited by section two thousand eight hundred 
 and sixty-three of the Code, which provides that no Justice of the 
 Peace shall have cognizance of a civil action for an assault, battery, 
 false imprisonment, libel, slander, malicious prosecution, criminal 
 conversation or seduction, nor of an action where the title to real 
 property shall com* in question. 
 
 (1.) Injuries to the Person. 
 
 For any direct unlawful injury to the person, by another, 
 which would entitle the party injured to an action, the Justice 
 has no jurisdiction, for that would be an assault or battery. 
 But, if for instance, the injury is one aflfecting the health of a 
 person, arising from the sale to him of bad provisions, or from 
 unskilful or negligent treatment by a physician or surgeon, the 
 Justice has jurisdiction. 
 
 (2.) Injuries to Real Property. 
 
 To maintain an action for injury to real property, a person 
 must have actual and lawful possession, or be entitled in re- 
 mainder or reversion, or, in case the premises are vacant, have 
 the legal title, which draws to it the possession. {Holmes vs. 
 8eeley, 19 Wend. 507; 9 Johns. 61; 12 id. 183; 1 id. 511.) 
 Every person who enters upon land without any claim or color 
 of right or title, and keeps possession, is a trespasser; (3 Black. 
 Com. 209); but if .a person, having a legal title to enter upon 
 lands, enters by force, though he is liable to indictment, he is 
 not liable to a private action for damages at the suit of the per- 
 son whom he turns out of possession. (13 Johns. 235; 16 id. 197; 
 Gault vs. Jenkins, 12 Wend. 488.) 
 
 Entering the dwelling-house of another without license is a 
 trespass; {Adains vs. Freeman, 12 Johns. 408); and so is every 
 unwarrantable entrj'- by a person or his cattle, on the land of 
 another, whether enclosed or not. (19 id. 385; Tonawanda li. 
 
INJURIES TO PERSON AND PEOPERTT. Ill 
 
 li. Co. vs. Munffer, 5 Den. 255.) Where a person enters upon 
 land under a parol agreement for its purchase, and cuts timber, 
 and afterwards rescinds the agreement, he is a trespasser. 
 {Suffem vs. Townsend, 9 Johns. 35.) 
 
 In an action for trespass by cattle, it is a matter of defence, 
 that the fence through which the cattle entered, and which the 
 plaintiff was bound to keep in repair, was defective. {Colden 
 vs. Eldred, 15 Johns. 220.) 
 
 A person having possession, though it has been tortiously 
 acquired, may maintain an action for trespass against one having 
 no title. {Hurd vs. West, 7 Cow. 752.) 
 
 No action can be maintained against a person for building on 
 his own land, whereby his neighbor's lights, not being ancient 
 lights, are obstructed. (13 Wend. 261; Parker vs. Foote, 19 
 id. 309.) Where the owner of two lots, which adjoined each 
 other in the rear, leased one of the lots, without reserving a 
 right to build on the other, and afterwards erected a building 
 so as entirely to exclude the light from the rear windows of the 
 building on the leased lot, it was held that he might lawfully 
 darken or stop such windows by any erection on the other lot; 
 that such an act was not in derogation of his own grant, and 
 that he could not be restrained from so doing. (10 Barb. 537; 
 Pickard vs. Collins, 23 Barb. 444.) 
 
 The command of a superior to do an act which amounts to a 
 trespass, is no justification to an inferior; and if the servant 
 obey such command, both he and the master will be liable. 
 {Brown vs. Howard, 14 Johns. 119.) 
 
 The right to land is exclusive; and every entry thereon with- 
 out the owner's leave or license, or the authority of law, is a 
 trespass. A person has no right, without permission, to enter 
 "Upon the land of another, for the purpose of taking away his own 
 property. (6 id. 5; Blake vs. Jerome, 14 id. 406.) If, in such case, 
 he cannot regain possession of his property peaceably, he must 
 resort to his legal remedy. {N'ewkirk vs. Sabler, 9 Barb. 652.) 
 
 The owner of land is, in contemplation of law, in possession 
 of a highway running through it, subject to the public ease- 
 ment, and may maintain an action for an exclusive appropria- 
 tion of the soil of the highway. Proof of possession of land ad- 
 jacent to a road or street is presumptive evidence of title to the 
 ■centre of the road. Therefore, no one has a right to dig up and 
 
112 NEW YORK JUSTICE. 
 
 remove the soil from the highway, opposite the land of another. 
 But, to maintain an action for injury to land in a road or street, 
 the plaintiff must prove that it is a highway, in order 'to give 
 rise to the presumption of ownership to the centre; and mere 
 acts of dedication are not sufEcient, without proof of acceptance 
 by the public. {Oidney vs. Earl, 12 Wend. 98.) 
 
 A person in possession of a part of a lot, and not showing 
 title to the whole, has not a constructive possession of the resi- 
 due, and cannot maintain an action for cutting dovm or removing 
 timber from another part; (^Akin ads. Buck, id. 466); but using 
 an unfenced lot, for a number of years, as a Tvood-lot for the 
 farm on which the plaintiff lives, is a sufficient actual possession 
 to maintain an action for trespass. (MacMn vs. Goertner, 14 
 Wend. 239.) 
 
 All who aid, command, advise or countenance the commission 
 of a tort by another, or who approve of it after it is done, if it 
 is done for their benefit, are liable in the same manner as if they 
 had committed the tort with their own hands. 
 
 When an entry, authority, or license, is given to any one by 
 law, and he abuses it, he is a trespasser ab initio; but when the 
 entry, authority, or license, is given by another, and the party 
 abuses it, he may be punished for the abuse, but will not be a 
 trespasser ab initio. In order to make a man a trespasser ab 
 initio, when the law has given the entry, the acts of abuse must 
 be of such a character, as to be the subject of a trespass, if there 
 were no license. [Adams vs. Rivers, 11 Barb. 390.) 
 
 There are three grounds on which a defendant may entitle 
 himself to a verdict, in an action for trespass on lands, namely: 
 title in himself, title in a third person, or possession out of the 
 plaintiff. {Douglass vs. Valentine, 7 Johns. 273.) 
 
 A person is a trespasser who, instead of passing along on the 
 side-walk of a street, stops on it in front of a man's house, and 
 remains there, using towards him abusive and insulting language. 
 {Adams'vs. Rivers, 11 Barb. 390.) 
 
 Consequential damages frequently spring from trespasses on 
 land, or from negligence in the use of one's own land. If a 
 corporation, authorized by charter, necessarily blasts rocks, and 
 they fall upon adjoining lands, the corporation is answerable 
 for the damage, although negligence or want of skill in the 
 blasting be neither alleged nor proved; (3 Barb. 42; 2 Corns. 
 
INJURIES TO REAL PROPERTY. 
 
 113 
 
 159; RadcUff vs. Mayor of Brooklyn, 4 Corns. 195); and evi- 
 dence to show that the work was done in the most careful man- 
 ner, is inadmissible, where only actual damages are claimed. 
 {Tremainvs. Oohoes Co., 2 Corns. 163.) But if A sets fire to 
 his own fallow ground, as he may lawfully do, and the fire 
 spreads to the woodland of his neighbor, no action lies against 
 A, unless there was some negligence or misconduct of himself 
 or his servants. (8 Johns. 421, Stuart vs. Hawley, 22 Barb. 619.) 
 
 Where the defendant, through gross negligence, left maple 
 syrup in his unenclosed wood, and the plaintifi^'s cow, running 
 at large there without right, drank it, and was thereby killed 
 it was held that the defendant was not liable. {Bush vs. 
 Brainard, 1 Cow. 78.) The reason is, the cow had no right 
 to be there. No one can recover for an injury arising even 
 from gross negligence in the lawful use of another's property, 
 unless he is free from negligence himself. 
 
 "Where a person, in the exercise of ordinary care and skill, in 
 making an excavation for the improvement of his own lot, digs 
 so near the foundation of a building on the adjacent lot, as to 
 cause it to crack and settle, he is not liable for the injury, unless 
 the building is erected upon an ancient foundation, and enti- 
 tled, by grant or prescription, to exemption from such injury, 
 or has been granted, in its present situation by the owner of the 
 lot on which the excavation is made, or by those from whom he 
 derives title. (17 Johns. 92; Lasala vs. HolbrooJc, 4 Paige, 
 169.) But for an injury resulting from negligence and careless 
 excavation, a party is liable. (1 Den. 466; 2 Barb. 165; Far- 
 rand vs. Marshall, 21 Barb. 409.) 
 
 I have a natural right to the use of my land in the situation 
 in which it was placed by nature, surrounded and protected by 
 the soil of the adjacent lots, and can maintain an action against 
 a man who digs a pit on his own land so near to mine that my 
 land falls into the pit. But my neighbor has a right to dig a 
 pit on his own land, if necessary to its convenient or beneficial 
 use, when it can be done without injury to my land in its natu- 
 ral state; and I cannot deprive him of this right by erecting a 
 building on my lot, the weight of which will cause my land to 
 fall into the pit. {Lasala vs. HolbrooJc, 4 Paige, 169.) 
 
 Although one build on his own land in an exposed and 
 Iiazardous situation, adjoining a blacksmith's shop, or the track 
 
114 NEW YORK JUSTICE. 
 
 of a railroad, or the usual course of a steamboat, he may, never- 
 theless, recover, iu case of injury resulting from the negligence 
 of the smith, or the agents and servants of the railroad com- 
 pany, or the owners of the steamboat. {OooJc vs. The Cham- 
 'plain Trans. Co. 1 Den. 91.) 
 
 The maker of a negotiable promissory note can maintain an 
 action for its conversion against a person who, before it has any 
 legal inception, negotiates it to a iona fide holder for value. 
 {Becker vs. Matthews, 2 Ker. 313.) 
 
 A recent statute {Laws of 1855, chap. 428), provides that, 
 whenever any real or personal property is injured in conse- 
 quence of a mob or riot, the city or county shall be liable to 
 an action in behalf of the owner, for the damages sustained. 
 The action is to be prosecuted in the same manner as other 
 actions; and, on final judgment, and on filing with the treasurer 
 of the city or county a certified copy of the judgment roll, it 
 becomes his duty to pay the judgment. But the owner cannot 
 recover if guilty of any negligence or of any failure in dili- 
 gence to prevent the damage. He must have notified the mayor 
 or sherifi" of any threats made to injure the property in ques- 
 tion. And in case he gives such notice and the officer neglects 
 to take all legal means for the protection of the property 
 threatened, the action may be brought against the officer instead 
 of the city or county, at the option of the plaintiff. The act 
 does not prevent the party injured from maintaining an action 
 against the participants in the riot. Actions under this act 
 must be brought within three months after the loss or injury. 
 Another late statute {Laws of 1853, chap. 573), provides that 
 any person who shall maliciously injure any work of art, struc- 
 ture, plant, &c., &c., shall be deemed guilty of misdemeanor, 
 and punished; and shall also be liable to an action, in which 
 the party injured may recover five times the actual damages 
 sustained. 
 
 (3.) Injuries to Personal Property. 
 
 Personal property may be injured or destroyed, or a person 
 may be deprived of its possession, so as to entitle him to an 
 action, but he must, at the time of the injury, have either 
 actual or constructive possession of the property. {Putnam \a. 
 Wiley, 8 Johns. 432; 11 id. 285.) It is not necessary that one 
 
INJUEIES TO PERSONAL PBOPERTT. 115 
 
 should be the actual owner, but a right to reduce the property 
 to actual possession is sufficient to entitle a party to maintain an 
 action; (1 Wend. 466; IJoT/t vs. Van AUtyne, 15 Barb. 568;) 
 and bare possession of a chattel is sufficient to maintain an ac 
 tion for a trespass against a wrong doer. (13 Johns. 141, 561; 
 Ilurd vs. West, 7 Cow. 752.) But a bailee of goods for keep- 
 ing, cannot maintain an action for taking them on an execution 
 against the owner, though they be exempt from execution, 
 (1 Cow. 114; and see Foster vs. Pettihone, 20 Barb. 350.) 
 
 When an injury is done to a plaintiff's person or property, 
 by an attorney, surgeon, physician, tailor, smith, barber, or 
 other person of a trade or profession, acting ignorantly, care- 
 lessly, or maliciously, an action will lie. (1 Cow. Treatise, 
 376; Bull vs. Colton, 22 Barb. 94.) And it may be stated, as 
 a general rule, that where one does an illegal or mischievous 
 act, which is likely to prove injurious to others, and when he 
 does a legal act in such a careless and improper manner that 
 injury to third persons may probably ensue, he is answerable 
 for all the consequences which may directly and naturally re- 
 sult from his conduct. {Vandenburgh vs. Truax, 4 Den. 464.) 
 
 A v.'ilful or grossly negligent injury is never tolerated; but 
 • where it arises from mere inadvertence, and there is an equal 
 or greater neglect on the part of the injured, no action can be 
 maintained. {Hartfield vs. Roper, 21 Wend. 615.) Where the 
 plaintiff's negligence contributed to the accident, he cannot 
 recover; and in no case can an action be sustained, if the wrong- 
 ful act of the plaintiff co-opei-ated with the misconduct of the 
 defendant to produce the damages sustained; and this is so, 
 whether the plaintiff's act was negligent or wilful. (21 Wend. 
 188; 6 Hill, 592; Clark vs. 8. & JST. R. R. Co. 11 Barb. 112.) 
 
 If a person is entitled to take property into his actual pos 
 session whenever he pleases, that is sufficient to enable him to 
 maintain an action for trespass, for its taking, against a third 
 person. {^AJcin ads. Buck, 1 Wend. 466.) 
 
 A landlord may have an action against his tenant, for trees 
 wrongfully cut by the latter during the term, and removed by 
 him from the premises. (8chermerhom vs. Buell, 4 Den. 422.) 
 If A's bees swarm, and take possession of a hollow tree on 
 B's land, A keeping them in sight, and tracing them there, and 
 C fell the tree for the honey, to the destruction of the bees, A 
 
116 NEW YORK JUSTICE. 
 
 can maintain trespass against Iiim. {Goff vs. Kilts, 15 Wend, 
 550.) If A's lamb, being in the highway, gets into a flock 
 which B is driving by, and B, knowing it, drives the whole to 
 a yard, and leaves them to be taken away by a drover, A can 
 recover the value of the lamb from B, the injury being volun- 
 tary. (Brownell vs. Flagler, 5 Hill, 283.) 
 
 Where a person, with a deadly weapon, pursued a boy, with 
 whom he had quarreled, into a store, and the boy, in his terror, 
 ran against a wine cask, and spilled the wine, the person who 
 pursued the boy was held liable for the damage, upon the 
 principle that one who does an illegal or mischievous act, is 
 responsible for the consequences which result. {Vandenburgh 
 vs. Truax, 4 Den. 464.) If a man, without just cause, aims a 
 blow at his enemy, which, missing him, falls upon his friend, 
 it is a trespass upon the friend, and may be murder, if a deadly 
 weapon is used, and death ensues; or if, in attempting to steal 
 or destroy the property of another, he unfortunately wound 
 the owner, or a third person, he must answer for the conse- 
 quences, although he did not intend that particular mischief. 
 And, although no mischief of any kind be intended, yet if a 
 man do an act which is dangerous to the person or property of 
 others, and which evinces a reckless disregard of consequences, 
 he will be answerable civilly, and in many cases criminally, 
 for the injuries which may follow; as, if he discharge a gun, 
 or let loose a ferocious or mad animal in a multitude of people, 
 or throw a stone from the house-top into a street where many 
 are passing, or keep a large quantity of gunpowder near the 
 dwelling of another. In these, and such like cases, he must 
 answer for any injury which may result, from his misconduct, 
 to the persons or property of others. And, if the act was so 
 imminently dangerous to others, as to evince a depraved mind, 
 regardless of human life, and death ensues, it will be murder. 
 (4 Den. 464, supra, per Beonson, J.) 
 
 Any person is justified in Idlling a dog which has been bitten 
 by a mad animal, or a ferocious and dangerous dog which is 
 permitted to run at large by its owner, or escapes through negli- 
 gent keeping. (13 Johns. 312; HincJcley vs. Emerson, 4 Ooic. 
 351.) A person is justified in killing a dog which is chasing 
 and killing sheep, or destroying a fowl, on his land. (9 Johns. 
 233; Fairchild vs. Bently, 30 Barb. 147.) Where one dog 
 
INJURIES TO PERSONAL PKOPERTT, 117 
 
 injures or kills another, the owner of the latter dog can only 
 recover damages from the owner of the former, by proving, what 
 ever may have been the character and habits of defendant's dog, 
 that he was in the wrong in that particular fight. ( Wiley vs. 
 Slater, 22 Barb. 506.) A confession that one killed a dog, 
 which assaulted him in the highway, must be taken together, 
 and amounts to a justification. (^Credit vs. Broivn, 10 Johns. 
 365.) 
 
 It is a well-settled principle, that in all cases where an action 
 is brought for mischief done to the person or personal property 
 of another, by domestic animals, such as horses, oxen, cows, 
 sheep, swine, and the like, the owner must be shown to have 
 had notice of their viciousness, before he can be charged; but 
 this rule does not apply where the mischief is done by such an 
 animal while committing a trespass upon the close of another. 
 (4 Den. 127; Van Leuven vs. Lahe, 1 Corns. 515.) One who 
 owns or keeps an animal of any kind, is liable for an injury the 
 animal may do, only on the ground of some actual or presumed 
 negligence on his part. It is essential to the proof of negli- 
 gence, and sufiicient evidence thereof, that the owner be shown 
 to have had notice of the propensity of the animal to do mis- 
 chief. Proof that the animal is of a savage and ferocious na- 
 ture, is equivalent to proof of express notice. 
 
 The owner of fifteen hives of bees kept them in his yard ad- 
 joining the public highway, and the plaintiif 's horses, while 
 travelling along the highway, and passing the place where the 
 bees were kept, were attacked and stung so severely that one 
 of them died, and the other was greatly injured. It appeared 
 that the bees had been kept in the same place for eight or nine 
 years without doing any other injury. It was held that the 
 owner of the bees was not liable; at all events, not for any ac- 
 cidental injury they might do. [Earl vs. Van Alstyne, 8 Barb. 
 «30.) 
 
 If a dog be in fact ferocious, at large, and a terror to the 
 neighborhood, the public would be justified in dispatching him 
 at once; and it would seem not to be necessary to piove that 
 the owner had knowledge of the vicious disposition of the dog. 
 {Maxwell vs. Palmerton, 21 Wend. 407.) If a man knowingly 
 keep on his premises a ferocious dog, in such a way that he will 
 worry an ordinary trespasser in the dajrtime, he is liable for an 
 
118 NEW YORK JUSTICE. 
 
 injury inflicted by the dog upon such trespasser. {Loomis vs. 
 Terry i 17 id. 496.) Evidence that the plaintiff was bitten by 
 the defendant's dog, that the dog had previously bitten others 
 and that the defendant had notice of it, being uncontradicted, 
 requires a verdict for the plaintiff. {Buclcley vs. Leonard, 4 
 Ben. 500.) 
 
 Though a dog be vicious, no one but his master has a right 
 to kill him, except when he chases and kills one's domestic ani- 
 mals on his land; or, under the statute, when he attacks sheep; 
 or, when he is ferocious and attacks persons, in which case he 
 is a common nuisance, and any one may destroy him. (Kinley 
 vs. Emerson, 4 Cow. 351.) If a dog is in the habit of howling 
 about one's house by night, so as to be a nuisance to his family, 
 he may, after reasonable notice to the owner, be killed. {Brill 
 vs. Flagler, 23 Wend. 354.) "Where dogs owned by different 
 persons worry and kill sheep, a joint action cannot be main- 
 tained against the separate owners. {Van Steenburgh vs. Chray, 
 17 Wend. 562.) 
 
 It is an act of negligence to suffer cattle to be at large in a 
 highway at rail-road crossings. Therefore, where the owner 
 of a cow suffered her to go at large in the highway, and upon 
 a rail-road track, at the usual time for the passenger train of 
 cars to pass, and the cow was killed by the train of cars, it was 
 held that the owner could not recover the value of the cow in 
 an action against the rail-road company. Where cows are tres- 
 passers upon a rail-road, their owners cannot maintain an action 
 against the rail-road company for running over and killing them 
 by their passenger cars, even if the death of the cows was occa- 
 sioned by the gross negligence of the defendants. {Clark vs. 
 8. & U. R. R. Co. 11 Barb. 112.) 
 
 Every unwarrantable entry by a person or his cattle, on the 
 land of another, is a trespass. This is so at common law, though 
 the entry be by cattle coming from the highway, and the land 
 be unfenced; and it is no excuse that the owner exercised cai-e 
 and prudence to keep them in his own inclosure. The purpose 
 of fences, in the view of the common law, is to keep the own- 
 er's cattle in, and not the cattle of others out. But, if cattle 
 driven along the highway, escape into an adjoining field, against 
 the owner's will, the rule does not apply, and the trespass is 
 excused. Where a proprietor of land is bound by prescription 
 
PENALTIES AND FORFEITURES. 119^ 
 
 to fence against cattle lawfully in the highway, he cannot maiuT 
 tain a trespass for an entry of cattle arising, out of a defect in 
 his fences. If domestic animals stray upon land where they 
 have no right to be, and are injured by negligence of the 
 owner of the land, an action will not lie by the owner of the 
 animals against the owner of the land. {Tonawanda R. B. Qo.. 
 vs. Munger, 5 Den. 255.) 
 
 25. Penalties and Forfeitures. 
 
 Justices of the Peace have jurisdiction of actions for penaltiesj 
 to an amount not exceeding two hundred dollars, whether brought 
 by the individuals or by the people. {Code, §§ 2862.) The Gity 
 Court of the city of Albany may try any action brought to 
 recover a penalty to the amount of five hundred dollars or under, 
 incurred under any of the by-laws of said city. {Laws o/'lSSi, 
 chap. 122.) 
 
 By the provisions of the Code of Civil Procedure, when a pecu- 
 niary penalty or forfeiture is specdally granted by law to any per- 
 son injured or aggrieved by any act or omission of another, the 
 same may be sued for and recovered in an action of debt, or in 
 an action of assumpsit ; and if it be a forfeiture of any prop- 
 erty, it may be sued for and recovered in an action of trover, 
 or other appropriate action. (§ 1893.) The forms of all actions 
 being abolished by the Code ^§ 3339), the claims recover- 
 able in the actions thus specified must be prosecuted in a civil 
 action, and a complaint containing the substance of what was 
 formerly required in a declaration in any one of those several 
 actions will be a suflicient compliance with the statute. In an 
 action on a statute making it penal to cut and carry away trees 
 from the lands of the State, and creating a penalty of $25 for 
 each tree cut, it may be alleged in the complaint that the de- 
 fendant is indebted in a sum equal to four penalties, and the 
 plaintiff may recover any amount of penalties which it can be 
 proved the defendant has incurred, though the same be less 
 than four. {People vs. McFadden, 13 Wend. 396.) 
 
 Every such action, and every action brought by any public 
 officer for the recovery of any penalty or forfeiture, must be 
 prosecuted and conducted in the same manner as other personal 
 actions in all respects, except as otherwise specially provided; 
 and is subject to all the provisions of law concerning amend- 
 
120 NEW YOEK JUSTICE. 
 
 ments of the process, pleadings, and records therein, and con- 
 cerning the abatement of such suits by death or otherwise, and 
 all other provisions concerning personal actions, except where 
 otherwise specially provided. {See Code, § 1897.) , 
 
 In various town charters, however, special provisions have 
 been made, intending to facilitate a recovery in actions brought 
 to recover penalties. 
 
 By the act incorporating the village of Homer, {Laws of 
 1857, chap. 537,) it is provided that in any action brought by 
 the corporation to recover any penalty or forfeiture imposed 
 by the act, or by any ordinance, &c., enacted under it, it shall 
 in all cases be sufficient, without setting forth any special mat- 
 ter, to allege in the complaint, that the defendant is indebted 
 to the said corporation in the amount of such penalty or for- 
 feiture, whereby an action has accrued according to the provi- 
 sions of the act, naming the subject thereof, and referring 
 briefly to the section or other division of the rule, regulation, 
 ordinance or by-law, for a violation of which the action is 
 brought, and also to the date of its passage by the trustees. 
 And process for the commencement of any such action, shall 
 have an endorsement thereon, to the effect that it is issued to 
 enforce a penalty imposed in accordance with the provisions 
 of the act incorporating the village of Homer, and no other 
 endorsement thereon shall be necessary. 
 
 The same provision is made by law in respect to the village 
 of Camden; {Laws of 1857, chap. 754;) and one analogous on 
 most points, in relation to Syracuse. {Laws of 1854, c7iap. 28.) 
 In respect to the village of Carthage, it is enacted, {Laws of 
 1857, chap. 584,) that the trustees may, for the violation of any 
 by-law, rule or regulation which they are authorized to make, 
 sue for and recover such penalty as they may have prescribed 
 therein, in the corporate name of the village, before any Justice 
 of the Peace, in an action of debt. The pleadings shall be gen- 
 eral, and either party may give the act or any other special 
 matter in evidence. 
 
 In the act to amend and consolidate the several acts relatiiig 
 to the village of Athens, {Laws of 1857, chap. 622), it is provi- 
 ded that in an action brought to recover a penalty for the vio- 
 lation of any provision of the act or any by-law, regulation or 
 ordinance of the village, it shall only ]je necessary to state in 
 
PENALTIES AND FORFEITURES. 121 
 
 the complaint the section of the act, or the title and section of 
 the by-law, regulation or ordinance alleged to be violated, the 
 time of its adoption, and the amount of the penalty claimed; 
 and any other fact may be given in evidence without being 
 stfited in the complaint. The same provisions exist in relation 
 to the towns of Ulster, {Laws of 1855, chap. 262), Cohoes, 
 {Laws of 1855, chap. 352), and Mexico. {Laws of 1855, 
 chap. 374.) 
 
 In respect to the village of Yonlters, it has been enacted, 
 {Laws of 1837, chap. 767), that all actions {Laws of 1855, 
 chap. 330) brought to recover any penalty or forfeiture under 
 the act or the ordinances, by-laws, rules, resolutions or regula- 
 tions made in pursuance of it, shall be brought in the corporate 
 name of said village, and in such action it shall be lawful to 
 declare or complain generally for such penalty or forfeiture, 
 stating the section of the act or by-law, ordinance, rule, resolu- 
 tions or regulations, under which the penalty or forfeiture is 
 claimed, and to give the special matter in evidence. The defen- 
 dant may plead or answer', denying generally the allegations 
 declared or complained of, and give the special matter in evi- 
 dence also. The first process in any such action brought before 
 a Justice of the Peace, may be by summons or warra^nt, and 
 execution may be issued immediately on the rendition of judg- 
 ment. If the defendant in any such action has no goods or 
 chattels, lands, or tenements whereof the judgment can be col- 
 lected, the execution shall require, where it shall appear that it 
 was for a second offence, the defendant to be imprisoned in the 
 jail of Westchester County, for a term, to be fixed by said Jus- 
 tice, not exceeding sixty days. Substantially the same provi- 
 sion has been made relative to the city of Buffalo. 
 
 Whenever any penalty or forfeiture is recovered which is not 
 specially granted by law to the party aggrieved; or to any offi- 
 cer; or to or for the use of any county, town, or other body 
 politic; or for the use of the poor of any place; or to any per- 
 son who will prosecute; or which is not otherwise specially 
 appropriated ; the same must be paid into the county treasury. 
 {Crim. Pto.,'§§726, T27.) 
 
 Every suit or proceeding in a civil case, instituted in the 
 name of the people of this State, by any public officer duly 
 authorized for that purpose, is subject to all the provisions of 
 
12*2 NEW YORK JUSTICE. 
 
 law respecting similar suits or proceedings, when instituted by 
 or in the name of any citizen, except where provision is other- 
 wise expressly made by statute; and in all such suits and pro- 
 ceedings the people of this State are liable to be non-suited, 
 and to have judgments of non pros, or of discontinuance entered 
 against them, in the same cases, in like manner, and with the 
 s.ime effect, as in suits brought by citizens, except that no exe- 
 cution can issue thereon, {fiode, §§ 1984 and 5.) 
 
 An action for the recoveiy of a penalty or foi'feiture imposed 
 by statute, must be tried in the county where the cause of 
 action or some part thereof arose; except that, if the offence fo)- 
 which the penalty or forfeiture is imposed, was committed on a 
 river, lake, or other stream of water situated in two or more 
 counties, the action to recover the penalty or forfeiture may be 
 brought in any county bordering on such river, lake or stream, 
 and opposite to the place where the offence was committed; 
 {Code, § 983) and a recovery in such action by a public officer 
 will be a bar to any other suit by any other public officer, for 
 the same offence. {Code, § 1962.) 
 
 Where any penalty or forfeiture is given by law to any per- 
 son who will sue for the same, such suit must be brought in the 
 name of the person commencing the same, who maj' appear by 
 attorney; and it must be conducted and prosecuted in all res- 
 pects in the same manner as, and will be subject to the provi- 
 sions of law concerning, personal actions. (/<?., §1893.) No such 
 suit will be deemed to be commenced until process is actually 
 delivered to an officer to be executed; wliich process must not 
 be redelivered to the plaintiff in any case, but must be returned 
 to the Court from which the same issued; and no such action 
 can be compromised or compounded, without leave of the Court 
 in which it shall be pending. {Id., § 1895.) 
 
 Upon every process issued for the purpose of compelling the 
 appearance of the defendant to any action for the recovery of 
 any penalty or forfeiture, must be endorsed a genei'al reference 
 to the statute by which such action is given in the following 
 form: "According to the provisions of the statute regulating 
 the rate of interest on money,' ' or, " according to the provisions 
 of the statute concerning sheriffs," as the case may require, or 
 in some other general terms referring to such statute. {Td., 
 § 1897.) A reference thus : "According to the act ' of the internal 
 
PENALTIES AND FOKFEITURES. 123 
 
 police of the State,'" is uot a compliance with the statute. At 
 least the number of the title, if not the particular section under 
 which the suit is brought, should be specified. (17 Wend. 85; 
 4 Ben. 268; Femj vs. T^nen, 22 Barb. 138; 21 id. 320.) 
 But a reference, "According to the proceedings of" {Andrews 
 vs. Harrington^ 19 Barb. 343), instead of provisions, has been 
 held a substantial compliance with the law. (34 Run, 271.) 
 
 In an action to recover any penalty or forfeiture given by 
 any statute, the complaint must state that the action accrued 
 according to the provisions of such statute, naming the subject- 
 matter thereof in the following form : " According to the pro- 
 visions of the statute concerning sheriffs," naming the section, 
 title and chapter of such statute, as the case may require, or in 
 some other similar terms referring to such statute. {See Code, 
 § 1897.) If an action be brought to recover any goods or other 
 things forfeited by the provisions of any statute, the complaint 
 must contain a like reference to the statute according to the 
 provisions of which the forfeiture is claimed. And the com- 
 plaint in a penal action must also set forth the particular acts or 
 omissions by which the penalty was incurred. {People vs. Brooks, 
 4 Den., 469.) 
 
 In any suit for a penalty or forfeiture brought by any person 
 other than the party aggrieved, or other tlian any public officer, 
 if a former recovery or acquittal, or other bar to such action, be 
 pleaded, the plaintiff may reply, that such recovery, acquittal 
 or bar was had by covin ai?d fi-aud; and, if such replication be 
 confessed or established, the plaintiff will recover in such 
 action, notwithstanding such plea. {Code, § 1896.) 
 
 An action of debt to recover a penalty imposed by the by- 
 law of a municipal corporation, may, it would seem, be brought 
 in a Justice's Court, although the statute authorizing the by 
 law contains no provision conferring jurisdiction upon Justices 
 of the Peace. {Walker vs. Cruikshank, 2 Hill, 296.) 
 
 Where any act is prohibited by law, under a penalty not ex- 
 ceeding any given sum specified in such law, an action may be 
 brought for such specified sum; and the jury or Justice before 
 whom the trial is had, must award such sum so specified to the 
 plaintifi", or such part thereof as shall be deemed proporfa'^ued 
 to the ofience. 
 
124 NEW TOKK JUSTICE. 
 
 A penalty cannot be raised by implication, but must be ex- 
 pressly created and imposed. {Jones vs. Estes, 2 Johns. 379.) 
 
 Only one penalty is recoverable for one offence or entire 
 transaction, and not a separate penalty for each particular act 
 into which the oflFence may be divisible; Mayor of N. Y. vs. 
 Ordrenan, 12 Johns. 122); and, though several join in commit- 
 ting it, they are jointly liable for one penalty. (5 Cow. 678; 
 4 Den. 374; Palmer vs. Oonly, 2 Corns. 182.) 
 
 Where double or treble value is given by statute, the proper 
 practice is, for the jury to find the single value, and the Court 
 doubles or trebles it. {Warren vs. DooUttle, 5 Corns. 678.) 
 
 Where a statute inflicts a penalty, and gives one moiety to 
 the people and the other moiety to the person prosecuting for 
 the same to efiect, a payment of the judgment to the plaintiff is 
 authorized, and discharges the defendant. The plaintiff may 
 thereupon discharge tbe judgment, and is a trustee for the peo- 
 ple's moiety. {Caswell vs. Allen, 10 Johns. 118.) 
 
 Whenever an action is brought to recover any penalty im- 
 posed by law for taking any rails, boards, planks or staves, 
 from the banks or vicinity of a canal, in which a Justice is 
 authorized to direct the detention of any canal boat, (1 R. 8. 
 247, § 172), he cannot endorse such direction on any warrant, 
 unless a bond be executed and delivered to him, in the penalty 
 of at least two hundred dollars, with one or more sureties, to 
 be approved by the Justice, conditioned that such action shall 
 be prosecuted to judgment with all convenient speed, and that, 
 if judgment be rendered in favor of the defendant, the obligees 
 will pay the costs and charges which shall be adjudged against 
 the plaintiff, and all damages which may ensue from the deten- 
 tion of such boat and the cargo thereof, and the crew navigat- 
 ing the same. {See Code, % 2908.) 
 
 No inhabitant of any town, city, or county is disqualified as 
 a juror or witness in any cause brought to recover any penalty 
 or forfeiture, on the ground that such penalty or forfeiture is 
 to be applied for the benefit of such town, city, or county, or 
 for the benefit of the poor thereof ; nor is any officer, on such 
 ground, disqualified from serving any process for the summon- 
 ing of a jury in such cause. {Code, § 1179.) 
 
 The penalty of twenty-five dollars, imposed by statute upon 
 any person who shall " forcibly or fraudulently" pass any gate 
 
FIXTURES. 125 
 
 on anj'- turnpike or plank road without having paid the legal 
 toll, is not incurred by an individual who merely passes through 
 a gate with liis team, and offers a Imnk bill in payment of the 
 toll, and refuses to pay in any other way; {Monterey (&c. P. R. 
 Co. vs. Faulkner, 21 Barb. 212); nor by one who passes through 
 without forcing his way, but declining to pay toll, no effort 
 being made to stop him. {Bridgewater & U. P. R. Co. vs. 
 Robbms, 22 Barb. 662.) 
 
 26. Fixtures. 
 
 Under this head, it will be impossible to give more than a 
 few general principles in regard to the law of fixtures. The 
 decisions are very numerous, and the distinctions between what 
 are fixtures belonging to the freehold, and what are things re- 
 movable as personal chattels, frequently require verj' subtle 
 discrimination. 
 
 The law divides property into two great classes, real and per- 
 sonal; and the distinction is founded on reason, and the nature 
 of things. The one is immovable and of unlimited duration; 
 the other is perishable and movable. Every thing that is an- 
 nexed to land is considered as a part thereof; a house, or a tree, 
 for instance! If the property in the laud on which the house 
 is erected, or the tree is growing, be conveyed to another, the 
 house and tree will pass. And, as the house and the tree are a 
 part of the land, from the circumstances of their being fixed 
 thereto, so the fruit on the tree, and the articles fixed in the 
 house, as windows, doors, hearths, and chimney-pieces, are also 
 part of the land. 
 
 It may be stated, as a general proposition of law, that every 
 thing fixed to land, either immediately, as a house, or mediate- 
 ly, as a window in a house, belongs to the proprietor of the 
 land. And this rule prevails where one man builds a house on 
 the land of another, or fixes the chattels belonging to another 
 in his house. 
 
 But a man may have occasion to fix to the land of another a 
 chattel belonging to himself, and yet not be willing to part with 
 his property in the chattel. Thus, where a house is let by the 
 owner to another for a term, it may be necessary for the tenant, 
 in order to the comfortable or profitable occupation of such 
 house, to fix therein articles of his own. In such case the 
 
126 NEW YORK JUSTICE. 
 
 general rule is modified; and a party who, under such circum- 
 stances, makes annexations to the land of another, is allowed to 
 remove the things so annexed, at any time during his tenancy, 
 and in some cases after the expiration thereof. Things thus 
 aimexed to land, and removable, are termed fixtures; and, 
 although during the period of their annexation they are con- 
 sidered as a portion of the land, the party fixing them is allowed 
 to reduce them again to a chattel state. 
 
 Fixtures of the kind just mentioned are divided into two 
 classes: 1st. Those articles which a tenant fixes for the purpose 
 of trade; 2d. Those which he fixes for his domestic convenience, 
 or the ornament of his house. It is only articles which fall 
 under the one or the other of these divisions that the law con- 
 siders a party can have any reason for fixing to the land of an- 
 other, or can find any utility in removing. 
 
 In order to ascertain whether, as between landlord and ten- 
 ant, a particular thing is or is not a fixture, inquiry must be 
 made, 1st. If it be fiLxed to the land; 2d. If it have been so 
 fixed by the tenant; 3d. If it be useful to the tenant in his trade, 
 or in the occupation of his house, or ornamental to it; and 4th. 
 If it be capable of removal without doing substantial injury to 
 the house. As these are questions of fact, each case must de- 
 pend much on its own particular circumstances. 
 
 A fixture is a thing fixed to land. If not so fixed it is a chat- 
 tel, and cannot, under any circumstances, be considered as a 
 part of the freehold. The merely laying, and resting upon the 
 earth, without letting and embedding into it, goods, or even 
 buildings of any description, will not make them fixtures. The 
 article must be fixed in or to the ground, or to some substance 
 already become a portion of the freehold, in order to deprive 
 it of its personal nature; and unless this complete annexation 
 to the freehold take place, the article is not what is called a 
 fixture, but remains a personal chattel, and may be removed by 
 the party who brought it upon the premises. If goods or 
 buildings are merely placed and rest upon, without being let 
 into, a brick or other foundation, and can be taken away with- 
 out injury to such foundation, they may legally be removed, 
 although the foundation itself be in a solid manner rendered 
 part of the freehold, and cannot be severed therefrom. Thus 
 a tenant may erect barns, granaries, sheds and mills, upon 
 
FIXTURES. 127 
 
 blocks, rollers, pillars, or plates resting on brick work, so as to 
 reserve to himself the right of removal. 
 
 As between grantor and grantee, however, or moitgagor oi 
 mortgagee, it does not follow that a structure may be removed 
 because it only rests upon a foundation. A statue, for instance 
 erected as an ornament to grounds, may be a part of the realty, 
 although it is not fastened to the base whereon it rests, and 
 though it can be removed without fracture. {^SnedeJcer vs. 
 Waring, 2 Ker. 170.) And so the engines, cars, &c., of a rail- 
 road under mortgage, have been held fixtures, in favor of the 
 mortgagee. (^Farmer's Loan and Trust Oo. vs. Hendrickson, 
 25 Barb. 484.) 
 
 It may be stated generally, that Avhatever a tenant erects or 
 fixes for the purpose of his trade, to the premises leased, he 
 may take away at any time before the end of his term. In re- 
 gard to domestic fixtures, or those articles which a tenant fixes 
 in his house, in order to render his occupation more comfortar 
 ble or more convenient, the rule is, that furniture and pictures, 
 even when slightly fixed to the walls or floors of a house, are 
 removable by the tenant before the expiration of his term. So, 
 too, furnaces, grates, stoves, cupboards, shelves, bells, carpets 
 nailed to the* floor, blinds, curtains, and in short any article 
 which has been fixed to the house by the tenant for his domes- 
 tic use, and which is capal^le of being removed without injury 
 to the house, may be removed by him. A tenant may lose his 
 right to remove fixtures by leaving them on the premises, and 
 he may waive it by agreement. {Gibbon's Law of Fixtures; 
 Grady's Law of Fixtures.) 
 
 Where a thing fixed to the freehold is severed for a particu- 
 lar purpose, it remains, in contemplation of law, a part of the 
 freehold; thus, a mill-stone taken from the mill for the purpose 
 of being picked, does not become a personal chattel. But 
 otherwise, articles affixed to the freehold become personal pro- 
 perty by severance. (Iforgan vs. Varick, 8 Wend. 587.) 
 
 It has been decided in the courts of this State that the follow- 
 ing articles are personal property: a bark-mill, affixed to the 
 soil, being an accessary to the tanning business; (6 Johns. 5; 
 Cook vs. Champlain Trans. Co. 1 Den. 91); a cider-mill and 
 px-ess, erected by a tenant from year to year, at his own expense, 
 though affixed to the soil; {Holmes vs. Tremjper, 20 id. 29); 
 
128 NEW YORK JUSTICE. 
 
 machinery used in, but not attached to, a mill; (20 Wend. 636; 
 Murdock vs. Gifford, ISiV^Z". 528); engines and machinery, firmly 
 affixed to a building by a tenant for years, for the carrying on 
 of business of a personal nature; (1 Den. 91; Supra); coppers, 
 &c., for distilling; {Reynolds vs. Shuler, 5 Cow. 323); a stove 
 not affixed, but communicating with the chimney by its pipe, 
 and secured by temporary fastenings. {Freeland vs. South- 
 worthy 24 Wend. 191.) But whether personal property is an- 
 nexed to the freehold for the purpose of trade or manufactures, 
 is a question of fact for a jury. {Hovey vs. Smith, 1 Barh. 372.) 
 
 Machinery put into a building, after its erection by the 
 owner, for the purpose of trade, founded on timbers bedded in 
 the earth, and so attached to the building as to be capable of 
 removal without injury to it, is not a fixture which passes by 
 conveyance of the land. (5 Den. 527; Yan Derpool ^s. Van 
 Allen, 10 Barb. 157.) The water-wheels, bolting apparatus, 
 and machinery of a grist mill, are part of the freehold, and go 
 to the heir; and so of growing grass, fmit, and trees. (10 Paige, 
 158; 1 Barh. 542; 2 id. 613; Buckleyvs. Buckley, 11 Barb. 43.) 
 
 Manure, there being no stipulation to the contrary, and rails 
 in fences, or temporarily detached, belong to the landlord, and 
 not to the tenant; (15 Wend. 169; Goodrich vs. Jones, 2 Hill, 
 142); but rails built into a fence by a tenant, under an agree- 
 ment with his landlord that he may remove them at the end of 
 his lease, are personal property as between the landlord and 
 the tenant. (1 Corns. 564; Ford vs. Cobb, 20 JV. Y. 344.) 
 
 Wheat growing on the ground is a chattel, and may be sold 
 by parol. (2 Johns. 421; 9 Cow. 39; Warren vs. Iceland, 
 2 Barb. 613.) So, too, it maybe sold on execution. (2 Johns. 
 418; Stewart YS. Doughty, 9 id. 108.) But a foreclosure sale 
 under the statute vests in the purchaser a title to the growing 
 crops, as against the mortgagor or his vendee. (1 Barb. Ch. 
 R. 613; 2 Den. 174; Gillett vs. Balcom, 6 Barb. 370.) If one 
 occupies land under another, and, by the terms of the agreement, 
 the grass belongs to the former, he may mortgage it as personal 
 property. (1 Den. 580; Jenchs vs. Smith, 1 Corns. 90.) 
 
 27. Mechanics' Liens. 
 
 Justices of the Peace have jurisdiction of actions brought to 
 enforce mechanics' liens. The proceedings in those actions are- 
 
mechanics' liens. 1J^9 
 
 strictly statutory, and but little more can be done than to quote 
 the principal statutory pi-ovisions by which they are governed, 
 with reference to some of the decisions of the Courts in regard 
 to the same. 
 
 The most important of the statutes now in force on this subject 
 is'the act of 1885, chapter 342, which provides as follows : 
 
 Section 1. Any person or persons, firm or firms, corporation 
 or association, who shall hereafter perform any labor or service, 
 or furnish any materials which have been used or which are to 
 be used in erecting, altering or repairing any house, wharf, pier, 
 bulkhead, bridge, vault, building or appurtenances to any house, 
 building or building lot, including fences, sidewalks, paving, 
 fountains, fish ponds, fruit and ornamental trees, with the con- 
 sent of the owner, as hereinafter defined, or his agent or any 
 contractor or sub-contractor, or any other person contracting 
 with such owner to erect, alter or improve as aforesaid, within 
 any of the cities or counties of this State, may, upon filing the 
 notice of lien prescribed in the fourth section of this act, have a 
 lien for the principal and interest of the price and value of such 
 labor and material upon such house, wharf, piers, bulkheads, 
 bridges, vault, building or appurtenances, and upon the lot, 
 premises, parcel or farm of land upon which the same may stand 
 or be intended to stand, to the extent of the right, title interest 
 at that time existing of such owner, whether owner in fee or of 
 a less estate, or whether a lessee for a term of years, or vendee in 
 possession under a contract existing at the time of the filing of 
 said notice of lien, or of the owner of any right, title or interest 
 in such estate, which may be sold under an execution under the 
 general provisions of the statutes in force in this State relating 
 to liens of judgment and enforcement thereof, and also to the 
 extent of the interest which the owner may have assigned by a 
 general assignment for the benefit of creditors, within thirty 
 days prior to the time of filing the notice of lien specified in the 
 fourth section of this act. 
 
 As to who may acquire a lien, see Heroy vs. Hendricks, 4 S. 
 D. Smith, 768. 
 
 If the owner of any premises, altered or repaired by contract, 
 shall pay to any person any money on such contract, by collusion, 
 for the purpose of avoiding the provisions of this act, or before 
 the right of any claimant to file a notice of lien has expired, or 
 
130 NEW YORK JUSTICE. 
 
 in advance of the terms of any contract, and the amount still 
 due the contractor or his assignee, after such payment has been 
 made, shall be insufficient to satisfy the demands made in con- 
 formity to the provisions of this act, the owner shall be liable to 
 the amount that would have been due and owing to said con- 
 tractor or his assignee at the time of the filing of the notice 
 mentioned in the first section of this act, in the same manner as 
 if no such payment had been made. 
 
 "Within ninety days after the performance and completion of 
 such labor, or the final furnishing of such materials, the con- 
 tractor, sub-contractor, laborer or persons furnishing materials, 
 shall tile a notice in writing in the county clerk's office of the 
 county where the property is located, specifying the amount of 
 the claim and the person against whom the claim is made, the 
 name of the owner of the building, and, if in a city or village, 
 the situation of the building, by street and number, if the street 
 be known. The county clerk shall enter the particulars of such 
 notice in a book to be kept in his office, to be called the " Lien 
 Docket," which shall be suitably ruled in columns, headed 
 " claimants," " against whom claimed," " owners and parties in 
 interest," " premises," " amount claimed," and the date of the 
 filing of the notice, hour and minute, what proceedings have 
 been had. The names of the owners and persons against whom 
 the claims are made, shall be entered in said book in alphabetical 
 order. A fee of twenty cents shall be paid to said clerk on filing 
 such lien. Every claimant shall, within ten days after filing his 
 notice, serve a copy thereof upon the owner or person in interest, 
 personally, or by leaving it at his house, or, if he cannot be 
 found, by posting it on the premises between 9 a. m. and i p. m. 
 And these facts must all be proved on the trial, or there is no 
 foundation for the proceeding. {Cronkright vs. Thomson, 2 E. 
 D. Smith, 661.) 
 
 Any person performing labor or furnishing materials, in availing 
 himself of the provisions of this act, shall, upon the trial, or at the 
 assessment of damages, produce evidence to establish the value of 
 such labor or materials, and that the same was performed for or used 
 by the said owner or his agent, original contractor, or assignee of 
 such contractor, in or toward the erection, altering or repairing 
 of such house, building or appurtenances, and that the notice has 
 been properly filed and served. 
 
mechanics' liens. 131 
 
 Any contractor, sub-contractor, laborer, or other person per- 
 forming any work, or the assignee thereof, furnishing any 
 materials as above provided, may, after such labor has been per- 
 formed, or materials furnished, and the filing of the notice 
 required by the fourth section of this act, bring an action in the 
 Supreme Court in the county in which the property is situated, 
 or in the County Court of said county, when the amount exceeds 
 fifty dollars, to enforce said lien, which said action shall be com- 
 menced by serving a summons and complaint containing a 
 statement of the facts constituting the claim, and the amount 
 .,hereof on the owner of the property, or his agent, and on every 
 claimant, requiring the said persons to appear in person, or by 
 attorney, within twenty days after such service, and answer the 
 same, and serve a copy of such answer, together with a notice of 
 any set-off that he may have on the claimant or his attorney ; or, 
 in default thereof, that the claimant will take judgment against 
 j;he said owner for the amount claimed to be due for the labor 
 performed, or the materials furnished, with interest thereon and 
 costs; and for the purpose of more effectually transacting the 
 business contemplated by this act, said Supreme Court and 
 County Court shall have power to adjust all rights and equities. 
 {Broderick vs. Poillon, 2 E. D. Smith, 554 ; Quin vs. Mayor 
 ofN. Y., '2, id., 558.) 
 
 Within twenty days after the service of said notice and bill of 
 particulars the defendant shall personally serve the claimant or 
 his attorney with a copy of his answer and notice of set-off or 
 counter-claim, if any he has, duly verified by the oath of the 
 owner, his agent or contractor, as in an ordinary action, or his 
 default may be entered and judgment taken and enforced as 
 hereinafter provided. 
 
 "When the amount of the lien claimed is for two hundred dol- 
 lars or under the claimant may commence his action in a Justice's 
 Court of the town in which the premises are located, by serving 
 a summons and complaint upon the owner or his agent anywhere 
 within this State, requiring him or them to appear before a Jus- 
 tice of the town in which the property is situated. The form 
 and contents of the summons shall be the same as prescribed by 
 the Code of Civil Procedure for the commencement of actions, 
 and the complaint must be verified as provided in Code (§ 526). 
 
 The summons must be returnable not legs than twelve nor 
 
132 NEW YORK JUSTICE. 
 
 more than twenty days after such service, or in default thereof, 
 that the claimant will take judgment against such owner for 
 the amount so claimed to be due, with interest thereon and 
 costs. 
 
 In case the said summons cannot be served personally on such 
 owner or his agent by reason of absence from the State, or being 
 concealed therein, then such service may be made by leaving a 
 copy of such summons at the last place of residence of said owner, 
 and publishing a copy thereof for three weeks successively in a 
 newspaper published in the city or county where the property is 
 situated ; and in case of the service of such summons by publica- 
 tion, then the said time for return shall commence to run from 
 the date of the last publication of said notice. 
 
 In case the defendants shall not appear, as required in and by 
 the summons and complaint, in pursuance of the seventh section 
 of this act, then, on fiUng with the county clerk, when the action 
 to enforce the claim is brought in the Supreme Court or County 
 Court, an affidavit of the service of such summons and complaint, 
 and the failure of any of the defendants to appear as therein 
 required, the matter may be referred to a referee as in an action 
 of foreclosure, and upon filing his report judgment shall be 
 entered upon the said report establishing the amount of said lien, 
 with the costs, and shall be enforced for the collection and 
 enforcement of said claim, so adjudicated and established, in the 
 same manner as upon other judgments in said courts in actions 
 arising on foreclosure of mortgages, except that the execution 
 shall direct the officer to sell the right, title and interest which 
 the owner had in the premises at the time of filing the notice 
 prescribed by the first section of this act. The proceeding is 
 in rem and a judgment against the person is not proper. {Cox 
 vs. Broderick, 4 K D. Smith, 721 ; Walker vs. Paine, 2 E. D. 
 Smith, 662 ; as to the form of the judgment see Doiujhty vs. 
 Develin, 1 E. D. Smith, 625 ; 2 id., 535 ; Id., 644 ; Smith vs. 
 Corey, 3 id., 642 ; Dennistoun vs. McAllister, 4 id., 729.) 
 
 On the appearance of both parties before the Justice, the 
 defendant shall put in an answer, in writing, duly verified with 
 a bill of particulars of his set-off (if any) annexed, and the issue 
 formed by the service of the summons and complaint on the 
 part of the claimant, and the answer and bill of particulars of 
 set-off on the part of the defendant, shall be tried and governed 
 
mechanics' liens. 133 
 
 by the same rules as other issues in Justices' Courts, and the 
 judgment therein shall be enforced, if for the owner, as in other 
 actions arising on contract ; if for the claimant the execution 
 shall direct the sale of the right, title and interest of the owner 
 or other person in interest in the premises, at the time of filing 
 notice of the lien. Sheriff can sell only defendant's interest in 
 the premises. {Smith vs. Corey, 3 E. D. Smith, 642 ; Randolph 
 vs. Leary, 3 E. D. Smith, 637.) 
 
 At any time after the issue shall be so joined in the Supreme 
 Court or County Court, and at least fourteen days before the 
 commencement of the Court, the same may be noticed for trial 
 and put upon the calendar of said courts by either party furnish- 
 ing the clerk of the court with a note of issue, as now required 
 in other actions, and the action thereafter shall be governed, 
 tried in all respects as upon issues joined and judgment rendered 
 in other actions arising on money demands upon contracts in 
 said courts, and the judgment thereupon shall be enforced, 
 if for the claimant, as provided by the eleventh section of 
 this act, and if for the owner, as in other actions arising on 
 contract 
 
 Whenever a judgment shall be rendered against the owner 
 and in favor of any laborer or person furnishing materials, and 
 the owner has funds in his possession due to the contractor, the 
 costs of the proceeding shall be deducted from such funds, 
 unless otherwise directed by the court in which the action is 
 brought. 
 
 Costs and disbursements shall be allowed in courts of record 
 in the discretion of the court, and in Justices' Courts as they are 
 now allowed by law, in actions arising on contract, and shall be 
 included in the judgment recovered in the same ; and the 
 expenses incurred in serving said summons upon the owner by 
 publication may be allowed in Justices' Courts and added to the 
 amount of costs now allowed in said courts. But no extra 
 allowance. {Randolph vs. Foster, 3 E. D. Smith, 648 ; S. C, 4 
 All , 262.) 
 
 A transcript of every judgment rendered under this act, 
 headed " Lien-docket," shall be furnished by the clerk of the 
 county where rendered and docketed to the successful party, who 
 may file the same with the county clerk of any other county, and 
 the same shall thereafter be a lien on the real property in the 
 
134 NEW YOEK JUSTICE. 
 
 county where the same is filed and docketed, of every person 
 against whom the same is rendered, in hke manner and to the 
 same extent as in other actions for the recovery of money arising on 
 contract, where the Judgment is against the claims the county 
 clerk shall enter the word " discharged," under the last head 
 in his lien-docket, on receiving a transcript from the county 
 clerk or justice that judgment has been rendered against the 
 claimant. 
 
 In a court of record the plaintiff must make the parties who 
 have filed notice of liens against the property as well as those 
 who liave subsequent liens and claims by judgment, mortgage or 
 conveyance, parties defendant. And as to all persons, firms, cor- 
 porations or associations against whom no personal claim is made 
 the plaintiff may with the summons serve a notice stating briefly 
 the object of the action, and that no personal claim is made 
 against it or them. And all persons, firms, corporations or asso- 
 ciations, who have filed notice of liens under this act, shall by 
 answer in such action set forth the same, and the court in which 
 the action is brought may settle and determine the equities of 
 all the parties thereto, and decide as to the extent, justice and 
 priority of the claims of all parties to the action, and upon every 
 counter-claim or set-off alleged therein, to the extent of their 
 respective jurisdictions. The provisions in this section i» regard 
 to making parties who have filed notices of liens against the 
 property, as well as those who have subsequent liens and claims 
 by judgment, mortgage or conveyance, parties defendants, shall 
 not apply to proceedings to enforce liens instituted in courts not 
 of record, or Justices' Courts. 
 
 Every lien created under the provisions of this act shall con- 
 tinue until the expiration of one year, unless sooner discharged 
 by the Court or an action has been commenced thereon ; but 
 when proceedings are commenced therein within said year in a 
 Court of record, it shall be a lien upon the property of the per- 
 son against whom it is filed until judgment, and during the 
 appeal therefrom, provided a notice of pendency of action to 
 foreclose the lien has been filed. 
 
 After a judgment shall have been rendered in pursuance of 
 the provisions of this act, either party may appeal therefrom in 
 the same manner and within the time appeals may now be taken 
 in actions for the recovery of money arising on contracts; and 
 
mechanics' liens. 135 
 
 said appeal shall be thereafter heard, governed and determined 
 upon the same principles and by the same rules that appeals in 
 said actions are now heard, governed and determined, with like 
 costs and disbursements, and the judgment thereon enforced in 
 the same manner as judgments on appeals are now enforced and 
 collected. 
 
 The liens created and established by virtue of the provisions 
 of this act, shall be paid and settled according to the priority of 
 the notice filed with the county clerk, as directed by the fourth 
 section hereof, or in accordance with the judgment of the 
 Court. 
 
 All liens created by this act may be discharged as follows : 
 
 1. By filing with the county clerk a certificate of the claimant 
 or his successors in interest, acknowledged or proved in the same 
 manner as a conveyance of real estate, stating that the lien has 
 been paid or discharged. 
 
 2. By depositing with the county clerk, if before suit, a sum 
 of money equal to double the amount claimed, with interest. 
 
 3. By depositing with the county clerk, after suit, with due 
 notice to all claimants, such sum as the Court may deem sufficient 
 to pay any judgment which may be recovered. 
 
 4. By lapse of time. 
 
 5. By order of the Court on account of neglect to prosecute 
 the claim. 
 
 6. By the owner of the premises against whom a lien is filed, 
 executing a bond to the clerk, with two or more sureties, in such 
 sum as the Court shall direct, conditioned to pay any judgment 
 that may be obtained. 
 
 All acts heretofore passed for the better security of mechanics 
 and others erecting buildings and furnishing materials are 
 hereby repealed ; but this act shall not be so construed as to 
 affect, enlarge or invalidate or defeat any lien or right to a lien 
 now existing or any proceeding to enforce such liens now 
 pending, by virtue of any of the provisions of the acts hereby 
 repealed. 
 
 But this act does not affect the laws in regard to "public 
 works in cities " or " railroad employees," or " oil wells." 
 
 This act shall take effect immediately. 
 
136 NEW YORK JUSTICE. 
 
 CHAPTER IV. 
 
 OF THE TIME OF COMMElfOING CIVIL ACTIONS. 
 
 The provisions of the Revised Statutes in the chapter entitled 
 " Of actions and the times of commencing them^" are repealed 
 by the Code, and the provisions of the Code are substituted in 
 their stead. 
 
 The law limiting the time for the bringing of actions relates to 
 both real and personal property. And so too it extends to every 
 kind and form of action whether arising upon a contract or for a 
 tort. The time allowed to a plaintiff within which he may bring 
 his action varies according to the subject-matter of the litigation, 
 and the necessities of the case, or the convenience of the public 
 interest. 
 
 Civil actions can only be commenced within the periods 
 prescribed by the Code after the cause of action has accrued, 
 except where in special cases a different limitation is prescribed 
 by statute ; but the objection that the action was not commenced 
 within the time limited can only be taken by answer. 
 
 The corresponding objection to a defense or a counter-claim can 
 be taken only by reply, except where a reply is not required, in 
 order to enable the plaintiff to raise an issue of fact upon an alle- 
 gation contained in the answer. {Oode, § 413.) 
 
 Omitting to plead the statute of limitations and going to trial, 
 notwithstanding the claim is clearly barred on its face, will pre- 
 vent a party from setting it up. He will be deemed to have 
 waived the statute. {Clinton vs. Eddy, 37 IIow., 23; -S. C, 5i 
 Barb., 54 ; Bucklin vs. Chajpvn, 1 Lans., 443.) 
 
 The following provisions of the Code (title 1, chapter 4), in 
 regard to the time of commencing actions relating to real prop- 
 erty, are referred to here as they may possibly in some cases be 
 applicable to actions in Justices' Courts. 
 
 § 366. A defense or counter-claim founded upon the title to 
 real property, or to rents or services out of tlie same, is not 
 effectual, unless the person making it, or under whose title it is 
 
STATUTE OF LIMITATIONS. 137 
 
 made, or his ancestor, predecessor or grantor, was seized or pos- 
 sessed of the premises in question, within twenty years before the 
 committing of the act with respect to which it is made. 
 
 § 373. "Where the relation of landlord and tenant has existed 
 between any persons, the possession of the tenant is deemed the 
 possession of the landlord, until 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 after last pay- 
 ment of rent; notwithstanding that the tenant has acquired 
 another title, or has claimed to hold adversely to his landlord. 
 But this presumption shall not be made after the periods pre- 
 scribed in this section. 
 
 § 374. The right of a person to the possession of real property 
 is not impaired or affected by a descent being cast in consequence 
 of the death of a person in possession of the property. 
 
 § 375. If a person who might maintain an action to recover 
 real property, or the possession thereof, or make an entry or 
 interpose a defence or counter-claim founded on the title to real 
 property, or to rents or services out of the same, is when this 
 title first descends or his cause of action or right of entry first 
 accrues 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 offence, for a term less than for life. 
 
 The time of such a disability is not a part of the time limited 
 in this title for the commencing the action, or making the entry, 
 or interposing the defence or counter-claim, except that the time 
 so limited cannot be extended more than ten years after the dis- 
 ability ceases, or after the death of the person so disabled. 
 
 Entry and possession of land under a deed given without right 
 in the grantor, is entry under color of title and the possession is 
 adverse to the rightful owner. (Sands vs. Hughes, 53 If. Y., 
 287.) 
 
 The disability must exist at the time the right first accrues. 
 A subsequent disability will not avail. {Demarest vs. Wynhoop, 
 3 John. Ch. 129.) 
 
 The following are the provisions of the Code (Title 2, Chapter 
 4) in regard to the time of commencing actions other than for the 
 recovery of real property : 
 
138 NEW YORK JUSTICE. 
 
 § 380. The following actions must be commenced within the 
 following periods after the cause of action has accrued. 
 § 381. Within twenty years : 
 An action upon a sealed instrument. 
 § 382. Within six years : 
 
 1. An action upon a contract, obligation or liability, express or 
 implied, except a judgment or sealed instrument. 
 
 2. An action to recover upon a liability created by statute, 
 except a penalty or forfeiture. 
 
 3. An action to recover damages for an injury to property, or 
 a personal injury. 
 
 4. An action to recover a chattel. 
 
 5. An action to procure a judgment, other than for money, on 
 the ground of fraud. 
 
 6. An action upon a judgment or decree, rendered in a court 
 not of i;ecord, except a decree heretofore rendered in a Surrogates' 
 Court of the State. The cause of action, in such a case, is deemed 
 to have accrued when final judgment was rendered. 
 
 The provision which requires a discovery in six years previous 
 to action, does not require personal knowledge. Knowledge by 
 the attorney is sufficient, if he was employed for that purpose. 
 (Taft vs. Wright, 47 How. 1.) 
 
 § 383. Within three years : 
 
 1. An action against a sheriff, coroner, constable, or other 
 officer, for the non-payment of money collected upon an execution. 
 
 2. An action against a constable upon any other liability 
 incurred by him, by doing an act in his official capacity, or by 
 the omission of an official duty, except an escape. 
 
 3. An action upon a statute, for a penalty or forfeiture, where 
 the action is given to the person aggrieved, or to that person and 
 the people of this State, except where the statute imposing it 
 prescribes a different limitation. 
 
 4. An action to recover damages for a personal injury resulting 
 from negligence. 
 
 § 384. Within two years : 
 
 1. An action to recover damages for libel, slander, assault, 
 battery, or false imprisonment. 
 
 2. An action upon a statute, for a forfeiture or penalty to the 
 people of the State. 
 
STATUTE OF LIMITATIONS. 189 
 
 § 385. Within one year : 
 
 An action against a sheriflE or other officpr, for the escape of a 
 prisoner, or for doing or not doing an act in his official capacity. 
 
 § 386. In an action brought to recover a balance due upon a 
 mutual, open and current account, where there have been recip- 
 rocal demands between the parties, the cause of action shall be 
 deemed to have accrued from tbe time of the last item proved in 
 the account on either side. 
 
 § 387. An action upon a statute for a penalty or forfeiture, 
 given wholly or partly to any person who will prosecute for the 
 same, must be commenced within one year after the commission 
 of the offence ; and if the action be not commenced within the 
 year by a private person, it may be commenced within two years 
 thereafter, in behalf of the people of the State, by the attorney- 
 general or the district attorney of the county where the offence 
 was committed. 
 
 § 388. An action, the limitation of which is not specially pre- 
 scribed in titles 1 and 2, chapter 4, must be commenced within 
 ten years after the cause of action accrues. 
 
 § 389. The limitations prescribed in chapter 4, title 2, apply 
 alike to actions brought in the name of the people of the State 
 or for their benefit, in the same manner as to actions by private 
 persons. 
 
 -No action can be brought upon a judgment rendered in any 
 Court of this State between the same parties, without leave of 
 the Court for good cause shown, on notice to the adverse party 
 {Code, § 1913) ; and in an action on a judgment rendered by a 
 Justice of the Peace, brought in the same county within five 
 years after its rendition, except in case of his death, resignation, 
 incapacity to act, or removal from the county, or that the process 
 was not personally served on the defendant, or on all the defend- 
 ants, or in case of the death of some of the parties, or where the 
 docket or record of such judgment is or shall have been lost or 
 destroyed, no costs can be recovered. {Code, § 3154.) 
 
 The following are the general provisions of the Code (Title 3, 
 Chapter 4) as to the time of commencing actions : 
 
 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 
 
140 KIIW YOKK JUSTICE. 
 
 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 business was transacted, or where it kept an 
 office for the transaction of business. (§§ 398, 399.) 
 
 § 401. If, when the cause of action accrues against a person 
 he is without the State, the action may be commenced within the 
 time limited therefor 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 
 continiiously absent therefrom for the space of one year or more, 
 the time of his absence is not a part of the time limited for the 
 commencement of such action, except as provided in sections 
 430 and 432. 
 
 Where the maker of a note residing in Pennsylvania afterwards 
 removed to this State, and lived here three years and then returned 
 to Pennsylvania, the statute ceased to run on his return to Penn- 
 sylvania. [Murray vs. Fisher, 5 Lans. 98.) 
 
 § 396. If a person entitled to maintain an action specified in 
 chapter 4, title 2, except for a penalty or forfeiture, or against a 
 sheriff or other officer for an escape, be at the time the cause of 
 action accrues, 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 offence, for a term less than for life. 
 
 The time of such a disability is not a part of the time limited 
 for the commencement of the action, except that the time, so 
 limited, cannot be extended more than five years by any such 
 disability, except infancy, nor in any case longer than one year 
 after the disability ceases. 
 
 § 402. If a person entitled to maintain an action dies before 
 the expiration of the time limited for the commencement thereof, 
 and the cause of action survives, an action may be commenced, 
 by his representative, after the expiration of that time, and 
 within one year after his death. 
 
STATUTE OF LIMITATIONS. 141 
 
 It is further provided by statute, that the time which shall 
 have elapsed between the death of any person, and the granting 
 of letters testamentary, or of administration on his estate, not 
 exceeding six months, and the period of six months after the 
 granting of such letters, shall not be deemed any part of the time 
 limited by any law for the commencement of actions by executors 
 or administrators. (2 E. S. 448, § 9.) 
 
 § 404. "When either party shall be an alien subject or citizen of 
 a country at war with the United States, the time of the con- 
 tinuance of the war shall not be part of the period limited for 
 the commencement of the action. 
 
 § 405. If an action is commenced within the time limited 
 therefor, and a judgment therein be reversed on appeal, the 
 plaintiff, or, if he die and the cause of action survive, his repre- 
 sentatives may commence a new action within one year after the 
 reversal or termination. 
 
 § 406. Where the commencement of an action lias been stayed 
 by injunction or order of a court or judge, or statutory prohibi- 
 tion, the time of the continuance of the stay is not a part of the 
 time limited for the commencement of the action. 
 
 § 408. A person cannot avail himself of a disability, unless it 
 existed when his right of action, or of entry, accrued. 
 
 § 409. Where two or more disabilities co-exist, when the right 
 of action or entry accrues, the limitation does not attach until 
 all are removed. 
 
 § 393. The above do not affect actions to enforce the payment 
 of a bill, note, or other evidence of debt issued by moneyed cor- 
 porations, or issued or put in circulation as money. 
 
 § 399. Nor do they affect actions against directors or stock- 
 holders of a moneyed corporation, or banking associations to 
 recover a penalty or forfeiture imposed, or to enforce a liability 
 created, by law ; but such actions must be brought within three 
 years after the discovery, by the aggrieved party, of the facts 
 upon which the penalty or forfeiture attached, or the liability 
 was created. 
 
 § 395. An acknowledgment or promise, signed by the party, 
 is the only competent evidence of a new or continuing contract, 
 whereby to take a case out of the operation of this title ; but 
 this section does not alter the effect of a payment of principal or 
 interest. {See Winterton vs. Winierton, 7 Hun, 230.) 
 
142 NEW YORK JUSTICE. 
 
 Section 401 of the Code, before cited, is the same as the 
 former provision of the Revised Statutes on the same subject, 
 (2 a. S. 297, § 27), and which has given rise to various and 
 conflicting decisions. Thus it has been decided, that where the 
 defendant is a non-resident of this State when the cause of action 
 accrues, and afterwards comes into this State in an open, public 
 manner, so that the plaintiff might, with ordinary diligence, 
 have commenced his suit, the pei'iod of limitation commences 
 from such return, though the defendant immediately afterwards 
 go back to his foreign residence, and remain there till the 
 commencement of the suit; and that the provision declaring 
 that the time of the defendant's absence from the State shall 
 not be taken as any part of the period of limitation, is confined 
 to cases of a departure from the State, after the cause of action 
 has accrued. {Randall vs. Wilkins, 4 Den. bll.) And, under 
 the last clause of the section, Mr. Justice Nelson, in the Cir- 
 cuit Court of the United States for the Southern District of 
 New York, has decided that that clause provides for but one 
 case of absence, and that, on the return of the defendant into 
 the State after his first departure, so as to be subject to the 
 process of the Court, and in a way to give operation to the 
 statute, it then continues to operate, notwithstanding a subse- 
 quent departure; and that the plaintiff must have knowledge 
 of the return, or the circumstances must be such as will war- 
 rant a jury in bringing knowledge home to him. {Dorr vs. 
 8wartwout, 1 Blatcli. O. O. R. 179.) 
 
 The question, however, was considered by Mr. Justice Mc- 
 Kissock in Burroughs vs. Bloomer, (5 Den. 532,) and he de- 
 cided, that where a cause of action accrues against a resident 
 of this State who subsequently removes to a foreign State, the 
 statute of limitations does not apply to any portion of the time 
 he resides out of the State, notwithstanding he may frequently 
 return to the State upon business; that the time spent in this 
 State upon business while residing abroad, is not to be taken 
 into the account; and that, if there be successive absences, they 
 must be accumulated, and deducted from the term of limitation 
 allowed by the statute. And in Ford, vs. Babcock, (2 Sand. 
 518,) in the Superior Court of the city of New York, Judge 
 Duer laid down the rule that every defendant who pleads the 
 statute is bound to prove that, deducting each interval of his 
 
STATUTE OF LIMITATIONS. 143 
 
 absence, he was within the State six years, (or a shorter period, 
 when a shorter is the statutory bar,) after the cause of action 
 accrued, and before the commencement of the suit; and that 
 the rule thus expressed is subject to this single and reasonable 
 modification, that where a defendant against whom the statute 
 has begun to run is a resident of the State, and continues to 
 reside therein, his occasional absences are not to be deducted 
 in computing the statutory term. So, too. Chancellor "Wal- 
 worth held, that where a defendant against whom a cause of 
 action has accrued, departs from and resides out of this State, 
 each period of his absence, when there are several, must be de- 
 ducted in determining the question whether the statutory term 
 of limitation has expired. {Didier vs. Davison, 2 Barb. Ch. 
 R. 477.) 
 
 The rule that, under section 401 of the Code the aggregate 
 of the debtor's absences from the State, and not the fii'st one 
 only, is to be deducted, has since been established by the case 
 of Cole vs. Jessojp, in the Court of Appeals. (10 How. 515.) 
 
 All the persons liable upon a joint contract must depart from 
 the State, in order to arrest the running of the statute against 
 the demand, as to all of them, but if any one of them has been 
 absent the action is not barred as to him. (4 Oom. 514; Shoe- 
 maker vs. Benedict, 1 Ker. 176.) And where one of several 
 partners, who while out of the State, contracted a debt to credi- 
 tors within the State, came here and procured a discharge under 
 the bankrupt act of 1841, and afterwards and more than six 
 years after the contracting of the debt, his co-partner came with- 
 in the State and was sued upon the indebtedness, it was held 
 that the action was not barred. {Davis vs. Kinney, 1 Abb. 440.) 
 
 In determining whether the statute of limitations has run 
 against a demand, the day on which the action accrued is to be 
 excluded from the computation. {Qomell vs. Moulton, 3 
 Den. 12.) 
 
 Accounts are mutual, where each party makes charges against 
 the other in his books, for property sold, services rendered, or 
 money advanced. {Edmonstone vs. Thomson, 15 Wend. 554.) 
 Where a part of the items of an account bear date within six 
 years before suit brought, they will not draw after them items 
 of a longer standing than six years, so as to protect them from 
 the operation of the statute, unless there have been mutual ac- 
 
144 NEW YORK JUSTICE. 
 
 counts and reciprocal demands between the parties. (1 Sand. 
 220; 2 id. 318; SicJcles vs. Mather, 20 Wend. 72.) Where all 
 the items are on one side, the last item, though within six years, 
 does not draw after it those of longer standing. (5 Johns. Ch. 
 R. 522; Palmer vs. Mayor, &c. of JSf. Y. 2 Sand. 318.) 
 
 The statute of limitations is not a favored defence, and the 
 party intending to rely upon it must plead it in the first instance. 
 (6 Hill, 227; 2 Wend. 294; Vorhees-vs. Vorhees, 24 Barb. 150.) 
 
 The payee of a note cannot recover against the maker after 
 six years, although he has paid the note to his endorsee within 
 six years. (Woodruff vs. Moore, 8 Barb. 171.) 
 
 Formerly, a verbal acknowledgment or promise was sufficient 
 to take a case out of the statute, or to revive a debt which was 
 barred by the statute of limitations; and what constituted a suffi- 
 cient acknowledgment or promise was a fruitful subject of judi- 
 cial decision. Now, however, the Code has provided that no 
 acknowledgment or promise shall be sufficient evidence of a new 
 or continuing contract, whereby to take the case out of the 
 operation of the statute of limitations, unless the same be con- 
 tained in some writing signed by the party to be charged there- 
 by; but that provision does not alter the effect of any payment 
 of principal or interest made ujDon such contract. {Code, % 395; 
 Wadsworth vs. Thonms, 7 Barb. 445.) There must be an ex- 
 press promise, or an admission of a subsisting debt, and a will- 
 ingness to pay, so clear that a promise may be implied; and 
 partial payment is only reliable as evidence of a promise, or as 
 a fact from which a promise may be implied. (Bloodgood vs. 
 Buren, 4 8eld. 362; 1 Kern. 176.) And where the promise to 
 pay the debt is conditional, performance of the condition must 
 be proved affirmatively to entitle plaintiff to recover. ( Wake- 
 man vs. Sherman, 5 Seld. 85.) 
 
 One of two makers of a joint and several promissory note 
 cannot, after the debt is barred by the statute of limitations, re- 
 vive the indebtedness, as against the other maker, by making a 
 payment on the note, so as to enable the holder to sue the latter 
 upon the note, as survivor, after the death of the former. 
 {Bogert vs. Vermilyea, 10 Barb. 32.) Partial payments, made 
 upon a joint and several promissory note, by one of the makers, 
 before the statute of limitations has barred an action upon it, 
 will not revive the debt against the other parties to the note. 
 
PARTIES TO CIVIL ACTIONS. 145 
 
 {Dunham vs. Dodge, 10 Barb. 566.) And a subsequent promise 
 or partial payment by one joint debtor, unless authorized by 
 his co-debtors, does not take the debt out of the statute as to 
 them. Their defence remains good, whether his acknowledg- 
 ment was made before the statute attached to the original debt, 
 or afterwards. (4 8eld. 362, Swpra; Shoemaker vs. Benedict, 
 1 Kern. 176.) 
 
 Where services are rendered for a series of years under a 
 general employment, without any express agreement as to time 
 for payment, and no payments are made, the law will not, for 
 the purpose of determining when the statute of limitations be- 
 gins to run, imply an agreement that the payment shall be post- 
 poned until the termination of the employment, but will regard 
 the hiring as from year to year, and the wages as payable at 
 least yearly, or perhaps monthly. {Davis vs. Gorton, 16 
 N. Y. 255.) 
 
 CHAPTER V. 
 
 OF THE PARTIES TO CIVIL ACTIONS. 
 
 We have already seen (Ante, p. 28) that Justices cannot enter- 
 tain jurisdiction in actions brought against executors or admin- 
 istrators. If the action is one cognizable by the Justice, it may 
 be brought by and against all persons who sue or are sued in 
 their own right, and by and against all town and county officers 
 m their official character, and by and against corporations, and 
 by executors and administrators, trustees of an express trust, and 
 receivers in supplementary proceedings. (Oode, § 2865.) 
 
 Actions may be brought by the supervisors of a county; 
 by the loan officers and commissioners of loans of a county ; by 
 county superintendents of the poor; by supervisors of towns; 
 by overseers of the poor of the several towns ; by town super- 
 intendents {Laws of 1843, chxxp. 133, § 1 ; Loajos of 1847, chap. 
 480, § 1) of common schools, and commissioners of highways 
 10 
 
146 NEW YOKK JUSTICE. 
 
 of the several towns; by trustees of school districts; and by 
 trustees of gospel and school lots; upon any contract lawfully 
 made with them or their predecessors, in their official character; 
 to enforce any liability, or any duty enjoined by law, to such 
 officers or the body which they represent; to recover any penal- 
 ties or forfeitures given to such officers or the bodies whom they 
 represent; and to recover damages for any injuries done to the 
 property or rights of such officers, or of the bodies represented 
 by them. {Code section 2865.) In an action either by or 
 against any of the abovenamed officers, the individual name of 
 the incumbent must be used, with the addition of his name of 
 office; and the complaint should show by proper averments 
 that the claim is made by the officer and not by the individual. 
 Accordingly, where the action was in the name of the "super- 
 visor of the town of G." without mentioning the name of the 
 incumbent, it was held that it could not be maintained. {8iir 
 pervisor of Galwayvs. Stiinson, 4 Hill, 136.) Upon the other 
 hand, where the complaint, in its title, named the plaintiffs as 
 commissioners of highways, but contained no averments show- 
 ing they sued in their official capacity, although the complaint 
 was for statute penalties for obstructing a highway, it was held 
 that the action must be deemed to be brought by the plaintiffs 
 as individuals. They should have averred that they were com- 
 missioners; that as such they complained of the defendant, &c. 
 (Gould vs. Glass, 19 Barh. 179.) And again, it is held that a 
 suit upon an order of liliation, made in the name of the over- 
 seers of the poor, cannot be brought by the overseers of the 
 poor in their name of office. It should be brought in their 
 individual names, with the addition of their office. {Hill & D. 
 Supp. 379.) 
 
 Such actions may be brought by such officers in the name of 
 their respective offices, notwithstanding the contract or obliga- 
 tion on which the same is founded, may have been made with 
 or to any predecessors of such offices, in their individual names 
 or otherwise, and notwithstanding any right of action may have 
 accrued, previous to the time when the officers commencing 
 such suit entered upon the execution of the duties of their office. 
 {Code, § 1930.) 
 
 But in cases where, by special permission of law, actions are 
 directed to be brought by or against any public bodies, in the 
 
FOREIGN OOKPORATIOSrS. 147 
 
 name of any such body, the same must be brought or defended 
 in such name, by the persons representing such body, then ia 
 office. {Code, ^ 1Q28.) 
 
 Actions against counties in the cases in which they are allowed 
 by law, {A7ite. pp. 95, 96), must be brought against the board 
 of supervisors thereof, and actions against towns (id.) must be 
 brought against such towns by their names. 
 
 Actions may also be brought against the supervisors and 
 other public officers before named, upon their own contracts 
 and those of their predecessors, made in pursuance of their 
 official authority and duties. (7 Wend. 181; 10 id. 426; Morse 
 vs. £arl, 13 id. 271.) And it is further provided by statute, 
 that when any contract shall have been entered into, or any 
 liability shall have been incurred, by or in behalf of any county 
 or town, by any officerthereof within the scope of his authority, 
 the same remedies may be had against any successor of such 
 officer, in his official character, as might have been had against 
 such officer, if he had continued in office. (Code, § 1930.) 
 
 As a general rule, all public officers, though not expressly 
 authorized to sue by statute, have a capacity to sue, commensu- 
 rate with their public trusts and duties. (18 Johns. 407; 1 Cow. 
 260; Supervisor of Galway vs. Stimson, 4 Hill, 136.) 
 
 Every corporation, created under the laws of this State, has 
 power, as such, to sue and be sued, complain and defend in any 
 Court. (1 R. S. 599, § 1.) But in a suit brought by any such 
 corporation, it is not necessary to prove, on the trial of the 
 action, the existence of such corporation, unless the defendant 
 sets up in his answer that the plaintiffs are not a corporation. 
 {Code, § 1776.) 
 
 A foreign corporation, created by the laws of any other 
 State (2 R. 8. 457, § 1) or county, may, upon giving security 
 for the payment of the costs of suit, prosecute in the Courts 
 of this State, in the same manner as corporations created under 
 the laws of this State, {id. § 2.) But where, by the laws of this 
 State, any act is forbidden to be done by any corporation, or 
 by any association of individuals, without express authority by 
 law, and such act shall have been done by a foreign corpora- 
 tion, it shall not be authorized to maintain any action founded 
 upon such act, or upon any liability or obligation, exprcbS or 
 
148 NEW YORK JUSTICE. 
 
 implied, arising out of, or made or entered into, in consideration 
 of such act. {Code,^m9.) 
 
 In regard to the security for costs thus required to be given 
 by a foreign corporation, it is supposed that no further security 
 is required in a Justice's Court than that which the foreign 
 corporation must give by reason of its being a non-resident 
 plaintiff. A non-resident plaintiff, to obtain a warrant from a 
 Justice, must tender to the Justice a written undertaking with 
 one or more sureties approved by the Justice to the effect that if 
 the defendant recovers judgment he will pay all costs awarded to 
 the defendant and all damages which he may sustain by reason 
 of the arrest. {Code, § 2894.) And the same security must be 
 given by a non-resident plaintiff as by a resident plaintiff to obtain 
 a warrant of arrest. So, also, to obtain an attachment against 
 property, whether under the Revised Statutes or under the Code 
 of Civil Procedure, the plaintiff must give a bond to pay the 
 defendant all damages and costs which he may sustain by the issu- 
 ing of the attachment, if the plaintiff fails to recover judgment. 
 Then, as the defendant, on obtaining judgment against the plain- 
 tiff before a Justice, is entitled by law to costs as a part of his 
 judgment {Code, §§ 3074 and 3075), it would seem that the pro- 
 visions for security for costs just referred to embrace all the secu- 
 rity that is necessary in the case of a foreign corporation as well 
 as in the case of every other non-resident plaintiff. 
 
 There are some kinds of joint-stock associations which are 
 permitted by our laws to sue and be sued by the names of 
 their chief officers, instead of by the names of all their share- 
 holders. Such officers, however, not being thereby made in- 
 dividually liable, but the associations being the real parties to 
 the actions, and being bound thereby. 
 
 All suits, actions, and proceedings brought or prosecuted by 
 or in behalf of an association for the business of bankius: formed 
 under the act of 1882, chapter 409, and the acts amending the 
 same, may be brought or prosecuted in the name of the presi- 
 dent thereof; and no such suit, action, or proceeding will 
 abate, by reason of the death, resignation, or removal from 
 office of such president, but may be continued and prosecuted 
 according to such rules as the Courts may direct, in the name 
 of his successor in office, who will exercise the powers, enjoy 
 the rights, and discharge the duties of his predecessor. {Laws 
 
JOINT-STOCK COMPANIES. 149 
 
 of 1882, chap. 409, § 61.) All persons having demands against 
 any such association, may maintain actions against the president 
 thereof; -which suits or actions will not abate by reason of the 
 death, resignation, or removal from office of such president, 
 but may be continued and prosecuted to judgment against his 
 successor; and all judgments and decrees obtained or rendered 
 against such president for any debt or liability of such associa- 
 tion can be enforced only against the joint property of the 
 association, and which property is liable to be taken and sold 
 by execution under any such judgment or decree, (id. § 62.) 
 Any joint-stock company or association, consisting of seven 
 or more shareholders, or associates, may sue and be sued, in 
 the name of the president or treasurer for the time being, of 
 such joint-stock company or association; and all suits and pro- 
 CvC dings so prosecuted, by or against any such joint-stock com- 
 pany or association, and the service of all process or papers in 
 such suits and proceedings on the president or treasurer for 
 the time being, of such joint-stock company or association, will 
 have the same force and effect as regards the joint rights, pro- 
 perty and effects of such joint-stock company or association, as if 
 such suits and proceedings were prosecuted in the names of ali 
 the shareholders or associates, in the manner now provided 
 by law. (Code, § 1919.) No suiL so commenced will abate 
 by reason of the death, removal or resignation of such presi- 
 dent or treasurer of such joint-stock company or association, 
 or the death or legal incapacity of any shareholder or associate 
 during the pendency of such suit; but tlie same maybe con- 
 tinned by or against the successor of the officer in whose name 
 such suit has been commenced. (Id., § 1920.) The president 
 or treasurer of any such joint-stock company or association wiU 
 not be liable in his own person or property, by reason of any 
 suit prosecuted as above provided, by or against him, as the 
 nominal plaintiff or defendant therein ; but such president or 
 treasurer will not be exempted from any liability to which he 
 may be otherwise legally subject as a stockholder or shareholder 
 in such joint-stock company or association. (Id., % 1921.) But 
 these provisions do not deprive any plaintiff of the right, after 
 judgment is obtained against any such joint-stock company or 
 association, as above provided, from suing all or any of the 
 shareholders or associates therein individually, according to law, 
 
150 NEW YORK JUSTICE. 
 
 or of the right to proceed in the first instance against the per- 
 sons constituting any such joint-stock company or association, 
 according to law ; but if it appears to any Court in which any 
 suit is prosecuted otherwise than is above provided, that the 
 same is so prosecuted for the purpose of vexatiously and 
 oppressively enhancing costs, such Court must not allow any 
 more costs to be recovered in such suit than would be 
 recoverable in case such suit was prosecuted as above provided. 
 The foregoing provisions do not, however, confer on such joint- 
 stock companies or associations any of the rights or privileges of 
 corporations, except as above specially provided. 
 
 The provisions of the act of 1849 are extended by the Code 
 of Civil Procedure (§ 1919, &c.} to an^ company or association 
 composed of not less than seven persons, who are owners of, or 
 have an interest in, any property, right of action or demand 
 jointly or in common, or who may be liable to any action on 
 account of such ownership or interest. 
 
 It is held that these acts are not applicable to corporations, 
 (JV; Y. Marble Iron Works vs. Smith, 4 Duer, 362,) and they 
 do not embrace the fire companies in the city of New York. 
 {Masterson vs. Botts, 4 Abb. 130.) 
 
 It is declared by law to be the duty of every association or 
 company formed for the purpose of the transportation of pas- 
 sengers or property, either by boats, vessels or stages, to make 
 a statement of the names of the persons composing such asso- 
 ciation or company, and to file in the clerk's office of each county 
 through which such association or company may transact its 
 business, a copy of such statement. {Laws of 1836, chap. 383, 
 § 1.) Until such statement is so filed, any action to be brought 
 against such association or company will not be abated by rea- 
 son that all the members of the association are not joined in the 
 action, {id. § 2) After such statement is made and filed, any 
 action brought against the persons named in such statement 
 will not be abated for the reason that other owners may have 
 become interested, unless, thirty days previous to the bringing 
 of such action, a further statement is filed, as above provided, 
 and naming any change in the several persons composing such 
 association, and the time when such change took place; nor can 
 any action become non-suited or defeated by reason that any 
 
PAETIES TO CIVIL ACTIONS. 151 
 
 of said persons have ceased to be interested therein, unless at 
 least thirty days before such action is brought a notice thereof is 
 filed as aforesaid. {Similar provisions in Code, § 1945.) 
 
 It is provided by statute that every person who shall, for 
 vexation and trouble, or maliciously, cause or procure any other 
 to be arrested, attached or in any way proceeded against, by 
 aay process or proceeding at law, or in any other manner pre- 
 scribed by law, to answer to the suit or prosecution of any per- 
 son, without the consent of such person, or whei'e there is no 
 such person known, shall forfeit to the person so arrested, at- 
 tached, or proceeded against, treble the damages and expenses 
 which, by any verdict, shall be found to have been sustained 
 and incurred by him; and shall forfeit to the person in whose 
 name such arrest or proceeding was had two hundred and fifty 
 dollars, and shall be deemed guilty of a misdemeanor, punish- 
 able, on conviction, by imprisonment for a time not exceeding 
 Bix months. {Code, §§ 1901, 1902.) 
 
 Sections 111, 112 old Code, 449 and 450 of the new Code, and 
 which are made applicable to suits in Justices' Courts, provide 
 as follows : 
 
 Every action must be prosecuted in the name of the real party 
 in interest, except as otherwise provided in section four liun 
 dred and forty-nine, but this section shall not be deemed to 
 authorize the assignment of a thing in action not arising out of 
 contract. 
 
 In the case of assignment of a thing in action, the action by 
 the assignee shall be without prejudice to any set-ofE or other 
 defence existing at the time of or before notice of the assign- 
 ment ; but this section shall not apply to a negotiable promissory 
 note or bill of exchange, transferred in good faith, and upon good 
 consideration, before due. 
 
 § 449. Every action must be prosecuted in the name of the 
 real party in interest, except that an executor or administrator, a 
 trustee of an express trust, or a person expressly authorized by 
 statute, may sue, without joining with him, the person for whose 
 benefit the action is prosecuted. A person with whom, or in 
 whose name, a contract is made for the benefit of another, is a 
 trustee of an express trust within the meaning of this section. 
 
 § 450. In an action or special proceeding, a married woman 
 appears, prosecutes or defends alone, or joined with other parties, 
 
153 NEW YOBK JCTSTICE, 
 
 as if she was single. She may sue or be sued alone, and in no 
 case need she prosecute or defend by a guardian or next friend, 
 except when she is an infant. 
 
 Laws of 1862, chap. 172, provide that a married woman may 
 sue and be sued in any of the courts of this State in all matters 
 having relation to her sole and separate property, in the same 
 nianner as if she were sole; and whenever a judgment shall be 
 recovered against her the same may be enforced by execution 
 against her sole and separate estate in the same manner as if sha 
 were sole. {See Code, § 450.) 
 
 The terms of section 111 above quoted, are imperative, and 
 are subject to no exceptions other than those stated in section 
 449. Hence, since the Code, even a dormant partner is a neces- 
 sary party as plaintiff in an action for a partnership debt founded 
 on a partnership contract, whether the relief sought be legal or 
 equitable. Each partner is not a trustee for his co-partners, and 
 hence is not a trustee of an express trust, within the meaning 
 of section 449. (Secor vs. Keller, 4 Buer, 416.) 
 
 Under section 450 it is held that a married woman may main- 
 tain an action without joining her husband with her, to recover 
 upon a promissory note given to her during coverture, for a loan 
 of money which was her separate property. (Smart vs. Coin- 
 stock, 24 Barb. 411.) The husband has however a right to 
 maintain an action for moneys due to the wife, unless it appears 
 affirmatively not merely that the moneys were those of the wife, 
 but that they were held by her in the modes prescribed in tlie 
 statutes of 1848 and '49. (Orolius vs. Roqualina, 3 Abb. 114.) 
 If the plaintiff, being a married woman and an infant, be joined 
 in an action with her husband, she need not appear by guardian, 
 unless the action is to recover her separate property; in such 
 case her husband cannot be guardian or next friend. {Cooh 
 vs. Rawdon, 6 How. 233.) 
 
 Any plaintiff in an action before a Justice may appear and 
 conduct his suit in person, except infants and corporations 
 aggregate {Code, %% 2886, 2887, 2888) ; and the latter may 
 appear by attorney, but the former cannot. 
 
 When an infant has any right of action to recover any debt or 
 damages, he is entitled to maintain a suit thereon ; and the same 
 cannot be deferred or delayed on account of such infant not 
 being of full age. {Code, § 887.) 
 
PARTIES TO CIVIL ACTIONS. 153 
 
 An infant plaintiff must appear by guardian, who may be 
 appointed by the Justice before whom the action is prosecuted. 
 
 Before a summons is issued in behalf of, or an issue is joined 
 without summons by, an infant plaintiff, the Justice must appoint 
 a competent and responsible person, nominated by the plaintiff 
 or his general guardian, to appear as his guardian for tlie purpose 
 of the action. The written consent of the person so appointed 
 must be filed with the Justice, before his appointment. The 
 guardian so appointed is responsible for the costs. {Code, 
 % 2887.) 
 
 Such application may be verbal or in writing. The person 
 appointed must be a suitable person, having no possible interest 
 in the controversy adverse to that of the infant. He may be 
 named by the applicant, and must consent in writing to be such 
 guardian, and becomes responsible for costs in the action. The 
 consent must be filed with the Justice. The appointment must 
 be made before the issuing of process ; or, when issue is joined 
 without process, before issue is heard. Formerly, the statute 
 required the Justice to appoint a next friend / it is presumed, 
 however, that the term is abolished by the Code, and the name of 
 guardian substituted {Hill vs. Thatcher, 2 Oode Itep. 3), as the 
 provisions of the Code in regard to appointing guardians are 
 made applicable to Justices' Courts. 
 
 § 5. Consent to he Guardian for Infant Plaintiff. 
 
 Cayuga County, ss. : I hereby consent, at the request of 
 William Brown, who is under the age of twenty-one years, to 
 act as his guardian in an action about to be brought by him upon 
 a promissory note, against Joseph Swift, before Horace T. Cook, 
 a Justice of the Peace of the county aforesaid; and I do hereby, 
 for value received, promise to pay the said Joseph Swift such 
 costs as he shall recover against the said William Brown in the 
 said action. James Wilson. 
 
 Dated, December 8, 1852. 
 
 The Justice, or County Judge, should endorse the appoint- 
 ment of the guardian upon the consent before it is filed, as 
 follows: 
 
 The said James Wilson is accordingly appointed guardian. 
 HoEACE T. Cook, Justice of the Peace. 
 
154 NEW YORK JUSTICE. 
 
 The following sections of the Code are made applicable to 
 suits in Justices' Courts. 
 
 § 446. All persons having an interest in the subject of the 
 action, and in obtaining the judgment demanded, may be joined 
 as plaintiffs, except as otherwise provided in this title. 
 
 § 447. 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 settle- 
 ment of the questions involved therein. 
 
 § 448. 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 ought to be joined as plaintiff, cannot 
 be obtained, he may be made a defendant, the reason therefor 
 being stated in the complaint. And when the question is one of 
 a common or general interest of many persons, or when the 
 parties are very numerous and it may be impracticable to bring 
 them all before the court, one or more may sue or defend for the 
 benefit of the whole. 
 
 § 454. Two or more persons severally liable upon the same 
 written instrument, including the parties to bills of exchange and 
 promissory notes may, all or any of them, be included in the 
 same action, at the option of the plaintiff. 
 
 No action will 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 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 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 pro- 
 ceed thereafter in the same manner as in cases where the cause of 
 action now survives by law. 
 
 The court may determine any controversy between the par- 
 ties before it, when it can be done Avithout prejudice to the 
 rights of others, or" by saving their rights, but when a com- 
 plete determination of the controversy cannot be had without 
 
PARTIES TO CIVIL ACTIONS. 155 
 
 the presence of other parties, the Court must cause them to be 
 brought in. Aud when, in an action for the recovery of real 
 or personal property, a person, not a party to the action, but 
 having an interest in the subject thereof, makes application to 
 the Court, to be made a party, it may order him to be brought 
 in by the proper amendment. A defendant, against whom an 
 action is pending upon a contract, or for specific real or per- 
 sonal property, may at any time before answer, upon affidavit 
 that a person, not a party to the action, and without collusion 
 with him, makes against him a demand for the same debt or 
 property, upon due notice to such person and the adverse party, 
 apply to the Court for an order to substitute such person in 
 his place, and discharge him from liability to either party on 
 his depositing in the Court the amount of the debt, or deliver- 
 ing the property, or its value, to such person as the Court may 
 direct; and the Court may, in its discretion, make the order. 
 
 No suit commenced against uny supervisors or other public 
 officers, will be abated or discontinued by the death of such 
 officers, their removal from or resignation of their offices, or 
 the expiration of their term of office; but the Court in which 
 any such action is pending, must substitute the names of the 
 successors in such office, upon the apjolication of such succes- 
 sors, or of the adverse party. {Code, § 1930.) But before any 
 new defendant can be so substituted without his consent, at least 
 fourteen days' notice of the application for that purpose must be 
 personally served on him. {Id.) 
 
 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 iixed by the Court, not less than six 
 months nor exceeding one year from the granting of the order. 
 {Code, § 761.) 
 
156 NEW YORK JUSTICE. 
 
 CHAPTER VI. 
 
 OF THE COMMENCEMENT OF CIVIL ACTIONS AND 
 THE DIFFERENT FORMS OF PROCESS 
 
 We come now to consider the manner in -which an action 
 may be commenced, and parties be brought before a Justice's 
 Court. 
 
 Suits may be commenced before a Justice either by the volun- 
 tary appearance and joinder of issue by the parties, or by process ; 
 when by process, it must be by the service of a summons. 
 {Code, § 2876 ; Lester vs. Orary, 1 Den. 81.) When a suit is 
 instituted without process, it is deemed to be commenced at the 
 time the parties join issue ; and when by summons, on the day 
 when the summons is served. But if two or more suits be com- 
 menced by summons on the same day, that suit is first commenced 
 in which the process is first served. (3 Gaines, 1 33 ; Cornell vs. 
 Moulton, 3 Den. 12; 18 Johns. 14; Townsend vs. Chase, 1 
 Cow. 115.) 
 
 Actions against the boards of supervisors of counties, and 
 actions against towns, are commenced by summons. {Code, 
 § 2865.) Actions against the supervisors and other public ofli- 
 cers mentioned in Code, section 1926 (see ante,]). 14:5), must be 
 brought against them individually, specifying in the process, 
 pleadings and proceedings, their name and office ; and such 
 actions may be commenced in the same manner as against indi- 
 viduals, {id., % 1927.) , 
 
 1. Summons. 
 
 The first process, except when otherwise provided by statute, 
 must be a summons ; it may be accompanied with an order to 
 arrest, or a warrant of attachment. {Code, §§ 2877-2905.) 
 
 A Justice has not, by statute, jurisdiction, by summons, over 
 all persons residing in his county, but only over those who, 
 residing in the county, also reside in his own town or in a town 
 adjoining, or where the plaintiff resides in the same town with 
 
srriMONS. 157 
 
 the Justice, or in an adjoining one. {Cooper vs. Ball, 14 How. 
 295.) 
 
 A railroad corporation are not to be deemed non-residents of a 
 county through which their road passes, so as to be liable to be 
 sued by a Justice of the Peace of a town of such county. They 
 were entitled to a long summons ; and their objection to a short 
 summons is not waived by appearing and pleading after the 
 objection has been overruled. (15 How. 17; Johnson ys. C. & 
 S. R. R. Co., 11 Barl. 621.) 
 
 The summons must be directed to any constable of the county 
 where the Justice resides, commanding him to summon the 
 defendant to appear before the Justice who issued the same, at a 
 time and place to be named in such summons, not less than six 
 nor more than twelve days after the day it was issued, to answer 
 the complaint of the plaintiff in a civil action. Where the sum- 
 mons is accompanied with an order to arrest the defendant, it 
 must be made returnable immediately upon the arrest of the 
 defendant, within twelve days after it was issued. {Code, § 2877.) 
 Since the Code, abolishing all forms of pleading and names of 
 actions, the form of summons required by the Revised Statutes 
 is obsolete, and the summons need not express the cause of action, 
 nor the nature of the plaintiff's claim. If the summons does not 
 contain the name of the Justice, or the place of appearance, the 
 defendant may disregard it, and move to have the judgment set 
 aside as irregular. (3 Code Rep. 174 ; Stewart vs. Smith, 17 
 Wend. 517.) 
 
 If the parties sue in a particular character, that character 
 should be given in the process, as follows : 
 
 Adm,inistrators. — A B and D, as administrators of all and 
 singular the goods and chattels, rights and credits, which were of 
 E F, deceased. 
 
 Executors. — - A B and C D, as executors of the last will and 
 testament of E F, deceased. 
 
 Survwing Executor. — A B, as surviving executor of the last 
 will, &c. 
 
 Survivor of Partners, or of Joint Creditors. — A B, survivor 
 of A B and C D. 
 
 Husband and Wife. — A B, and C B, his wife. 
 
 Assignee of Bail Bond. — A B, assignee of A P, Esq., Sheriff 
 of the county of 
 
 Assignee of Insolvent Debtor. — A B, as assignee of E F, an 
 insolvent debtor. 
 
158 KEW YORK JUSTICE. 
 
 Overseers of the Poor. — A B and C D, as overseers of the 
 poor of the town , in the county of 
 
 Plaintiff in an Action for a Penalty. — A B, who sues as well 
 for himself, as for the overseers of the poor of the town of 
 , in the county of 
 
 It is provided by statute, that when the name of any defend- 
 ant sued in a Justice's Court is not known to the plaintiff, he 
 may be described in a summons or warrant by a fictitious name ; 
 and when his true name is discovered, the Justice before whom 
 the suit is pending may amend the proceedings according to the 
 truth of the matter, and proceed in the cause in like manner as 
 if the defendant had been sued by his right name. {Code, 
 § 2884.) Pleas in abatement having been abolished by the Code, 
 the Justice may permit the plaintiff to amend when the answer 
 is put in, if the objection be raised in the answer. 
 
 Joint debtors, it seems, may be sued by summons, where one 
 of them resides in the county, though one of them be a non- 
 resident of the county. {Burghart vs. Rice, 2 Pen. 95.) 
 
 Since the Code, and previous to 1861, it was held that, 
 although the summons required tlie defendant to answer a claim 
 exceeding one hundred dollars in amount, it was not necessarily 
 a nullity. The jurisdiction conferred on Justices in respect to 
 actions upon Justices' judgments, was not confined to cases in 
 which the claim did not exceed one hundred dollars ; but in 
 such an action the Justice might render judgment for the amount 
 due on the judgment, although it exceeded that amount. Hence, 
 although a summons issued by a Justice claimed damages exceed- 
 ing one hundred dollars, the defendant should appear and answer ; 
 as a Justice might have jurisdiction beyond that sum. It is not 
 necessary that, in an action on a Justice's judgment, the summons 
 should state that the complaint will be for that cause. {Humphrey 
 vs. Persons, 23 Barl. 313.) 
 
 The summons must be signed by the Justice, and may be 
 under seal or without seal. {Cod£, §§ 22, 23 and 24.) It must be 
 entirely filled up, and have no blank, either in the date or other- 
 wise, at the time of its delivery to the officer to be executed, 
 else it is void, {id., § 3135.) These provisions in regard to the 
 signing, sealing and filling up of a summons, apply also to a 
 warrant, attachment and execution, in civil proceedings. Every 
 Justice who violates the provision in regard to the filling up of 
 
SUMMONS. 159 
 
 process is guilty of a misdemeanor, and, on conviction, is subject 
 to fine or imprisonment, or both, in the discretion of the Court ; 
 and every such conviction operates as a forfeiture of the office of 
 the Justice so convicted. {Code, § 3138.) 
 
 All writs and process must be in the name of the people of 
 this State, except where otherwise provided bylaw. {Code, § 22.) 
 AD wrics, process, proceedings and records in any Court within 
 this State must be in the English language (except that the 
 proper and known names of process, and technical words, may 
 be expressed in the language commonly used), and must be made 
 out on paper or parchment, in a fair, legible character, in words 
 at length and not abbreviated ; but such abbreviations as are 
 commonly used in the English language may be used, and num- 
 bers may be expressed by Arabic figures, or Koman numerals, in 
 the customary manner. {Code, § 22.) 
 
 A Justice cannot depute any part of his official power to 
 another ; but he may depute another to do a specific act, without 
 giving him any discretionary power, as to direct one to fill up a 
 process. (10 John. 405 ; 20 id. 63 ; Borrodaile vs. Leeh, 9 
 Ba/rh. 611.) 
 
 A railroad company formerly might be sued by long summons. 
 The authority of a Justice to issue a long summons on the request 
 of the plaintiff, was as ample as to issue a warrant or attachment 
 upon a special application and the proof required by law. {Barnes 
 vs. Harris, 4 Corns. 374.) 
 
 StrMMONS. 
 . County, 
 
 Town of '' 
 
 To any Constable of said County : 
 
 The People of the State of New York command you to 
 
 summon 
 
 to appear before the undersigned, at 
 
 in said town, on the day of 18. ., at 
 
 o'clock in the noon, to answer 
 
 in a civil action , 
 
 to damage of two hundred dollars or under. 
 
 Dated at the town aforesaid, this day of 18 . . 
 
 Justice of the Peace. 
 
160 NEW YORK JUSTICE. 
 
 A summons must be made returnable not less than six, nor 
 more than twelve, days from its date. {Code, § 2877.) In com- 
 puting the time, the day of the date is to be excluded, and the 
 return day included. (6 Cow. 659 ; Columbia T. JR. Co. vs. 
 Haywood, 10 Wend. 422.) If the tvpelfth day from the date 
 would fall on Sunday, the summons must be made returnable on 
 the preceding Saturday (7 Cow. 147 ; Broome vs. Wellington, 1 
 Sand. 664) ; but if a Sunday intervenes in computing the time, 
 it must be included. {King vs. Dowdall, 2 id. 131.) The rule 
 introduced by the Code, excluding Sunday if it is the last day, 
 only applies to acts the time for doing which is prescribed by the 
 Code. (§ 788.) 
 
 It is irregular to make any civil process returnable on Sunday 
 (5 Paige, 141 ; Boyd vs. Vanderkemp, 1 Barb. Ch. R. 273) ; 
 and civil process issued on that day is not a good commencement 
 of a suit. ( Van Yechten vs. Paddock, 12 Johns. 178.) 
 
 2. Order of Arrest. 
 At the time when the summons is issued, in an action specified 
 in the next section, the Justice who issues the summons must, 
 upon the application of the plaintiff, and upon compliance by him 
 with the provisions of this article, grant an order for the arrest of 
 the defendant, in either of the following cases : 
 
 1. Where the defendant to be arrested is not a resident of the 
 county. 
 
 2. Where the plaintiff is not a resident of the county ; or, if 
 there are two or more plaintiffs, where all are non-residents 
 thereof. 
 
 3. Where it appears to the satisfaction of the Justice, by the 
 affidavit of the plaintiff or another person, that the defendant is 
 about to depart from the county, with intent not to return 
 thereto. 
 
 But such an order cannot be granted, where the defendant, 
 against whom it is applied for, is a female. {Code, % 2894.) 
 
 An order of arrest shall not be granted, except where the 
 action is brought for one or more of the following causes : 
 
 1. To recover a tine or penalty. 
 
 2. To recover damages for a personal injury, of which a Justice 
 of the Peace has jurisdiction ; an injury to property, including 
 the wrongful taking, detention or conversion of personal property ; 
 
ORDER OF AEBEST. 161 
 
 misconduct or neglect in office, or in a professional employment ; 
 fraud ; or deceit. But this subdivision does not apply to a claim 
 for damages in an action to recover a chattel. 
 
 3. To recover for money received, or to recover a chattel; 
 where it appears that the money was received, or that the chattel 
 was embezzled or fraudulently misapplied by a public officer, or 
 by an attorney, solicitor or counsellor, or by an officer or agent of 
 a corporation or banking association, in the course of his employ- 
 ment ; or by a factor, agent, broker or other person in a fiduciary 
 capacity, {id., § 2895.) 
 
 Where it appears to the Justice, by the affidavit of the plaintiff 
 or another person, that a sufficient cause of action exists against 
 the defendant, and that the case is within the provisions of the 
 last two sections, he must grant the order of arrest. But before 
 granting it, he must require a written undertaking to the defend- 
 ant, on the part of the plaintiff, with one or more sureties, 
 approved by the Justice, to the effect that, if the defendant 
 recovers judgment, the plaintiff will pay all costs which may be 
 awarded to the defendant, and all damages which he may sustain 
 by reason of the arrest, not exceeding the sum specified in the 
 undertaking, which must be at least one hundred dollars, {id., 
 § 2896.) 
 
 The order must be subscribed by the Justice and indorsed upon 
 or attached to the summons. It must briefly recite the ground 
 of arrest ; and it must direct the constable, who serves the sum- 
 mons, to arrest the defendant ; to bring him forthwith before the 
 Justice, and to notify the plaintiff of the arrest, if he can do so 
 with reasonable diligence, {id., § 2896.) 
 
 The constable must, at the time of serving the summons, 
 execute the order of arrest, by arresting the defendant and taking 
 him forthwith before the Justice. If the Justice is absent, or 
 unable to try the action, the constable must forthwith take the 
 defendant before another Justice of the same town or city, who 
 must take cognizance of the action, and proceed therein as if the 
 summons had been issued, and the order of arrest had been 
 granted, by him. {id., § 2898.) 
 
 The constable, executing the order of arrest, must forthwith 
 
 deliver to the Justice the order, and a written return thereto, 
 
 under his hand, stating the manner in which he has executed it, 
 
 and either that he has notified the plaintiff, or that he could not 
 
 11 
 
162 NEW YOKK JUSTICE. 
 
 do SO with reasonable diligence. If he returns that he has notified 
 the plaintiff, the latter must appear within one hour after the 
 defendant is brought before the Justice ; otherwise, judgment of 
 nonsuit must be rendered againt him. (id., § 2899.) 
 
 The constable executing the order, or another constable, by 
 direction of the Justice, must keep the defendant in custody 
 until he is discharged by the order of the Justice, or judgment is 
 rendered in his favor ; but the detention shall not, in any case, 
 exceed twelve hours from the time when the defendant is brought 
 before the Justice ; unless, within that time, a venire is issued, or 
 the trial of the action is commenced, or unless either is delayed 
 with the express assent of tlie defendant, {id., § 2900.) 
 
 A defendant, arrested as prescribed in this article, may, without 
 notice, upon the appearance of the plaintiff before the Justice, 
 or at any time afterwards before judgment, upon two days' notice 
 given personally to the plaintiff, or to his agent or attorney who 
 appeared for him before the Justice, apply to the justice for an 
 order discharging him from the arrest. The application may be 
 founded upon the papers upon which the order of arrest was 
 granted, and upon the complaint, if it has been made. The 
 Justice must grant the application where it appears that the case 
 is not within the provisions of sections 2894 and 2895 of this act. 
 The Justice must also, upon the defendant's application, grant an 
 order discharging him' from arrest, if the plaintiff fails to take 
 out, from the Justice, an execution upon a judgment in his favor, 
 before the expiration of one hour after he is entitled thereto. 
 {id., § 2901.) 
 
 The discharge of the defendant from arrest, before judgment, 
 as prescribed in the last section, or in section 2963 of this act, 
 does not affect the jurisdiction of the Justice over the action, 
 which must proceed as if it had been commenced in the ordinary 
 manner. His discharge from arrest, after judgment, as prescribed 
 in the last section, does not affect the execution, {id., § 2902.) 
 
 Where an order of arrest has been granted and executed, in a 
 case specified in subdivision third of section 2S95 of this act, the 
 plaintiff cannot recover upon a default, and the defendant is 
 entitled to judgment upon a trial, unless the plaintiff establishes 
 all the matters of fact which are required by that subdivision to 
 entitle him to an order of arrest, {id., § 2903.) 
 
 This article does not abridge or otherwise afflect a privilege 
 
ATTACHMENr OF PEOPEBTY. 163 
 
 from arrest given by law, or a right of action for the breach 
 thereof. A privileged person is entitled to be discharged from 
 arrest, by the order of the Justice before whom he is brought, 
 upon proof, by affidavit, of the facts entitling him to a discharge; 
 or he may apply lor, and obtain, an order for his discharge, as 
 prescribed in section 564 of this act. {id., § 2903.) 
 
 Summons. 
 
 County, j 
 
 Town of 
 
 To any Constable of said County : 
 
 The People of the State of New York command you to 
 
 summon 
 
 to appear before the undersigned, at 
 
 in said town, immediately upon his arrest as provided in the 
 
 annexed order, and on or before the day of 
 
 18. . ., at o'clock in the noon, to answer 
 
 in a civil action 
 
 to damage of two hundred dollars or under. 
 
 Dated at the town aforesaid, this day of 18 . . 
 
 Justice of the Peace. 
 
 "Waeeant of Aeeest. 
 
 County, ss. : 
 
 To amy Constable of said County : 
 
 The People of the State of New York command you forthwith 
 to take C. D. and personally bring him before me at my office in 
 
 the town of , to answer A. B. in a civil action 
 
 to recover damages for a personal injury committed by the said 
 C. D. upon A. B. (or whatever be the cause of action), to his said 
 A. B.'s damage of $200 or under ; and do you notify the plaintiff 
 of his arrest, and make due return hereupon as by law required. 
 
 Dated 
 
 E. P., 
 Justice of the Peace. 
 
 3. Attachment of Property. 
 In an action brought before a Justice of the Peace, a warrant 
 of attachment against the property of one or more defendants 
 
161 NEW YORK JUSTICE. 
 
 must be granted, upon the application of the plaintiff, as pi-e- 
 Bcribed in this article, where the action is brought upon a judg- 
 ment, or to recover for one or more of the following causes : 
 
 1. Breach of a contract, express or implied. 
 
 2. Wrongful conversion of personal property. 
 
 3. Any other injury to personal property, in consequence of 
 negligence, fraud, or other misconduct, [jd., § 2905.) 
 
 To entitle the plaintiff to such a warrant, he must show, by 
 affidavit, to the satisfaction of the Justice as follows : 
 
 1. That a sufficient cause of action exists against the defendant, 
 to recover damages for one or more of the causes specified in the 
 last section. If the action is upon a judgment, or to recover for 
 breach of a contract, the affidavit must show that the plaintiff is 
 entitled to recover a sum stated therein, over and above all 
 counterclaims known to him. 
 
 2. That the defendant is either a foreign corporation, or not a 
 resident of the State; or, if the defendant is a natural person 
 and a resident of the State, that he has departed, or is about to 
 depart, from the county where he last resided, with intent to 
 defraud his creditors, or to avoid the service of a summons, or 
 keeps himself concealed, with the like intent ; or if the defendant 
 is a natural person, or a domestic corporation, that he or it has 
 removed, or is about to remove, property from the county where 
 the defendant, being a natural person, last resided, or being a 
 corporation, last kept its principal office, or from the county in 
 which the action is brought, with intent to defraud his or its 
 creditors, or has assigned, disposed of, or secreted, or is about to 
 assign, dispose of, or secrete, property, with the like intent ; or 
 that the defendant, being a natural person of full age, and a resi- 
 dent of the State, has been continuously without the United 
 States for the space of six months or more, immediately before 
 the application, and either that he has not made a designation of 
 a person, upon whom to serve a summons in his behalf, as pre- 
 scribed in section 430 of this act, or that service upon the person 
 so designated cannot be made, with due diligence, in the county 
 where the person making the designation resides. 
 
 The affidavit must be filed with the Justice when the warrant 
 is granted, {jd., § 2906.) 
 
 The warrant must be granted by the Justice who issues the 
 summons, at the time when the summons is issued ; and it must 
 
ATTACHMENT OF PBOPEETT. 165 
 
 be indorsed thereupon, or annexed thereto. It must be subscribed 
 by the Justice, and must briefly recite the ground of the attach- 
 ment. It must require the constable, to whom the summons is 
 delivered, to attach, on or before a day specified therein, which 
 must be at least six days before the return day of the summons, 
 and safely to keep as much of the defendant's goods and chattels 
 within his county as will satisfy the plaintiff's demand, with the 
 costs and expenses, and to make return of his proceedings thereon 
 to the Justice, at the time when the summons is returnable. The 
 amount of the plaintiff's demand must be specified in the warrant, 
 as stated in the affidavit, {id., § 2906.) 
 
 Before granting the warrant, the Justice must require a written 
 undertaking to the defendant, on the part of the plaintiff, with 
 one or more sureties, approved by the Justice, to the effect that, 
 if the defendant recovers judgment, or the warrant of attachment 
 is vacated, the plaintiff will pay all costs which 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 must be at least two hundred dollars ; and that if 
 the plaintiff recovers judgment, he will pay to the defendant all 
 money received by him from property taken by virtue of the 
 warrant of attachment, or upon any bond given therefor, over 
 and above the amount of the judgment and interest thereupon. 
 {id., § 2908.) 
 
 The constable, to whom the warrant of attachment is delivered, 
 must execute it at least six days before the return day of the 
 summons, by levying upon and taking into his custody so much 
 of the goods and chattels of the defendant, not exempt from levy 
 and sale by virtue of an execution, including money and bank 
 notes, which he finds within his county, as will satisfy the plain- 
 tiff's demand, with the costs and expenses. He must safely keep 
 the property attached, to be disposed of as prescribed in this 
 article, and must immediately make an inventory thereof, stating 
 therein the estimated value of each item or article, {id., § 2909.) 
 
 The constable must, immediately after making the inventory, 
 and at least six days before the return day of the summons, serve 
 the summons, together with the warrant of attachment and 
 inventory, upon the defendant, by delivering to him personally a 
 copy of each, if he can, with reasonable diligence, be found 
 within the county ; or, if he cannot be so found, by leaving a 
 
166 NEW YORK JUSTICE. 
 
 copy of each, certified by the constable, at the last place of resi- 
 dence of the defendant in the county, with a person of suitable 
 age and discretion ; or, if such a person cannot be found there, 
 by posting it on the outer door, and also depositing another copy 
 in the nearest post-office, inclosed in a sealed post-paid wrapper, 
 directed to the defendant at his residence ; or, if the defendant has 
 no place of residence in the county, by delivering it to the person 
 in whose possession the property attached is found, (id., § 2910.) 
 
 The defendant, or his attorney or agent in his behalf, may, at 
 any time before judgment is rendered in the action, execute and 
 deliver to the constable an undertaking, to the plaintiff, in a sum 
 specified therein, at least twice the value of the property attached, 
 as stated in the inventory ; with one or more sureties, approved 
 by the constable, or by the Justice who issued the warrant ; and 
 to the effect that, if judgment is rendered against the defendant, 
 and an execution is issued thereupon, within six months after the 
 giving- of the undertaking, the property attached shall be pro- 
 duced to satisfy the execution. Thereupon the constable must 
 redeliver the property to the defendant. ij,d., § 2911.) 
 
 If a person, not a party to the action, claims any property 
 attached, which is not reclaimed by the defendant, as prescribed 
 in the last section, he may, at any time after the seizure, and 
 before execution is issued upon a judgment rendered in the action, 
 execute and file with the Justice a bond to the plaintiff, with one 
 or more sureties, approved by the constable or by the Justice ; in 
 a penalty at least twice the value of the property claimed, and 
 conditioned that, in an action iipon the bond, to be commenced 
 within three months thereafter, the claimant will establish that 
 he was the general owner of the property claimed, at the time of 
 the seizure ; or, if he fails so to do, that he will pay to the plain- 
 tiff the value thereof, with interest. The constable must there- 
 upon deliver the property claimed to the claimant, (id., § 2912.) 
 
 A judgment for the plaintiff, in an action iipon a bond, given 
 as prescribed in the last section, must award to him the value of 
 the property seized and delivered to the claimant, with interest 
 thereupon from the time of the delivery. If the amount so 
 recovered exceeds the amount, which the plaintiff recovers in the 
 action in which the warrant of attachment was issued, he is liable 
 to the defendant in that action for the excess. (*c?., § 2913.) 
 
 If the warrant of attachment is vacated or annulled, the defend- 
 
ATTAOnME"T OF PROPEETT. 167 
 
 ant may maintain an action upon the bond specified in the last 
 two sections, in his own name, in the same manner and with the 
 like effect, as the plaintiff might have done, if the warrant had 
 remained in full force, {id., % 2914.) 
 
 The constable executing the warrant of attachment must, at 
 the time when, and place where, it is returnable, make a return 
 thereto, under his hand, stating all his proceedings thereupon. 
 He must deliver to the Justice, with the return, each bond or 
 undertaking delivered to him, pursuant to any of the foregoing 
 provisions of this article, and a certified copy of the inventory of 
 the property attached. The return must state the manner in 
 which the warrant and inventory were served, and, if they were 
 served otherwise than by delivering a copy thereof to the defend- 
 ant, personally, the reason therefor, and the name of the person 
 to whom the copy was delivered, unless his name is unknown to 
 the constable ; in which case, the return must describe him so as 
 to identify him, as nearly as may be. {id., § 2915.) 
 
 A defendant, whose property has been attached, may, upon the 
 return of the summons, apply to the Justice, who issued the 
 warrant of attachment, to vacate or modify it, or to increase the 
 plaintiff's security. Such an application may be founded upon 
 the papers upon which the warrant was granted ; or upon proof, 
 by affidavit, on the part of the defendant ; or upon both. If it 
 is founded upon proof on the part of the defendant, it may be 
 opposed by new proof, by affidavit, upon the part of the plaintiff, 
 tending to sustain any ground for the attachment, recited in the 
 warrant, but no other. The Justice may, upon the return of the 
 summons, or at any other time to which the action is adjourned, 
 vacate the warrant of attachment upon his own motion, if he 
 deems the papers, upon which it was granted, insufficient to 
 authorize it. {id., § 291 6.) 
 
 Vacating the warrant of attachment does not affect the juris- 
 diction of the Justice to hear and determine the action, where 
 the defendant has appeared generally in the action ; or where the 
 summons was personally served upon him ; or where judgment 
 may be taken against him, as being indebted jointly with another 
 defendant, who has been thus summoned or has thus appeared. 
 In every other case the Justice, who vacates a warrant of attach- 
 ment against the property of a defendant, must dismiss the action 
 as to him. {id., § 2917.) 
 
168 NEW YORK JUSTICE. 
 
 Where the defendant has not appeared, and the summons has 
 not been personally served upon him, and property of the defend- 
 ant has been duly attached by virtue of a warrant, which has not 
 been vacated, the Justice must proceed to hear and determine the 
 action ; but, in an action subsequently brought, the judgment is 
 only presumptive evidence of indebtedness, and the defendant is 
 not barred from any counterclaim against the plaintiff. The 
 execution, issued upon a judgment so rendered, must require the 
 constable to satisfy it out of the property so attached, without 
 containing a direction to satisfy it out of any other property. 
 [id., § 2918.) 
 
 The bond extends to the final determination of the cause ; 
 and where the plaintiff recovers a judgment before the Justice, 
 but it is reversed on appeal, the bond may be sued. {Ball vs. 
 Gardner, 21 Wend. 270.) 
 
 It will not do, instead of such bond, to execute a covenant to 
 pay $200, or to pay all damages and costs, &c. ; the bond is 
 necessary to give the Justice jurisdiction. {Homan vs. Brmcker- 
 haff, 1 Den. 184.) And a bond not truly setting forth the suit 
 in which the attachment issues is defective. {Comfort vs. Gil- 
 lespie, 13 Wend. 404.) 
 
 There is a general provision of the statute, in regard to all 
 bonds, that whenever a bond is required by law to be given by 
 any person, in order to entitle him to any right or privilege 
 conferred by law, or to commence any proceeding, it shall not 
 be necessary for such bond to conform in all respects to the 
 form thereof prescribed by any statute, but the same shall be 
 deemed sufficient if it conform thereto substantially, and do not 
 vary in any matter to the prejudice of the rights of the party, to 
 whom or for whose benefit such bond shall have been given 
 {Code, § 729) ; and further, that whenever such bond shall be 
 defective in any respect, the Court, officer, or body who would be 
 authorized to receive the same, or to entertain any proceedings in 
 consequence of such bond, if the same had been perfect, may, on 
 the application of all the obligors therein, amend the same in any 
 respect, and such bond shall thereupon be deemed valid from the 
 time of the execution thereof, {id., § 730.) A bond may be thus 
 amended in matters of substance, where an error has occurred 
 through inadvertence, or from a misapprehension of the law ; as 
 by adding the names of other sureties, where the requisite num- 
 
ATTACHMENT. 169 
 
 ber have not joined. But this must be done with the consent of 
 all the existing obligors in the bond. (Potter vs. Baker, 4 
 Paige, 290.) This applies to undertakings. 
 
 The attachment issued in the foregoing cases should state the 
 amount of the debt sworn to by the applicant, and must command 
 some constable of the county in which the Justice resides to attach 
 so much of the goods and chattels of the debtor as will be suffi- 
 cient to satisfy such debt, and safely to keep the same, in order to 
 satisfy any judgment that may be recovered on such attachment, 
 and to make return of his proceedings thereon to the Justice who 
 issued the same, at a time therein to be specified, not less than 
 six nor more than twelve days from the date thereof. The same 
 rules as to computing time, and including Sunday, must be 
 observed as in the case of a summons. 
 
 A Justice may, after the return of an attachment issued by 
 him, amend it, by inserting the amount of the debt sworn to by 
 the applicant. {Wear vs. Van Alstyne, 14 Wend. 230.) 
 
 To authorize the issuing of an attachment by a Justice against 
 a non-resident, the plaintiif must prove, by his own affidavit, or 
 that of some other person or persons, to the satisfaction of the 
 Justice, the facts and circumstances to entitle him to the same ; 
 and the plaintifi, or some one in his behalf, must also execute an 
 undertaking in the penalty of at least two hundred dollars, with 
 such sureties and upon such condition as is above required. {See 
 Taylor vs. Heath, 4 Den. 592 ; Bennet vs. Brown, 4 Com. 254.) 
 
 Where the plaintiff and defendant are both non-residents, the 
 attachment is founded on the defendant's residence and not on the 
 plaintiff's. {See Ackerman vs. Finch, 13 Wend. 652.) 
 
 In all cases, the facts and circumstances relied on as the founda- 
 tion for the issuing of an attachment must be set forth distinctly 
 in the affidavit accompanying the application. (13 Wend. 404 ; 
 20 id. 77, 145 ; 4 Den. 118 ; Van Kirk vs. Wilds, 11 Barh. 520.) 
 The affidavit, however, need not be signed by the person making 
 it ; it is enough if he be sworn, and the Justice take down and 
 certify his testimony. {Millius vs. Shafer, 3 id. 60.) And the 
 fact that an affidavit upon which an attachment is issued by a 
 Justice under the non-imprisonment act, contains facts which 
 would have warranted an attachment under the Revised Statutes, 
 is not a ground of error ; provided the process actually issued ia 
 
170 NEW YORK JUSTICE. 
 
 warranted by tlie affidavit. {RosenfieU vs. Howwrd, 15 Barb. 
 546.) 
 
 An affidavit of a plaintiff that, from reports and information, 
 he believes that his debtor keeps out of the county to avoid pay- 
 ing his debts, and that he has been informed that he has departed, 
 and, a? his creditors say, for the purpose of defrauding them, is 
 not sufficient to authorize the issuing of an attachment under the 
 Eevised Statutes. {Sallman vs. Bigelow, 10 Wend. 420.) An 
 affidavit showing that a debtor keeps himself concealed to avoid 
 the service of a warrant issued under section four of the non- 
 imprisonment act, is not sufficient evidence that the latter keeps 
 himself concealed to avoid the service of civil process, unless it 
 also appears affirmatively that the charge on which the warrant 
 was issued was an intent only to commit a fraud, or a fraudulent 
 contracting of a debt. {Lynde vs. Montgomery, 15 Wend. 461.) 
 An affidavit swearing to the belief of the deponent as to the intent 
 to defraud is sufficient, if it also states directly and positively the 
 facts and circumstances on which the belief is founded. (20 id. 
 145 ; 1 Barh. 552 ; Stewart vs. Broion, 16 id. 367.) 
 
 The plaintiff must state in his affidavit the origin of his demand, 
 that is, whether founded upon contract or upon judgment, and 
 must also state the facts and circumstances upon which the appli- 
 cation is made, as that the defendant has declared his intention 
 to remove his property, &c., or has assigned it without considera- 
 tion, or secreted it, or any other circumstance indicating fraud ; 
 the mere belief of the plaintiff is not sufficient. (Smith vs. Luce, 
 14 Wend. 237.) An affidavit in which the facts are stated on 
 belief only, is fatally defective. {Dewey vs Greene, 4 Den. 93.) 
 
 Where a plaintiff applying to a Justice of the Peace for an 
 attachment against the defendant, presented an affidavit in which 
 he alleged that the defendant was about to dispose of his property 
 with intent to defraud his creditors, and assigned the existence 
 of the following facts as evidence of that intent, viz., that the 
 defendant left the county two months before, and went to Canada 
 with intent to remain there, taking with him a portion of his 
 goods ; that he had no family and but little property ; that he 
 was offering his property for sale ; that he had told the plaintiff 
 that he would be glad if he ever got his pay of him ; that no 
 civil process could be served on him because he kept out of the 
 State ; and that he refused to pay any thing on the plaintiff's 
 
ATTACHMENT. 1 7 1 
 
 debt ; it was held that there was at least some evidence of a 
 fraudulent intent for the Justice to act upon in issuing the attach- 
 ment, and his proceedings would not be reversed for insufficiency 
 of proof in that respect. {Rosenfield vs. Howard, 15 Barb. 546.) 
 The Justice who issues the attachment without the proof and 
 security required by tlie statute, is a trespasser ; but if the proof 
 and security be given, though the proof be false in fact, he is not 
 a trespasser. (3 Cow. 206 ; Schroepel vs. Taylor, 10 Wen,d. 196.) 
 
 § 7. Affidavit for am, Attachment where the Defendant depa/rts 
 
 the County. 
 County, ss. : 
 
 C D being duly sworn, says, that A B is justly indebted to 
 this deponent {or, to E F) in the sum of dollars, over and 
 
 above all discounts which the said A B has against him, as near 
 as he can ascertain the same, which debt arose upon contract 
 [or, upon a judgment rendered within this State, setting forth 
 the contract, wlien and where made, and what, or the judgment 
 when and where recovered, and for how much'] * ; and that the 
 said A B has departed from the said county of , where 
 
 he last resided, with intent to defraud his creditors [or, with 
 intent to avoid tlie service of some civil process, specifying what ; 
 or, that the said A B is about to depart from the said county 
 of , &c., with intent, &c., as above ; or, that the said 
 
 A B keeps himself concealed within the said county of , 
 
 where he last resided, with intent, &c., as above] ; and this depo- 
 nent further says, «fec. [here state distinctly the facts am,d circum- 
 stamoes necessary to satisfy the Justice that there are sufficient 
 grounds for the attachment.] C D. 
 
 Sworn to this day of , | 
 
 18 , before me. j 
 
 H T C, Justice of the Peace. 
 
 § 8. Affidavit for an Attcbchment on Removal of Property. 
 County, ss. : 
 
 C D, being duly sworn, says, &c. [as in § 7, to the,* except 
 that the judgment -need iwt be rendered within this State, and 
 then add] ; and that the said A B is about to remove his property 
 from the said county of , with intent to defraud his 
 
 creditors [or, that the said A B has assigned, disposed of, or 
 secreted his property, with intent to defraud his creditors ; or, 
 that the said A B is about to assign, dispose of, or secrete, his 
 property, with intent to defraud his creditors] ; and this deponent 
 further says, that, &c. [set forth the facts and circumstances, as 
 directed m § 7]. 
 
 Sworn, &c. [as m § 7.] 
 
172 NEW YOBK JITSTICE. 
 
 § 9. Attachment. 
 
 Town of , County of , 8S. : 
 
 The people of the State of I^ew York, to any constable of the 
 said county, greeting : "Whereas, A B has made application to 
 the undersigned, on oath in writing, for an attachment againsi" 
 the property of C D, stating that the said C D is indebted to the 
 said A B in the sum of fifty dollars, over and above all discounts, 
 which debt arose iipon contract \or upon judgment], and that said 
 defendant is not a resident of this State {or whatever the cause 
 may be]. Therefore, the People of the State of New York com- 
 mand you to attach, on or before , so much of the goods 
 and chattels of the said D as will be sufficient to satisfy said claim 
 with costs and expenses, and safely keep the same, to satisfy any 
 judgment that may be recovered in said action ; and that you 
 make return of your proceedings herein to the undersigned. 
 Justice of the Peace of said county, on the day of 
 , at o'clock in the forenoon, at his office in 
 the said town. 
 
 Dated J E, Justice of the Peace. 
 
 § 10. Undertaking of Plaintiff on Attachment. 
 
 Whereas, A B, plaintiff has commenced, or is about to com- 
 mence, an action by summons, for the recovery of money against 
 C D, defendant, and is about to make application for an attach- 
 ment against the property of the said D, defendant, as a security 
 for the satisfaction of such judgment as the plaintiff may recover 
 in the said action. 
 
 Ifow, therefore, if C D, the defendant, recover against the 
 plaintiff, we, A B, G H and E L undertake, promise and agree 
 to and with the said defendant, that if the defendant recovers 
 judgment, or the warrant of attachment is vacated, the plaintiff 
 will pay all costs which may be awarded to the defendant, and aU 
 damages which he may sustain by reason of the attachment, not 
 exceeding two hundred dollars ; and that if the plaintiff recovers 
 judgment, he will pay to the defendant all money received by 
 him from property taken by virtue of the warrant of attachment, 
 or upon any bond given therefor, over and above the amount of 
 the judgment, and interest thereupon. 
 
 Jwne 22, 1880. A. B. [l. s.J 
 
 G. H. [l. s.] 
 E. L. [l. s.] 
 
 § 11. Approval of Justice on the Bond. 
 
 : the sufficie 
 
 J H B, Justice, &c. 
 
 I approve of the within bond and of the sufficiency of the 
 sureties therein. 
 
SERVING SUMMONS. 173 
 
 CHAPTER VII. 
 
 OF THE SERVICE AND RETURN OF PROCESS. 
 
 In the last chapter we enumerated the various kinds of pro- 
 cess by which an action may be commenced, and the proper 
 process to be issued in different cases. The next steps in the 
 progress of an action are the service and return of process. 
 
 1. Summons. 
 
 Personal service of the summons must be made by delivering 
 a copy thereof to the defendant ; except where it is specially pre- 
 scribed in this chapter {Code, chap. 19), that personal service may 
 be made by delivering a copy to another person. Where service 
 of a summons is personal, it must be made at least six days 
 before the time of appearance specified therein ; except where it 
 is accompanied with an order of arrest. {Code, § 2878.) 
 
 In computing the time, the day of service must be excluded, 
 and the day of appearance included, so that a summons, re- 
 turnable in the forenoon of the eighth day of a month, 
 is well served in the afternoon of the second day of the 
 month. {Columbia T. R. vs. Haywood, 10 Wend. 422.) If a 
 Sunday intervenes in computing the time, it must be included ; 
 {King vs. Dowdall, 2 Sand. 131 ; ) so that where a short 
 summons was returnable on Monday, its service on Saturday was 
 good. 
 
 The constable must find the defendant if he can, but he is not 
 bound to look for him at any other than his usual place of resi- 
 dence, or last place of abode. {Dudley vs. Staples, 15 Johns. 
 196.) Process must be properly served ; and if it be executed by 
 a constable not having authority, the Justice has no jurisdiction. 
 {Reynolds vs. Orvis, 7 Cow. 269.) 
 
 A summons against a corporation must be served by deliver- 
 ing a copy thereof to the president or other head of the cor- 
 poration, secretary, cashier, treasurer, or director, or managing 
 agent thereof. {Code, §§ 431, 432, 2881.) Such managing agent 
 
174 NEW YORK JUSTICE. 
 
 must be one whose agency extends to all the transactions of the 
 corporation, {^Brewster vs. Mich. Q. R. It. Co., 5 How. 183,) 
 except as provided in Code, sections 2880 and 2881.) 
 
 The constable serving a summons must return thereupon, in 
 writing, the time and manner in which he executed it, and sign 
 his name thereto. {Code, § 2885.) A failure to state in the 
 return the time of service, is ground for reversing the judg- 
 ment; {Stewart vs. Smith, 17 Wend. 517;) but the omission is 
 not a jurisdictional defect, which may be taken advantage of 
 collaterally. ( Bromley vs. Smith, 2 Sill, 517.) A return that 
 the service was personal is sufficient; {Legg vs. StillmMn, 2 
 Cow. 418 ; ) and so, also, are the words " by copy ; " but the 
 time of service must be mentioned. {HugJies vs. MoMvl/vey, 1 
 Sand. 92.) 
 
 An appearance before the Justice, for the purpose of making 
 an objection to the sufficiency of a return, is not a waiver of the 
 defect. ( Wheeler vs. Lampman, 14 Johns. 481 ; 2 Lans. 156.) 
 
 If there are several defendants, the constable should state the 
 time and manner of service upon each. But a valid service upon 
 one will give the Justice jurisdiction. {Fogg vs. Child, 13 
 Barl. 246.) 
 
 Service upon a domestic railroad corporation may be made by 
 delivering copy of the summons to the local superintendent of 
 repairs, freight agent, agent to sell tickets, or station keeper 
 residing in the county, unless the corporation has designated the 
 person on whom to make service. {Code, § 2880.) 
 
 A second summons may be issued by the same Justice within 
 twenty days after the first was issued, and a third summons may 
 issue twenty days after second, where the former have been 
 returned not served. {i,d., § 2883.) 
 
 2. Warrant 
 
 A warrant must be served by arresting the defendant and 
 taking him forthwith before the Justice issuing the same. If 
 the Justice, on the return thereof, be alisent, or unable to hear 
 or try the cause, or it be made to appear to the Justice, by the 
 affidavit of the defendant, that the Justico is a material witness 
 in the cause, the constable must take the defendant before the 
 next Justice of the city or town, who is authorized and required 
 
EXEMPTION FKOM AEKEST. 
 
 175 
 
 to take cognizance of the cause, and proceed thereon as if the 
 order of arrest had been issued by him. {Code, % 2898.) 
 
 A warrant is not spent, if the Justice is unable to try the 
 cause, and directs the parties to go before another Justice; no^ 
 is the defendant entitled to be discharged, if the next Justice 
 before whom he is taken is also unable to try the cause. {^Arnold 
 vs. Stevens 10 Wend. 514.) The constable has a right to detain, 
 the defendant, while making a bona fide effort to find a magis- 
 trate to hear the cause; {id.) but he cannot detain him longer 
 than twelve hours from the time he is brought before the Jus- 
 tice, unless the trial of the cause be sooner commenced or it be 
 delayed at the instance of the defendant. {Code, Section 2900.) 
 
 No manual touching of the body is necessary to an an'est; it 
 is sufficient if the party be within the power of the officer, and 
 submit to the ari-est. {Oold ads. Bissell, 1 Wend. 210.) 
 
 A regular officer, acting within his proper district, is not 
 bound to show his warrant, though it be demanded. {Bellows 
 vs. Shannon, 2 Hill, 86; 10 Wend. 514; supra.) But where 
 the party submits to the arrest, the officer is bound to infonn 
 him of the substance of the warrant or process, to the end that 
 the party, knowing for what he is arrested, may take the proper 
 legal measures to dischai-ge himself; and the officer ought, eithet 
 before or at the moment of the arrest, to inform the party that 
 he l^as a warrant, or to make known to him, in some way, that 
 he comes in his character iis an officer to execute legal process. 
 {Bellows vs. Shannon, 2 Hill, 86.) A special deputy is bound 
 to show his warrant on request, or the party may lawfully resist 
 him. {Frost vs. Thomas, 24 Wend. 418; 10 id. 514; supra.) 
 
 No man can be arrested in his own dwelling-house, provided 
 the outer door be shut; although, if the outer door be open, 
 the officer, having gained admittance, may break open an inner 
 door to arrest the defendant. (16 Johns. 286; Huhhard vs. 
 Mace, 17 id. 127.) And if a man let a house, except one room, 
 which he reserves for himself and occupies separately, an officer, 
 who enters through the open outer door of the house, may break 
 open the door of the inner room to arrest him; {Williams vs. 
 Spencer, 5 id. 352;) but a previous demand of admittance is 
 essential. (3 Bosanquet & Puller, 223.) So, too, where an 
 officer had entered through an outer door of a house, and found 
 the chamber door of the defendant, who was a stranger, secured, 
 
176 NEW YORK JUSTICE. 
 
 it was held, that he was justified in breaking through a window, 
 having first informed the defendant that he had process to 
 serve. (8 Taunton, 250; Graham's Practice, 107.) 
 
 The privilege annexed to a dwelling-house does not extend 
 to a store, or warehouse, or barn, disconnected from it, and 
 forming no part of the curtilage. {Haggerty vs. Wilber, 16 
 John. 287.) Every man's house is looked upon by the law to 
 be his castle of defence and asylum, wherein he should suflFer 
 no violence; but it will not protect a stranger. (3 Black. 
 Comm. 288.) 
 
 Every member of the Legislature is privileged from arrest on 
 civil process during his attendance at the session of the house to 
 which he belongs, except on process issued in any suit brought 
 against him for any forfeiture, misdemeanor, or breach of trust 
 in any office or place of public trust held by him. (1 B. S. 
 154, § 6.) He is also entitled to the same privilege for fourteen 
 days previous to any such session, and also while going to and 
 returning from such session, provided the time of such going or 
 returning do not exceed fourteen days; (id. § 7;) but he is not 
 privileged from arrest after he has reached home, though the 
 fourteen days have not expired. (1 Johns. Cases, 415; Corey 
 vs. Russell, 4 Wend. 204.) He is also entitled to the same 
 privilege after any adjom-nment of the Legislature until its next 
 meeting, when such adjournment does not exceed fourteen days. 
 (1 R. S. 154, § 8.) He is also entitled to the same privilege 
 while absent with leave of the house to which he belongs. 
 {id. § 9.) 
 
 No officer of either house of the Legislature can, whilst in 
 actual attendance on the house, be arrested on civil process. 
 {id. § 10.) 
 
 An attorney is privileged from arrest only during the actual 
 sitting of a court, and not even then, unless he is employed in 
 some cause pending, and then to be heard in such court. (C. 
 C. P., § 565.) This exemption of an attorney applies only 
 while he is in actual attendance upon the court ; and an arrest, if 
 made while he remains at home, is good, though it prevent his 
 contemplated attendance. (4 Wend., 204, supra.) Nor does the 
 exemption extend beyond the time of his necessary attendance 
 on the court {Oilibs vs. Looims, 10 Johns., 463), formerly 
 
BXEMPTION FROM ARREST. 177 
 
 not exempt when sued with any other person. (2 B. S., 290, 
 § 86 ; Gay vs. Rogers, 3 Cow., 368.) 
 
 All officers of courts of record, such as judges, constables, 
 sheriffs, clerks, criers, legally elected or appointed, &c., are 
 privileged from arrest during the actual sitting of any court of 
 which they are officers. {Code, § 566.) The sheriff is liable tc 
 arrest the same as an ordinary person except during the sitting of 
 the court. {_HiU vs. Lott, 10 How., 46.) 
 
 The parties to a suit, and their witnesses, and all persons who 
 have any relation to a cause, which calls for their attendance in 
 • court, as bail, &c., are protected from arrest on civil process, 
 in coming to, attending upon, and returning from court. 
 (1 Caines, 115; Tidd's Practice, 174; 2 Johns. 294; Boms vs. 
 Tuckeifnan, 7 id. 538.) So is a person attending court on a re- 
 cognizance; (^c?. ;) a witness attending from another State to prove 
 a will; (Norris vs. Beach, 2 id. 294;) and parties and witnesses 
 attending a reference. (1 Oaines, 215; Olark vs. Grant, 2 Wend. 
 257.) But the witnesses must have been subpoenaed to protect 
 them. [Hardenbrook's case, 8 Abb. 416.) 
 
 No female can be arrested or imprisoned on any process in 
 any civil action founded upon contract. (2 JR. S. 428, ^ 9, 
 Code, § 553.) Every officer who violates this provision of the 
 statute will forfeit to the party aggrieved three times the dama- 
 ges found by the jury; and Mall also be liable to an indictment 
 for a misdemeanor, and upon conviction thereof, in addition to 
 any other punishment will forfeit his office. {Code, § 125.) 
 
 A married woman cannot be arrested on mesne process, in 
 Justices' Court. {Code, § 2894.) 
 
 Persons belonging to the militia of this State are exempt from. 
 arrest on civil process, from sunrise to sunset on any day- of 
 parade. {Laws of 1870, chap. 80.) Non-commissioned officers, 
 musicians, seamen and marines, enlisted in the service of the 
 United States, and non-commissioned officers, privates and musi- 
 cians, enlisted in the army of the United States, are exempt, 
 during their terms of service, from all personal arrests, for any 
 debt under the sum of twenty dollars, contracted before enlist- 
 ment, and for any debt contracted after enlistment. (1 W. S. 
 Statutes at La/rge, 595 ; 2 id., 36.) 
 
 No acting commissioner, superintendent of repairs, collector, 
 or lock-keeper, on any canal, can be held to bail, or taken by 
 12 
 
178 NEW YORK JUSTICE. 
 
 warrant, in any civil suit, for any act done, or omitted to be 
 done by him, in the exercise of his official duties. (1 R. 8. 
 224, § 43.) 
 
 Every writ or process whereby the person of any ambassador 
 or other public minister of any foreign prince or state, author- 
 ized and received as such by the President of the United States, 
 or any domestic or domestic servant of any such ambassador or 
 other public minister, may be arrested or imprisoned, or his or 
 their goods or chattels be distrained, seized or attached, is 
 utterly null and void; and any person suing out, and any offi- 
 cer executing any such writ or process, is liable to imprisonment 
 and fine. (1 U. S- Statrdes at Large, 117.) But no citizen or 
 inhabitant of the United States, who has contracted debts prior 
 to his entering into the service of any ambassador, or other 
 public minister, which debts are still due and unpaid, is enti- 
 tled to such exemption, {id.) An ambassador from one sover- 
 eign State to another, while traveling through the territories ol 
 a State to which he is not accredited, in the execution of the 
 duties of his mission, is privileged from aiTest on civil process. 
 {HolbrooJc vs. Henderson, 4 Sand. 619.) 
 
 Members of Congress are, in all cases, except treason, felony, 
 and breach of the peace, privileged from arrest during their 
 attendance at the session of their respective houses, and in going 
 to and returning from the same. {Qonstitution U. 8. Art, I. 
 sec. 6; Lewis vs. JElmendoif, 2 Johns. Cases, 222.) 
 
 An escape is either negligent or voluntary; negligent when 
 the defendant escapes without the consent of the officer; volun- 
 tary, when the officer permits him to go at large. {Graham's 
 Practice, 148.) 
 
 After a negligent escape, the officer may, in all cases, retake 
 the defendant. (6 Modem Rep. 231, 295; Lochwood vs. Mer- 
 sereaii,, 8 Abb. 206.) 
 
 After a voluntary escape on me^ne process, the officer may 
 retake the defendant during the life of the process. (2 Term 
 Rep. 172; 7 Wend. 188; 10 id. 514; Olmstead vs. Raymond, 
 6 Johns. 62.) Mesne process, in contradistinction to final pro- 
 cess, or process of execution, is all such process as intervenes 
 between the beginning and the end of a suit. A warrant issued 
 by a Justice is held to be mesne process, although it is the first 
 process in a cause. {Arnold vs. 8teeves, 10 Wend. 514.) But, 
 
ESCAPE. 179 
 
 after a voluntary escape owjinal process, a defendant cannot be 
 retaken on the same process; and the officer thus retaking him 
 is liable to an action for false imprisonment. {Lansing vs. 
 Fleet, 2 Johns. Oases, 3; 5 Term Bep. 25.) 
 
 For an escape, either voluntary or negligent, an officer is 
 liable; but a recaption, or a voluntary return before action 
 brought for the escape, is a good defence to such action. 
 (4 Johns. 45; 7 id. 175; M. D. Bank vs. Deyo, 6 Cow. 732.) 
 The statute provides, that in every action against an officer for 
 the escape of any prisoner, the defendant may plead or give 
 notice that before the commencement of such action, such pri- 
 soner voluntarily returned to the custody from which he had 
 escaped, or that such defendant retook such prisoner, and had 
 him within the custody from which he had escaped, before the 
 commencement of such action; and in either case, that such 
 escape was made vidthout the consent of such defendant. 
 {Code, § 171.) 
 
 Every officer who demands or receives any reward, gratuity, 
 or valuable thing, to procure, assist, connive at or permit any 
 escape of any prisoner in his custody, is guilty of a misde- 
 meanor {id., § 159) ; and, on conviction thereof, forfeits his 
 office, and is forever thereafter incapable of executing the same. 
 {Id., § 159.) 
 
 If a constable, who has a defendant in custody, discharge 
 him by order of the Justice, when the Justice has no authority 
 to make such order, the constable is liable for an escape. {Yan 
 8lyck vs. Taylor, 9 Johns. 146.) So, too, where a constable, 
 after arresting a defendant on a warrant, left him, on his pro- 
 mising to follow, and the defendant was then arrested on a 
 criminal charge, it was held that there was a voluntary escape, 
 for which the constable was liable. ( Olmstead vs. Baymond, 
 6 Johns. 62.) 
 
 Consent or agreement by the plaintiff to an escape, after it 
 has happened, vsdthout consideration, will not discharge the 
 officer; otherwise, where it is upon good consideration. {Pow- 
 ers vs. Wilson, 7 Oow. 274.) 
 
 It is provided by statute, that no constable shall ask or re- 
 ceive any money or valuable thing from a defendant, or any 
 other person, as a consideration, reward or inducement for 
 omitting to arrest any defendant, or to carry him befor« any 
 
180 NEW YORK JUSTICE. 
 
 Justice, or for delaying to take any party to prison, or for 
 postponing the sale of any property under any execution, or 
 for omitting or delaying the execution of any duty pertain- 
 ing to his office. {Code, § 114.) Every constable offending 
 against this provision, is guilty of a misdemeanor, and, 
 on conviction, is subject to fine or imprisonment, or both, 
 in the discretion of the court; and every such conviction 
 operates as a forfeiture of the office of the constable so convicted. 
 {Code, § 131.) 
 
 When an officer arrests any person by virtue of any mesne 
 or final process, or by virtue of any other civil process, he is 
 not allowed to charge such prisoner with any sum of money, or 
 demand or receive from him any sum of money, or any valu- 
 able thing, for any drink, victuals, or other thing whatsoever, 
 furnished or provided for such officer, or for such prisoner, at 
 any tavern, ale-house, or public victualling or drinking house. 
 {Code, § 113.) 
 
 Every officer, who has arrested any person, is forbidden, while 
 such person is in his custody, to demand or receive any gratuity 
 or reward, upon any pretence whatever, for keeping such 
 prisoner out of jail, or for waiting for such prisoner to find bail 
 or agree with his adversary, or for waiting for any other purpose. 
 {Id., § 114.) 
 
 If any person be arrested and kept in any house other than 
 the jail of the county, neither the officer arresting him, nor the 
 person in whose custody such prisoner may be, can demand or 
 receive from such prisoner any other or greater sum for lodging, 
 drink, victuals or other necessary things, than has been prescribed 
 by the Court of Sessions of the county ; or, if no rate has been 
 prescribed by such Court, such officer or person cannot receive 
 any other or greater sum than shall be allowed by a Justice of 
 the Peace of the same town, upon proof that the lodgings or other 
 things furnished were so furnished at the reauest of such prisoner. 
 And in no case can such officer or person demand or receive any 
 pay or compensation for any spirituous liquors sold or delivered 
 to such prisoner. {Code, § 115.) 
 
 A prisoner so kept in any house may send for and have any 
 beer, ale, cider, victuals, and other necessary food, and such 
 bedding, linen, and other necessary things, as such prisoner 
 ehall see fit, where and from whom he pleases, without any 
 
DUTY OF CONSTABLE. 181 
 
 detaining or paying for the same, or any part thereof, to the 
 officer arresting him, or to the person in whose custody such 
 prisoner may be. {Code, § 116.) 
 
 No officer can demand or receive any money or valuable thing 
 whatsoever for the chamber rent of any prisoner, or any fees, 
 compensation or reward, for the commitment, detaining in 
 custody, release or discharge of any prisoner, other than such 
 fees as are expressly allowed by law. {Id., § 117.) 
 
 Any officer who has arrested any prisoner in any county may 
 pass over, across and through such parts of any other county or 
 counties as are in the ordinary route of travel from the place 
 where such prisoner has been arresled to the place where he is 
 to be cunveyed and delivered, according to the command of the 
 process by which such arrest has been made. {Id., § 118.) Such 
 conveyance will not in any case be deemed an escape ; nor will 
 the prisoner so conveyed, or the officer having him in custody, 
 be liable to arrest on any civil process, while passing through 
 such other county or counties. {Id., § 118.) If any person is 
 arrested under such circumstances, all persons concerned in the 
 same, with knowledge of the previous arrest, are answerable as 
 for an unlawful arrest. {Love vs. Humphrey, 9 Wend., 204.) 
 
 Every officer who offends against any of the foregoing pro- 
 visions will forfeit to the party aggrieved three times the dam- 
 ages found by the jury ; and will also be liable to an indictment 
 for a misdemeanor, and, upon conviction thereof, in addition to 
 any other punishment, will forfeit his office. {Code, § 125.) 
 
 Every constable serving a warrant must return thereupon, in 
 writing, the manner in which he executed it, and the fact whether 
 he has or has not notified the plaintiflE. {Code, § 2899.) 
 
 [For form of Hetv/rn on Warrant, see McCall's Clerk's 
 Assistant, p. 319. McCall's Constable's Guide, p. 169.] 
 
 3. Attachment. 
 All attachments must be served in the same manner. The 
 constable to whom a summons and order are directed and deliv- 
 «red must execute the same at least six days belore the return 
 day ; and must attach, take into his custody and safely keep so 
 much of the goods and chattels of the defendant as shall not be 
 exempt from execution, and as sliali be sufficient to satisfy the 
 
182 NEW TOEK JU6.TICE. 
 
 plaintiff's demand, {id. § 2909.) He must immediately make 
 an inventory of the property seized, and must, if the defendant 
 can be found in the county, serve a copy of the summons and 
 attachment and of the inventory, certified by him upon the 
 defendant personally ; if the defendant cannot be found in the 
 county, the constable must leave a copy of each, certified by him 
 at the last place of residence of the defendant, with a person of 
 suitable age and discretion ; or if such person cannot be found, 
 then by posting them on the outer door, and also depositing 
 another copy in the nearest post-office, inclosed in a sealed post- 
 paid wrapper, directed to the defendant at his residence ; but if 
 he have no place of residence in the county where the goods and 
 chattels are attached, the copy and inventory must be left with 
 the person in whose possession the goods and chattels are found. 
 {id. § 2910.) 
 
 Where an attachment was issued against two persons as joint 
 debtors, and a return was made of personal service on one, but 
 nothing was said as to service upon the other, a judgment 
 obtained against both was reversed as to both. {Cook vs. 
 McDoel, 3 Den. 317.) In such a case, if the attachment is- 
 issued under the non-imprisonment act, the Justice must either 
 dismiss the proceedings, or issue a summons. {McDoel vs. 
 CooJc, 2 Corns. 110.) 
 
 The power and duty of a constable, in levying an attachment, 
 are similar to his power and duty on an execution. It is his 
 duty to search for and attach so much of the goods and chattels 
 of the debtor as will be sufficient to satisfy the amount of the 
 debt stated in the process. By goods and chattels are meant 
 chattels personal, as distinguished from chattels real, the former 
 including every thing that can be moved or transferred from 
 place to place. The distinction between real and personal chat- 
 tels will be treated of hereafter, under the head of Executions. 
 (Post, part I., chajp. XVII., svAd. 4.) 
 
 On taking the goods, the constable must see that they are 
 safely kept. He is considered in the light of a bailee, and is 
 accountable to either party for ordinary negligence, by which 
 either sustains an injury; upon the principle that the bailment 
 is mutually beneficial both to the bailor and bailee. {Ante, p. 
 57.) If, however, the goods be lost or destroyed without his 
 fault, he is not accountable. [Jenner vs. Joliffe, 6 Johns. 9.) 
 
BONDING PBOPEBTT ATTACHED. 183 
 
 He must, therefore, provide such convenient place for the safe 
 keeping of the goods as shall comport with his rights and duties 
 in regard to them. 
 
 It is provided by statute, that no goods attached by a constable 
 shall be removed by him, if an undertaking be given and deliv- 
 ered to such constable by the defendant, with sufficient surety, to 
 be approved by the constable or Justice, in a penalty double the 
 sum stated in the attachment to have been sworn to by the plain- 
 tiff, conditioned that such goods and chattels shall be produced, 
 to satisfy any execution that may be issued upon any judgment 
 which shall be obtained by the plaintiff upon such attachment, 
 within six months after the giving of the undertaking. {Code, 
 § 2911.) And it is further provided, that if any person shall 
 claim any goods or chattels attached by a constable, he may, after 
 such seizure, and at any time before execution shall have been 
 issued upon the judgment obtained on such attachment, execute 
 a bond to the plaintiff, with sureties, to be approved by the con- 
 stable, or by the Justice who issued the attachment, in a penalty 
 double the value of the property attached, conditioned that, in 
 a suit to be brought on such bond, within three months from 
 the date, such claimant will establish that he was the owner 
 of the goods seized at the time of such seizure, and, in case 
 of his failure to do so, that he will pay the value of the 
 goods so claimed, with interest, {jd. % 2912.) But the claim- 
 ant must be the general owner of the goods attached. {Pierce 
 vs. Kmgsmill, 25 Barb. 631.) Upon either of these bonds 
 being executed, and delivered to the constable, he is bound to 
 deliver up the property seized by him, to the obligor in such 
 bond. 
 
 In regard to the bonds which are thus authorized to be exe- 
 cuted, and upon the execution of which the property attached 
 is to be delivered up, the bond in the first case is to be to the 
 constable, and in the last to the plaintiff. {Pierce vs. Kingswill, 
 25 Barh. 631.) In the former case, also, the undertaking is to be 
 with one or more sureties, approved by the constable or Justice, 
 and is not required to be executed by any particular person ; and 
 in the latte^, a bond must be executed by the claimant of the goods 
 " with one or more sureties," approved by the constable, or by the 
 Justice who issued the attachment. It would appear, therefore. 
 
184 NEW YORK JUSTICE. 
 
 that in the latter case two sureties, at least, should be reqiured 
 by the constable. {Smith vs. McFall, 18 Wend. 631.) 
 
 The provisions of the Eevised Statutes respecting attachments 
 in Justices' Courts — which direct that if a third person claims 
 goods attached by any constable, he may require a delivery to 
 him by executing a bond to the plaintiff in double the value of 
 the property attached, — are for the benefit of the real owner as 
 well as for that of the plaintiff; and a bond for less than double 
 the value of the property, though it be for more than double 
 the amount of the debt for which the attachment was issued, is 
 insufficient. (Kamena vs. Wanner, 6 Abb. 193.) 
 
 The constable and Justice have a discretion to exercise, as to 
 the sufficiency of the security to be taken, and will undoubtedly 
 be protected, if they exercise it in good faith. It cannot be 
 doubted, that any man reputed to be in good circumstances, and 
 apparently of ample property to pay the penalty, being at the 
 same time a householder of the county, would answer the de- 
 scription of sufficient surety, within the spirit of the act; and in 
 such case, the officer would be justified in taking such bond, 
 even though the surety should in the end prove insolvent. But 
 the officer would, on the other hand, certainly be liable for the 
 plaintiff's loss, should he accept a man whom he knew to be, 
 or who was reputed to be, in doubtful circumstances; and in 
 such case, very slight proof of insufficiency would be enough to 
 throw upon the officer the burden of showing that he acted with 
 due caution. The security ought either to be known to him to 
 be sufficient, or he ought to take time to inquire in regard to it. 
 (1 Oow. Treatise, 569.) 
 
 Where any surety offered is a stranger to the officer, or he is 
 unacquainted with his circumstances, or doubts his sufficiency, 
 he has power, for the purpose of ascertaining such sufficiency, 
 to administer an oath to the person so offered, and ought so to 
 do. {Code, § 843.) If he do this, and the surety prove his suffi- 
 ciency, the officer cannot be held liable, for he has done all the 
 law requires of him. 
 
 The undertaking to be given to prevent the removal of the 
 goods attached, is to be in a sum of double the value of property 
 attached ; the penalty of the claimant's bond is to be double the 
 value of the property attached. 
 
BONDING PROPERTY ATTACHED. 185 
 
 \¥ov fovra of Bond to prevent the Removal of Goods attached, 
 see McCatt.'s Clerk's Assistant, p. 323: Constable's Guide, 
 p. 172. 
 
 The surety in this bond is to be approved by the constable; 
 and although the statute does not require that his approval 
 should be written or endorsed on the bond, yet it is pro^jer 
 that this should be done. An acceptance of the bond by the 
 constable, without objection to the sufficiency of the surety, 
 would, however be deemed an approval. This approval, if in 
 writing, may be in the following form: 
 
 I approve of the within bond, and of the sufficiency of the 
 sm-eties therein. 
 
 January 1st, 1853. E F, Constable. 
 
 "Where property is taken under an attachment, the lien cre- 
 ated, thereby continues, notwithstanding the giving of a bond 
 by the debtor for its production, until the issuing of an execu- 
 tion, and a reasonable time thereafter to make a levy. But if, 
 in the mean time, the property be removed by the debtor be 
 yond the Jurisdiction of the Justice who issued the attachment, 
 and it be there seized under another attachment, the lien is 
 gone, notwithstanding the issuing of an execution on the judg- 
 ment under the first attachment. {Sterling vs. Welcome, 20 
 Wend. 238.) 
 
 [For form of Bond by Claimant of Property attached, see 
 McCall's Cleek's Assistant, p. 323; Constable's Guide, 
 p. 173, No. 25.] 
 
 The sureties in this bond must be approved, either by the 
 constable, or by the Justice who issued the attachment. The 
 form of approval given for the preceding bond will apply to 
 this case. 
 
 There can be no difficulty in ascertaining the amount of penalty to 
 be inserted in the undertaking given to prevent the removal of goods 
 attached ; nor in the bond, for the inventory fixes the value of the 
 property attached. The statute makes provision on this subject. It 
 
186 KEW YORK JUSTICE. 
 
 is provided {Code, § 843) that whenever any oflBcer is author- 
 ized or required by law to take or approve any sureties, he 
 is also authorized to administer an oath to every person who 
 IS offered as such surety, to ascertain his sufficiency, yet no 
 authority is given to the officer to administer an oath to, and 
 examine witnesses, in order to ascertain the value of the pro- 
 perty. Therefore, an oath administered by the officer would 
 be nugatory, and no indictment for perjury would lie upon it; 
 and hence that course should not be adopted. There would 
 seem to be no other way, than for the officer to satisfy himself 
 of the value, by advising with persons of judgment, or other- 
 wise, as he may see fit, and then to double that value, and in- 
 sert it in the bond by way of penalty. If the sureties should 
 then refuse to execute the bond, he may, undoubtedly, remove 
 the property. (1 Cow. Treatise, 571.) 
 
 Notwithstanding the provision of the statute above cited, 
 authorizing a bond to prevent the removal of goods atached, 
 the constable may, if no such bond be tendered, take a receipt 
 for the future delivery of the goods, in the same manner as 
 under a levy by virtue of an execution. There is nothing in 
 the statute inhibiting the use of a receiptor; and convenience 
 and even necessity require that the practice should be sus- 
 tained. When a receipt is taken, the property is still in the 
 custody of the constable, by intendment of law; and he is 
 responsible for it in like manner and to the same extent, as 
 though he had it in his actual possession. {Harvey vs. Lane, 
 12 Wend. 563.) 
 
 The property is protected against other attachments, execu- 
 tions, &c., whether it be removed by the constable, or left with 
 a receiptor, or with the defendant on a bond for its delivery. 
 {Van Loan vs. Kline, 10 Johns. 131.) 
 
 Having taken the goods, the constable is required imme- 
 diately to make an inventory of them, and to serve a copy of 
 the attachment and of the inventory, certified by him, on the 
 defendant personally, if he can be found in the county. If he 
 cannot be so found, then the constable must leave a copy of 
 the attachment and of the inventory, certified by him, at the 
 last place of residence of the defendant: but if he have no 
 place of residence in the county where the goods and chattels 
 
INVENTORY. 187 
 
 are attached, the copy and inventory must be left with the i^er- 
 sou in whose possession the goods and chattels are found. 
 
 It is customary, especially where the articles attached are 
 numerous, for the constable to make his inventory of them on a 
 separate piece of paper, and to annex a copy of such inven- 
 tory, by a wafer, or otherwise, to the attachment. The copy 
 of the attachment and of the inventory required to be seiTed, 
 may be certified by the constable thus: " Copy, A B, Constable." 
 
 The copy inventory, to be returned with the attachment, and 
 the copy to be served, may be in the following form: 
 
 Copy of an inventory of property, this day seized by me, by 
 virtue of the annexed attachment, [or, by virtue of an attach- 
 ment of which the annexed is a copy:] 
 
 One feather-bed, One clock. 
 
 One bureau. One gray horse, &c. 
 
 A B, Constable. 
 
 The copy of the attachment and inventory to be served should 
 not be left at a house, or store, where the defendant has only 
 stopped while traveling; for it would be absurd to consider 
 that as his last place of residence. It should be left at his 
 usual residence. {^Dudley vs. Staples, 15 Johns. 196.) 
 
 The constable must execute the attachment, that is, he must 
 take the goods, make the inventory, and serve the copy of the 
 attachment and of the inventory, all at least six days before the 
 return day of the summons in the case where an attachment has 
 issued. 
 
 Having executed the attachment, the constable must make a 
 return tllereof at the day named therein for that purpose, with 
 all his proceedings thereon, in writing, subscribed by him, with 
 a copy of the inventory of the goods attached, certified by him, 
 and with any bond or undertaking which may liave been executed 
 and delivered to him pursuant to tlie provision of tlie statute 
 before cited ; and the return must also state specifically whether 
 the copy of the attachment and of the inventory was or was not 
 personally served upon the defendant, or the name of the person 
 to whom delivered. 
 
 The return should specify the particular manner in which 
 the attachment was executed. The day of attaching the goods, 
 and of serving or leaving the copy, ought also to be specified 
 
188 NEW YORK JUSTICE. 
 
 in the return; and a certified copy of the inventory must be 
 annexed to the original attachment. The return should be en- 
 dorsed on the original attachment. {Rosenfleld vs. Howard, 
 15 Bari. 54G.) 
 
 The return is, like all other acts required of a constable by 
 law, a part of his official duty. If he makes a false return, an 
 action will lie against him at the suit of the party injured; (14 
 Johns. 481; Putnam vs. Man, 3 Wend. 202;) and if he does so 
 wilfully and corruptly, he may also be indicted for a misde- 
 meanor, {id.) 
 
 [For form of Return to Attachment, see McCall's Clerk's 
 Assistant, p. 324, McCall's Constable's Guide, p. 174.] 
 
 This return of the constable is, without doubt, equally con- 
 clusive with that upon a summons, and cannot be drawn in 
 question, except in an action for a false return, or upon indict- 
 ment. {Wheeler vs. Lampman, 14 Johns. 482.) 
 
 Where an attachment issued under the non-imprisonment act, 
 and it appeared by the constable's return to have been personally 
 served upon the defendant, the Justice, on the return day, 
 proceeded to hear and determine the cause in the same manner 
 as upon a summons returned personally served. (Laws of 
 1831, chap. 300, § 7.) But if, by the return, it appeared that 
 property was attached, and that a copy of the inventory and 
 attachment was not personally served, and the defendant did 
 not appear, the plaintiff took out a summons against him ; 
 upon the return of which, personally served, or that " the 
 defendant cannot be found, after diligent inquiry," then, in either 
 case, the Justice proceeded to hear and determine the cause, in 
 the same manner as upon a summons returned personally served. 
 {id. § 38; 39 How. 13 ; 2 Lams. 156; 1 E. D. Smith, 391.) It 
 is presumed that this return of not found, should be in the 
 words of the statute as just quoted. Where a constable, in 
 his return to an attachment issued by a Justice under the non- 
 imprisonment act, stated that he had seized the goods and chat- 
 tels mentioned in the inventory annexed, and that the defendant 
 not being fouyid in the county, he left a copy of the attachment, 
 <fec., duly certified by him, with B, in whose possession the 
 goods were found, "the defendant having no place of residence 
 
PKOCESS GENERALLY. 189 
 
 in the county of C," it was held that this was sufficient to 
 authorize the issuing of a summons by the Justice, under sec- 
 tion 38 of the act. Such a return must be understood as alleg- 
 ing that no personal service has been made. (15 Barb. 546; 
 supra.) The statute prescribes no form for this summons, 
 neither does it state what time may intervene between the date 
 and return. In the absence of any provision on this subject, 
 the ordinary form of summons, (ante, Form, § 6,) should be 
 used. And it is probable that the time between its date and 
 return should be regulated by the character of the attachment 
 which precedes it; if a long attachment, the summons should be 
 made returnable in not less than six, nor more than twelve days 
 from date; if a short attachment, not less than two, nor more 
 than four days from date. (1 Cow. Treatise, bib.) 
 
 "Where an attachment was issued by a Justice, under sections 
 26 and 27 of the provisions of the Revised Statutes, the Justice 
 was not authorized to issue summons upon tlie return of the 
 attachment ; but must enter judgment upon the attachment, 
 without a summons. {Stewart vs. Brown, 1 6 Barh. 367.) 
 
 4. Pboctss Generally. 
 
 A constable cannot make a deputy to execute any process 
 directed and delivered to him ; but must execute it in his own 
 proper person, {Code, § 3157 ; Dows vs. McGlynn, 6 Abb. 241,) 
 and must himself sign his return. {Reno vs. Finder, 24 Barh. 
 423.) 
 
 Every Justice who issues any process, except a venire, in an 
 action, may, whenever he judges it expedient, on the request of a 
 party, by written authority endorsed on such process, empower 
 any proper person, being of full age, and not a party in interest 
 in the suit to execute the same. The person so empowered 
 possesses all the authority of a constable in relation to the exe- 
 cution of such process, and is subject to the same obligations, 
 but cannot receive any fee or reward for his services thereon. 
 {Code, § 3156.) 
 
 A constable may legally serve a summons in his own favor. 
 (2 Cow. 436 ; Pulmam vs. Mam., 3 Wend. 202.) But not on 
 corporations, {Code, §§ 64, 425.) 
 
 If an officer execute process in an unreasonable and oppress- 
 ive manner with a malicious design to vex and oppress a de- 
 
190 NEW YOEK JUSTICE. 
 
 fendant, be is liable to an action. {^Rogers vs. Brewster, 5 Johns. 
 125.) And if a person be brought into this State on criminal 
 process used as a mere pretext, and then arrested in a civil ac- 
 tion, the arrest is void. {Williams vs. Bacon, 10 Wend. 636.) 
 
 No writ, process, or other proceeding of any Court of Justice, 
 in a civil action, can be served or executed on Sunday; such 
 service is void, and the party offending is subject to damages, 
 at the suit of any person aggrieved. (JP. C, % 268 ; 3 Johns., 
 257 ; Sayles vs. Smith, 12 Wend., 59.) And if a person be 
 detained on Sunday, against his will, or on criminal process 
 used as a mere pretext, in order to be served with civil process 
 on Monday, the service will be void. {Williams vs. Bacon, 10 
 id. 636.) But if a defendant escape from an officer, without 
 his assent, he may be retaken on civil process on Sunday; 
 (7 Johns. 155;) though an original sei-vice of such process on 
 that day is void. [JVicolls vs. Ingersoll, 7 Johns. 155.) 
 
 Any person who knowingly and maliciously causes or pro- 
 cures any process issued from a Justice's Court, in a civil suit, 
 to be served on Saturday, upon any person whose religious faith 
 and practice is to keep that day as a day set apart by divine 
 command as the Sabbath of rest from labor, and dedicated to 
 the worship of God, or serves upon any such person any such 
 process which is made returnable on said day, or procures any 
 suit, pending in such Court against any such person, to be ad- 
 iourned to be tried on said day, is guilty of a misdemeanor, and 
 on conviction thereof, is subject to a fine not exceeding five 
 hundred dollars, or imprisonment not exceeding one year, or 
 both. {Penal Code, § 271.) The process in such case would be 
 void ; for, when a statute inflicts a penalty for doing an act, such 
 act is unlawful, though it be not in terms prohibited or declared 
 to be illegal. {Griffith vs. Wells, 3 Den., 226.) 
 
 Whenever an election or town meeting is held in any city or 
 town, no civil process, or proceeding in the nature of a civil 
 process, can be sensed on any elector entitled to vote in such 
 city or town, on the day of such election or town meeting. 
 {Laws of 1842, chap. 130, title 1, §4; 1 ^. S. 342, § 10.) Ser- 
 vice made on such day, on an elector, is void. {Meeks vs. JSTox- 
 on, 1 Abb. 280.) 
 
 A Justice may amend clerical mistakes, by filling up blanks 
 in process issued by himself, after its return; (14 Wend. 230 
 
SUBSTITUTED LIENS. 191 
 
 Fulton vs. Heaton, 1 Barb. 552;) as, by altering the date and 
 return of a summons after it has been served. (^Arnold vs. 
 Maltbi/, 4 Den. 498.) 
 
 A constable is protected in the execution of process, if it ap- 
 pears regular on its face. If it shows on its face that the Court 
 has jurisdiction of the subject matter, and nothing appears on 
 it to apprise the officer that the Court has not jurisdiction also 
 of the person of the party to be affected by the process, he will 
 be protected in executing it, even though it is issued by a Court 
 which in fact has not jurisdiction in the case. (5 Wend. 170; 
 Van Etten vs. Hurst, 6 Hill, 311.) 
 
 Every officer serving process must, upon the request of the 
 party served, and without charging or receiving any com- 
 pensation therefor, deliver to such party a copy thereof. 
 (.Code, § 101.) 
 
 Every officer, to whom any process is delivered, must execute 
 the same according to the command thereof, and must make 
 due return of his proceedings thereon, which return must be 
 signed by him. For any violation of this provision, such officer 
 is liable to an action at the suit of any party aggrieved, tor the 
 damages sustained by him, in addition to any other fine, punish- 
 ment, or proceeding, which may be authorized by law. [Id., § 102.) 
 
 Whenever a public officer, authorized to execute any process 
 delivered to him, finds or has reason to apprehend, that resist- 
 ance will be made to the execution of such process, he is author- 
 ized to command every male inhabitant of his county, or as 
 many as he shall think proper, and with such arms as he shall 
 direct, and any military company or companies in said county, 
 armed and equipped, to assist him in overcoming such resist- 
 ance, and, if necessary, in seizing, arresting, and confining the 
 resisters, their aiders and abettors, to be dealt with according 
 to law. {Code, § 104.) Every person so commanded by an 
 officer to assist him in the execution of process, who refuses, 
 or, without lawful cause, neglects to obey such command, is 
 guilty of a misdemeanor, and subject to fine and imprisonment. 
 (Code, § 106.) 
 
 6. SUBSTTTUTED SkRVIOE. 
 
 An act passed June 30, 1853, since repealed, to facilitate the 
 eervice of process in certain cases, provided as follows : 
 
192 NEW YORK JUSTICE 
 
 Whenever it shall satisfactorily appear to any Court or any 
 Judge of the Supreme Court, or any county Judge, by the 
 return or affidavit ef any sheriff, deputy sheriff, or constable, 
 authorized to serve or execute any process or paper for the com- 
 mencement, or in the prosecution, of any action or proceeding, 
 that proper and diligent effort has been made to serve any such 
 process or paper on any defendant in any such action, residing 
 in this State, and that such defendant cannot be found, or, if 
 found, avoids or evades such service, so that the same cannot be 
 made personally, by such proper diligence and effort, such 
 Court or Judge may, by order, direct the service of any sum- 
 mons, subpoena, notice, or other process or paper, to be made 
 by leaving a copy thereof at the residence of the person to be 
 sei-ved, with some person of proper age, if admittance can be 
 obtained, and such proper person found, who will receive the 
 same, and if admittance cannot be obtained, or any such proper 
 person found, who will receive the same, by affixing the same 
 to the outer or other door of said residence, and by putting 
 another copy thereof, properly folded or enveloped, and directed 
 to the person to be served, at his place of residence, into the 
 post-office in the town or city where such defendant resides, and 
 paying the postage thereon. On filing with the clerk of the 
 county where such defendant resides, or the county in which 
 the complaint in any such action is by law to be filed, an affida- 
 vit showing service according to such order, such summons, 
 subpoena, order, notice, or other process or paper, shall be 
 deemed served, and the same proceedings may be taken there- 
 on as if the same had been served by delivery to such defendant 
 personally or otherwise as by law now required; but the Court 
 may, upon any application by them deemed reasonable, at any 
 time permit any defendant to appear and defend, or have such 
 other relief in any action or proceeding founded on any such 
 service as the nature of the case may require. 
 
 6. Replevin. 
 
 The action of replevin at common law lay to recover goods 
 which had been tortiously taken by the defendant, together 
 with damages for their detention, and was confined to cases 
 where trespass would have been sustainable, on account of the 
 tortiousness of the original taking. {Gra. Prac. 84, 2d ed.) 
 
REPLEVIN. 193 
 
 In tlie Code this is called an action to recover a chattel, embracing 
 substantially every thing in the former action of replevin, modi- 
 fied only in form. {McGurdy vs. Brown, 1 Dvsr, 101, 105 ; 
 Baxter vs. Putney, 37 How. 140.) 
 
 The action lies wherever the plaintiff is entitled to the im- 
 mediate possession of the property, and when it has been 
 wrongfully taken, or is wrongfully detained from him. {Pang- 
 hum vs. Patndge, 7 Johns. 140.) It is not necessary that he 
 should be the owner, but only entitled to the possession, {Neff 
 vs. Thompson, 8 Barb. 213,) and that, too, if it is in his pos- 
 session by way of a lieu. {Baher vs. Hoag, 3 8eld. 555.) In 
 general, goods in the custody of the law cannot be replevied. 
 {Hall vs. Tuttle, 2 Wend. 475.) But it will lie where the pro- 
 perty is taken under process against a third party. {Judd vs. 
 Fox, 9 Cow. 259.) 
 
 If the original taking was lawful, the action must then be 
 for detaining the property. {Randall vs. Cook, 17 Wend. 63.) 
 And in such cases there must be a demand for the goods before 
 suit brought. It is advisable always to demand the goods be- 
 fore suit brought, but it is not always necessary where the 
 taking was tortious and unlawful. {Zachrisson vs. Ahman, 2 
 Sandf. 68.) 
 
 Formerly this action could not be brought in a Justice's 
 Court; but by amendments to the Code, in 1860, and 1876, 
 the jurisdiction of Justices' Courts was extended to an action 
 to recover the possession of personal property claimed, the 
 value of which, as stated in the affidavit of the plaintiff, his 
 agent or attorney, shall not exceed the sum of two hundred 
 dollars. {Dennis vs. Crittenden, 42 N. Y. 542.) 
 
 The plaintiff in such action, at the time of issuing the sum- 
 mons, but not afterwards, may claim the immediate delivery 
 of such property, as hereinafter provided. {Code § 2920.) 
 
 Before any process shall be issued in an action to recover 
 the possession of personal property, the plaintiff, his agent or 
 attorney, shall make proof by affidavit, showing, 
 
 1. That the plaintiff is the owner, or entitled to immediate 
 possession of the property claimed, particularly describing the 
 same. 
 
 2. That such property is wrongfully withheld or detained by 
 tlie defendant. 
 
 13 
 
194 KEW YORK JTJSTIOE, 
 
 3. Tlie cause of such detention or withholding thereof, accord, 
 ing to the best knowledge, information and belief of the person 
 making the affidavit. 
 
 4. That said personal property has not been taken for any tax, 
 fine, or asseesment pui-suant to statute, or seized by virtue of an 
 execution or attachment against the property of said plaintiff ; 
 or, if so seized, that it is exempt from such seizure by statute, or 
 the taking was unlawful. 
 
 5. That it has not been seized by virtue of an execution or 
 warrant of attachment, against the property of the plaintijBf, or 
 of any person from or through whom the plaintiff has derived 
 title since the seizure thereof. 
 
 6. The actual value of said personal property. 
 
 On receipt of such aflidavit, and an undertaking in writing, 
 executed by two or more suflBcient sureties, to be approved by 
 the Justice of the Peace before whom such action is com- 
 menced, to the effect that they are bound in double the value 
 of such property, as stated in said aflidavit 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 endorse upon said afiidavit 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 defendant, and keep the same to be disposed of accord- 
 ing 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 time and place to be therein specified, 
 and not more than twelve days from the date thereof, to answer 
 the complaint of said plaintiff. 
 
 The constable to whom said afiidavit, indorsement and sum- 
 mons 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 thereupon, without delay, 
 serve upon said defendant a copy of such affidavit, notice and 
 summons, by delivering the same to him personally, 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 
 
REPLEVIN. 195 
 
 usual place of abode of the defendant, with some person of 
 suitable age and discretion, and shall forthwith make a return 
 of his proceedings thereon, and the manner of serving the 
 same, to the justice who issued the said summons, {id. § 2923.) 
 
 The defendant may at any time after such service, and at 
 least two days before the return day of said summons, serve 
 upon the plaintilf, or upon the constable who made such ser- 
 vice, a notice in writing that he excepts to the sureties in said 
 bond or undertaking; and if he fail to do so, all objection 
 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 render judgment for defendant's costs and dis- 
 bursements, [id. § 2924.) 
 
 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 the same with the Justice, an affidavit and 
 undertaking, with one or more sureties, who shall justify before said 
 Justice on the return day of said summons, 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 of said 
 summons, the property shall be delivered to said plaintiff. 
 
 The qualifications of bail must be as follows: 
 
 1. Each of them must be a resident, and householder or free- 
 holder, within the State. 
 
 2. They must each be worth double the amount specified in 
 the affidavit of the plaintiff, exclusive of property exempt from 
 execution, but the Justice of the Peace, on justification may 
 allow more than two bail to justify severally in amounts less than 
 double that expressed in the affidavit, if the whole justification 
 be equivalent to that of two sufficient bail. (Oode, § 579.) 
 
 For the purpose of justification, each of the bail shall attend 
 before the Justice of the Peace at the time and place mentioned 
 in the notice, and may be examined on oath touching his suffi- 
 ciency in such manner as the Justice of the Peace in his die- 
 
196 NEW YORK JUSTICE. 
 
 cretion may think proper. The examination shall be reduced to 
 ■writing, and subscribed by the bail, if required by the objecting 
 Iparty. (id. § 580.) 
 
 If the property or any part thereof be concealed in a build- 
 ing or inclosure, the constable shall publicly demand ittr 
 delivery, K it be not delivered, he shall cause the building or 
 inclosure to be broken open, and take the property into hit 
 possession, and, if necessary, he may call to his aid the powei 
 of the county. (§ 1701.) When the constable 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. (§ 1702.) 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 thereof, stating the grounds of such right 
 and title, and serve the same upon the constable, the constable 
 shall not be bound to keep the property, or deliver it to the 
 plaintiff, unless the plaintiff, on demand of him or his agent, 
 shall indemnify the constable against such claim, by an under- 
 taking executed by two sufficient sureties, accompanied by their 
 affidavits, that they are each worth double the value of the pro- 
 perty as specified in 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 constable unless made as aforesaid, and not- 
 withstanding such claim, when so made, he may retain the pro- 
 perty a reasonable time to demand such indemnity. (§ 1709.) 
 
 The actions so commenced shall be tried in all respects as 
 other actions are tried in justices' courts. The judgment for the 
 plaintiff may be for the possession, or for the recovery of the 
 possession, or the value thereof, in case a delivery cannot be had, 
 and of (Jamages for the detention. If the property have been 
 delivered to the plaintiff, and the defendant claim a return there 
 of, judgment for the defendant may be for a return of the pro- 
 perty, or the value thereof in case a return cannot be had, and 
 damages for taking and withholding the same. An execution 
 shall be issued thereon, and if the judgment be for the delivery 
 of the possession of personal property, it shall require the officer 
 to deliver the possession of the same, particularly describing it. 
 
KEPLEVIN. 197 
 
 to the party entitled thereto, and may at the same time require 
 the officer to satisfy any costs or damages recovered by the same 
 judgment out of the personal property of the party against 
 whom it was rendered, to be specified therein, if a delivery 
 thereof cannot be had. The execution shall be returnable within 
 sixty days after its receipt by the officer, to the justice who 
 issued the same. 
 
 In all actions for the recovery of the possession of personal 
 property, as herein provided, if the property shall 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 taking or detention thereof, and the justice shall render 
 judgment accordingly, with costs and disbursements. 
 
 If it shall appear by the return of the constable that he had 
 taken the property described in the plaintiff's affidavit, and that 
 defendant cannot be found, and 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 proceed with the 
 cause in the same manner as though there had been a personal 
 service, (id., § 2932.) 
 
 For the indorsement on said affidavit, the Justice shall receive 
 an additional fee of twenty-five cents, which shall be included in 
 the costs of the suit, {id., § 3322.) 
 
 The iollowing forms may be used under this act : 
 
 § 12. S^immons. 
 
 '. County, 
 
 Town of 
 
 To any Constable of said County : 
 
 The People of the State of New York command you to 
 
 summon 
 
 to appear before the undersigned, at 
 
 in said town, on the day of 18 . . , at 
 
 o'clock in the noon, to answer 
 
 in a civil action 
 
 Dated at the town aforesaid, this day of 18 . . 
 
 Justice of the Peace. 
 
198 NEW YORK JUSTICE. 
 
 The summons must be returnable not more than twelve days 
 from the date thereof. And the shortest time in which it may be 
 returnable is six days. And the summons must be served at 
 least six days before the return day. In actions for replevin, as 
 in all other cases except where an order of arrest is obtained, the 
 summons is returnable in not less than six nor more than twelve 
 days from its date, and it should be served at least six days before 
 the time of appearance mentioned therein. 
 
 § 13. Affidavit. 
 
 State of New York, ? 
 County of , \ 
 
 of being duly sworn, says that 
 
 said plaintiff is lawfully entitled to the possession 
 of the following articles of personal property, viz.: \here de- 
 scribe, the property particularly.^ That the actual value of said 
 property, according to this deponent's best judgment and belief, 
 is [here state the value of the property, which must not exceed one 
 hundred dollars.^ That said property is wrongfully detained 
 from the said plaintiff by , defendant; that the alleged 
 
 cause of such detention, according to the best of this deponent's 
 knowledge, information, and belief, is [here state the facts and 
 circumstances fully, out of which the alleged cause of detention 
 arose\. That the said property has not, nor has any part thereof, 
 been taken for a tax, assessment, or fine, pursuant to a statute, 
 or seized under au execution or attachment against the property 
 of said plaintiff, [or if so seized, show that it is exempt from such 
 seizure by statute^ and that the said plaintiff is the owner and 
 entitled to the iDossession of the said property. 
 
 Sworn to before me, this ) A. B. 
 
 day of , 18 . 5 
 
 , Justice of the Peace. 
 
 § 14. Requisition to Constable. 
 {To be indorsed upon the Affida/oit.) 
 
 To any Constable of the County of : 
 
 You are hereby required to take the personal property, in 
 the within affidavit mentioned, from the said , defend- 
 
 ant, and keep the same to be disposed of according to law. 
 
 Dated, the day of , 186 . 
 
 , Justice of the Peace. 
 
 § 15. UndertaJiiyig. 
 
 Whereas, , plaintiff, alleges that , defendant, 
 
 has in his possession and wrongfully detains, certain personal 
 
REPLEVIN. 199 
 
 property belonging to the said plaintiff of the estimated value 
 of doUai'S, and that the said plaintiff is about to commence 
 
 an action to recover the possession of said property, and Where- 
 as the said plaintiff claims immediate delivery of the said prop- 
 ertj- parsuant to statute, 
 
 Now, THEKEFOEE, We, and of , 
 
 do herebj'^ jointly and severally undertake and bind ourselves in 
 the sum of [double the value of such properit/ as stated in said 
 affidavit] for the prosecution of the said action, and for a return 
 to the said defendant of the said property, if a return thereof 
 shall be adjudged, and for the payment to the said defendant 
 of any such sum as may, for any cause, be recovered in said 
 action against said plaintiff. 
 
 Dated, the day ) A. B. 
 
 of , 18 . 5 C. D. 
 
 § 16. Justification of Bail. 
 State of New York, ) 
 County of ,\ ' 
 
 and of , being duly sworn 
 
 say, and each for himself severally says, that he is a resident 
 and householder [or freeholder] of the said county, and is worth, 
 in property not exempt from execution, the sum of dollars, 
 over and above all debts, demands, and liabilities, of whatever 
 sort, which he owes or has incurred. A. B. 
 
 Sworn to, &c. C. D. 
 
 § 17. Approval. 
 
 I hereby approve the above undertaking and the sufficiency 
 of the sureties therein. A. B. 
 
 Justice of the Peace. 
 
 § 18. Return of Constable. 
 County, ss: 
 
 I hereby certify that on the day of 186 , at the 
 
 town of , in said county, I seized and took into my pos- 
 
 session the personal property mentioned in the within affidavit, 
 and hold the same to be disposed of according to law: and I 
 further certify that on the day of 186 , at the town 
 
 of , in said county, I served the within Summons, 
 
 Notice, and Affidavit, on , the defendant therein named, by 
 delivering to and leaving with (*) him, personally, copies thereof. 
 
 Fees, $ , Constable. 
 
 If the defendant cannot be found in the county, use the same 
 form to the (*) and then add, "A. B., the agent of the defend- 
 ant, in whose possession said property was found, copies thereof. "^ 
 
200 NEW YOUK JUSTICE. 
 
 If neither can be found, then substitute for the last form as 
 follows : " A. B., a person of suitable age and discretion, at the 
 last or usual place of abode of the defendant, copies thereof, 
 at the same time informing him of their contents," or if copies 
 serred by mail, specify how served. 
 
 § 19. lietv/rn of Constahle. 
 [Use the first form above as to the seizure, and then add] 
 And I further certify that said defendant cannot be found and 
 has no last place of abode in this county, and no agent of de- 
 fendant can be found on whom service can be made. 
 
 \ 20. Notice of Exception to Sureties. 
 To , Plaintiff, or, (To , Constable.) 
 
 Take, Notice, I do hereby except to the [form and] sufficiency 
 of the security in an action heretofore commenced m Justice's 
 Court, before , Justice of the Peace of the town of 
 
 , in which is plaintiff, and myself defendant, 
 
 and which is returnable before said Justice on the day of 
 186 . Yours &c., 
 
 Dated, &c. , Defendant. 
 
 The above notice must be served at least two days before the 
 return day of the summons, and the sureties in said undertaking, 
 or new sureties at the option of plaintiff, must appear before 
 the justice on the return day, and be examined under oath as to 
 their qualifications. If the defendant shall except to the plain- 
 tiff's sureties, he cannot claim a return of the property to him. 
 
 ^21. Undertaking requiring Return of Property. 
 
 Wheeeas, , defendant, is about to require the return 
 
 to him of the personal property taken by , constable, in 
 
 an action in Justice's court, before , Justice of the 
 
 Peace, of county, in which is plaintiff, and the 
 
 said defendant, to wit, \here describe the property,] 
 
 NOW, THEREFOKB, WE, and of do hereby 
 
 jointly and severally undertake and bind ourselves in the sum 
 of [double the value of the property as stated in plaintif's affi- 
 davit,] 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. A. B. 
 
 Dated, &c. C. D. 
 
 If the defendant shall claim a return of the property, the 
 above undertaking must be served on the plaintiff before the 
 
EEPLEVIN. 201 
 
 return day, and a duplicate should also be filed with the justice. 
 The sureties should appear before the justice on the return day, 
 and be examined on oath touching their qualifications, and if 
 approved, the property may immediately be returned to the 
 defendant. 
 
 § 22. Affidavit of Claim by Third Person. 
 State of New York, 
 
 County of J ^®- 
 
 , being duly sworn, says that he is the sole owner 
 of certain goods, wares, and merchandise, to wit, [describe the 
 goods,^ taken by , constable of said county. That he 
 
 purchased the same from one , of on the day 
 
 of , 186 , and has not in any way sold or disposed of the 
 
 same. A. B. 
 
 Sworn to, &c. 
 
 \ 23. Undertaking to Constable on Olaim of Third Persons. 
 [Title of Cause.] 
 
 One having claimed to be the owner, and to have the 
 
 possession of the personal property, to wit, \here desctibe the 
 p-opprty^ taken by , constable of the county of 
 
 Now, ^VE and , of ', do hereby jointly 
 
 and severally agree and undertake to indemnify the said con- 
 stable against the claim of the said A. B. 
 
 Dated, &c. C. D. 
 
 § 24. Affidavit of Sureties. 
 For Form see § 16. But the sureties must be freeholders 
 and householders of the county. 
 
 § 25. Entry in Justice^s Docket. 
 In Justice^s Court. '\ January 1st, 1861. The aflidavit of 
 John Doe 1 plaintifi" and undertaking with sufficient 
 
 agt. ' surety being presented to me, (see same on 
 
 Richard Roe. J file,) I issued a summons against the de- 
 fendant returnable the lOth inst., at nine o'clock, a. m., at my 
 office, in the town of , to answer the complaint of the 
 
 plaintiff, .and that if said defendant failed to appear, plaintiff 
 would take judgment against him for the possession of the pro- 
 perty described in said affidavit, to wit, [here describe the pro- 
 perty,] and also indorsed on said affidavit a notice to any 
 constable of said county to take the property in said affidavit 
 mentioned. 
 
 January Uh. Summons, affidavit, and notice returned duly 
 
202 NEW YORK JUSTICE. 
 
 and personally soi'ved the 3d inst., by , constable, by de- 
 
 livering to and leaving with defendant personally copies thereof, 
 [or as the fact may be,] and at the same time taking into his 
 possession the said property. Fees, $1.00. (See return of 
 constable on file.) 
 
 January 10th. Cause called, parties appeared in person and 
 joined issue in writing. Plaintiff complained on the facts stated 
 in his affidavit. Defendant denied the complaint and pleaded, 
 [as the case may he.\ (See pleadings on file.) Cause adjourned 
 by consent to January 25</^, at nine a. m., at my office, at which 
 time parties appeared and tried the suit. [If jury trial insert 
 according to the facts.] A. B., C. D., and E. F. were sworn as 
 witnesses for the plaintiff, and G. H., &c., for the defendant. 
 The cause being submitted to me, I determined that said pro- 
 perty belonged to the plaintiff, and adjudged the possession 
 thereof to him, and rendered judgment against the defendant, 
 Jan. 25th, 1861, for Costs, $5.00. 
 
 CHAPTER VIII. 
 
 OF THE APPEARANCE OF PARTIES. 
 
 Every defendant in an action before a Justice, except infants, 
 and persons declared incompetent, may appear and defend the 
 same in person or by attorney, {Code, § 2886.) It is irregular 
 for an infant defendant to appear by attorney ; {Mockey vs. Gray, 
 2 Johns. 192;) he must appear by guardian. {Alderman vs. 
 Tirrell, 8 Johns. 418.) 
 
 After the service and return of process against an infant defend- 
 ant, the suit cannot be any further prosecuted, until a guardian for 
 the purpose of the action for such defendant be appointed. Such 
 guardian must be appointed by the Justice before whom the action 
 is prosecuted. {Code, § 2888.) The guardian for an infant defend- 
 ant must be appointed upon the application of the infant ; if he 
 neglect so to apply, then, upon the application of the plaintiff 
 in the action and without 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 without notice 
 to the infant himself, if over fourteen years of age, and within the 
 
GUARDIAN FOR INFANT DEFENDANT. 203 
 
 State ; or, if under that age, and within the State, without notice 
 to the person with whom such infant resides. Such applica- 
 tion may be verbal or in writing. The person appointed must 
 be a suitable person, having no possible interest in the contro- 
 versy adverse to that of the infant, and must consent in writing 
 to be such guardian, which consent must be filed with the Justice. 
 The guardian for the defendant is not liable for any costs in the 
 action. (Code, % 2888.) 
 
 It was formerly provided by the Revised Statutes, that on 
 the request of an infant defendant, the Justice should appoint 
 some person who would consent thereto in writing, to be the 
 guardian of the defendant in the defence of the suit ; and that, 
 if the defendant should not appear on the return day of the 
 process, or should neglect or refuse to nominate such guardian, 
 the Justice might, on the motion of the plaintiff appoint any 
 discreet person as such guardian. (2 R. 8. 232, § 42.) Under 
 these provisions, unless the infant defendant appeared on the 
 return day of the process, the plaintiff could procure from the 
 Justice an appointment of a guardian for the infant on the same 
 day the process was returned served, and the action could im- 
 mediately progress. Afterward, as the provisions of the Code 
 in regard to appointing guardians were made applicable to 
 Justices' Courts, {Code, §§ 8, 64,) an infant defendant of the age 
 of fourteen years had twenty days after the service of the sum- 
 mons in which to apply for the appointment of a guardian ; and, 
 as the guardian must be appointed on his application, if he ap- 
 plied within that time, and the provision forbidding the further 
 prosecution of the suit, after the service and return of process 
 against an infant defendant, until a guardian for him was ap- 
 pointed ; the effect of the change first introduced by the Code 
 was that a plaintiff could not procure from the Justice an 
 appointment of a guardian for an infant defendant of the age 
 of fourteen years, until after the expiration of twenty days 
 from the service of the summons, and then only on giving the 
 notice required by the Code, until which time no further pro- 
 ceeding could be had in the suit. The notice had to be served on 
 the infant, if over fourteen years of age and within the State ; 
 if under that age and within the State, on the person with 
 whom such infant resided ; but if he had a general or testa- 
 mentary guai;dian, the notice had to be served on the guard- 
 
204 NEW TOEK JUSTICE. 
 
 ian. But if the infant defendant was under the age of fourteen 
 years, the plaintifE might proceed to procure an appointment of 
 a guardian from the Justice immediately on the return of pro- 
 cess served, subject to the provision as to notice. (51 Ba/rb. 222, 
 
 Now the guardian may be appointed on return of process. 
 
 § 26. Consent to he Guardicm for Infcmt Defendcmt. 
 
 In Justice's Court, 
 
 Andrew Shuman, \ 
 
 against > Before Horace T. Cook, Justice. 
 
 Chilion Beach. ) 
 
 Cayuga County, ss : At the request of the defendant, who is 
 under twenty-one years of age, I hereby consent to act aa his 
 guardian, to defend this suit. 
 
 James Kedd. 
 
 The Justice or county judge should endorse the appointment 
 of the guardian upon the consent before it is filed, as follows : 
 The said James Kidd is accordingly appointed guardian. 
 
 HoEACE T. Cook, 
 
 Justice of the Peace. 
 
 A corporation must appear by an attorney, and his appoint- 
 ment need not be under seal. Idiets and lunatics must sue and 
 be sued in their own names, but the Court will permit some pro- 
 per person to assist in managing the prosecution or defence. A 
 lunatic must appear by guardian if he be under age, and by at- 
 torney if he be of full age, and the Court will appoint a guardian 
 or attorney, on motion. (1 Cow. Treatise, 300 ; Keyes vs. Beards- 
 ley, 18 Johns. 134.) 
 
 A party authorized to appear in a Justice's Court by attorney 
 may appoint any person to act as such attorney ; but the con- 
 stable who served either the summons or venire in the action, 
 or the law partner or clerk of the Justice before whom the 
 action is brought, cannot appear and advocate for either party to 
 an action before a justice of the peace. {Code, § 2889 ; Kittle vs. 
 Baker, 9 Johns. 354:.) But when the suit is commenced by sum- 
 mons and order of arrest the defendant must appear jn person, and 
 
GUA.RDIAN FOR INFANT DiSFENDANT. 205 
 
 no proceedings can be had against him till he does so appear. 
 Attorney may appear on attachment. (62 Ba/rb. 158.) 
 
 If a constable, acting as attorney, merely proves the note de 
 3lared on, it is a violation of the statute, although at the time 
 there was no appearance by the defendant, or by any one iii his 
 behalf. {Ford vs. Smith, 11 Wend. 73.) 
 
 The authority to appear by attorney may be either written or 
 verbal, and must, in all cases, be proved, either by the attorney 
 himself, or by other competent testimony, unless admitted by 
 the opposite party; and the Justice must not permit any person 
 to appear for another without such proof or admission. {Code, 
 seetioii 2890; 1 Cow. 113, 256; 2 id. 421; AckermanYS. Finch, 
 15 Wend. 652.) But evidence of the attorney's authority must 
 he demanded, if at all, at the time of appearance. {Treadwell 
 vs. Bruder, Z E. D. Smith's 596.) Any written authority to 
 appear by attorney in a Justice's Court may be acknowledged 
 before any County Judge, Justice of the Peace, or Commissioner 
 of Deeds, and such authority, purpoi-ting to have been so 
 acknowledged, is made ^rima facie evidence of such authority 
 in any Justices' Court in the State. A verbal authority to 
 appear in a cause is not sufficient to enable the attorney to 
 release the interest of a witness. {Murray vs. House, 11 
 Johns., 464.) A Justice cannot act upon information which 
 he has received out of court in relation to the appointment 
 of an attorney, even though the information come from 
 the party for whom the attorney appears. (2 Cow., 429 ; 
 Fanning vs. Trowhridge, 5 Hill, 428.) And it is lately 
 enacted that no clerk or deputy clerk of any court in this 
 State shall be permitted to practice as attorney or counsel in 
 any court of which he shall be such clerk or deputy clerk. 
 {Code, % 61.) 
 
 Upon the return of a summons personally served, or on the 
 return of an attachment duly served, the Justice must wait one 
 hour after the time specified for the return of such process, 
 unless the parties sooner appear. {Code, § 2893 ; 38 How., 417.) 
 If the plaintifE fail to appear within such liour, or within one hour 
 after any time to which the action may have been adjourned, 
 judgment of non-suit, with costs, must be rendered against him. 
 {Id., § 3013.) A non-appearance for the plaintifE is a discon- 
 
206 NEW YOKK JUSTICE. 
 
 tinuaiice of the cause, and, if the Justice proceed, it is error. (9 
 Johns. 140; Green vs. Angel, 13 id. 469.) 
 
 As a general rule, a Justice should wait one hour for the ap- 
 pearance of parties, and no longer, unless a reasonable excuse is 
 shown for farther indulgence. Many cii'cumstances may exist, 
 rendering it necessary for the Justice to delay calling the cause 
 until after the expiration of the hour, such as his being engaged 
 in other official duties, and the like. (20 id. 309; Allen vs. 
 Stone, 9 Barb. 60.) If no reasonable excuse exists or appears, 
 the cause should be called within the time designated by the 
 statute, and a refusal to call it would be error. {Barher vs. 
 ParJcer, 11 Wend. 51.) The statute is not, however, peremptory; 
 for if the Justice is engaged in trying another cause which oc- 
 cupies him until after the hour expires, that is a goo4 reason for 
 the delay, and no rights are lost to either party. The Justice 
 should then proceed, as soon as possible, after his other official 
 engagements are disposed of. {Hunt vs. WicJcwire, 10 id. 102.) 
 
 Where a defendant wilfully abandons his defence, when he 
 knows the cause is about to be called, on the ground of the 
 omission of the plaintiff to appear until between one and two 
 minutes after the hour expires, the Justice is right in proceeding 
 with the cause. (11 id. 51; supra.) But where the Justice re- 
 quired the defendant to wait five minutes after the hour elapsed, 
 which he refused to do, and the plaintiff appeared within the 
 five minutes, but after the defendant had left, and the Justice 
 proceeded with the cause, it was held to be erroneous. {Wil- 
 cox vs. Clement, 4 Den. 160.) If, however, the plaintiff had ap- 
 peared before the defendant left, or if he had been in sight and 
 approaching, and the Justice had told the defendant that he was 
 about to call the cause, the defendant would then have gone 
 away at his peril, (id^ 
 
 The question as to what are the rights of a defendant who 
 omits to appear when he ought to, has been the subject of many 
 decisions. But it was thoroughly examined by Mr. Justice Nel- 
 son, in the case of Picket vs. Dexter, 12 Wend. 150, who re- 
 viewed the former decisions. The rule there established is, that 
 it is proper to permit a defendant to plead, if he appears on the 
 return day of a summons, before the cause is adjourned, or even 
 after adjournment, if the plaintiff is still present in court; that 
 if the plaintiff proceeds to a hearing of his cause on the return 
 
PROCEEDINGS ON RETUKN OF WARRANT. 207 
 
 day of the summons, the same privilege ought to be granted to 
 the defendant, if he appears before the plaintiff has closed his 
 case; that where issue has been joined, and the cause adjourned 
 for trial to a particular day, the defendant ought to be permitted 
 to enter upon his defence, if he appears by the time the plaintiff 
 has closed his proofs; but that, if the defendant does not appeal 
 on the return of the summons, and join issue, and the cause is 
 adjourned for trial to a future day, he is not entitled, on the 
 adjourned day, to jjlead and enter upon his defence. 
 
 After waiting one hour, if the plaintiff appears, but the de- 
 fendant does not, the Justice may proceed to hear the cause on 
 the part of the plaintiff, but the plaintiff cannot recover without 
 proving his demand in the same manner as if the defendant had 
 appeared and denied it. {Code, % 298S ; Smith ys. Falconer, 1 
 Code Reporter, 120, 123 ; 10 Johns., 106.) 
 
 The failure of the Justice to appear on the return or adjourned 
 day, operates as a discontinuance of the suit, (Lynshy vs. Pew- 
 dergrast, 2 E. D. Smith, 43,) but the parties may confer juris- 
 diction by consent, and proceed to trial then or on an adjourned 
 day. {Stoddard vs. Holmes, 1 Qow. 245.) 
 
 "Where an order of arrest has been served on a defendant and 
 returned, no further proceedings can be had against him until 
 he has personally appeared in court. When he has been brought 
 before the Justice, he must be detained in the custody of the 
 constable, until the Justice shall direct his release ; but he can in 
 no case be detained longer than twelve hours from the time he 
 is brought before the Justice, unless within that time the trial of 
 the cause is commenced, or unless it is delayed at the instance 
 of the defendant. {Code, % 2200.) The constable has, however, a 
 right to detain the defendant, while making a iona fide effort to 
 find a magistrate to hear the cause. {Arnold vs. Sleeves, 10 
 Wend. 514.) 
 If, on the return of a warrant, the Justice be absent, or unable 
 to hear or try the cause, or it be made to appear to the Justice, 
 by the affidavit of the defendant, that the Justice is a material 
 witness in the cause, the constable must take the defendant be- 
 fore the next Justice of the city or town, who must proceed in 
 the cause, as if the warrant had been issued by him. ( Code, § 
 2S98.) 
 
208 NEW YOKK JUSTICE. 
 
 A Justice cannot be a witness in an action tried before him- 
 self ; {Perry vs. Weyman, 1 Johns. 520;) nor can he act upon 
 facts within his own knowledge, as evidence in the action. 
 (3 Den. 12; Wheeler vs. Webster, 1 E. JD. Smith. 1.) 
 
 If, therefore, the defendant desires to avail himself of the 
 testimony of the Justice, he must, previous to joining issue in 
 any action, make affidavit that the Justice before whom the 
 action is pending, is a material witness for him, without whose 
 testimony he cannot safely proceed to trial, and must set forth 
 therein the particular facts and circumstances which he expects 
 to prove by the Justice. It is then the duty of the Justice to 
 enter forthwith a written order directing the action or special 
 proceeding to be continued before another Justice of the same 
 town or city named in the order. Such Justice must take cog- 
 nizance of the proceedings and continue them as if they had 
 been commenced before him. {Code, §§ 3151, 3152.) 
 
 Formerly, a judgment of discontinuance might be obtained on 
 an affidavit stating merely that the Justice was a material witness 
 for the defendant, without whose testimony he could not safely 
 proceed to trial; and in such case, the Justice was bound to 
 enter judgment of discontinuance. But now, in addition to this, 
 the statute provides, that the defendant must set forth the par- 
 ticular facts and circumstances which he acpects to prove by the 
 Jiistice; and even then, the Justice has a discretionary power, 
 for he is bound to enter judgment of discontinuance only when 
 he is satisfied that he is a material witness for the defendant, and 
 that, without his testimony, the defendant cannot safely proceed 
 to trial. He has the right to judge of the sufficiency of the 
 affidavit, and must be satisfied, acting judicially, that the ends 
 of justice require a discontinuance of the action. {Young vs. 
 Scott, 3 Hill, 32.) 
 
 When the affidavit is sufficient, the Justice cannot refuse the 
 discontinuance on the ground that he does not recollect the 
 facts which the defendant expects to prove by him. {Hopkins 
 vs. Qahray, 24 Wend. 264.) 
 
 The defendant must state enough to show that the Justice is 
 a necessary, as well as a material witness. (3 Hill, 32, supra.) 
 If, therefore, the facts which the defendant expects to prove by 
 the Justice can be as well and as conveniently established by 
 
PLEADING GENERALLY. 209 
 
 other witnesses, the Justice may properly refuse a discon- 
 tinuance. 
 
 Where the defendant made affidavit that the Justice was a 
 material witness, and moved for a nonsuit, and the plaintiff 
 offered that the statement of the Justice might be received as 
 legal evidence, to which the defendant refused to accede, and 
 the Justice nonsuited the plaintiff, with costs, the judgment 
 was reversed. (Van Be Veer vs. Stanton, 1 Cow. 84.) 
 
 A Justice, before whom a cause is pending, is bound, on the 
 defendant's request, to swear him to an affidavit prepared for 
 the purpose of procuring the cause to be discontinued on the 
 ground of the Justice being a material witness for the defendant; 
 and his refusal to do so is a misdemeanor, whether the affidavit, 
 as drawn, is sufficient or not. [People vs. Brooks, 1 Ben. 457.) 
 
 The plaintiff should, if he finds the Justice is a material wit- 
 ness for him, discontinue his suit. 
 
 If the suit is commenced by warrant, and on the return 
 thereof, it be made to appear to the Justice, by the affidavit of 
 the defendant, that the Justice is a material witness in the action 
 the constable must take the defendant before the next Justice 
 of the city or town, who is required to take cognizance of the 
 cause, and proceed thereon as if the warrant had been issued 
 by him. (CWe,§ 3152.) 
 
 CHAPTER IX. 
 
 OF PLEADINGS. 
 
 At the time of the first appearance of the parties before the 
 Justice, either upon the return of process, or their voluntary 
 appearance to join issue, the pleadings of the parties must be 
 made, and the issue joined; and when both parties have ap- 
 peared on the return of process, an issue must be joined before 
 any adjournment can be had, except when the defendant refuses 
 or neglects to plead. (Code, § 2934.) 
 
 The Court may at the joining of issue, require either party, 
 at the request of the other, at that or some other specified time, 
 14 
 
210 NEW YORK JUSTICE. 
 
 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. {Code, § 2942.) 
 
 1. Pleading Generally. 
 
 The object of pleadings is to apprise the parties, in clear and 
 intelligible language, of the cause of the complaint, and the 
 ground upon which the defendant rests his defence; and it is 
 the purpose of the Code to avoid imnecessary technicality in 
 pleading, and to enable a person of common understanding to 
 conduct the trial of his own cause before a Justice. 
 
 The pleadings in a Justice's Court are a complaint, an answer, 
 and a demurrer, {id. § 2935.) The pleadings may be oral 
 
 or in writing; if oral, the substance of them must be entered 
 by the Justice in his docket; if in writing, they must be filed 
 by him, and a reference to them must be made in the docket. 
 They are not required to be in any particular form, but must be 
 such as to enable a person of common understanding to know 
 what is intended, {id. § 2940.) Under the provision of the Code 
 which requires the Justice to enter in his docket the substance 
 of oral pleadings, he need not enter every immaterial allegation 
 of the parties, but he must enter such material statements as are 
 necessary to constitute a cause of action or ground of defence. 
 
 In an action or defence founded upon an account, or an in- 
 strument for the payment of money only, it is sufficient for a 
 party to deliver the account or instrument to the Court, and to 
 state, that there is due to him thereon, from the adverse party, 
 a specified sum, which he claims to recover or set ofi". {Code, 
 § 2941.) 
 
 In an action by or against any corporation created by or un- 
 der any law of this State, it is not necessary to recite the act or 
 acts of incorporation, or the proceedings by which such corpo- 
 tion was created, or to set forth the substance thereof, but the 
 same may be pleaded by reciting the title of such act, and the 
 date of its passage. 
 
 The following provisions of the Code, though not in terms 
 made applicable to Justices' Courts, seem nevertheless, at least 
 
PLEADING GENERALLY. 211 
 
 some of them, to be applicable from reason and necessity, and 
 have, at least some of them, been so judicially construed: 
 
 In the construction of a pleading, for the purpose of deter- 
 mining its effect, its allegations are to be liberally construed, 
 with a view to substantial justice between the parties. {Code, 
 fj 518.) 
 
 If irrelevant or redundant matter l)e inserted in a pleading, 
 it cannot be stricken out, on motion of any person aggrieved 
 thereby; the remedy is by demurrer. (Mayor of JSF.Y. vs. Mason, 
 1 Abh. 344.) In a Justice's Court the plaintiff may state one 
 cause of action in several different counts or statements, and 
 may recover according to his proofs. {Wentworth vs. Buhler, 
 3 E. D. Smith, 305.) There is, however, no particular mode by 
 which counts or causes of action are to be separated or distin- 
 guished from each other in a complaint in a Justice's Court. 
 Any mode which apprises the defendant of what is intended is 
 sufficient. {Hall vs. McKechine, 22 Barb. 244.) 
 
 In pleading a judgment, or other determination of a court or 
 officer of special jurisdiction, it is not necessary to state the 
 facts conferring jurisdiction, but the, .judgment or determina- 
 tion may be stated to have been duly given or made. If that 
 allegation be controverted, the party pleading is bound to 
 establish on the trial, the facts conferring jurisdiction. {Code, 
 ^ 532.) Formerly, in pleading anywhere a judgment of a Jus- 
 tice's Court, and whether it was set up by the plaintiff or the 
 defendant, it was necessary to aver that the Court had jurisdic- 
 tion both of the subject matter, and of the persons of the par- 
 ties; and an averment of jurisdiction was not sufficient, without 
 stating the facts on which it depended. (9 Cow. 26; 12 Wend. 
 478; 7 Hill, 35; Turner vs. Roby, 3 Com. 193.) This rule is 
 of course changed, as to pleading in Courts of Eecord, by the 
 section of the Code just cited, but that section not being made 
 applicable to Justices' Courts, it remains to be decided whether 
 the change in the mode of pleading applies to those Courts. 
 {Ante,jp. 19.) 
 
 In pleading the performance of conditions precedent in a 
 contract, it is not necessary to state the facts showing such per- 
 formance; but it may be stated generally, that the party duly 
 performed all the conditions on his part; and if such allegation 
 
212 NEW YOKK JUSTICE. 
 
 be controverted, the party pleading is bound to establish on the 
 trial, the facts showing such performance. {Code, § 533.) 
 
 In pleading a private statute, or a right derived therefrom, it 
 is sufficient to refer to such statute by its title and the day of 
 its passage, and the Court must thereupon take judicial notice 
 thereof, (jd. § 530.) 
 
 2. Complaint. 
 
 The complaint must state, in a plain and direst manner, the 
 facts constituting the cause of action ; {id. § 2936 ;) that is, every 
 fact on which the right of action depends. {Ga/r'oey vs. Fowler, 
 4 Scmdf. 665.) If in writing, it should contain the title of the 
 action, the name of the Justice before whom the action is to be 
 tried, the names of the parties, a demand of the rehef sought, 
 and, if the action is for the recovery of money, the amount 
 claimed. Both time and place should be stated with reasonable 
 certainty in the complaint. 
 
 The plaintiff may unite in the same complaint two or more 
 causes of action, where they all arise out of, 
 
 1. the same transaction, or transactions connected with the same 
 subject of action ; 
 
 2. Contract, express or implied ; or 
 
 3. Personal injuries and injuries to property, or either. 
 
 But it must appear, upon the face of the complaint, that all 
 the causes of action so united belong to one of the foregoing 
 subdivisions of this section ; that they are consistent with each 
 other; that they require the same judgment; and, except as 
 otherwise prescribed by law, that they affect all the parties. 
 "Where a cause of action, for which a defendant might be arrested, 
 is united with a cause of action for which he cannot be arrested, 
 an execution against the person of the defendant cannot be issued 
 upon the judgment. {Code, § 2937.) 
 
 But the causes of action, so united must all belong to one 
 of these classes, and must affect all the parties to the action, 
 and not require different places of trial, and must be separately 
 stated. 
 
 It is necessary not only that the causes of action united should 
 all of them belong to some one of these classes, and should all 
 of them affect all the parties to the action, and not require dif- 
 
COMPLAINT. 213 
 
 ferent' places of trial, and be separately stated, but that they 
 should all arise out of the same transaction, or out of transac- 
 tions connected with the same subject of action. Two defend- 
 ants cannot be sued in the same action upon separate contracts 
 made by each. 
 
 If an action be brought to recover any money, goods or 
 other thing received by any person contrary to the provisions 
 of any statute, or for the conversion of any goods or other thing 
 received contrary to the provisions of any statute, the plaintiff 
 must set forth in his complaint that such money, goods, or other 
 things were received, or that such goods or other things were 
 converted, by the defendant, contrary to the provisions of such 
 statute, referring to the same and naming the subject matter 
 thereof in the following form: "according to the provisions 
 of the statute regulating the rate of interest on money," or, 
 " according to the provisions of the statute against betting and 
 gaming," as the case may require, or in some other general 
 terms referring to such statute. {Code, chap. 6, title II.) If 
 the complaint does not conform to the statute, an objection 
 made on that ground at the trial will be fatal to a recovery. 
 {Schro&pel vs. Coming^ 2 Corns. 132.) It is not necessary that 
 the complaint in a Justice's Court should correspond with the 
 summons in respect to the cause of action. The particular plea 
 need not be stated in the summons. [Ddancy vs. Nagle, 16 
 Barh. 96.) 
 
 [For forms of Complaints, see McCall's Clerk's Assistant, 
 pp. 333, 334, 335.] 
 
 3. Demurrer. 
 
 Either party may demur to a pleading of his adversary, or 
 any part thereof, when it is not suflSciently explicit to enable 
 him to understand it, or it contains no cause of action or defence, 
 although it be taken as true. {Code, section 2939.) The only 
 remedy in a Justice's Court where the complaint is not suflB- 
 ciently certain and explicit, is by demurrer. The Justice can- 
 not entertain a motion to strike out a complaint or answer, 
 either in whole or in part. (1 Abhoti's Pr. R. 344; HilUard 
 vs. Austin, 17 Barb. 141.) 
 
 At the time of appearing to join issue, after the plaintiiF has 
 
214 NEW YORK JUSTICE. 
 
 presented his complaint, the defendant, if he -wishes to demur 
 to it must do so before he answers it; and the plaintiff may 
 demur to the answer after it is made. Objections in the nature 
 of a demurrer must be raised by the pleadings, or they cannot 
 be taken advantage of on appeal. {Jackson vs. Wheedon, 
 3 Code Rep. 186.) 
 
 If the Court deems the objection taken by the demurrer to 
 be well founded, it must order the pleading to be amended, and 
 if the party refuses to amend, the defective pleading must be 
 disregarded. {Oode, section 2939.) The party whose pleading 
 has been held to be defective has an absolute right to amend; 
 and it is the imperative duty of the Justice to preserve that 
 right by the terms of the order. (13 Barb. 533; 17 id. 141; 
 supra.) Therefore, if the defendant demurs to the complaint, 
 and the Justice sustains the demurrer, and the plaintiff refuses 
 to amend, this will operate as a discontinuance of the action, 
 and judgment of nonsuit must be rendered against the plaintiff, 
 with costs. So, too, if, after demurrer, the defendant refuses to 
 amend his answer, the Justice must proceed with the cause as 
 though the defendant had not appeared. 
 
 If, on demurrer to a complaint, the Court thinks that the 
 objection taken by the demurrer, is not well-founded, and over- 
 rules the demurrer, it should generally allow the defendant to 
 withdraw the demurrer, and give him liberty to answer if he 
 wishes to do so. Still, that is a question resting in some man- 
 ner in the discretion of the Justice. If, however, that discre- 
 tion is abused, or is not exercised soundly, the Court above will 
 correct the error. {Sloan vs. Chase, 10 Wend. 370.) Joining 
 issue upon the merits after demurrer overruled in a Justice's 
 Court, waives the demurrer. {Harper vs. Leal, 10 How. 276.) 
 
 If, on demurrer to an answer, the Court overrules the demur- 
 rer, the answer will stand, and the parties must go to trial on 
 the issue thus joined. 
 
 We have seen that a party may demur to a part only of the 
 pleading of his adversary. In case of such a demurrer, there 
 will be an issue of law, and one also of fact. The issue of law 
 on the demurrer should be decided before the issue of fact. And 
 it is an inflexible rule in Courts of Justices of the Peace, that no 
 motion which is a substitute for a demurx-er can be entertained 
 
DEMUIIREE. 215 
 
 after the issue of fact has been entertained and the parties are 
 ready for trial. (17 Barb. 141; supra.) 
 
 § 27. Demurrer to Complaint. 
 In Justice's Court, 
 
 Charles Green \ -r, c tt r^ ^ t a- 
 
 . . JBeiore Henry laylor, Justice. 
 
 against > -r, j j > 
 
 T ^ , Demurrer. 
 
 James Avery. J 
 
 James Avery, defendant in this action, says, that the plaintiff's 
 complaint is insufficient in law to maintain his action, and assigns 
 the following reason — that it appears on the face of the com- 
 plaint, that the contract set forth is illegal and void, it being a 
 wager on the result of an election; \or, that the contract is one 
 to answer for the debt of a third person, and is not in writing, 
 and is therefore void; or, that the complaint is not sufficiently 
 explicit to enable the defendant to understand it, and he is un- 
 able to determine whether the complaint is for a trespass upon 
 the plaintiff's land or upon his personal property; or, that the 
 promissory note upon which the complaint is founded is not yet 
 due.] James Aveey. 
 
 § 28. Demurrer to Answer. 
 
 In Justice's Court, 
 
 Charles Green | ^^^^^^ ^ ^ j^ j^^^j^^_ 
 
 against Demurrer. 
 
 James Avery, j 
 Charles Green, plaintiff in this action, says, that the defend- 
 ant's answer is insufficient in law to maintain his defence, for the 
 following reason — that it appears from the answer that the de- 
 mand which the defendant claims to set off did not exist at the 
 time of the commencement of the action, and did not then be- 
 long to the defendant. Chaeles Geeen. 
 
 4. Offer to Allow Judgment. 
 
 By section 2892 of the Code of Procedure, passed April, 
 1880, it is provided that the defendant may, on the return of 
 process, and before answering, 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 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 Jus- 
 tice shall iile the offer and the acceptance thereof, and render 
 judgment accordingly. If notice of acceptance be not given, 
 
216 NEW YOKK JUSTICE. 
 
 and if the plaintiflf fail to obtain judgment for a greater amount, 
 exclusive of costs, than has been speciiSed in the offer, he shall 
 not recover costs, but shall pay to the defendant his costs accru- 
 ing subsequent to the offer. 
 
 § 29. Offer for Judgment. 
 
 In Justice's Court "l The defendant herein hereby offers to al- 
 
 John Doe 1 low judgment to be taken against him in 
 
 agt. j this action in favor of the above named 
 
 Eichard Eoe. | plaintiff for dollars and cents, 
 
 with costs. EICHAED EOE, 
 
 Dated, &c. Defendant. 
 
 \ 30. Acceptance of Offer. 
 [Title of Cause.] 
 
 The above-named plaintiff hereby accepts the offer of the de- 
 fendant herein to allow judgment to be taken against him in 
 favor of this plaintiff for dollars and cents, with costs. 
 
 Dated, &c. JOHN DOE, Plaintiff. 
 
 5. Answer. 
 
 Formerly, the most usual plea in a Justice's Court was that 
 of the general issue, with a notice of matter to be offered in evi- 
 dence under that plea. For instance, it was sufficient for the 
 defendant to say, " I plead the general issue, and give notice of 
 set-off." An answer cannot now be made in that form, for it 
 must contain a denial of the complaint, or of some part thereof, 
 and also notice, in a plain and direct manner, of any facts con- 
 stituting a defence, or counter-claim. {Code, § 2938.) 
 
 The answer should contain the title of the cause, the name of 
 the Justice before whom the action is to be tried, the names of 
 the parties, a denial of the complaint, or of some part thereof, 
 and a statement of the facts constituting the defence. 
 
 In an action to recover the possession of property 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 property dis- 
 trained was at the time doing damage thereon, is good, without 
 setting forth the title to such real property. {Id., § ITSi.) 
 
 In a Euit or proceeding by or against any corporation, a mis- 
 take in the naming of such corporation must be set up in the 
 answer. Otherwise, it will be deemed to have been waived. 
 {Code, § 1777.) 
 
ANSWER. 217 
 
 By section 488 of the Code the defendant in a Court of Eecord 
 may demur to the complaint, when it shall appear on the face 
 thereof, either: 1. That the court has no jurisdiction of the per- 
 son of the defendant, or the subject of the action; or, 2. That 
 the plaintiff has not legal capacity to sue; or, 3. That there is 
 another action pending between the same parties for the same 
 cause; or, 4. That there is a defect of parties, plaintiff, or de- 
 fendant; or, 5. That several causes of action have been improper- 
 ly united. In Justices' Courts, parties are allowed to demur to 
 a pleading, or some part thereof, only when it is not sufficiently 
 explicit to enable the party to understand it, or when it contains 
 no cause of action or defence, although it be taken as true. It 
 seems, therefore, that if either of the objections named in the 
 above five subdivisions exists in a complaint in a Justice's Court, 
 the defendant must take advantage of it by answer. 
 
 It is provided by statute that in suits against any public offi- 
 cer, [Ante, p. 146,) the omission to name any other officer in 
 the process or complaint may be set up in the answer, and, if 
 not so set up, such omission shall be deemed to have been waived, 
 and shall not be objected in any other stage of the proceedings. 
 {Code, § 1929.) 
 
 [For forms of Answers, see McCall's Clerk's Assistajjt, p, 
 336.] 
 
 No reply to an answer is required or permitted in a Justice's 
 Court, whether the answer sets up new matter or not. (4 Hoiv. 
 Pr. Rep. 4l4l; Jewett vs. Jewett, 6 id. 185.) Therefore, when 
 new matter is set up in an answer, it must be considered as 
 controverted by the plaintiff, and he must be allowed to give 
 evidence on the trial to deny or avoid it. {Hodges vs. Hunt, 
 22 Barb. 150.) Nor does the failure of the defendant to answer 
 the whole or even a part of the complaint in a Justice's Court, 
 authorize the Justice to take any part of the complaint to be 
 true without proof. Because the Code provides {section 2988 ) 
 that in case a defendant does not appear and answer, the plain- 
 tiff cannot recover without proving his case. Hence, if the 
 defendant appears, but fails to answer at all, the plaintiff must 
 still prove liis case. And if the defendant answers but a part 
 of the complaint, the rest cannot be taken as admitted, but 
 
218 NEW YORK JUSTICE. 
 
 must be proved. For, the 522nd section of the Code, which 
 provides that in Courts of Record every material allegation of 
 the complaint, not controverted by the answer, and every mate- 
 rial allegation of new matter in the answer, not controverted 
 by the reply, shall, for the purposes of the action, be taken as 
 true, is not applicable to Justices' Courts. (6 How. Prac. Rep. 
 185, supra.) The former decisions to the contrary (2 OodeRep. 
 143; DeCourcy vs. Spaulding, 3 id. 16,) under the Code of 
 1848, which was different in this respect, were made from the 
 present Code, and have been overruled. 
 
 Where, however, a defendant is in good faith brought before 
 a Justice by summons, and there admits the indebtedness speci- 
 fied in the plaintiff's complaint, judgment may be rendered 
 against him as is usual in a suit; and no affidavit, or proof, or 
 confession in writing is necessary. {Gates vs. Ward, 17 Barb. 
 424.) And where defendant did not deny the plaintiff's claim, 
 but alleged a set-off which was not proven on the trial, it was 
 held that judgment should have been rendered for the plain- 
 tiff. {Gregory vs. Trainor, 1 Abb. 209.) 
 
 Where a defence, e. g., the statute of limitations, is regularly 
 put in in an action before a Justice, nothing short of an express 
 consent to waive it. operates as a waiver. Although it was not 
 mentioned on the trial, nor on the summing up, and though it 
 entirely escaped the attention of the Justice until after he had 
 rendered judgment, still, if on ajspeal it appears that the 
 defence was sustained by the evidence, the judgment should be 
 set aside. {Penfleld vs. Jacobs, 21 Barb. 335.) 
 
 6. Amendments. 
 
 The pleadings may be amended at any time before the trial, 
 or during the trial, or upon appeal, when by such amendment 
 substantial justice will be promoted. If the amendment be 
 made after the joining of issue, and it be made to appear to 
 the satisfaction of the Court, by oath, that an adjournment is 
 necessary to the adverse party in consequence of such amend 
 inent, an adjournment must be granted. The Court may also, in 
 its discretion, require, as a condition of an amendment, the paj-- 
 ment of costs to the adverse party, {Code, section 2944,) that is, 
 tiie costs of the action, up to the time of the amendment. (& 
 La7is. 329; 1 Barb. 5:.'2 ; 53 il. 570; 36 How. 120.) 
 
AMENDMENT. 219 
 
 It was formerly held (Gates vs. Ward, 17 Barbour, 424; 
 Gould vs. Glass, 19 Barb. 179,) that Justices' Courts possess 
 the same powers as to amendments which are conferred on 
 Courts of Eecord. But it has more lately been decided that 
 the provisions of Title VI. of the Code, respecting amendments 
 by adding or strildng out the names of parties, the correction 
 of mistakes, <fec., are necessarily confined to Courts of Eecord, 
 which are clothed with discretion in reference to the terms upon 
 which amendments shall be allowed, and possess the appropri- 
 ate machinery by which their orders maybe enforced; and that 
 these provisions are not applicable to Justices' Courts. {Web 
 ster vs. Hopkins, 11 How. Pr. R. 140; Gould vs. Glass, 19 
 Barb. 179.) 
 
 It is also held that a Justice of the Peace has no power to 
 amend a complaint by adding the name of an additional plain- 
 tiff; and that it is doubtful whether he can amend by striking 
 out the name of the plaintiff. {Gates vs. Ward, 17 Barb. 424.) 
 
 In an action in a Justice's Court, in which neither of the two 
 defendants appeared, the cause was held open after the plain- 
 tiff's testimony was closed, until the ensuing day. The plaintiff 
 then appeared again, and moved to amend his complaint by dis- 
 continuing as to one of the defendants, and proceeding against 
 the other alone. The motion was granted, and the Justice 
 thereupon rendered a judgment of discontinuance as to the one 
 defendant, and at the same time a judgment against the other 
 defendant for the amount claimed. It was held that the Justice 
 had no power to pennit this amendment, and that the judgment 
 must be reversed. {Webster vs. HopJcins, 11 How. 140.) 
 
 The refusal of a defendant, however, to appear in the action, 
 after objections taken by him to the jurisdiction of the Justice 
 have been overruled, does not deprive the Justice of the power 
 afterwards to allow the amendment of the constable's return of 
 the summons. The power of amendment does not depend on 
 the defendant's appearance. {Perry vs. Tynen, 22 Barb. 137.) 
 
 It will be proper now to notice some of the matters that are 
 most usually set up in the defence of an action, and must be 
 specified in the answer in order to be of any avail. 
 
220 NEW YORK JUSTICE. 
 
 7. Plea to the Jurisdiction. 
 
 WLere a Justice has no jurisdiction of the cause of action 
 upon which the suit is founded, it is sufficient to aver generally 
 in the answer, that the cause of action is not within his jurisdic- 
 tion. But where the objection is founded upon the privilege of 
 the defendant's person, the want of proper process or a proper 
 return, or any other circumstance not relating to the subject 
 matter of the suit, the facts must be specially stated in the 
 answer; and if a party proceeds to an issue, and a trial upon 
 the merits, he waives a plea to the jurisdiction over his person. 
 {Swartwouf vs. Roddis, 5 Hill, 118.) So, too, if a party appears 
 before a Justice on the return of void process, joins issue, and 
 goes to trial, he waives all objection, and the Justice has juris- 
 diction. (2 id. 657; Robinson vs. West, 1 Sand. 19.) 
 
 A defendant arrested upon a Justice's warrant while attending 
 Court as a suitor or witness, must plead his privilege, or move 
 his discharge, before pleading in bar to the action; for a plea in 
 bar admits that he is properly in Court. {Randall vs. Oran- 
 dall, 6 Hill, 342.) 
 
 It is proper to insert here the following provisions of the 
 statute, although they do not strictly touch the jurisdiction of 
 the Justice: 
 
 No Justice of the Peace or constable shall, directly or indi- 
 rectly, buy, or be interested in buying, any bond, note or other 
 demand, or cause of action, for the purpose of commencing any 
 suit thereon before a Justice, nor shall any Justice or constable, 
 either before or after suit brought, lend or advance, or agree to 
 lend or advance, or procure to be lent or advanced, any money, 
 or other valuable thing, to any person, in consideration of, or as 
 a reward for, or inducement to, the lolacing or having placed in 
 the hands of such Justice or constable, any debt, demand or 
 cause of action whatever, for prosecution or collection. {Code, 
 § 3137.) 
 
 Every Justice or constable offending against this provision 
 shall be deemed guilty of a misdemeanor, and, on conviction, 
 shall be subject to fine or imprisonment, or both, in the dis- 
 cretion of the Court. Every such conviction shall operate as a 
 forfeiture of the office of the Justice or constable, so convicted. 
 {id. § 3138.) 
 
PLICA TO THE JURISDICTION, 221 
 
 The defendant in any suit to be brought in any action before 
 a Justice of the Peace, may give notice with his plea, in addi- 
 tion to any other matter of defence, that, on the trial of the 
 cause, he will insist and prove, that the demand on which such 
 action is founded, has been bought and sold, or received, for 
 prosecution, contrary to law, without setting forth any other 
 particulars. {Sec. 3139.) 
 
 The defendant in any such suit, may serve a subpoena on the 
 plaintifE before the trial, requiring him to appear personally 
 on such trial, to be examined; and it shall be the duty of the 
 plaintiff to attend such trial, for that purpose; and in case of 
 such attendance, he shall be entitled to the like fees as are 
 allowed by law to witnesses; but the plaintiff shall not be so 
 summoned, nor required to attend the trial, to give evidence as 
 aforesaid, except from the same county, or the county next 
 adjoining that in which the cause is tried. 
 
 In case such plaintiff shall not attend such trial, he shall, on 
 proof of the due service of such notice, be nonsuited in such 
 action, unless such failure to attend shall be accounted for to the 
 satisfaction of the Court; in which case the Court may postpone 
 the trial, on the plaintiff's paying the costs of preparing for the 
 trial. And if such plaintiff shall not attend at the time tc 
 which the trial shall be postponed, he shall be nonsuited 
 
 On the trial of the cause in which such notice shall have been 
 given, if the defendant shall require it, the plaintiff and his at- 
 torney, and any other person who may be interested in the 
 recovery in such cause, shall be examined on oath, touching the 
 matters set forth in such notice. 
 
 If any such plaintiff, so required to be examined, or if any 
 person interested in the recovery of the suit, shall refuse to 
 answer on oath such questions as shall be pertinent to show a 
 violation of the provisions of this article, or if, on such ex- 
 amination, it shall appear that the cause of action on which 
 such suit is founded has been brought or procured contrary to 
 the true intent of the foregoing provisions, the plaintiff in such 
 action shall be nonsuited. 
 
 No evidence derived from the examination of any such plain, 
 tiff or other person shall be admitted in proof, on any criminal 
 
322 JSTEW YORK JUSTICE. 
 
 prosecution against tlie party so examined, for violating any of 
 the foregoing provisions. {Code, § 3139.) 
 
 8. FoRMEK Action. 
 
 A former trial and judgment must be set up in the answer; 
 as the Code requires notice, in a plain and direct manner, of 
 the facts constituting a defence. (10 Johns. Ill, 246; Young 
 vs. Rumnell, 2 Hill, 478.) 
 
 A demand once submitted to and passed upon by a jury, is 
 extinguished. {Ourtis vs. Groat, 6 Johns. 168; 2 id. 210.) 
 But a nonsuit in a former action, is no bar to a new action for 
 the same cause; ^Youle vs. Brotherton, 10 id. 363;) and a for- 
 mer trial before a Justice, with a submission of the matter to 
 him, but not followed by the rendition of judgment within four 
 days, is no bar to a new action for the same cause. (5 Hill, 60; 
 Young vs. JRummel, 7 id. 503.) 
 
 A verdict of a jury, or report of referees, upon a demand 
 exhibited by a defendant as a set-off, and rejected by the jury 
 or the referees, is conclusive upon the defendant, when the de- 
 mand was the subject of a set-off in such suit; but if it appear 
 that the claim rejected could not legally have been allowed, 
 although fully proved, the former trial is no bar to an action 
 brought for the recovery of such demand. {JBeebe vs. Hull, 
 12 Wend. 504.) 
 
 If a party to a suit, either plaintiff or defendant, presents a 
 demand which is legal and proper to be allowed if supported 
 by sufficient testimony, and the jury pass upon it and disallow 
 it, such demand cannot be recovered, in another suit. The ver- 
 dict is conclusive, unless it appears that the claim rejected by 
 them could not legally have been allowed. To take the case 
 o«t of the operation ef the rule, the fact should appear affirm- 
 atively, that the jury could not legally have allowed the de- 
 fence; [Watch vs. Benton, 6 Barb. 28;) and parol evidence is 
 admissible, in the second suit to show what questions were con- 
 troverted in the first action, and the grounds upon which it was 
 determined. (3 Com. 512; JDoty vs. Brown, 4 id. 71.) 
 
 9, Plea of Payment. 
 When an action is brought upon a demand, and the defend- 
 ant has paid the same, he mav of course set up the payment aa 
 a defence. 
 
PLEA ON TENDER. 223 
 
 There are, however, some statutory provisions on the subject 
 of payment which ought to be noticed. 
 
 When any action is brought upon a judgment, the defendant 
 may plead payment of the amount due on such judgment, iu 
 bar of such action. 
 
 To any action brought on a bond which has a condition by 
 which the same is to become void on the payment of a less 
 sum, the defendant may plead payment of the principal sum 
 and interest due by the condition of such bond, before the 
 commencement of such action, in bar thereof, although such 
 payment was not made strictly according to such condition. 
 
 10. Plea on Tender. 
 
 A party who has made a tender, must aver it specially in his 
 answer, in an action before a Justice of the Peace, if he intends 
 to rely upon it. (17 Vermont Rep. 35.) Every requisite which 
 is necessary to the validity of a tender must, by the answer, 
 be shown to have been complied with; else the answer may bo 
 demurred to for not showing that the party tendering did a1 
 in his power to pay the debt, or perform the duty. {JBacon'A 
 Abridgment, Tender, li. 1.) And the answer must aver a con- 
 tinual state of readiness to pay the sum due, or to deliver the 
 property, since the tender. (6 Smedes <& Marshall, 641; 10 
 Yerger, 245.) 
 
 (1.) Tender generally. 
 
 There may be a tender in money, and a tender of specific 
 articles. 
 
 There is a difference between portable and cumbrous articles, 
 as to a tender of them, when no place of delivery is mentioned. 
 With respect to the former, a personal tender is necessary; as 
 to the latter, it is sufficient if the party tendering offer to de- 
 liver as the other party shall elect. {Slingerland vs. Morse, 8 
 Johns. Ali; 3 Johns. Cases, 213.) 
 
 The common law on the subject of the delivery of specific ar- 
 ticles which are portable, makes a distinction between a con- 
 tract of sale of such articles, and a contract to pay a debt at a 
 future time in such articles. In the contract of sale, the delivery 
 must be made at the place where the vendor has the article; 
 
224 NEW TOKK JUSTICE. 
 
 but in the other case, the rule is, that the property is to he de- 
 livered at the creditor's place of residence. 
 
 Lord Coke lays down the rule, that if the articles be not port- 
 able, but ponderous and bulky, and no place of delivery be 
 named, the debtor must seek the creditor, or get him to name a 
 place of delivery; and, if no place, or an unreasonable one, be 
 named, the debtor may deliver the articles at a place which cir- 
 cumstances shall show to be suitable and convenient for the pur- 
 pose intended, and presumptively in contemplation of the par- 
 ties when the contract was made. (2 Kent's Qomm. 507, 508 ; 
 Qo. Litt. 210 5.) 
 
 If a note be given payable in cattle, grain, or other portable 
 articles, and no place of payment be designated in the note, but 
 the time of payment is fixed by it, the creditor's place of resi- 
 dence at the time the note was given, is the place of pajrment. 
 (2 Kent's Comm. 507; Goodwin vs. Holbrook, 4 Wend. 377.) 
 But, where a note is payable on demand, in specific articles, 
 without mentioning any place of payment, a special demand is 
 necessary. A note thus payable in farm produce, should be de- 
 manded at the farm of the debtor; and a note payable in mer- 
 chandise, or manufactures, at the store of the merchant, or the 
 shop of the manufacturer. {Lobdell vs. Hopkins, 5 Qow. 516.) 
 If specific articles are to be delivered at a particular time and 
 place, they must be tendered at the time and place specified. 
 A note payable in specific articles, without mentioning day or 
 place, is in law payable on demand, and a special demand and 
 refusal are necessary to maintain an action. (5 (Jow. 516; 
 Vance vs. Bloomer, 20 Wend. 198.) 
 
 A tender and refusal are equivalent to actual performance, so 
 far as the right to maintain an action subsequently for the thing 
 tendered is concerned; (Shannon vs. GomstocJc, 21 Wend. 457;) 
 and the question whether there have been such tender and re- 
 fusal is one for the jury. {Ooit vs. Houston, 3 Johns. Oases, 
 243.) A tender of specific articles due, and a refusal to receive 
 tliem, absolutely discharges the debtor, who thenceforth holds 
 them as bailee, at the expense and risk of the other party. (13 
 Wend. 95; 5 id. 514; 23 id. 342; 10 id. 374; 2 Kent's Comm. 
 509.) He is not responsible for their safe keeping; but if he 
 dispose of them, he will be answerable for their avails. {Coif 
 vs. Houston, 3 Johns. Oases, 249.) 
 
PLEA OF TENDEE. 225 
 
 While any thing remains to be done by a vendor by way of 
 separating goods sold from others, with a view to determine 
 their quantity or identity, or their price, the tender is incom- 
 plete; for it is a general rule, that while anything remains to 
 be done by a vendor before delivery, the property does not vest 
 in the vendee, but continues at the risk of the vendor. (2 Oamjp- 
 bell, 240; 6 Taunton, 617; McDonald vs. Hewlet, 15 Johns. 349.) 
 
 A delivery of property to a vendee, to be put in a marketable 
 condition, and to be paid for thereafter by weight to be subse- 
 quently ascertained, is a conditional delivery, and does not vest 
 the title to the property in the vendee. {Ward vs. /Shaw, 7 
 Wend. 404.) 
 
 In tendering specific articles, the party making the tender 
 must do everything in his power to place himself in a state of 
 perfect readiness to perform. [Ooit vs. Houston, 3 Johns. Oases, 
 253.) And, where an action was brought on a promissory note 
 payable in produce, to be delivered by a certain day at the 
 maker's house, and it appeared that the maker had hay in his 
 barn ready to be delivered, but neither its quantity nor value 
 was shown, it was held, that there was no proof of a tender. 
 {JSTewton vs. Oalhraith, 5 Johns. 119.) 
 
 (2.) By whom a Tender may he made. 
 A tender may be made by the party himself, or by a servant, 
 an attorney, or a stranger, on behalf of and at the desire of the 
 party. (Bacon^s Abridgment, Tender, A^ Any person may 
 make a tender on behalf of an idiot; for the law, by reason of 
 his utter inability to act for himself, allows this to be done out 
 of charity, (id^ 
 
 (3.) What is a good Tender. 
 A tender is not good unless the person making it declare 
 upon what account it is made. It is not enough for the person 
 who intends to make a lender to say that he is ready to pay the 
 debt, or perform the duty; but he must make an actual offer to 
 pay the one, or perform the other. The actual offer of money 
 in a bag is a good tender, provided it be proved that the sum 
 intended to be tendered was in the bag; but saying in such 
 case, "I am here ready to pay you the money," without offering 
 to deliver the bag, is not a good tender, {id. B.\\ h Term. 
 Rep. 432.) The tender is the production and manual offer of 
 15 
 
226 NEW YORK JUSTICE. 
 
 the money; and it is not sufficient for the party who has the 
 money in his pocket to say to the person to whom the tender is 
 made, "It is ready for you, if you will take it," or, "You can 
 have it at any time by calling at my office." (Balceirwin vs. 
 Fooler, 15 Wend. 637; 18 Connecticut Rep. 18.) 
 
 A tender of money in payment of a debt, to be available, 
 must be without qualification; for it is not of the nature of a 
 tender to make conditions, terms, or qualifications, but simply 
 to pay the sum tendered as for an admitted debt. Therefore, 
 a tencler of money in full discharge of all demands of the credi- 
 tor is not good. (20 Wend. 4:7; Brooldyn Banlc vs. DeGhraw, 
 23 id. 342; 18 Vermont Rep. 224.) So, a tender of the amoimt 
 due on a note, made conditional upon the holder's striking out 
 an endorsement upon it, in compromise of another matter, is 
 not a good tender. {Eddy vs. O^Hara, 14 Wend. 221.) But 
 negotiable paper is an exception to the general rule that a tender 
 must be unconditional; for the endorser of a note may tender 
 payment to the holder, upon condition of the surrender of the 
 note to him. {Wilder vs. Seelye, 8 Barb. 408.) 
 
 It is not always necessary to make an actual manual tender, 
 for it may be expressly waived by a party, and such a waiver, 
 by his declaration or equivalent act, will excuse an actual offer, 
 tjven in the case of money. (3 Term Rep. 683; Slingerland 
 vs. Morse, 8 Johns. Hi; 10 Wheat. 333.) But the money 
 should be actually produced, unless the creditor dispenses with 
 its production by some positive act or declaration. (15 Wend. 
 637; Hornby vs. Cramer, 12 IIo2v. 490.) The creditor's de- 
 manding more than is due, is not equivalent to an act expressly 
 dispensing with the production of the money that is due. 
 {Dunham vs. Jackson, 6 Wend. 22; 18 Connecticut R. 18.) A 
 strictly legal tender may be waived by an absolute refusal to 
 receive the money. {Bellinger vs. Kitts, 6 Barb. 273.) A 
 tender of a gross sum upon several demands, without designat- 
 ing the amount tendered upon each, is sufficient. (22 Vei-mont 
 Rep. 440.) 
 
 (4.) Ms to the thing tendered. 
 
 The Constitution of the United States provides, that no State 
 shall make anything but gold and silver coin a tender in pay- 
 ment of debts. {Constitution U. 8. Art. I. sec. 10.) 
 
 The act of Congress of the 2d of April, 1792, provides that 
 
PLEA OF TENDER. 227 
 
 all gold and silver coin struck at the Mint shall be a lawful ten- 
 der in all payments. (1 U. 8. Statutes at Large, 250, § 16.) 
 
 By the act of Congress of the 3d of March, 1843, the follow- 
 ing foreign gold coins are receivable by weight for the payment 
 of all debts and demands at the rates following, viz: the gold 
 coins of Great Britain, of not less than 915 1-2 thousandths in 
 fineness, at 94 6-10 cents per pennyweight; and the gold coins 
 of France, of not less than 899 thousandths in fineness, at 92 
 9-10 cents per pennyweight. 
 
 By the same act, the following foreign silver coins are re- 
 ceivable by tale, for the payment of all debts and demands at 
 the i-ates following, viz: the Spanish pillar dollars, and the 
 dollars of Mexico, Peru, and Bolivia, of not less than 897 thou- 
 sandths in fineness, and 415 grains in weight, at 100 cents each; 
 and the five-franc pieces of France, of not less than 900 thou- 
 sandths in fineness, and 384 grains in weight, at 93 cents each. 
 (5 id. 607.) 
 
 A legal tender can, therefore, be made only in the coins above 
 specified, except that a tender may be made in Government 
 treasury notes issued by act of Congress of February 25, 1862, 
 and June 30, 1864. {Metropolitan Bank vs. Van Dyck, 13 E. 
 P Smith, 400,) and this is so although the debt was incurred 
 prior to the passage of the act of Congress. {Hague vs. Powers, 
 39 Barb. 427; Mey&r vs. Roosevelt, 13 E. P. Smith, 400.) 
 
 Bank notes, are, however, a good tender as money, unless 
 specially objected to. (10 Wheat. 333; 2 Bosanquet & Puller, 
 526; Warren vs. Mains, 7 Johns. 476.) 
 
 Where a creditor agreed to receive bank bills when a pay- 
 ment became due, and the debtor tendered current bank bills 
 on the day, it was held that the agreement to receive the bank 
 bills was a waiver of a tender in gold and silver, {id.) 
 
 In general, a payment in forged paper, or in base coin, is not 
 good. (10 Wheat. 333.) Payment in counterfeit bank notes 
 is no payment, though they be received, both parties supposing 
 them to be genuine. (2 Johns. 455; Baker vs. Bonesteel, 2 
 Hilt. 397.) But the party receiving them must ofier to return 
 them, on discovering that they are worthless, without unneces- 
 sary delay. {Thomas vs. Todd, 6 Hill, 340.) 
 
 Payment in bills of a bank which has stopped payment, is 
 no payment, where the party receiving them is ignorant of the 
 
228 NEW YORK JUSTICE. 
 
 failure of the bank, whether the party paying is aware of the 
 fact or not. {Lighthody vs. Ontario Bank, 11 Wend. 9; 8. C 
 13 Wend. 101.) 
 
 If money which has been duly tendered, becomes, after a re- 
 fusal to accept, of less value than it was when the tender was 
 made, the party who refused to accept the money must bear the 
 loss; {Bacon's Abridgment, Tender, B, 2;) and the party ten- 
 dering, must, in order to avoid bearing the loss in such case, 
 retain the identical money, and bring it into court. (2 Cow. 
 Treatise, 253.) 
 
 A note payable in " leather, such as suits," is payable in such 
 leather as suits the payee, {id. 254.) 
 
 (5.) At what place a Tender must be made. 
 
 If the contract be that money in gross, or rent issuing out 
 of land, shall be paid, or that goods shall be delivered, at a 
 place certain, a tender can only be made at the place. {Bacon's 
 Abridgment, Tender, O.) 
 
 In general, if no place for the payment of money be specified 
 in a contract, the party who is to make the payment, must seek 
 the other party, if within the State; and a tender at the resid- 
 ence of the latter, during his absence, will not avail. But 
 where the contract was for the sale of lands, specifying a day 
 for the payment of the purchase money, but no place, and on 
 inquiry by the vendee, the vendor said he would be at home 
 upon the day fixed, it was held that a tender at his residence 
 on that day, to his son who lived with him, he having absented 
 himself, was good. (25 Wend. 405; Smith vs. Smith, 2 Hill, 
 351.) 
 
 If a merchant give a due-bill, payable to A, in goods, and no 
 time or place of payment be designated, the due-bill implies an 
 acknowledgment that A has paid him in advance for the amount 
 in goods therein expressed; and a promise is implied on the 
 part of the merchant, that whenever A shall call at his store, 
 and present the due-bill, he will deliver to him such articles as 
 he shall select out of the goods on hand. The store of the 
 merchant is the place of payment; and no action can be main- 
 tained on the due-bill, until A shall call at the store of the 
 merchant for the goods, and the merchant shall refuse to de- 
 liver such goods as A shall select. Indeed, A is to be treated 
 
PLEA OF TENDER. 229 
 
 as other customers are to be treated. He has a right to call for 
 a part of the goods at a time, and the merchant has no right to 
 require that the whole amount shall be received at one time. 
 The merchant is also required to deliver the goods at the mar- 
 ket price, and has no right to charge them at a higher price; 
 and A has no right to require the price of the goods to be re- 
 duced, on the ground that he can purchase the goods cheaper 
 at another store; for it is presumed that A, at the time he made 
 the contract, Imew at what price the merchant sold goods, and 
 paid a consideration accordingly. {Ohi^man on Contracts, 28; 
 Vance vs. Bloomer, 20 Wend. 196.) 
 
 (6.) At what time a Tender must he made. 
 
 It was formerly held that where money is to be paid, or 
 goods are to be delivered, at a place certain, upon or before a 
 day certain, the tender must not only be made upon the last 
 day limited for the payment or the delivery, but also at the 
 uttermost convenient time of that day. [Bacon's Abridgment, 
 Tender, D.) The point has not been decided by the Courts of 
 this State, but in Maryland it has been held, that when money 
 is to paid at or upon a certain day, a tender is good, though 
 made before that day. (3 Harris & McHenry, 85.) 
 
 Although the party has until the uttermost convenient time 
 of the last day limited for the payment or delivery, a tender is 
 not good, unless there be, after it is made, time enough, before 
 the sun sets, to examine and count the money, or to examine 
 and take an account of the goods; yet, if it happen that both 
 parties meet at the place of payment or delivery, upon any day 
 within the time limited for the payment or delivery, and a 
 tender be made, the tender is good. (^Bacon's Abridgment, 
 Tender, D.) But a tender of money before it is due, is ineffec- 
 tual as a legal tender. (Mitchell vs. Cook, 29 Barb. 243.) 
 
 "Where no time of pajonent is mentioned in a note, it is pay- 
 able immediately, and so of a note payable on demand; (ffer- 
 rick vs. Bennet, 8 Johns. 374;) and the maker, to relieve him- 
 self, should make a tender before suit is brought. 
 
 When a note is payable in money on demand, and at a par- 
 ticular place, a demand before suit brought is not necessary; 
 but the maker may plead readiness at the place, and bring the 
 money into court, to exonerate hiir.solf from interest and costs. 
 
230 NEW YORK JUSTICE. 
 
 (18 John. 341; Haxtun vs. Bishop, 3 Wend. 13; 3 Cow. 147; 8 
 id. 271.) 
 
 (7.) To whom a Tender must he made, 
 
 A tender may be made to any person, in whom, either as a 
 party or privy, the right to the thing tendered is. A tender to 
 an executor is good, because the right of his testator to the thing 
 tendered is devolved upon him as a privy in representation; and 
 it is good, even before he has proved the will, provided he after- 
 wards prove it, and actually becomes an executor. {Bacon's 
 Abridgment, Tender, E.) 
 
 A tender to an agent, clerk, or servant, authorized to receive 
 money in the transaction of the business of his principal, is as 
 valid as a tender to the principal; and where a firm revoked, in 
 a particular case, the general authority of a clerk, for the pur 
 pose of avoiding the effect of a tender, and kept out of the way 
 themselves, a tender to the clerk was held good. (20 Wend. 431; 
 Hornby vs. Cramer, 12 How. 490.) So, where a clerk, under 
 instructions from his principal, refused to receive money, on the 
 ground that the claim had been put into the hands of an attor- 
 ney for collection, a tender made to the clerk wa^ held to be a 
 good tender to the principal. {Jackson vs. Crafts, 18 
 John. 111.) 
 
 (8.) The consequences of a Tender and refusal. 
 
 A tender and refusal of specific articles which are due, dis- 
 charges the debtor from damages, but not from all liability; for 
 he will thereafter hold the articles as bailee for the creditor. 
 And a tender of a sum certain which is due, does not extinguish 
 the demand, but only the liability for interest and costs incurred 
 after tender. (12 id., 274 ; Code, § 731.) 
 
 Where the tender is not accepted, it must be kept good, that is, 
 the amount of money tendered must be forthcoming on its being 
 demanded by the creditor, or the benefit of the tender is lost; 
 and in such a case a subsequent demand of one or two joint debt- 
 ors, is good against both. (2 Cowen's Treatise, 262; Kortright 
 vs. Cody, 23 Barl. 490.) 
 
 If the plaintiff, whether he accepts the tender or not, recovers 
 a sum beyond the amount tendered, however small, he will be 
 entitled to costs against the defendant. {Slack vs. Brown, 13 
 Wend. 390.1 After a refusal to accept a tender, the plaintiff 
 
PLEA OF TENDER. 231 
 
 may, at the trial, elect to accept the sum tendered, and if he 
 does so, the defendant is bound to pay, or a verdict must be 
 rendered for the amount. (13 Wend. 390, supra.) 
 
 Where a tender is made and set up by a defendant, the plain- 
 tiff h entitled to recover the amount tendered, without further 
 proof of its being due. {Wood vs. Ferry, 1 Barb. 114.) 
 
 (9.) Tender, after action brought. 
 
 A defendant may arrest further proceedings in an action, by 
 making a tender. The manner of making a tender and its eifect 
 are clearly pointed out by statute. 
 
 When an action at law is commenced, for the I'ecovery of a 
 sum certain, or which may be reduced to certainty by calcula- 
 tion, or for a casual or involuntary trespass or injury, the de- 
 fendant, in any stage of the proceedings, before trial in such 
 causes, or before such damages shall have been assessed, or 
 before judgment rendered in an action of debt, may tender to the 
 plaintiff", or his attorney, any sum of money which such defend- 
 ant conceives to be sufficient amends for the injury done, for 
 which such action or proceeding Avas instituted, or sufficient to 
 pay the plaintiff's demand, together with the costs of such action 
 or proceeding, to the time of making such tender. {Code, 
 § 731.) 
 
 If it appears, upon the trial of the cause, or upon the assess- 
 ment of damages, that the amount so tendered was sufficient to 
 pay the plaintiff's demand and the costs of the suit or proceeding 
 up to the time of such tender, tlie plaintiff will not be entitled to 
 recover or collect any interest on such demand from the time of 
 such tender, or any costs incurred subsequent to that time, but 
 will be liable to the defendant for the costs incurred by him sub- 
 sequent to such time. {Code, § Y33.) 
 
 If the action or proceeding be to recover damages, and it 
 appears that the sum tendered was a sufficient amends for the 
 injury done, and for the costs, as before mentioned, the plaintiff 
 will not be entitled to recover any costs in any such action or 
 proceeding, incurred after such tender, but will be liable to the 
 defendant for his costs incurred after that time. {Id.) 
 
 If any such tender be accepted by the plaintiff, and he there- 
 after proceeds in the action, the sum so accepted must be deducted 
 from the whole amount of the recovery, and judgment be 
 
232 NEW YORK JtrSTIOE. 
 
 rendered only for the residue ; and an entry of such tender and 
 acceptance must be made on the record. The plaintifE's right 
 to recover costs, and his liability to pay costs to the defend- 
 ant, must be determined by the amount of such residue. {Code, 
 § 734.) 
 
 Under these proviaions it has been held, that if the plaintift 
 refuses to accept the tender, when oflFered, he is yet entitled in 
 any event to a verdict and judgment equal to the amount ten- 
 dered. And if a tender is made before trial, which the plaintiff 
 refuses to accept, he may afterwards, at the trial, elect to accept 
 it; and if he does so, the defendant is bound to pay, or have a 
 verdict rendered against him for the amount. (13 Wend. 390; 
 supra.") 
 
 Whenever an action is pending upon any bond which has a 
 condition by which the same is to become void on the payment 
 of a less sum, the defendant may, at any time before judgment 
 rendered in such action, pay to the plaintiff, or bring into Court 
 for the plaintiff's use, the principal sum and interest due on such 
 bond, together with the costs incurred in such action, and there- 
 upon such action must be discontinued. {See Code, § 1915.) 
 Under this statute, it has been held, that where a bond is con- 
 ditioned for the payment of money at a future day, with interest 
 semi-annually, and it is provided that in default of the payment 
 of interest at the time specified, the whole of the debt, the prin- 
 cipal with the unpaid interest, shall become due, and a default 
 in the payment of interest happens, and an action is brought de- 
 manding the whole debt, the defendant is not entitled, on bring- 
 ing into Court the arrears of interest, with the costs, to a rule 
 for discontinuance, but is liable for the principal as well as the 
 interest. {People vs. Superior Court of JV. Y. 19 Wend. 104.) 
 
 Besides the provision of the statute, that a tender may be 
 made to the plaintiff or his attorney, it is established by the de 
 cisions of the Courts, that a tender may be made by the paj'- 
 ment of money into Court. 
 
 The object of a tender, or of the payment of money into Court 
 .n an action for the recovery of money, is to stop interest and 
 avoid the payment of costs. {Raymond vs. Bearnard, 12 Johns. 
 274.) As a general rule, when the sum demanded is a sum 
 certain, or capable of being ascertained by mere computation, 
 without leaving any sort of discretion to the Justice or jury, the 
 
SET-OFF. 233 
 
 defendant is at liberty to pay the money into Court. Such 
 payment is allowed, when the action is brought on a money de- 
 mand; as on a promissory note, or for debt on simple contract, 
 or for rent due; but it is not permitted in an action for a tres- 
 pass, nor generally upon an unliquidated claim. {OrahawJs 
 Practice, 454.) 
 
 The defendant should be careful to pay into Court a sum suffi- 
 cient to satisfy the plaintiff's demand. If the claim is one 
 drawing interest, interest should be cast up to the time of the 
 payment into Court, and the amount paid should be enough to 
 cover both principal and interest; otherwise, if the payment is 
 insufficient to cover both, the plaintiff will be entitled to costs. 
 
 The defendant may pay money into Court at any time before 
 answering; and, by analogy to the practice of Courts of Record, 
 it is presumed he may do so after issue joined, by permission 
 of the Justice. (1 Cow. Treatise, 241.) 
 
 Payment of money into Court admits the cause of action stated 
 in the complaint, only to the extent of the amount paid in; be- 
 yond that amount, the defendant may make his defence. {Spald- 
 ing vs. Vandercoolc, 2 Wend. 431.) 
 
 Where money has been paid into Court, the plaintiff may in 
 all cases take it out, and then either accept it in satisfaction of 
 his debt, or proceed in the action, at his option. {Mun'ay vs. 
 Bethune, 1 id. 191.) Where money is paid into Court, andthe 
 plaintiff proceeds in the suit, but fails to establish his demand 
 beyond the amount paid in, the defendant is entitled to the costs 
 of the defence incurred subsequently to the payment of the 
 money into Court, but not to the costs previously accrued. 
 {Aihins vs. Oolton, 3 Wend. 326.) 
 
 If, after the payment of money into Court, the plaintiff pro- 
 ceeds in the action, he may, at any time before trial, discontinue 
 his action by paying the costs of the defendant incurred after 
 the payment into Court, or he may suffer judgment for such 
 costs against him. {Graham's Practice, 459.) 
 
 10. Set-Off or Cottntee-Claim. 
 
 In the following cases, and imder the following circumstances, 
 in a Justice's Court, a defendant may set-off demands which he 
 has against the plaintiff : 
 
 1. It must be a demand arising upon judgment, or upon con- 
 
234 NEW YORK JUSTICE. 
 
 tract, express or implied, whether such contract be written or 
 unwritten, sealed or without seal ; and if it be founded upon a 
 bond, or other coijtract having a penalty, only the sum equita- 
 bly due by virtue of its condition can be set off. {See Code, 
 §§ 2945, 501 and 502.) 
 
 2. It must be due to him in his own right, either as being 
 the original creditor or payee, or as being the assignee or owner 
 of the demand, {id.) 
 
 3. It must be a demand for real estate sold, or for personal 
 property sold, or for money paid, or services done; or if it be 
 not such a demand, the amount must be liquidated, or be capa^ 
 ble of being ascertained by calculation, {id.; 3 Johns. Oases, 
 145; HartYS. Willard, 1 Sandf. 254; 2 Caines, 33; 6 Cow. 613.) 
 
 4. It must have existed at the time of the commencement of 
 the suit, and must then have belonged to the defendant. (2 R. 
 8. 234, § 50; 3 Johns. Gases, 145; 19 Johns. 322; 6 Hill, 10: 
 Everit vs. Strong, 7 id. 585.) 
 
 5. It can be allowed only in actions founded upon demands 
 which could themselves be the subject of set-off, according to 
 law. (2 R. 8. 234, § 50; 14 Johns. 63; 6 Cow. 613; Hart vs. 
 Brady, 1 8andf. 626.) 
 
 6. If there be several defendants, the demand set off must 
 be due to all of them jointly. 
 
 7. It must be a demand existing against the plaintiff in the 
 action, unless the plaintiff is the assignee of a thing in action, 
 (other than a negotiable promissory note, or bill of exchange, 
 transferred in good faith and upon good consideration, before 
 due,) or unless the suit be brought in the name of a plaintiff 
 who has no real interest in the contract upon which the action 
 is founded, in which case no set-off is allowed, unless as is here- 
 inafter specified. {See Code, § 501.) 
 
 8. If the action be founded on a contract which has been 
 assigned, (other than a negotiable promissorj'' note, or bill of 
 exchange, transferred in good faith and upon good considerar 
 tion, before due,) a demand existing against the plaintiff at the 
 time of the commencement of the suit, or against any assignor 
 at the time of the assignment by him, and belonging to the de- 
 fendant in good faith before notice of such assignment, may be 
 set off to the amount of the debt claimed in the action, if the 
 
SET-OFF. 2.15 
 
 demand be such as might have been set-off against such assignor, 
 while the contract belonged to him. {Code, § 502.) 
 
 9. If the action be upon a negotiable promissory note, or bill 
 of exchange, which has been assigned to the plaintiff after it be- 
 came due, a set-off, to the amount of the plaintiff's debt, may 
 be made, of a demand existing against any person or persons 
 who shall have assigned or transferred such note or bill after 
 it became due, if the demand be such as might have been set 
 off against the assignor, while the note or bill belonged to him. 
 {id. % 502.) 
 
 10. If the plaintiff be a trustee for any other, or if the suit 
 be in the name of a plaintiff who has no real interest in the 
 contract upon which the suit is founded, so much of a demand 
 existing against those whom the plaintiff represents, or fol- 
 whose benefit the action is brought, may be set off, as will 
 satisfy the plaintiff's debt, if the same might have been set off 
 in an action brought by those beneficially interested, {id^j 
 
 11. But if such action be brought by the assignee of an in- 
 solvent, imprisoned, absent, concealed, or absconding debtor, 
 no set-off shall be allowed of any debt, unless in the cases pro- 
 vided in the fifth chapter of the second part of the Revised 
 Statutes. (id.\ see 2 B. B. 47, § 7, subd. 1.) 
 
 In citing subdivisions seven and eight above, the language 
 of them has been changed, in order to conform it to the change 
 introduced by the Code, which requires every action to be pro- 
 secuted in the name of the real party in interest, except in cer- 
 tain specified cases, such as suits by an executor, administrator, 
 trustee, or person suing under a statute. {Code, §§ 446, 449.) 
 The Code also provides, that in the case of an assignment of a 
 thing in action, the action by the assignee shall be without pre- 
 judice to any set-off or other defence existing at the time of or 
 before notice of the assignment, except in the case of a nego- 
 tiable promissory note or bill of exchange, transferred in good 
 faith and upon good consideration, before due. {id. § 1909; 
 Ainslie vs. Boynton, 2 Barb. 258.) The object of this pro- 
 vision of the Code is, to preserve the rights of a defendant in 
 regard to a set-off, where the suit is brought in the name of an 
 assignee, in the same degree in which they were protected in a 
 suit which was formerly required to be brought in the name of 
 an assignor, such as a suit on a bond or a covenant. The Code 
 
236 NEW YOKK JUSTICE. 
 
 leaves the right of set-off unaffected by the change made in the 
 party bringing tlie action; and the law of set-off, as established 
 by the Revised Statutes, is the law of set-off under the Code. 
 (Bechwith vs. Union Bank, 4 8andf. 610.) But the change 
 made iu the party required to bring an action, has required a 
 change in the language of subdivisions seven and eight, before 
 refeiTcd to, in order to make them express their true meaning 
 under the Code. 
 
 When a judgment is obtained before any Justice, in any suit 
 commenced by attachment, and the defendant is not personally 
 served with the attachment or summons, and does not appear, 
 such judgment is only presumptive evidence of indebtedness, 
 in any suit that may be brought thereon, and may be repelled 
 by the defendant, and he will not, in such suit, be barred of 
 any set-off which he may have against the plaintiff. {Code 
 § 2918.) 
 
 To entitle a defendant to a set-off, he must give notice of the 
 same in his answer, specifying the nature of his claim with 
 reasonable certainty, at the time of joining issue on a question 
 of fact upon the merits of the cause. {Code, § 2938.) 
 
 If the amount of the set-off duly established be equal to the 
 plaintiff's debt, judgment must be entered for the defendant, 
 with costs; if it be less than the plaintiff's debt, the plaintiff 
 must have judgment for the residue only, with costs. If it be 
 more than the plaintiff's debt, and the balance found due to the 
 defendant from the plaintiff in the action be two hundred dol- 
 lars or under, judgment must be rendered for the defendant 
 for the amount thereof, with costs, and execution must be 
 awarded as upon a judgment in a suit brought by him; but 
 no such judgment can be rendered against the plaintiff, when 
 the contract, which is the subject of the suit, has been as- 
 signed before the commencement of such suit, nor for any 
 balance due from any other person than the plaintiff in the 
 action, {id. § 2949.) How far this provision, that no judg- 
 ment can be rendered against the plaintiff for a balance 
 found due to the defendant on a set-off, when the contract 
 which is the subject of the suit has been assigned before the 
 commencement of the suit, is practically affected by the 
 change made by the Code requiring everv action to be brought 
 
SET-OFF. 237 
 
 in the name of the real party in interest, is a question not yet 
 decided. 
 
 It is not necessary that something should be allowed to the 
 plaintiff, in order to sustain a judgment for the defendant upon 
 his set-off. {Greenleaf YS. Low, 4 Den. 168.) 
 
 Formerly if the balance found due to the defendant exceeded 
 one hundred dollars, the Justice must set off so much of the 
 defendant's demand against the plaintiff's debt as will be suffi- 
 cient to satisfy it, if required to do so by the defendant, and 
 must render judgment for the defendant for his costs; but if 
 the defendant does not require such set-off, the Justice must 
 enter judgment of discontinuance for the defendant, with costs; 
 and the defendant may thereafter sue for and recover his 
 demand in any Court having cognizance thereof. (2 R. 8. 235, 
 \ 53; Laws of 1840, chap. 317, § 3.) But now he must give 
 judgment if it be less than two hundred dollars. 
 
 If, upon the trial of a cause, it appears that the amount of 
 the plaintiff's claim, together with the demands set off by the 
 defendant, according to the preceding provisions, exceed four 
 hundred dollars, judgment of discontinuance must be rendered 
 against the plaintiff, with costs. {Code, § 2950.) 
 
 In suits brought by executors or administrators, the defendant 
 may set off demands existing against their testators or intes- 
 tates, and belonging to the defendant at the time of their death, 
 in the same manner as if the action had been brought by and 
 in the name of the deceased, {id. § 506.) 
 
 Whenever a set-off is established in a suit brought by execu- 
 tors or administrators, the judgment must be against them in 
 their representative character, and is evidence of a debt estab- 
 lished, to be paid in the course of administration ; but execution 
 cannot issue thereon until directed by the surrogate who granted 
 letters testamentary or of administration. {Id.., § 1825.) 
 
 If a defendant neglects to give notice in his answer, of anj- 
 set-off, which, according to the preceding provisions, might have 
 been allowed to him on the trial of the cause, he will be for- 
 ever thereai'ter precluded from maintaining any action to recovei 
 the same, or any part thereof. And if the demand which might 
 have been set off consists of a negotiable note, or bill of exchange, 
 no action can be maintained thereon, by any person who may 
 derive title thereto from or through the defendant, {id. § 2947.) 
 
238 NEW YORK JUSTICE. 
 
 But the prohibition contained in the last section does not extend 
 to either of the following cases : 
 
 1. Where the amount of the counter-claim is two hundred dol- 
 lars more than the judgment which the plaintiff recovers. 
 
 2. "Where the counter-claim consists of a judgment, rendered 
 before the commencement of the action, in which it might have 
 been interposed. 
 
 3. Where the counter-claim consists of a claim for unliquidated 
 damages. 
 
 4. Where the counter-claim consists of a claim, upon which 
 another action was pending, at the time when the action was 
 commenced. 
 
 5. Where judgment is taken against the defendant without 
 out personal service of the summons upon him, or an appearance 
 by him. {id. § 2948.) 
 
 The above provisions are in accordance with the provisions in 
 the Revised Statutes, and the following decisions interpret the 
 statute : 
 
 When the sum total of the accounts of both parties, proved to 
 the satisfaction of the Justice, exceeds four hundred dollars, the 
 Justice has no jurisdiction; {id. § 2950;) and he should, there- 
 fore, dismiss the suit, with costs against the plaintiff. But, to 
 bring a case within this provision, the claims, demands, or 
 accounts, which make up a sum exceeding four hundred dollars, 
 must be subsisting, open, and unadjusted between the parties; 
 that is, they must be such as arc not founded on payments, as 
 originally made, or on matters of account, which, by agreement 
 of the parties, were subsequently applied as payments. Where 
 payments have been made, on accounts settled, the balance only 
 will constitute a claim, demand, or account within the statute; 
 for, whatever has been received or applied specifically as pay- 
 ment, must be rejected. {Lamorue vs. Caryl, 4 Denio, 370.) 
 
 In an action for a tort, there can be no set-off; {Keeler vs. 
 Adams, 3 Qaines, 84;) nor in an action for the recovery of dam- 
 ages for the breach of a warranty in the sale of goods. {WU- 
 mot vs. Hurd, 11 Wend. 584.) 
 
 A defendant cannot set off against an executor or administra- 
 tor a debt acquired against the estate of the deceased person sub- 
 sequently to his death; {Root vs. Taylor, 20 John. 136;) nor 
 can an executor or administrator, in a suit against the estate of 
 
SET-OFF. 239 
 
 the deceased, set oif a demand purchased since the decedent's 
 death. [Hill vs. Tollman, 21 Wmd. 674.) A demand to be 
 set off agauist a debt due to a deceased person, must have been 
 due at his death. {Mercein vs. Strnth, 2 Hill, 210.) 
 
 A cannot set off in a suit brought by B, a joint demand 
 against B aud C. (12 WeJid. 504; Plets vs. Johnson, 3 Hill, 
 112.) A note made by one partner is not a good set-off against 
 a demand belonging to the firm. [Ladue vs. Hart, 4 Wend. 112.) 
 
 In an action to recover from a stakeholder money staked with 
 him by the plaintiff on a wager upon the event of a horse-race, 
 the defendant cannot set off the amount of a deposit made by 
 him with the plaintiff upon another wager of a similar charac- 
 ter. {Bevins vs. Beed, 2 iSand. 436.) 
 
 It is not sufficient, in an answer to a complaint, to state that 
 "the plaintiff is indebted to tlie defendant, on account of pre- 
 vious transactions, in a sum of money equal to the sum claimed 
 by the plaintiff, as will appear by tlie account current rendered 
 by the defendant." {Wiffffinsvs. Gaus. 1 Code Rep. JSf. S. 117.) 
 
 One who objects to tlie admissibility of a set-off, and has it ex- 
 cluded, cannot object, when sued upon it, that it was not set off 
 in a former action. (9 John. 352; Babcock vs. Pech, 4 Denio, 
 292.) 
 
 Though the general rule is, tliat demands growing out of part- 
 nership dealings cannot be set off against individual demands of 
 one of the partners, yet a special agreement may be made for 
 such set-off. (8eivall vs. Rodeivald, 1 Hall, 348.) ^ 
 
 Where an assignment from one defendant to another, of a joint 
 interest in a demand offered as a set-off, bears date prior to the 
 commencement of the suit, this is prima facie evidence that the 
 assignment was executed before the suit was commenced. {Bell 
 vs. Bavis, 8 Barh. 210.) 
 
 Where a debtor has a set-off equally applicable to two de- 
 mands against him, it is not for him to elect which of the demands 
 he will satisfy by his set-off; but the Court will direct the appli- 
 cation, according to the equities between the parties. {Tall- 
 madge vs. Fishkill Iron Co., 4 id. 382.) 
 
 A note or account, assigned before the commencement of a 
 suit against the assignee, may be set off by him, though he has 
 not actually paid for it, but only agreed to pay. (5 Hill, 163; 
 Everit vs. Strong, 7 id, 585.) But a judgment, purchased by 
 
240 NEW YORK J0STICJ5. 
 
 a party with a view to set it off, and with a condition that if he 
 fails to obtain the set-off, the assignment shall be void, and the 
 assignor shall pay the costs, cannot be set off; for the party 
 must be the absolute owner of the judgment to make it a set- 
 off. {Gilman vs. Van ShjcJc, 7 Coiv. 469, 480.) 
 
 Where a suit is brought upon an account, by the assignee 
 thereof, a promissory note of the assignor, held by the defend- 
 ant at the time of the assignment of the account, but not then 
 due, cannot be set off against such account. {Wells vs. Stew 
 art, 3 Btrh. 40.) 
 
 11. Recoupment. 
 
 The meaning of recoupment is, a i-eduction of the damages 
 claimed; and it is not, in theory and contemplation of law, a 
 complete bar. Neither can it be made so by an allegation that 
 the damages which the defendant claims by way of recoupment 
 exceed those claimed by the plaintiff. In all the adjudicated 
 cases, both in England and in this State, in which recoupment 
 has been allowed, it has been considered, and has been generally 
 described, as a partial defence, For this reason, it is necessary 
 for the party claiming to recoup, to give notice to that effect in 
 his answer, for the purpose of preventing surprise to the oppo- 
 site party. {McCulloiigh vs. Oox, 6 Barb. 387.) 
 
 Mr. Barbour, in his compilation of the Law of Set-Off, says, 
 that the defence is somewhat analogous to a set-off, and is pre- 
 sented, not as a matter of set-off arising on an independent con- 
 tract, but for the purpose of reducing the plaintiff's damages, 
 on the ground that he has not complied with obligations on his 
 own part, arising out of the same contract on which he brings 
 his action. Thus, in an action by an employee to recover com- 
 pensation for services rendered, the emj)loyer is entitled to 
 show, by way of recoupment of damages, loss sustained by him 
 through the negligence of the person employed. {Barbour's 
 Law of Set-Off, 26.) 
 
 It is well settled in this State, that, in an action for the price 
 of goods or chattels sold, or of work and labor done, or of pro- 
 fessional services rendered, whether the action be on the original 
 contract price, or on a security given therefor, it is competent 
 for the defendant to set up and give in evidence, in diminution 
 or recoupment of damages, any fraud, breach of warranty, or 
 
RECOUPMENT. 241 
 
 negligence, relating to the particular tiling in question, by which 
 he has been injured; and the whole matter is to be submitted 
 to the jury. {Sedgwick on Damages, 477.) 
 
 Where an action is brought for the breach of a contract, 
 whether sealed or not, and the defendant can show that the 
 plaintiff has not performed the contract on his part, according 
 to its teiTOS or spirit, and such non-performance would entitle 
 the defendant to a cross-action, he may, at his election, instead 
 of bringing such cross-action, recoup his damages arising from 
 the breach committed by the plaintiff, whether they be liquida- 
 ted or not. But, in such case, he must give notice, in his 
 answer, of his intention to insist upon the right of recoupment. 
 (22 Wend. 155; Van Ejpps vs. Harrison, 5 Hill, 63.) 
 
 The right of a defendant to recoup, is not confined to cases 
 where fraud is imputable to the plaintiff. It may exist, though 
 the damages result from a mere breach of contract, and where 
 they are unliquidated on both sides. Where, on the sale of a 
 quantity of standing wood, the vendor agreed to indemnify the 
 vendee against any damage that might happen to the wood in 
 consequence of the burning of an adjoining fallow, and the ven- 
 dee gave his note for the price, and afterwards, the fallow being 
 burned over, the wood in question was destroyed by fire, it was 
 held, in an action by the vendor upon the note, that the vendee 
 might recoup his damages ai'ising from the loss of the wood. 
 {Batterman vs. Pierce, 3 Hill, 171.) 
 
 When a defendant elects to use his claim by way of recoup- 
 ment, he cannot have a balance certified in his favor, as in the 
 case of a set-off; but must be content to have it go in abatement, 
 in whole or in part, of the plaintiff's demand. {Sickles vs. 
 Pattison, 14 Wend. 257.) 
 
 A defendant cannot recoup for damages accrued after the suit 
 is commenced. {Hueger vs. Edmonds, 4 Barb. 256.) 
 
 In an action on a note given for making barrels, the defendant, 
 under a proper notice in his answer, may prove that they were 
 not made pursuant to agreement, and so reduce the recovery. 
 {Spaulding vs. Vand&rcook, 2 Wend. 431.) Where a party 
 brings an action for work and labor done under a conti-act not 
 fully performed, the other party may recoup his damages jbr 
 such non-performance. {1^ id. 257; 25 z'cZ. 655; Wagoner ys. 
 Corkhill, 40 Barb. 175.) Where a party has failed to perform 
 16 
 
242 NEW YORK JUSTICE. 
 
 his contract at the day, a consent by the other party to his going 
 on afterwards and completing the contract, is no waiver of a 
 right to recoup damages for the delay. [Barber vs. liose, 5 
 
 mil, 76.) 
 
 If an infant refuses fully to perform an agreement to serve A 
 for a certain time, and sues, by his next friend, for the labor 
 done, A cannot recoup his damages for the non-performance of 
 the entire contract. (Whitmarsh vs. Hall, 3 Denio, 375.) 
 
 If one hire a horse for a journey, and the horse give out on the 
 way, without any negligence or wilfulness on the part of the 
 bailee, he may, on being sued by the bailor for the hire, recoup 
 any expenses to which he has been necessarily put in taking 
 care of the horse and completing the journey. {Harrington 
 vs. Snyder, 3 Barb. 380.) A breach of warranty as to quality 
 in the sale of an article, may be given in evidence in diminu- 
 tion of damages, under a proper notice in the answer, in an 
 action by the vendor for the price. (8 Wend. 109; Ives vs. 
 Van Ups, 22 id. 155.) 
 
 In an action for rent, the tenant may avail himself of a breach 
 of the landlord's covenant to repair, by way of recoupment, but 
 not by way of set-off; {Nichols vs. Dusenbury, 2 Com. 283;) 
 but, in such an action, the tenant cannot recoup damages for 
 the tortious acts of the landlord's servants, while on the pre- 
 mises under a privilege of making repairs, reserved to the 
 landlord. {Crane vs. Dresser, 2 Sandf. 120.) The tenant may, 
 however, recoup damages for a breach of lessor's covenant for 
 quiet enjoyment; and such covenant is implied in a lease. 
 {Mayor of JV. Y. vs. Mabie, 3 Kern. 151.) But not if the acts 
 amount to a trespass. {Edgerton vs. Paige, 6 E. P. Smith, 
 281.) 
 
 By known and established custom, a warehouseman has the 
 right to receive goods from a carrier, if in appai-ent g6od order, 
 and advance the carrier's charges, and hold them subject to the 
 carrier's lien for the amount thus advanced; and if the goods 
 have been injured by the carrier, and the injmy is not known 
 or apparent to the warehouseman, before or at the time of his 
 receiving the goods, the owner must look to the carrier for his 
 damages, and cannot recoup the same in an action by the ware- 
 houseman to recover the amount so advanced to the carrier. 
 <Sage vs. Gittner, 11 Barb. 120.) 
 
PLEA OF TITLE. 243 
 
 "Where, under a parol contract for the future delivery of a 
 fixed quantity of goods, at such times and in such places as 
 may be required, separate deliveries are made, and settled for 
 when made, each delivery is to be considered as in its nature a 
 separate and distinct contract; and, in an action for the price 
 of the parcel last furnished, the buyer cannot recoup his dam- 
 ages growing out of the inferior quality of the goods previously 
 delivered. Damages cannot be recouped, unless they arise out 
 of the particular contract on which the action is founded. 
 (Deming vs. Kemp, 4 Sand. 147.) 
 
 12. Plea of Title. 
 
 A Justice has no jurisdiction of a civil action where the title 
 to real property comes in question. (Code, \ 2863.) 
 
 In every action brought in a Court of a Justice of the Peace, 
 where the title to real property comes in question, the defend- 
 ant may, either with or without other matter of defence, set 
 forth in his answer any matter showing that such title will 
 come in question. Such answer must be in writing, be signed 
 
 by the defendant or his attorney, and be delivered to the Justice. 
 
 The Justice must thereupon countersign the same and deliver it 
 
 to the plaintiff. {Code, § 2951 ; 9 Rwn, 520.) 
 
 ^31. Answer, Setting wp Plea of Title. 
 In Justice's Court, 
 
 . . Before Elijah Paine, Justice. 
 
 -r 1^ -D Answer. 
 
 John Brown. J 
 
 The above named defendant, in answer to the plaintiff's com- 
 plaint, denies the allegations therein contained; and he further 
 says, that the premises on which the trespass is alleged to have 
 been committed belong to the defendant, and he claims title to 
 the same. John Beown. 
 
 At the time of answering, the defendant must deliver to the 
 Justice a written undertaking, executed by at least one sufficient 
 surety, and approved by the Justice, to the effect that if the 
 plaintiff shall, within twenty days thereafter, deposit with the 
 Justice a summons and complaint, in an action in the Supreme 
 or County Court, for the same cause, the defendant will within 
 twenty days after such deposit, give an admission in writing of 
 the service thereof, {id. § 2952.) 
 
244 NEW YORK JUSTICE. 
 
 , An oral answer, setting up a plea of title, is a nullity; and 
 80 is a written answer, if unaccompanied by the undertaking 
 required by the Code. {Code,^ 2955; Randall vs. Crandall, 6 
 mil, 342.) 
 
 § 32. Undertaking on Plea of Title. 
 In Justice's Court, 
 
 John Smith \ 
 
 against V Before Elijah Paine, Justice. 
 
 John Brown. J 
 
 John Bro^ai, the defendant in this action, having set forth in 
 his answer matter showing that the title to real property will 
 come in question in this action: Now, therefore, we, John Nelson 
 and Royal Stow, hereby undertake to the effect, that if John 
 Smith, the plaintiff in this action, shall, within twenty days from 
 the date hereof, deposit with the above named Justice a sum- 
 mons and complaint, in an action in the Supreme Court, for the 
 same cause of action set forth in the complaint in this action, 
 the said defendant shall, within twenty days after such deposit, 
 give an admission in writing of the service thereof. 
 
 Dated Auburn, December 27th, 1852. John Nelson, 
 
 Royal Stow. 
 
 The undertaking must be approved by the Justice, and he 
 should be satisfied of the responsibility of the sureties. He 
 must also countersign the undertaking. His approval and coim- 
 tersigniug may be as follows: 
 
 I approve of the within undertaking, and of the sufficiency of 
 the sureties therein, and countersign the same. 
 
 Elijah Paine, Justice. 
 
 The Justice must then deliver the undertaking to the plaintiff. 
 
 Upon the delivery of the undertaking to the Justice, the 
 action before him must be discontinued, and each party must 
 pay his own costs. The costs so paid by either party must be 
 allowed to him, if he recover costs in the action to be brought 
 for the same cause in the Supreme or County 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. {Code, % 2954.) 
 
 If the undertaking be not delivered to the Justice, he has 
 jurisdiction of the cause, and must proceed therein ; and the 
 defendant will be precluded, in his defence, from drawing the 
 title to real property in question, {id. § 2955,) 
 
PLEA or TITLE. 245 
 
 If, however, it appear on the trial, from the plaintiff's own 
 showing, that the title to real property is in question, and such 
 title be disputed by the defendant, the Justice must dismiss the 
 action, and render judgment against the plaintiff for the costs. 
 ((7ode, §2956; 20 PTend 196; Adams \s. Beach, & Hill, 211.) Bui 
 if, under this provision, the Justice improperly refuses to dis- 
 miss an action, his judgment will not be void for want of juris- 
 diction, but only voidable for error. {Koon vs. Mazuzan, id. 
 44.) And under this provision, a Justice may properly proceed 
 and render judgment, notwithstanding evidence of title to real 
 property be given by the plaintiff, if the defendant do not ex- 
 pressly dispute such title, nor move to have the cause dismissed. 
 iid.) 
 
 Though it be material for the plaintiff to show his title, as 
 where he sues as reversioner, yet if the defendant neither objects 
 to the evidence, nor disputes its effects, nor moves for a dismis- 
 sal of the cause, the title is not disputed on the trial, within 
 the meaning of the statute, and a judgment for the plaintiff is 
 valid. 
 
 When a suit before a Justice is discontinued by the delivery 
 of an answer and undertaking, as above provided, the plaintiff 
 may prosecute an action for the same cause, in the Supreme 
 Court, and must complain for the same cause of action only on 
 which he relied before the Justice; and the answer of the 
 defendant must set up the same defence only which he made 
 before the Justice, {id. § 2957.) Where a plea of title is inter- 
 posed, by which the Justice is ousted of jurisdiction, and an 
 action for the same cause is commenced in the Supreme Court, 
 the same rules of pleading and practice govern, it is presumed, 
 which prevail in the Supreme Court; therefore, where title is 
 pleaded, a reply is necessary. {Jewett vs. Jewett, 6 How. 185.) 
 
 If the judgment in the Supreme Court be for the plaintiff, 
 he recovers costs; if it be for the defendant, he recovers costs, 
 except that upon a verdict he pays costs to the plaintiff, unless 
 the Judge certifies that the title to real property came in ques- 
 tion on the trial. {Code, § 3235.) 
 
 If, in an action before a Justice, the plaintiff has several 
 causes of action, to one of which the defense of title to real 
 property is interposed, and as to such cause the defendant 
 answers and delivers an undertaking, as above provided, the 
 
246 NEW YORK JUSTICE. 
 
 Justice must discontiaue the proceedings as to that cause, and 
 the plaintiff may commence anotlier action therefor in the 
 Supreme or County Court. As to the other causes of action, the 
 Justice may continue the proceedings. {Code, § 2958.) 
 
 After the discontinuance of an action upon an answer of title, 
 in the Marine Court of the city of New York, the District Courts 
 of the city of New York, and the Justices' Courts of cities, the 
 new action may be brought either in the Supreme Court or in 
 the Common Pleas Court having jurisdiction thereof, {id. § 3212.) 
 
 A right of way is real property, within these provisions of 
 the statute; {Willoughhy ys. Jenks, 20 Wend. ^Q]) but a plea 
 of title is no bar to an action by commissioners of highways, 
 for an obstruction of a highway. (7 Wend. 145; Hastings ys. 
 Glenn, 1 E. D. Smith 402.) If the defendant sets up a right 
 of way in himself, and the question is tried by the Justice, the 
 judgment is erroneous; (6 id. 465; Whiting ys. Dudley, 19 id. 
 373;) and whether the right of way be public or private, the 
 owner's title is affected, within the meaning of these provisions 
 of the statute. {Randall vs. Orandall, 6 Hill, 342.) 
 
 Where, in an action in a Justice's Court for obstructing a 
 river, the plaintiff claimed that such river was a public highway 
 at common law, and had been declared such by statute, without 
 making any other proof of his right; and no fact was shown by 
 the defendant to controvert the right thus declared by law, but 
 he pleaded the general issue, and introduced in evidence a grant 
 from the Legislature, authorizing him to erect and maintain a 
 dam across the river, of such construction as not to interfere 
 with the public right of passage; it was held, that the title to 
 land did not come in question, so as to oust the Justice of his 
 jurisdiction. {Brown vs. Scojield, 8 Barb. 239.) 
 
 Where a plaintiff, in his complaint, averred the ownership 
 and possession of land, and an alleged entry by the defendant 
 with teams and plows, and the plowing up of shrubbery and 
 vines, and the destroying of trees; and the defendant answered 
 that he did it by virtue of an agreement between himself and 
 the plaintiff, on the sale of the premises by him to the plaintiff; 
 it was held, that under this issue the title to land came iu ques- 
 tion, {id, 567; Snyder vs. Byer, 3 E. D. Smith, 240.) 
 
 If, in an action of trespass for pulling down the plaintiff's 
 fence, the defendant justifies himself on the ground that the 
 
PLEA OF TITLE. 247 
 
 place where the trespass was committed is a public highway, the 
 Justice is deprived of jurisdiction ; and, if he proceed and render 
 judgment, it will be reversed. (19 Wend. 373 ; 6 Bill, 342 ; sit- 
 pra; Heath vs. Barmour, 53 Barb. 444; S. C, 35 How. 1.) 
 
 The question of the actual possession of lands is not one of 
 title, within the meaning of the Code, and a Justice may try and 
 determine it. {Pierret vs. Moller, 3 E. D. Smith, 574.) Ac- 
 cordingly, where, in an action for trespass, upon land, no plea 
 of title being interposed, the plaintiif relied on his actual pos- 
 session of the land, it was held that proof by the defendant that 
 he was in actual possession of the land at the time of the alleged 
 trespass, was proper, and that the title to land was not involved, 
 because the right of possession was not in question. {Ehle vs. 
 QuacJceriboss, 6 Hill, 537.) 
 
 When the title is put in issue by the answer, the Justice is 
 ousted of jurisdiction, and the consent of the parties that the 
 Justice may go on and try the action, will not give him jurisdic- 
 tion. {Striker vs. Mott, 6 Wend. 465; 17 Johns. 471.) But 
 where title is not pleaded before the Justice, he is not ousted 
 of his jurisdiction, because it may become necessary to prove 
 title; unless such title is disputed by defendant. {Bellows vs. 
 Sackett, 15 Barb. 96. But see O'Donnell vs. Brown, 3 Lans. 
 474.) 
 
 Where the complaint is so drawn that the defendant can set 
 up title in his answer, and, on giving the requisite security, oust 
 the Justice of his jurisdiction, but he omits to set up title, the 
 Justice retains his jurisdiction, and the defendant is precluded 
 from drawing it in question. {Adams vs. Rivers, 11 Barb. 390.) 
 
 Defendant may amend his answer and set up the plea of title 
 after the issue has been joined. {Wnehs vs. Stroble, 36 How. 
 123 ; Hinds vs. Page, 6 Abb. N. 8. 58.) 
 
248 NEW YORK JUSTICE. 
 
 CHAPTER X. 
 
 OF ADJOURNMENTS. 
 
 An action may be adjourned by the Justice, in his discretion, 
 with or without the consent of parties; or on the plaintiff's 
 motion; or on the defendant's motion. 
 
 1. On Motion of the Justice. 
 
 At the time of the return of either a summons or attachment, 
 or of joining issue without process, a Justice may, in his dis- 
 cretion, and with or without the consent of parties, adjourn the 
 cause not exceeding eight days. {Code, § 2959.) For the rule 
 as to computing the time, and as to counting Sunday, see amte, 
 p. 160.) 
 
 A Justice can in no case adjourn a cause on his own motion, if 
 defendant has been arrested ; nor can he exercise that right in a 
 suit commenced by summons, at any other time than on the 
 return of such summons. {j,d. % 2959.) 
 
 On the return of a summons or attachment, if the defendant 
 refuses to plead, the Justice may, on his own motion, or on the 
 application of the plaintiff, adjourn the cause not exceeding eight 
 days. (5 Hill, 428; Thompson vs. Sayre, 1 Den. 175.) 
 
 The right of a Justice to adjourn a cause on his own motion, 
 must be claimed and exercised at the time of the return of the 
 process; and if an adjournment is had by consent of parties, the 
 Justice cannot adjourn the cause a second time, on his own 
 motion. But he may adjourn it a second time, by consent of the 
 parties; and, if one expressly consents, and the other does not 
 object, the consent of the latter will be inferred. (7 John. 529; 
 Payne vs. Wheeler, 15 id. 492.) 
 
 If the parties have joined issue, and the cause has been ad 
 journed, the justice cannot, on the adjourned day, the plaintiff 
 being present and the defendant absent, adjourn the cause to a 
 future day, on his own motion. {Gfamage vs. Law, 2 Johns 
 192.) 
 
 The discretion given to a Justice to adjourn a cause, is not aw 
 
ADJOURNMENT. 249 
 
 arbitrary discretion, but ought to be soundly and judiciously ex- 
 ercised. {Rose vs. Stayvesant, 8 Johns. 426.) Nothing, however, 
 but an abuse of discretion can be alleged as error. (5 id. 409 ; 
 OnderdonJc vs. Ranlet, 3 Hill, 323.) 
 
 Where the parties appeared on the return day of a sum- 
 mons, but the Justice, being absent, sent a note in writing, 
 without signature, adjourning the cause to a future day, and, on 
 the adjourned day, the Justice and the plaintiff appeared in the 
 absence of the defendant, and the cause was heard, and a judg- 
 ment rendered for the plaintiff, it was held, that the adjournment 
 was irregular, and the subsequent proceedings void. (West vs. 
 Critoinger, 4 Johns. 117.) 
 
 The Justice may, without the consent of the parties, adjourn 
 to a convenient place, different from that at which the process is 
 returnable, it having been returned, and both parties appearing 
 there. {Monell vs. Near, 1 Oow. 112) 
 
 When the Justice adjoiunis on his own motion, he may do 
 so without requiring proof of the absence of a material wit- 
 ness. {Kettle vs. Baker, 9 Johns. 354.) 
 
 When a cause is adjourned to a particular day, the Justice 
 cannot, before the day arrives, upon information that both par- 
 ties have consented, adjourn the cause to a later day. {Deland 
 vs. Richardson, 4 Den. 95.) Nor can he adjourn upon the writ- 
 ten consent of both parties if they are absent. (18 Barb. 530.) 
 
 Although a Justice may adjourn a cause when the defendant 
 does not appear, and there is no issue joined, he cannot hold 
 the cause open for an indefinite period from the return of the 
 summons; and where a cause was held open four days, and 
 then tried, the defendant not appearing, it was held to be 
 erroneous. {Wilcox vs. Clement, 4 Den. 160.) 
 
 2. On Motion of the Plaintiff. 
 
 At the time of the joining of issue, the Justice must, on the 
 application of the plaintiff, adjourn the cause to some time to be 
 fixed by the Justice, not exceeding eight days thereafter. But 
 such adjournment cannot be granted, unless the plaintiff or his 
 attorney, if required by the defendant, makes oath that he cannot, 
 for want of some material testimony or witness, safely proceed 
 to trial. {Code, % 2960.) 
 
250 NEW YORK JUSTICE. 
 
 A Justice cannot adjourn the trial of a cause for more than 
 sight days, at the instance of the plaintiff; but where a Justi(!e, 
 at the request of the plaintiff, adjourned a cause for ten days, and 
 the defendant afterwards appeai'ed and examined a witness, it 
 was held to be a waiver of the irregularity. {Dunham vs. Hey- 
 don. 7 Johns. 381. Miller vs. Larmon, 38 How. 417.) 
 
 The plaintiff can obtain an adjournment, only at the time of 
 the return of process, or of joining issue without process. Where 
 issue was joined in a cause and it was adjourned, and on the 
 adjourned day, the defendant being absent, the plaintiff appear- 
 ed, and the Justice again adjourned the cause, on the suggestion 
 of the plaintiff that the defendant had agreed to an adjourn- 
 ment, and on the plaintiff's affidavit of the absence of a material 
 witness, without his showing due diligence to procure his 
 attendance, it was held, that the Justice had not an unlimited 
 discretion to adjourn at the suggestion of the plaintiff, and that 
 such adjournment was a discontinuance of the cause. {Proud- 
 fit vs. Herman, 8 id. 391.) And, where a cause has been once 
 adjourned by consent of parties, a second adjournment cannot 
 be granted at the instance of the plaintiff. {Payne vs. Wlieeler, 
 15 Johns. 492.) 
 
 If the defendant requires it, the Justice has no right to grant 
 an adjournment upon the application of the plaintiff, unless 
 the plaintiff or his attorney makes oath that he cannot, for 
 want of some material testimony or witness, safely proceed to 
 trial. 
 
 Where the defendant has been arrested, the trial must be 
 adjourned, upon his application, upon the same terms and in the 
 same manner as where he has not been arrested ; except that the 
 undertaking prescribed in section 2962 need not be giren. A 
 defendant, who procures such an adjournment, must continue, 
 during the time of adjournment, in the custody of the constable, 
 unless lie gives an undertaking to the plaintiff, with one or more 
 sureties, approved by the Justice, to the effect that, if the plaintiff 
 recovers judgment in the action ; and if an execution is issued 
 thereupon against the person of the defendant, within ten days 
 after the plaintiff is entitled to tlie same ; and if a return is made 
 thereto, on or after the return day thereof, that the defendant 
 cannot be found, the sureties will pay to the plaintiff the amount 
 
ADJOURNMENT. 251 
 
 due upon the judgment. If such an undertaking is given, the 
 defendant must be discharged from custody. {Code, § 2963.) 
 
 The undertaking provided for in section 2963 takes the place 
 of the one mentioned in section 2962, whicli is to prevent the 
 defendant from removing any of his property from the county, 
 which property is not exempt from execution. 
 
 If the trial of an action, in which the defendant has been 
 arrested, is adjourned with the consent of both parties, or upon 
 the application of the plaintiff, the defendant must be discharged 
 from custody, {id. § 2964.) 
 
 Where a witness, attending before a Justice in an action, refuses 
 to be sworn or affirmed in the form prescribed by law, or to 
 answer a pertinent and proper question ; or neglects or refuses to 
 produce a book or paper which he has been duly subpcenaed to 
 produce, as prescribed in section 2969 of this act, or duly required 
 to produce by an order, made as prescribed in section 867 of this 
 act ; and the party, at whose instance he attended, makes oath 
 that the testimony of tlie witness, or that the book or paper is so 
 far material that without it he cannot safely proceed with the 
 trial of the action, the Justice may, by warrant, commit the 
 witness to the jail of the county. {Id., % 3001 ; 66 N. T., 368.) 
 
 The warrant must specify the cause for which it is issued. If 
 it is issued for refusing to answer a question, the question must 
 be specified therein ; if for neglecting or refusing to produce a 
 book or paper, the same must be described with convenient 
 certainty. The recusant witness must be closely confined, by 
 virtue of the warrant, until he submits to be sworn or affirmed, 
 or to answer, or to produce the book or paper required, as the 
 case may be, or is otherwise discharged according to law. {id. 
 § 3002.) 
 
 And the case may be adjourned, from time to time, till the 
 witness testifies or produces the book or paper required, or dies 
 or becomes a lunatic, or is discharged, {id. §§ 3003, 2967.) 
 
 When a commission is applied for and granted on the part 
 of the plaintiff, which we shall see hereafter {Post, part I, 
 chap. XI) may be done whenever an issue of fact shall have 
 been joined in any action or suit before a Justice of the Peace, 
 the plaintiff is entitled to an adjournment for such reasonable 
 time as will enable him to procure the return of the commission, 
 
NEW YORK JUSTICE. 
 
 not exceeding ninety days from the joining of issue. {Code, 
 §§ 2983, 2968.) 
 
 If, in any suit in the Marine Court of the city of New York, 
 the plaintiff makes oath that he cannot, for the want of some 
 material evidence or witness, safely proceed to trial, the Court 
 may, in its discretion, and upon such terms as may be deemed 
 proper, postpone the trial for such reasonable time as will 
 enable the plaintiff to procure such evidence or witness, pro- 
 vided such time shall not exceed three calendar months. {Code, 
 § 3171.) 
 
 3. On Motion of the Defendant. 
 
 In all cases the defendant is entitled to an adjournment, on his 
 application therefor, and on his complying with the following 
 requisitions : 
 
 1. The application must be made at the time of joining issae. 
 
 2. If required by the plaintiff or his attorney, or the Justice, 
 the defendant must make oath that he believes the defendant has 
 a good defence to the action, and that he cannot safely proceed to 
 trial, for the want of some material testimony or witness, to be 
 specified by him. 
 
 3. If required by the plaintiff, he must give security, as here- 
 after specified, unless he has been arrested. 
 
 The undertaking must be to the effect that, if the plaintiff 
 recovers judgment, and if, before the expiration of ten days after 
 the plaintiff is entitled to execution, the defendant removes, 
 secretes, assigns, or in any way disposes of, any part of his property 
 liable to levy and sale, except for the necessary support of himself 
 and his family, and the execution is returned unsatisfied, the 
 sureties will, upon demand, pay the sum due upon the judgment. 
 {id. § 2962.) 
 
 Such adjournment must be for such reasonable time as will 
 enable the defendant to procure such testimony or witness, not 
 exceeding ninety days. {Code, § 2962.) 
 
 The Justice should exercise a sound discretion as to the time 
 of the adjournment, taking into consideration the residence of 
 the witness, his absence from home, his sickness, or any other 
 circumstances. 
 
 The defendant may claim one adjournment as a matter of 
 
ADJOURNMENT. 253 
 
 right, on giving security, and making oath of the absence of a 
 material witness; he may be entitled to others on showing suffi- 
 cient cause, provided they do not exceed the ninety days. 
 {Smith vs. Fenton, 2 Cow. 425.) 
 
 The absent testimony or witness must be specified by the de- 
 fendant, if he is required to do so by the plaintiff or Justice. 
 He is not bound to detail all the testimony, or to give the names 
 of all the witnesses; it is sufficient to give the name of one 
 absent material witness, Avithout whose testimony he cannot 
 safely proceed to trial. By doing tliis he makes out a case for 
 an adjournment, and that is all that can be required of him. 
 If he refuses to name his witness, or to state where he resides, 
 the adjournment may be denied, (id. 295; Farrington vs. 
 Payne, 15 Johns. 432. Brugett vs. Edwa/i'ds, 4 Lans. 193.) 
 
 If the defendant does not give the security required, although 
 he complies with the statute in other respects, the adjournment 
 cannot be granted, and the Justice is bound to proceed with the 
 cause. 
 
 When the plaintiff offers to admit the matters expected to be 
 proved by the absent witness, the adjournment maj^ be refused. 
 And after such an offer has been made by the plaintiff, and ac- 
 cepted by the defendant, the latter is precluded from asking an 
 adjournment to enable him to procure the testimony of the same 
 witness. {Brill vs. Lord, 14 Jolms. 341.) 
 
 The Justice must, upon the application of the defendant, 
 grant a second or subsequent adjournment of the trial of the 
 action, upon the defendant's giving security, if required, as pre- 
 scribed in the foregoing provisions of this article, where he 
 applies for a first adjournment ; and upon his proving, by his 
 own oath or otherwise, to the satisfaction of the Justice, that he 
 cannot safely proceed to trial for want of some material testimony 
 or witness ; and that he has used due diligence to obtain the testi- 
 mony or witness. But if the defendant has given an undertaking 
 upon a former adjournment, a new undertaking need not be given 
 unless it is required by the Justice, or by the sureties in the former 
 undertaking, {id. § 2965.) 
 
 The motion must be based on an affidavit — which must embrace 
 an affidavit of merits — the materiality of the absent evidence — • 
 due diligence to procure the witness — and assurance of his 
 probable attendance on the adjourned day. {BroohVyn Oil Works 
 vs. Brown, 38 How. 451.) 
 
254 NEW YOEK JUSTICE. 
 
 § 33. UndertaMng of Defendant on Adjov/rnment. 
 
 Whereas, an action has been commenced before G. H., Esq., a 
 Justice of the Peace, by A. B., plaintiff, against C. D., defendant ; 
 and, whereas, the said action is adjourned until the day 
 
 of , on the application of said 
 
 defendant. Now, therefore, we, the said C. D. and L. M. and 
 O. P., farmers of the town of , do hereby 
 
 jointly and severally undertake that if the plaintiff recovers judg- 
 ment in this action, and if, before the expiration of ten days after 
 the plaintiff becomes entitled to an execution upon the judgment, 
 the defendant removes, secretes, assigns, or in any way disposes 
 of any part of his property, liable to levy and sale by virtue of 
 an execution, except for necessary support of himself and his 
 family. And if an execution upon the judgment is returned 
 wholly or partly unsatisfied, we will, upon demand, pay the 
 plaintiff the sum due upon the judgment. 
 
 c. 
 
 D. 
 
 L. B. 
 
 L. 
 
 M. 
 
 L. 8. 
 
 0. 
 
 P. 
 
 L. B. 
 
 The Justice should approve the undertaking and sureties by 
 making the following endorsement on the undertaking : 
 
 I approve of the within undertaking, and of the sufficiency of 
 the sureties therein. 
 
 G. H., Justice. 
 
 In any suit brought upon such undertaking, the plaintiff will 
 not be entitled to recover, unless he shows an execution upon a 
 judgment obtained in the suit in which such adjournment was 
 had, duly issued within ten days after the time when by law the 
 same could be issued against the property of the defendant, and 
 a return thereon that such property could not be found. 
 
 In case the defendant has been arrested, the undertaking, if he 
 wishes to be discharged from the arrest, must be to the plaintiff, 
 with one or more sureties, approved by the Justice to the effect 
 that if the plaintiff recovers judgment in the action, and if an 
 execution is issued thereupon against the person of the defendant, 
 within ten days after the plaintiff is entitled to the same ; and if 
 a return is made thereto, on or after the return day thereof, that 
 the defendant cannot be found, the sureties will pay to the plain- 
 tiff the amount due upon the judgment. {Code, § 2963.) 
 
A.DJOtTRNMENT. 255 
 
 § 34. Under uuMng for Defendant, wJiere he has heen Arrested. 
 
 Whereas, an action has been commenced before G. H., Esq., a 
 Justice of the Peace, by A. B., plaintiff, against C. D., defendant, 
 in which action the said defendant has been arrested and the said 
 defendant desiring to be discharged from arrest ; now, therefore, 
 we, the said C. 1). and L. M. and O. P., farmers of the town 
 of , do hei-eby jointly and severally 
 
 undertake, that if the plaintiff recovers judgment in the action, 
 and if an exeeation is issued thereupon against the person of the 
 said defendant, within ten days after the plaintiff is entitled to 
 the same ; and if a return is made thereto, on or after the return 
 day thereof, that the defendant cannot be found, we will pay to 
 the plaintiff the amount due upon the judgment. 
 Dated 
 
 C. D. [l. S.J 
 L. M. [l. s.] 
 O. P. [l. s.] 
 
 This bond and the sureties should be approved by the Justice 
 as before. 
 
 If the condition of this undertaking be broken, and an execu- 
 tion on the judgment which may be obtained by the plaintiff be 
 returned unsatisfied in whole or in part, the plaintiff, in an action 
 on such undertaking, will be entitled to recover the amount due 
 on the judgment. 
 
 If the case has been once adjourned, or the plaintiff is a non- 
 resident of the county, the Justice may direct that the witnesses 
 of the plaintiff be examined before such adjournment. {Code, 
 § 2966.) 
 
 If a cause is adjourned on the application of the defendant, 
 where he has been arrested, he must continue, during the time of 
 adjournment, in the custody of the constable, unless he gives the 
 security before specified, {id. § 2963.) 
 
 The provisions of law before cited, {ante, pp. 251, 252,) in 
 regard to an adjournment where a witness refuses to be sworn 
 or to answer questions, and in regard to an applicant for an 
 adjournment exhibiting his account, if required, are applicable 
 to an adjournment on motion of the defendant. 
 
 No adjournment can be allowed, without the agreement of 
 the parties, to a time beyond ninety days from the joining of the 
 issue in the action, except where a venire has been issued, and a 
 new venire must be issued, or one or more talesmen must be 
 
256 NEW YORK JUSTICE. 
 
 summoned, the trial may be adjourned not more than two days 
 beyond the ninety days, or when a jury have not i agreed, an 
 adjournment may be had to obtain a new jury, or when a warrant 
 of attachment has been issued against a witness, {id. § 2968.) 
 
 No suit brought, or action commenced, in any of the District 
 Courts in the city of New York, abates or is discontinued by 
 reason of the absence of any of the Justices in said city from 
 their usual respective places of holding the said Courts, on the 
 return day of any process, or upon the day to which any cause 
 or proceeding is adjourned ; but the clerks of said Courts, 
 respectively, have power to adjourn such cases to such time as 
 the Justice is in attendance upon said Court, provided that such 
 adjournment shall exceed at no one time six days, without the 
 mutual consent of the parties to the suit. {Laws of 1840, cha/p. 
 170 ; Laws of 1848, chap. 153 ; Laws of 1852, cha^. 324 ; Loajos 
 of 1857, chap. 295, § 6.) 
 
 4. FuRTHEE Adjournments. 
 
 In all cases a defendant is entitled to a further adjournment, 
 upon giving security, if required, as heretofore directed, and 
 upon proving, by his own oath or otherwise, to the satisfaction 
 of the Justice, that he cannot safely proceed to trial, for want 
 of some material testimony or witness, and that he has used due 
 diligence to obtain such testimony or witness. (Code, % 2961.) 
 But no adjournment can be allowed, without the agreement of 
 the parties, to a time beyond ninety days from the joining of the 
 issue in the action. (*^. § 2968.) 
 
 If a bond has been given upon any prior adjournment, a new 
 bond is not necessary upon a subsequent adjournment, unless 
 such bond be required by the Justice, or by the bail of the 
 defendant in the prior bond. {j,d. § 2965.) 
 
 Although the defendant has had two adjournments, he is 
 entitled to a third, on complying with the statute, provided the 
 ninety days from the joining of the issue have not expired. 
 {Smith vs. Fenian, 2 (Jow. 425.) 
 
 It must not only be proved to the satisfaction of the Justice, 
 that the witness is material, but the defendant must show that 
 he has used due diligence to obtain the witness ; and, if he fails 
 to do this, and refuses to disclose who or where the witness is,. 
 
FURTHER ADJOURNMENTS. 257 
 
 it is proper for the Justice to refuse the acljournment. [Smith 
 Ts. Fenton, 2 Cow. 425; 1 Johns. 114; 9 id. 133; Farrington 
 TS. Payne, 15 id. 432.) 
 
 It is usually required of the defendant to state that he expects 
 to be able to procure the attendance of his witness on the 
 adjourned day. As a general rule, the plaintiff cannot require 
 the defendant to state what he expects to prove by his absent 
 witness: but, when the defendant's conduct is such as fairly to 
 cast siispicion upon the bona fides of the application, and he 
 refuses to disclose what he expects to prove by the absent wit- 
 ness, the Justice may, in his discretion, deny the adjournment. 
 {Onderdonk vs. Ranlett, 3 Hill, 323.) 
 
 If, on the adjourned day, the defendant givos security, if 
 required, and swears that he has material witnesses absent, that 
 he has subpoenaed them, and used due diligence to obtain them, 
 and expects to procure their attendance by a certain day, the 
 Justice is bound to grant an adjournment till such day, if within 
 the ninety days. (9 Johns. 133, 364; 11 id. 442; 12 id. 418; 
 13 id. 462; 15 id. 432, su:pra.) 
 
 By agreement of the parties, a cause may be adjourned for 
 more than ninety days. {Code, § 2968.) 
 
 5. Irregular Adjournments. 
 
 An adjournment must be regularly made, or the cause is out 
 of Court. When made hj agreement of parties, in the absence 
 of the Justice, it is not good, although subsequently entered 
 by him on his docket; and if, on an adjournment so made, the 
 defendant does not appear on the adjourned day, and judgment 
 is rendered against him, it will be reversed. {Kimball vs. 
 Mack, 10 Wend. 497.) 
 
 An illegal adjournment by the Justice amounts to a discon- 
 tinuance of the suit. {Proudfit vs. Herman, 8 Johns. 391.) 
 Accordingly, where a Justice adjourns a cause more than once 
 on his own motion, or adjourns it at the instance of the plain- 
 tiff, after a previous adjournment, the action is discontinued. 
 {id.; 2 id. 192; Weeks vs. Lyon, 18 Barb. 530.) And so it is, 
 also, if the cause is adjourned without issue joined, unless the 
 defendant refuses to plead; {Thompson vs. Sayre, 1 Den. 175;) 
 or if the Justice does not appear on the return day, and 
 adjourns the cause by a note in writing, without signature, 
 17 
 
258 NEW YORK JUSTICE. 
 
 addressed to the plaintiff; (^Wie.it vs. Critoing&r, 4 Johns. 117;) 
 or if the plaintiff does not appear on the return of the process, 
 {Sprague vs. Shed, 9 id. 140,) or on the adjourned day. (15 
 id. 245: Horton vs. Auchmoody, 7 Wend. 200.) 
 
 In the case oi Hard vs. Shipman, (6 Barb. 621,) it was held, 
 that where an inferior Court has once acquired jurisdiction, it 
 will not lose it by a subsequent error or irregularity; that 
 accordingly, a Justice does not lose jurisdiction of a cause by 
 erroneously adjourning it, contrary to the agreement of the 
 parties; and that a judgment subsequently rendered by the 
 Justice is valid until reversed. The action in that case was 
 tried by a jury, on the 19th of July. 1847; the jury did not 
 agree, and were discharged by the Justice; while the jury were 
 deliberating on their verdict, an agreement was made by the 
 parties and the Justice, on the outer steps of the house where 
 the trial was had, that, if the jury did not agree, the cause should 
 be adjourned until the 22d of July, and a new venire be issued, 
 returnable on that day; the defendant then left the Court, and 
 was not present when the jury came in; the jury not agreeing, 
 the Justice adjourned the cause to the 26th instead of the 22d, 
 at which time the cause was called, and the plaintiff appeared, 
 but the defendant did not appear; and, after waiting one hour, 
 the defendant not appearing, the plaintiff proceeded to trial and 
 obtained a judgment. Mr. Justice Paige says: "Conceding the 
 fact to be as proved by the defendant, the result is that the 
 Justice, after the jury were discharged, and while the Court was 
 open, adjourned the cause to the 26th of July, without the 
 consent of the defendant. This was undoubtedly an error in 
 the Justice. If the agreement proved by the defendant was made 
 in Court, and, therefore, a valid agreement, the Justice should 
 either have adjourned the cause to the 22d of July, or should, 
 as soon as the jury were discharged, have issued a new venire 
 returnable within forty-eight hours. The Justice's adjournment 
 of the cause to the 26th of July, under the circumstances, 
 amounted, to use the language of the cases, (2 Johns. 192; 4 id. 
 117; 5 id. 353; 8 id. 391; 9 id. 140; Kimball rs. Mack, 10 
 Wend. 497,) to a discontinuance of the suit. But, according to 
 the decision in Horton vs. Auchmoody, [supra,) the Justice did 
 not, by such adjournment, lose his jurisdiction of the cause. He 
 had jurisdiction of the cause, of the parties, and of the question 
 
WAIVER OF IRREGULARITY. 259 
 
 of adjournment. His error was an error of judgment, a judicial 
 error; and the only consequence of the error Avas, that the 
 judgment entered after the adjournment was reversible on cer- 
 tiorari. Although it is said in the cases, that the adjournment 
 of a cause by a Justice, at his own instance, or at the instance 
 of the plaintiff, without authority, amounts to a discontinuance 
 of the suit, yet, by this expression, nothing more is meant than 
 an irregularity or error, for which the judgment subsequently 
 entered could be avoided or reversed on certiorari. The judg- 
 ment is valid and binding until reversed. The remedy applied 
 in all the cases above cited bearing on this question, was the 
 direct remedy by certiorari. 
 
 A judgment obtained on an irregular adjournment is, there- 
 fore, not void, but only voidable, and is good unless set aside 
 on appeal. 
 
 A Justice may hold his Court open for the purpose of obtain- 
 ing a jury; and he may hold it open a reasonable time to enable 
 a party to procure the attendance of a witness. Two hours has 
 been held not to be an unreasonable time for a party to procure 
 a witness. {Pease vs. Gleason, 8 Johns. 409.) But where the 
 Justice held the cause open for twenty hours, it was held to be 
 a discontinuance. {Green vs. Angel, 13 Johns. 469.) 
 
 A Justice has no power to adjourn the trial of a cause after 
 it is once commenced, except upon consent of both parties; and 
 an adjournment without such authority renders the subsequent 
 proceedings void. {Aberhall vs. JRoach, 11 Hoiv. 95.) 
 
 6. Waiver of Irregularity. 
 
 If a party appears, and goes to trial on the merits, it is a 
 waiver of any objection to an adjournment irregularly granted; 
 and so, also, even if he only cross-examine a witness. (1 Johns. 
 Cases, 101; 7 Johns. 381; 9 id. 136; 3 Hill, 180; Weehs vs, 
 Lyon, 18 Barb. 530.) Where, after an indefinite postponement 
 of a cause, the Justice gave written notice to the parties of the 
 time and place when and where he would try it, and they ap- 
 peared and went to trial, it was held that the discontinuance 
 was waived. {Hogan vs. Baker, 2 U. D. Smith.) 
 
 If the Justice improperly refuses to adjourn a cause on the 
 request of the defendant, and the defendant afterwards volun- 
 
260 NEW YORK JUSTICE. 
 
 tarily confesses judgment, this is a waiver of the previous irregu- 
 larity. (Hill vs. Downer, 11 Johns. 461.) 
 
 An irregular adjournment cannot be objected to as erroneous, 
 by the party at whose instance it was granted. (JPeck vs. Mo 
 Alpine, 3 Gaines, 166.) 
 
 If a defendant is present, and answers when called by the 
 Justice, he does not thereby waive an irregularity in a prior ad- 
 journment, if he refuses to plead, and does not participate in 
 the farther proceedings. (5 Bill, 428; Thompson vs. 8ayre, 1 
 Den. 175.) 
 
 7. General Rules. 
 
 As a general ru.e, the Justice must wait one hour for the ap- 
 pearance of the parties, and he need wait no longer, unless some 
 excuse, which he shall deem reasonable, be shown for farther 
 indulgence. {Allen vs. 8tone, 9 Barb. 60; ante, p. 206.) 
 
 When a party has had an adjournment for ninety days, he 
 cannot have another adjournment. (Townsend vs. Lee, 3 Johns. 
 435.) 
 
 After the jury is sworn and empannelled, an adjournment can 
 be granted only by consent of parties. (8 id. 437; Parmelee 
 vs. Thompson, 7 Hill, 11.) 
 
 A Justice who acts without jurisdiction is a trespasser; but 
 if he has jurisdiction, an error in judgment does not subject him 
 to an action. Therefore, if he grants an adjournment to a plain- 
 tiff who is not entitled to it, and subsequently renders judgment 
 against the defendant, and issues execution, he cannot be sued 
 as a trespasser. [Horton vs. Auchmoody, 7 Wend. 200.) 
 
 An action may be adjourned, where a witness, who has been 
 in part examined, is prevented by sickness from being further 
 examined; but, if the witness is not produced on the adjourned 
 day, his testimony should be stricken out. (Olements vs. Ben- 
 jamin, 12 Johns. 299.) 
 
COMMISSIONS. 261 
 
 CHAPTER XI. 
 
 OF COMMISSIONS AND SUBPCENAS. 
 
 Issue having been joined in an action, and an adjournment 
 had to a particular time, the next step in its progress is, to 
 prepare for trial. 
 
 A subpoena will only compel the attendance of a witness 
 who is in the same county where the action is to be tried, or 
 in an adjoining county. 
 
 It is generally difficult to procure the attendance of a witness 
 who cannot be reached by a subpoena; and, unless he volunta- 
 rily appears, his testimony can be obtained only by a com- 
 mission. 
 
 1. Commissions. 
 
 The following are the provisions of the statute in regard to 
 the issuing of commissions by Justices of the Peace: 
 
 Where the defendant has neglected to appear upon the return 
 of a summons, or has failed to answer the complaint, or where an 
 issue of fact has been joined in an action ; and it appears, by 
 affidavit, upon the application of either party, that a witness, not 
 within the county wliere the action is pending, or an adjoining 
 county, is material in the prosecution or defence of the action, 
 the Justice may award a commission to one or more competent 
 persons, authorizing them, or either of them, to examine the 
 witness under oath, upon interrogatories to be settled by the 
 Justice, or by the written agreement of the parties, and indorsed 
 upon, or annexed to, the commission ; to take and certify the 
 deposition of the witness; and to return the same by mail, 
 addressed to the Justice. {Code, § 2980.) 
 
 If both parties expressly consent, a commission, granted as 
 prescribed in this article, may issue without written interrogatories, 
 and the deposition may be taken upon oral questions. In that 
 case, section 900 of the Code applies to the execution of the 
 commission ; and a copy of that section must be annexed thereto. 
 
262 NEW YORK JUSTICE. 
 
 Notice of the time or place of the examination of a witness, by 
 virtue thereof, need not be given, {id. § 2981.) 
 
 The commission may be granted by the Justice without notice, 
 upon the application of the plaintiff, made at the return of the 
 summons, or upon the application of either party, made at the 
 time of the joinder of issue. It may also be granted at any time 
 after the joinder of issue, upon the application of either party, 
 accompanied with proof, by affidavit, that six days' written notice 
 of the application has been served upon the adverse party, either 
 personally, or by service upon the attorney who appeared for him 
 before the Justice, {id. % 2982.) 
 
 Where a commission is granted upon the application of the 
 plaintiff, he is entitled to one or more adjournments of the trial, 
 as may be necessary to procure the commission to be executed 
 and returned, not exceeding the length of time for which the 
 trial might be adjourned upon the application of the defendant. 
 {id. § 2983.) 
 
 The commission may be granted at any time after issue 
 joined, by giving six days notice to the adverse party that it 
 will be applied for. It would be proper for the party to give 
 notice of his application at the time of joining issue, if he de- 
 sires to take the testimony of a witness by commission; but he 
 is not bound to do so. He may make the application at any 
 time, even after several adjournments have been granted. He 
 rannot, however, by doing so, postpone the trial to a time 
 beyond ninety days from the joining of issue. 
 
 Before a commission is issued, all the requirements of the 
 statute must be complied with; and it must, therefore, be 
 shown, on the application, that the witness resides out of the 
 county in which the suit is pending, and out of the adjoining 
 county, and that he is a material witness. 
 
 [For form of Notice of Application for a Commission, see 
 McCall's Clerk's Assistant, p. 33 7. J 
 
 The notice may be served by any person, but it must be served 
 at least six days before the making of the application. The serv- 
 ice should be personal on the adverse party ; but service upon 
 his agent or attorney, duly authorized to act for him in the 
 
COMMISSIONS. 263 
 
 action, will be sufficient. If the adverse party, or his agent or 
 attorney, is present when the commission is granted, and admits 
 due service of notice, no proof of the service of notice is neces- 
 sary; otherwise the proof must be made, either by affidavit or 
 orally. A recent statute enacts that, whenever on the trial oi 
 any action, &c., it is necessary to prove the service of any notice, 
 au affidavit, showing such service to have been made, by the 
 person making such affidavit, shall be received as presumptive 
 evidence of such service, upon first proving that such person is 
 dead or insane. {Code, % 927.) 
 
 An objection to the sufficiency of the notice of motion for a 
 commission must be specific, and be taken at the time of the 
 application; it is too late to object after the commission has 
 been executed and returned. {Allen vs. Edwards. 3 Hill, 499.) 
 
 § 35. Affidavit of Service of Notice. 
 In Justice's Court, 
 
 CD "1 
 
 . , Before G H, Esq . , one of the Justices of the Peace 
 
 •^ -r, ^'^ the county of 
 
 County ss: William Eandall being duly sworn, says that on 
 the 31st day of December, 1852, he sei'ved a notice, of which 
 the annexed is a copy, upon A B, the defendant therein named, 
 by delivering the same to him, [or, to E F, his attorney,] per- 
 sonally. 
 
 Sworn, &c. William Randall. 
 
 If proof of the seiwice of the notice is made orally, the fol- 
 lowing oath should be administered by the Justice: 
 
 You do swear, that you will true answers make to such ques- 
 tions as shall be put to you, touching the service of notice of 
 an application for a commission in this cause. 
 
 At the time named in the notice, and after proving its service, 
 the party applying for the commission must not only prove that 
 the witness does not reside within the county in which the suit 
 is pending, or the adjoining county, but he must establish the 
 materiality of the witness. 
 
 Proof of materiality and of residence need not necessarily 
 be made by the party himself who applies. The fact that he 
 himself is not a resident of the county where the suit is pend- 
 ing, and is absent therefrom, is a sufficient reason why the affi- 
 dAv t in support of the application may be made by his attorney. 
 
264 NEW YORK JUSTICE. 
 
 The affidavit of the attorney, that the witness did not reside 
 in the same or the adjoining county, but in the State of Virginia, 
 and that, as the deponent was informed and believed to be true 
 he was material in the prosecution of the action, and that with 
 out his testimony the party could not safely proceed to trial, 
 was held to be sufficient to authorize the issuing of a commis 
 sion. {Eaton vs. North, 7 Barb. 631.) Proof that the witness 
 is or may be material, and proof that he is in a certain county, 
 without showing that he resides there, is insufficient. (Parmel- 
 lee vs. Thompson, 7 Hill, 77.) 
 
 "Where no laches is imputable to a party applying for a com- 
 mission, and there is nothing to cast suspicion upon the appli- 
 cation, he is not bound to state what he expects to prove by the 
 witness whose testimony he seeks to procure. {Eaton vs. 
 North, 7 Barb. 631.) But if the party states what he expects 
 to prove, and the adverse party offers to admit it, a commission 
 should not be granted, because no time can be wanted to pro- 
 cure testimony to a fact which is admitted. {Brill vs. Lord, 
 14 Johns. 341.) 
 
 It rests in the sound discretion of the Justice, whether or not 
 to issue a commission. When, therefore, it appears to him 
 satisfactorily, that there are no sufficient reasons for issuing a 
 commission, or when the application is obviously made for delay, 
 or when the party states what he expects to prove, and it is 
 clear that the testimony can in nowise be material, the Justice 
 ought not to grant a commission. 
 
 A form of an affidavit showing the materiality and residence 
 of the witness is unnecessary. It may follow the language of 
 the statute, as just cited. 
 
 If oral proof is made, the following oath should be adminis- 
 tered by the Justice to the person making it: 
 
 You do swear, that you will true answers make to such ques- 
 tions as shall be put to you, touching the necessity of issuing a 
 commission in this cause. 
 
 Satisfactory proof having been made, the Justice should issue 
 the commission, directed to the person named in the notice, 
 unless it appear to the Justice that he is an improper person to 
 execute the commission, and in that case it should be directed 
 to some other competent person. 
 
COMMISSIONS. 265 
 
 § 36. Commission. 
 County, ss: 
 To S T, of the of , in the county of 
 
 Whereas it appears to me, the undersigned, a Justice of the 
 Peace of the town of , in the county of , that E P, 
 
 of the of aforesaid, is a material witness in the 
 
 prosecution [or, defence] of a certain action now depending 
 before me, between C D, plaintiff, and A B, defendant: Now, 
 therefore, confiding in your prudence and fidelity, and in pur- 
 suance of the statute, I have appointed, and by these presents 
 do appoint you, commissioner to examine the said witness; and 
 for that purpose do authorize you, at certain days and places, 
 to be by you appointed, diligently to examine the said witness, 
 on the interrogatories hereto annexed, on oath to be taken be- 
 fore you; and to cause such examination to be reduced to 
 writing, and signed by such witness, and certified by yourself, 
 and to return the same, annexed hereto, to me, enclosed under 
 your seal, according to the directions herewith given you. 
 Given under my hand, at the aforesaid, the day 
 
 of , 18 . 
 
 G H, Justice of the Peace. 
 
 Where the names of the foreign witnesses are not known to 
 the party, but they are sufficiently described, and the evidence 
 is shown to be material, the commission need not name them; 
 thus, it may require the examination of "the attorney-general " 
 of a particular State. (Shaker vs. Wilcox, 2 Hall, 502.) 
 
 The parties may agree upon the interrogatories, by their 
 written agreement to be annexed to the commission; but if 
 they do not, the interrogatories on both sides should be drawn 
 up and submitted to the Justice for settlement. 
 
 As to the form of the interrogatories, they must embrace the 
 subject of inquiry, and be governed by the rules applicable to 
 oral evidence. Each party is allowed to insert any question, 
 pertinent to the cause, wliich he shall propose. The parties 
 are also allowed to insert a general interrogatory, whether the 
 witness knows any other matter or thing, material to the party, 
 besides what he has been particularly interrogated unto; under 
 which the witness may state facts not previously called for by 
 the particular interrogatories. {Percival vs. Hichly, 18 Johns. 
 257.) 
 
 If the general interrogatory be not answered, the deposition 
 
266 NEW YORK JUSTICE. 
 
 cannot be read; it being an uudonbted principle, that the wit- 
 ness must answer substantially all the interrogatories, for 
 otherwise it is impossible to say that he has told the whole 
 truth. {Oraham's Practice, 487.) 
 
 § 37. Interrogatories, and Oross-Interrogatories. 
 
 In Justice's Court, 
 
 CD "\ 
 
 . . Before G H, one of the Justices of the 
 
 against > -r, ,- \i j. n 
 
 A B and E F. J ^^^^^ ""^ ^^^ ''''''''^'^ °^ 
 
 Interrogatories to be administered to E P, a witness to be 
 produced, sworn and examined on the part and behalf of C D, 
 plaintiff in an action now depending before G H, Esq., a Jus- 
 tice of the Peace of the county of Cayuga, against A B and 
 E F, defendants, at the suit of C D, plaintiff, before S T, under 
 and by virtue of a commission hereto annexed. 
 
 First. Do you know the parties, plaintiff and defendants, in 
 the title of these interi-ogatories named, or either of them, and 
 which of them, and how long have you known them or either 
 of them? 
 
 Second. Are you acquainted with the hand writing of the 
 said A B and E F? 
 
 Third. Were the said A B and E F members composing a 
 firm, known as B and F, and were they doing business at Buf- 
 falo at any time during the year 1850, and if so, at what time 
 in particular? 
 
 Fourth. Are you acquainted with the hand writing of the 
 said A B and E F, or of either and which of them? 
 
 Fifth. Look upon the paper writing hereto annexed, and 
 now shown to you at the time of your examination, and marked 
 A, and purporting to be a promissory note, made by B and F, 
 and payable to C D, or bearer, for one hundred dollars, and 
 dated June 4th, 1848. In whose hand writing is the signature 
 to the said note? 
 
 Lastly. Do you know any other matter or thing touching the 
 matters in question, that may tend to the benefit or advantage 
 of the plaintiff'? If yea, declare as fully and at large, as if 
 you had been particularly interrogated thereto. 
 
 C D, Plaintiff 
 
 Cross-interrogatories to be administered to the said E P. 
 First. Do you know that the firm of B and F was dissolved; 
 if so, at what time? 
 
 [^Insert any other inte^-rogatories xcJdch may be pertinent, and 
 
COMMISSIONS. 267 
 
 add the final interrogatory as before, inserting defendant in the 
 place of plaintiff.] ' A B, | D^f.^^^^^,, 
 
 If the parties agree upon the interrogatories on both sides, 
 they may endorse their assent upon them in the following form: 
 
 We, the undersigned, parties to the action named in the an- 
 nexed commission, hereby consent that the interrogatories 
 hereto annexed may be propounded to the witness therein named, 
 by the commissioner to whom the commission is directed. 
 
 CD, Plaintiff. 
 
 r^ -p' > Defendants. 
 
 If the parties do not assent to the interrogatories, the Justice 
 must settle them, and endorse a certificate of his approbation 
 upon them as follows: 
 
 I hereby certify that I have settled the within interrogatories 
 aud cross-interrogatories, and that I approve of the same. 
 
 G H, Justice. 
 
 The commission, with the interrogatories, as so agreed upon 
 or approved, annexed, must be sent to the commissioner who is 
 to execute it. 
 
 A party is not called upon to i*isk the loss of original papers 
 by annexing them to a commission issued to take testimony re- 
 specting them; and where, in the examination of witnesses by 
 commission as to an original paper, a copy is annexed to the in- 
 terrogatories that the witnesses may testify intelligently regard- 
 ing it, the evidence is not objectionable as secondary. (Com. 
 Bh. of Penn. vs. Union BTc. of K. Z"., 1 Kern. 203.) 
 
 As we have already seen, the statute provides that the com- 
 mission shall be executed and returned, as is prescribed by 
 statute when a commission issues out of a Court of Eecord. (2 
 Laws of 1838, chap. 243, § 4.) The manner of returning it may 
 be fixed by stipulation; otherwise the provisions of the statute 
 must be complied with. (8 Barb. 233; Williams vs. Eldridge, 
 1 Hill, 249.) 
 
 The Justice must direct the manner in which the commission 
 shall be returned, whether by mail or by an agent. The mode of 
 returning the commission is highly important, for the purpose 
 
268 NEW YORK JUSTICE. 
 
 of guarding against frauds, and no substantial requirement of 
 the statute can be dispensed with; if, therefore, the Justice omit 
 to give directions as to the return, the deposition cannot be read 
 in evidence. (20 Johns. 357; 3 Hill, 495; Hall vs. Barton, 25 
 Barb. 274.) 
 
 The Justice must endorse on the commission a direction as to 
 its return, as follows: 
 
 The within commission is to be returned to me at , 
 
 in the county of , my place of residence, by mail, \or, by 
 
 an agent of the plaintiff, or, defendant.] G H, Justice. 
 
 The mode of executing and returning a commission, prescribed 
 by statute, (see Code, § 901,) when a commission issues, is sub- 
 stantially as follows : 
 
 " The persons to whom such commission shall be directed, or 
 any one of them, unless otherwise expressly directed therein, 
 shall execute the same as follows : 
 
 1. They, or any one of them, shall publicly administer an oath 
 to the witnesses named in the commission, that the answers given 
 by such witnesses to the interrogatories proposed by them, shall 
 be the truth, the whole truth, and nothing but the truth : 
 
 2. They shall cause the examination of each witness to be 
 reduced to writing, and to be subscribed by him, and certified by 
 such of the commissioners as are present at the taking of the 
 same : 
 
 3. If any exhibits are produced and proved before them, they, 
 or a copy of them, shall be annexed to the depositions to which 
 they relate, and shall, in like manner, be subscribed by the witness 
 proving the same, and shall be certified by the commissioners : 
 
 4. The commissioners shall subscribe their names to each 
 sheet of the depositions taken, by them ; they shall annex all the 
 depositions and exhibits to the commission, upon which their 
 return shall be endorsed, and they shall close them up under 
 their seals, and shall address the same, when so closed, to the 
 Justice from whom the commission issued, at his place of 
 residence : 
 
 5. If there is a direction on the commission to return the same 
 by mail, they shall immediately deposit the packet, so directed, 
 in the nearest post-office, and pay the postage thereon." 
 
coBrMisBioNs. 269 
 
 In tlie Justice's Court the commission must be returned to the 
 Justice, and he must receive it from the post-oiEce, open, and file 
 it and indorse thereon the date of his so doing, and either party 
 may inspect it. {id. § 2985.) 
 
 When a commission is issued the statute requires a copy of the 
 foregoing directions to be annexed to the commission. Formerly 
 it was not imperative, in a Justice's Court, that a copy of , them 
 should be annexed, (25 Barb. 274, supra,) but it is the most con- 
 venient waj^ of advising the commissioner of his duties. (2 Cow. 
 Treatise, 330.) 
 
 When the commission is executed in this State, the commis- 
 sioners have the same power to issue subpcenas, swear witnesses, 
 and compel their attendance, as Justices of the Peace have. 
 {Code, § 2987.) 
 
 [For form of Commissioner's Summons to Witness, see 
 McCall's Clerk's Assistant, p. 338.] 
 
 [For form of Oath to Witness Examined on a Commission, 
 see McCall's Cleek's Assistant, p. 339.] 
 
 [For form of Dejoositio-n, of Witness before a Commissioner, 
 see McCall's Clerk's Assistant, p. 339.] 
 
 It will have been seen that, by the fourth subdivision of the 
 foregoing statutory directions for executing a commission, the 
 commissioners must endorse their return upon the commission. 
 This is indispensable ; otherwise, the commission cannot be read 
 in evidence. {Fleming vs. Hollenback, 7 Barb. 271.) Where, 
 however, the return of the commissioner was written on the 
 deposition, and the deposition and the commission, &c., were 
 all annexed together in such a manner that the return could not 
 be separated from the commission and evidence, it was held that 
 this was a substantial compliance with the statute, although there 
 was no return endorsed on the commission. Although there be 
 nothing on the envelope, or elsewhere, showing that the commis- 
 sion was deposited as required by statute, or that it was returned 
 by mail, it will be presumed that the commission was so deposited 
 and returned. (25 id. 274, supra.) 
 
 § 38. Return to be Endorsed on Commission. 
 State of 
 
 County of ,\ ' 
 
 I, A. JB., do certify that C. D., the witness, personally appeared 
 before me on the day of at 
 
270 NEW YORK JUSTICE. 
 
 o'clock A. M., at the in tlie 
 
 and after being sworn (or affirmed) to testify the truth, the whole 
 truth, and nothing but the truth, did depose to the matters con- 
 tained in the foregoing deposition, and did, in my presence, 
 subscribe the same and indorse the exhibits annexed thereto. 
 And I further certify that I have subscribed my name to each 
 half sheet thereof, and to each exhibit. And I further certify 
 that E. F. appeared in behalf of the plaintiff and that 
 appeared in behalf of defendant. 
 
 A. B., Commissioner. 
 
 2, SUBPCENAS. 
 
 (1.) The issuing of a Svhpmna. 
 
 If either party desires the attendance of witnesses on the 
 adjourned day, he should apply to the Justice for a subpoena for 
 such witnesses. 
 
 Any Justice of the Peace may issue subpcsnas to compel the 
 attendance of witnesses to give evidence on any trial depending 
 before himself or any other Justice. Such subpoena is valid to 
 compel the attendance of a witness being in the same county 
 where the cause is to be tried, or being in an adjoining county, 
 and in no other case. But a Justice cannot issue any subpoena 
 to compel the attendance of witnesses before another Justice, in 
 any suit, unless the person applying proves, by his own oath, or 
 the oath of some other person, that such suit is actually pending 
 before such other Justice. {Code, § 2969.) 
 
 § 39. Subpmna. 
 Town of , I g . 
 
 County, j 
 
 The People of the State of ISTew York, to E F, L M, &c., &c., 
 Greeting : 
 
 We command you, and each of you, that all business and 
 excuses beiug laid aside, you and each of you, be and appear, in 
 your proper persons, before the undersigned, one of the Justices 
 of the Peace of the said town, [or, before , one of the Justices 
 of the Peace of the town of , in the county of ,] at 
 
 his office in , in the said county, on the day of 
 
 , at o'clock in the noon, then and there to 
 
 testify those things which you or either of you know, in a certain 
 action now pending before the said Justice, between C D, plain- 
 tiff, and A B, defendant, on the part of the defendant \or, plain- 
 tiff.] [If a witness is required to produce some paper or other 
 written evidence insert here : And you, L M, are further com- 
 manded to bring with you, and then and there produce in evi- 
 
SUBPCENAS. 271 
 
 dence, a certain agx'eement in writing, &c., or as the case may be 
 descrihhig the paper.J Hereof fail not at your peril. 
 Witness my hand, this day of 18 . 
 
 G H, Justice of the Peace. 
 
 "When books or papers are directed by the subpoena to be 
 produced, it is called a subpoena duces tecum. The thing re- 
 quired to be produced should be particularly described; and a 
 general notice to produce all letters, papers, and documents 
 touching or concermng the matter in dispute, is insufficient to 
 require the production of a particular letter. 
 
 A witness is not bound to produce books or pajDers, unless 
 they are in his possession and under his control; therefore a 
 clerk in a bank cannot be compelled, on a subpoena, to produce 
 its books. {Bank of XJtica vs. HilUard, 5 Coiv. 153.) 
 
 An attorney cannot be compelled to produce the papers of 
 his client, on a subpoena; but notice must be given to produce 
 them, and that, on failure to do so, secondary evidence will be 
 given of their cantents. {McPherson vs. Rathbone, 7 Wend. 
 216.) 
 
 (2.) The Service of a Subpoena. 
 
 A subpoena may be served, either by a constable or by any 
 other person. It must be served by reading the same, or stating 
 the contents to the witness, and by paying or tendering the fees 
 allowed by law for one clay's attendance of such witness. {Code, 
 § 2970.) 
 
 A party may have one or more subpoenas; and, after the 
 Justice has inserted one name the party may insert as many others 
 as he chooses. {Holt's JV. P. Rep. 326.) 
 
 A witness is not bound to attend, nor, if in attendance, is he 
 obliged to be sworn, before his fees have been paid. If the 
 amount of fees paid a witness is insufficient, although he receives 
 it without objection, the sendee of the subpoena is not good; 
 for it is a common case that a witness does not know, when the 
 subpoena is served, how much he is entitled to receive. Parties 
 should understand that they must pay witnesses enough at their 
 peril. If a witness attends for one day in pursuance of a sub- 
 poena, he has a right to depart on the next day, unless another 
 day's fees are paid him; but it is not necessary to serve him 
 with a new subpoena. (3 Den. 27; Hurd vs. Sivan, 4 id. 75.) 
 
272 NEW YORK JUSTICE. 
 
 Witnesses from the same county, and from any other place 
 than the same county, are entitled to twenty-five cents for every 
 day's actual attendance. {Code, § 3-327.) 
 
 A witness is entitled to receive his fees from the party calling 
 him, but he cannot recover them from the Justice, {^atts vs. 
 Van Ness, 1 Hill, 76.) A witness may expressly waive pay- 
 ment of his fees, and then he is bound to attend. (4 Den. Ih ; 
 supra, Cro. Car. 522, 540.) If he attends without a subpcEna, 
 and is sworn, he is entitled to his fees. {Baker vs. Brill, 15 
 Johns. 260.) 
 
 The subpoena must be pex'sonally served, and if the witness 
 be a married woman, the service must be upon her, and the fees 
 be paid to her personally and not to her husband. {Cro. Eliz. 122.) 
 
 A witness may waive the reading of a subpoena, or a state- 
 ment of its contents. But if he attempts to evade the hearing 
 of it, an unsuccessful attempt to read it, or to state its contents, 
 will be good service. (2 Qow. Treatise, 314.) 
 
 (3.) Attachment to compel the attendance of a witness. 
 
 Whenever it appears to the satisfaction of the Justice, by 
 proof made before him, that any person duly subpoenaed to 
 appear before him, in any cause, has refused or neglected, with 
 out just cause, to attend as a witness, in conformity to such sub 
 poena, and that the testimony of such witness is material, the 
 Justice has power to issue an attachment to compel the atten- 
 dance of such witness. {Code, § 2971.) 
 
 The proof thu5 required to obtain an attachment, may be 
 made by the affidavit of the party in the suit applying for such 
 attachment, or by his attorney, to the satisfaction of the Justice 
 before whom such suit is pending. It has been held that this 
 affidavit need not be an oath in writing, according to the strict 
 and technical sense of that word, but that the application for the 
 attachment and the oath in support of it may both of them be 
 oral. {Baker vs. Williams, 12 Barh. 527.) 
 
 The constable's return is evidence of the service of the sub- 
 poena. When the subpoena is served by any other person, parol 
 proof of service is sufficient ; and the non-attendance of the wit- 
 ness may be proved by parol. {Cogswell vs. Meech, 12 Wend. 
 147.) The Justice should be satisfied that the witness has been. 
 
ATTACHMENT FOR WITNESS. 273 
 
 duly subpoenaed, and neglects or refuses to attend; but even 
 then he cannot issue an attachment unless it is proved to his 
 satisfaction, by competent testimony, that the testimony of the 
 witness is material. {Courtney vs. Baker, 3 Den. 27.) 
 
 If the subpoena is served by a constable he should endorse 
 his return on it thus: 
 
 The within subpoena was personally served by me on Wil- 
 liam Jones, the witness within named, on the 29th day of De- 
 cember, 1852. Stephen Giffoed, Constable. 
 
 [For form of Affidavit of Service of 8vhpoena to obtain At- 
 tachment, see McCall's Clerk's Assistant, p. 328.J 
 
 [For form of Attachment for Witness, see McCall's Clerk's 
 
 Assistant, p. 329.J 
 
 The attachment is issued for the purpose of compelling the 
 attendance of the witness, that he may be sworn on the trial 
 of the cause. If, therefore, the witness be near the place of 
 trial, so that the attachment may be served and returned in a 
 short time, it may be made returnable forthwith, and the Jus- 
 tice may continue the cause open until the attachment is served 
 and returned. But if the witness be at such a distance from 
 the place of trial that the attachment cannot be served and 
 returned in a reasonable time for continuing the cause open, 
 the proper course will be to adjourn the trial to such time as 
 will be sufficient for the service and return of the attachment, 
 and to make the attachment returnable at that time. (Ed- 
 luard's Justice, 79.) 
 
 The attachment must be executed in the same manner as an 
 order of arrest, that is, the witness must be arrested by the 
 constable and taken before the Justice who issued the attach- 
 ment ; and the fees of the officers for issuing and serving 
 the same, must be paid by the person against whom the attach- 
 ment is issued, unless he shows reasonable cause, to the satis- 
 faction of the Judge, for his omission to attend ; in which 
 case the party requiring the attachment must pay all costs of 
 such attachment and of the service of the same. {Code, 
 § 2972.) 
 
 If the Justice determines that the witness shall pay the costs, 
 
274 NEW VUKK JUSTICE. 
 
 and he refuses to paj' them, the party requiring the attachment 
 may collect them from the witness, by an action; but the party 
 is liable in the first instance to pay the costs of the constable 
 and Justice. 
 
 (4.) Duty of a witness and what will excuse non-attendance. 
 
 We have seen that a witness is excused for non attendance, 
 if his fees are not paid. {Ante, jp. 271.) 
 
 The inability of a witness to attend Court must be decided 
 in reference to the modes of travelling which are in use in the 
 community. If there are modes not impracticable, and it does 
 not appear but that the witness could have made use of them, 
 his non-attendance cannot be attributed to inability. (3 Ire- 
 dell, 11.) 
 
 A witness must have a reasonable time to travel to Court 
 according to the usual modes of public conveyance, without 
 being required to travel on the Sabbath; but he is not entitled 
 to time at the rate of thirty miles a day. Therefore where a 
 witness was subpcEuaed on Friday evem'ng to attend Court on 
 the following Monday morning, at a distance of one hundred 
 and fourteen miles from his residence, and was unable to reach 
 the Court at that time, by the ordinary modes of conveyance, 
 without travelling on Sunday, it was held that he was not lia- 
 ble in an action, to the party who subpoenaed him, for non- 
 attendance, although a special agreement had been made that 
 no longer notice should be given than was absolutely necessary. 
 (Wilkie vs. Ohadwick, 13 Wend. 49.) 
 
 The process of subpoena demands great and extraordinary 
 effort on the part of the witness to obey. Insolvency and pov- 
 erty form no excuse in the abstract. If received at all, they 
 must be taken in connection with the situation of the witness's 
 family, or as showing his utter inability to defray his expenses 
 Serious sickness in his family, such as would prevent a prudent 
 father or husband from leaving home on his own important 
 business, would save him from the imputation of a contempt, 
 and perhaps from an action. But when the subpoena allows 
 him full time to attend, he should struggle to get ready, as he 
 would to go abroad on his own pressing business. If inevitar 
 bly disappointed, after exhausting every reasonable expedient, 
 he ought certainly to be excused from the payment of a pen 
 
PUNISHMENT OF DEFAULTING WITNESS. 275 
 
 alty, which presupposes some degree of neglect, at least. 
 {.People vs. Davis, 15 Wend. 602.) 
 
 (5.) W/fen damages may be retovered from a defaulting witness. 
 
 Every person duly subpoenaed as a witness, and neglecting 
 or refusing to appear or testify, is liable to the party in whose 
 behalf he has been subpoenaed, for all damages which such party 
 sustains, by reason of such non-appearance or refusal. {Code, 
 § 2979.) 
 
 Damages can be recovered only when the witness who has 
 been duly subpcenaed, and fails to attend, is a material witness, 
 and the party subpoenaing him has sustained actual damage by 
 his non-attendance; aiad a party who causes a witness to be sub- 
 poenaed, who is known to him not to be material, for the pur- 
 pose of annoyance, is guilty of a contempt of Court. {Courtney 
 vs. BaJcer, 3 Den. 27.) 
 
 An action may be maintained against a defaulting witness for 
 the damages sustained by the plaintiff, though a jury was not 
 sworn in the cause in which the witness was subpoenaed; it is 
 enough that the witness failed to attend without any reasonable 
 excuse, and that the plaintiff suffered damage in consequence of 
 his absence. {Hurd vs. Swan, 4 id. 75.) But a party who 
 voluntarily submits to a nonsuit, when he can obtaifl in another 
 mode the same evidence which the absent witness would have 
 given, is not entitled to recover damages. {Heermans vs. Wil- 
 liams, 11 Wend. 636.) 
 
 (6.) When a defaulting witness may be fined and imprisoned. 
 
 A witness, as we have seen, may be compelled to attend by 
 attachment, and is liable in damages for non-attendance; a fine 
 may also be imposed upon him. 
 
 A person, duly subpoenaed as a witness, who, without a reason- 
 able excuse, proved by his oath or the oath of another person, 
 fails to attend ; or, attending, refuses to testify ; must be fined, 
 by the Justice before whom the action is pending, for each non- 
 attendance or refusal, such a sum, not less than one dollar nor 
 more than ten dollars, as the Justice thinks it reasonable to 
 impose upon him, as a fine therefor. {Code, § 2974.) 
 
 Such fine may be imposed by the Justice, if the witness be 
 
276 NEW YORK JUSTICE. 
 
 present and have an opportunity of being heard against thb. 
 imposition thereof, {id. § 2975.) 
 
 If the witness, being present, offer no reasonable excuse for 
 his non-attendance, it is the duty of the Justice to impose such 
 fine, not less than one dollar, and not more than ten dollars, as 
 he may deem proper under the circumstances. 
 
 Mr. Justice Cowen, in his Treatise, (vol. 2, page 865,) says, 
 that if the witness is absent, or if the proceeding is instituted 
 before a Justice other than the one before whom the suit in 
 which the penalty was incurred was depending, a summons 
 must be issued against the defaulting witness; and he gives a 
 form for such summons. He further says, that no form for the 
 summons is prescribed by the statute, nor is the time of its 
 service or return regulated, but that a reasonable time should 
 intervene between its date and return, and it should be served 
 a suflicient time before the day of appearance for the witness to 
 attend; that the service should be personal, by reading or 
 stating the contents of the summons; that the constable's return 
 of service would be sufEcient to authorize the Justice to pro- 
 ceed; and that, unless the witness appears at the time and place 
 at which the summons is made returnable, and admits due 
 service of the subpoena, the Justice should require proof of the 
 service and of the non-attendance of the witness, which proof 
 may be made by oral testimony. 
 
 These views imply, that if the witness on whom the summons 
 is served does not appear on its return, the Justice may receive 
 proof of its service, and of the service of the subpcEua, and of 
 the non-attendance of the witness in pursuance thereof, and pro- 
 ceed to impose the fine in the absence of the witness. But it 
 seems quite clear that this view is erroneous. The statute be- 
 fore quoted says, that such fine may be imposed by the Justice, 
 " if the witness be present and have an opportunity of being 
 heard against the imposition thereof." It is not enough that 
 the witness should be served with a summons to appear, and 
 thus have an opportunity to be heard; but he must also be 
 actually present, or the Justice has no jurisdiction to fine him. 
 But now the witness must appear before the Justice, {id. 
 § 2975.) 
 
 If or will the witness escape punishment for non-attendance, or 
 refusal to testify, by the construction which we think the sound 
 
PUNISHMENT OF DEFAULTING WITNESS. 277 
 
 one. If the witness is brought up on attachment, the Justice 
 may fine him for his delinquency, while he is present in Court 
 under the attachment. Or if, being present, he refuses to testify, 
 the Justice may call on liim on the spot to show cause, and pro- 
 ceed to fine Mm. And besides, the witness is liable in damages 
 for non-attendance. 
 
 The Justice imposing the fine must make up and enter in his 
 docket a minute of the conviction and of the cause thereof, and 
 the same will be deemed a judgment, in all respects, at the suit 
 of the overseers of the poor of the town. {Code, § 2976.) 
 
 § 40. Minute of Conviction. 
 
 County ss: L M, having been duly subpoenaed as a wit- 
 ness, to attend before me, to give evidence on the trial of an 
 action depending before me between C D, plaintiff, and A B, 
 defendant, on the part of the plaintiff, [or, defendant,] at my 
 office in the town of , in said county, on the day of 
 
 , 1853, at o'clock in the noon, and not appear- 
 
 ing before me in pursuance of such subpoena, [or, and having 
 appeared before me in pursuance of such subpoena, but having 
 refused to testify,] and being now present before me, and having 
 an opportunity of being heard against the imposition on him of 
 a fine, and no reasonable cause or excuse being shown on his 
 oath, or on the oath of any other person, for such non-attend- 
 ance, [or, refusal,] is convicted of such non-attendance, [or, re- 
 fusal,] and a fine of ten dollars is imposed upon him for such 
 non-attendance, [or, refusal,] and the costs of this conviction are 
 fixed by me at the sum of two dollars. Dated , 1853. 
 
 G H, Justice. 
 
 Upon the imposition of such fine, and in default of payment 
 thereof, with costs, the Justice must forthwith issue an execution 
 to any constable of the county, directing him to collect such fine, 
 with costs, of the goods and chattels of the delinquent, and, for 
 want thereof, to take and convey him to the jail of the county, 
 there to remain until he sliall pay such fine and costs ; and the 
 keeper of such jail is required to keep such delinquent in close 
 custody, in such jail, until the fine and costs be paid ; but such 
 imprisonment cannot exceed thirty days. {id. § 2977.) 
 
 The County Court, upon good cause shown, may remit such 
 fine or any part thereof, and may discharge the person from 
 imprisonment, {id. § 353.) 
 
278 NEW YORK JUSTICE. 
 
 § 41. Execution for fine and costs. 
 
 County, ss: To any Constable of the said county, 
 Greeting: 
 
 Whereas L M was duly subpcenaed as a witness to attend 
 before me, the undersigned, a Justice of the Peace in and for 
 the said county, to give evidence on the trial of an action 
 depending before me, between C D, plaintiff, and A B, defend- 
 ant, on the part of the plaintiff, [or, defendant,] at my office in 
 the town of , in said county, on the day of ., 
 
 1853, at o'clock in the noon, and whereas the said 
 
 L M did not appear before me in pursuance of such subpoena, 
 [or, having appeared before me in pursuance of such subpoena, 
 refused to testify,] and whereas the said L M, being present 
 before me on the day of , 1853, and having then 
 
 and there had an opportunity of being heard against the imposi- 
 tion on him of a fine, and no reasonable cause or excuse having 
 been shown on his oath, or on the oath of any other person, for 
 such non-attendance, [or, refusal,] was then and there convicted 
 by me of such non-attendance, [or, refusal,] and a fine of ten dol- 
 lars was thereupon imposed on him by me for such non-attend- 
 ance, [or, refusal,] and the costs of such conviction were there- 
 upon fixed by me at the sum of two dollars; and whereas I 
 thereupon made up and entered into my docket a minute of such 
 conviction and of the cause thereof; and whereas neither the 
 said fine nor the said costs have been paid, nor any part of the 
 same: 
 
 Now, therefore, you are hereby commanded to levy the said 
 fine and costs of the goods and chattels of the said L M, and, 
 for want thereof, to take and convey the said L M to the jail 
 of the said county, there to remain until he shall pay such 
 fine and costs; and the keeper of the said jail is hereby required 
 to keep the said L M in close custody, in said jail, until the fine 
 and costs aforesaid be paid, such imprisonment, however, not to 
 exceed the period of thirty days. 
 
 Witness my hand at the town of , in said county, the 
 
 day of , 1853. 
 
 G H, Justice. 
 
 When the money is collected on the execution, the constable 
 must pay the money and return the execution to the Justice, and 
 the Justice must pay over the amount of fitne imposed to the 
 overseers of the poor of the town, for the use of the poor. 
 {Code, § 2875.) 
 
 When a witness attending before any Justice, in any cause, 
 
TRIAL OF ISSUES OF FACT. 279 
 
 refuses to be sworn, in any form prescribed by law, or to 
 answer any pertinent and proper question, and the party at 
 wiiose instance he attended makes oath that the testimony of 
 such witness is so far material, that witliout it he cannot safely 
 proceed in the trial of such cause, such Justice may, by war- 
 rant, commit such witness to the jail of the county. {Code, 
 § 3001.) Such warrant must specify the cause for which the 
 same is issued, and if it be for refusing to answer any question, 
 such question must be specified therein; and such witness must 
 be closely confined pursuant to such warrant, until he submits 
 to be sworn or to answer, as the case may be. {id. § 3002.) The 
 Justice must thereupon adjourn such cause at the request of the 
 party in whose favor such witness attended, from time to time, 
 until such witness shall testify in the cause, or be dead or 
 insane, {id. § 3003.) 
 
 Some remarks upon these last provisions, and Forms for car- 
 rying them into efiect, will be found in the next chapter, under 
 the head of Punishment of witnesses who refuse to testify. 
 
 CHAPTER XII. 
 
 OF THE TEIAL OF ISSUES OF FACT. 
 
 An issue of fact arises in a Justice's Court, upon a material 
 allegation in the complaint controverted in the answer, or upon 
 new matter in the answer constituting a defense. {Code, §§ 964 
 a/nd 2938.) A trial is the judicial examination of such an issue 
 of fact. 
 
 We intend to consider in this chapter the regular proceedings 
 on the trial of an issue of fact. Under the head of Evidence, 
 {part I, chap. XIII,) we shall hereafter consider the manner 
 of examining witnesses, their credibility, the mode of impeach- 
 ing them, and the question as to what evidence should be 
 received and what rejected. 
 
 When issue has been joined, the action may be tried by the 
 parties themselves, or either of them may appear by attorney. 
 
280 NEW YORK JUSTICE. 
 
 {Code, section 2886.) And it may be tried with or without 
 a jury. 
 
 After issue joined, and before the Justice proceeds to an 
 investigation of the merits of the cause, by an examination of a 
 witness, or the hearing of any other testimony, either of the 
 parties or the attorney of either of them, may demand of the 
 Justice, that the cause be tried by a jury. (id. section 2990.) 
 
 Whenever issue has been joined in a suit before a Justice, if 
 no jury is demanded by either party, the Justice must proceed 
 to try such issue, to hear the proofs and allegations of the parties 
 and to determine the same, according to law and equity, as the 
 very right of the case may appear, (id. § 2989.) And, when- 
 ever a defendant who has been personally served with a sum- 
 mons, or who has procured an adjournment without having 
 joined issue, neglects to appear and join issue, the Justice must 
 proceed to hear the proofs and allegations of the plaintiff, and 
 determine the same as above prescribed, (id. § 2988.) 
 
 1. General Rules. 
 
 The trial of a cause ought, in general, to be commenced at 
 the time appointed, or within one hour of it; but it may be 
 postponed by the Justice for good cause. (Ante, pp. 206, 207.) 
 
 The sittings of every court within this State must be public, 
 and every citizen may freely attend the same. (Code, § 5.) 
 
 We have before spoken of the disqualifications of a Justice. 
 (Ante, pp. 21, to 24.) It is also provided by statute, that no 
 Judge of any Court can sit as such, in any cause to which he is 
 a party, or in which he is interested, or in which he would be 
 excluded from being a juror by reason of consanguinity or 
 affinity to either of the parties ; (Code, §46 ;) that no .ludge can 
 decide, or take part in the decision of any question which shall 
 have been argued in the Court, when he was not present and 
 sitting therein as a judge ; that no judge can practice, or act as 
 attorney or counsel, in the Court of which he is a judge ; that 
 no judge can have any partner practicing in the Court of which 
 he is a judge ; (id. § 5 ; ) and that no judge can have a voice in 
 the decision of any cause in which he has been counsel or attorney. 
 (id. § 49.) These disqi^alifications apply to a Justice. A Jus- 
 tice can never be a witness in his own Court ; and we have 
 
GENERAL RULES. 281 
 
 already stated {ante, pp. 208 /^o 209) what steps must be taken by 
 a defendant when the Justice is a material witness for him. 
 If the plaintiif requires the testimony of the Justice, it is his 
 own fault if he commences his suit before him; he should have 
 proceeded before another Justice. 
 
 The Justice who tries the cause must swear the witnesses; 
 {Pen'y vs. Weyman, 1 Johns. 520;) and he cannot decide on 
 his own knowledge of facts, but only on the evidence adduced. 
 (2 id. 189; Locke vs. 8mith, 10 id. 250.) 
 
 A Justice may hold his Court open as long as may be neces- 
 sary, for the purpose of summoning a jury. {Day vs. Wilbur, 
 
 2 Gaines, 134.) So, too, a cause may be adjourned a reason- 
 able time to procure the attendance of witnesses. Two hours 
 has been held not to be an abuse of the Justice's discretion; 
 {Pease vs. Gleason, 8 Johns. 409;) but an adjournment for 
 twenty-four hours has been held to be a discontinuance of the 
 suit. {Green vs. Angel, 13 id. 469.) 
 
 Where a trial is had before a Justice with a jury, in an action 
 for a wrong, he should advise the jury to acquit a defendant 
 against whom no evidence has been given; but if he discharges 
 him himself, it is mere informality, and not error. {JVoyes vs. 
 Hewitt, 18 Wend. 141.) Such defendant, when discharged, 
 may be examined as a witness in the cause, {id.) If the trial 
 be without a jury, the Justice may, when the plaiutitf 's proofs 
 are closed, discharge a defendant against whom no evidence 
 has been given; but he should not enter judgment for him 
 until the cause is finished, for the others may be acquitted, and 
 there can be but one judgment for costs. {Moon vs. Uldred, 
 
 3 Hill, 104.) 
 
 The law is well settled, that one of several defendants jointly 
 sued for a wrong, may be acquitted, and sworn for his co-de- 
 fendants; and it makes no dificrence whether the defendants 
 have answered separately or jointly. But a defendant cannot 
 be acquitted except in the absence of all evidence tending to 
 implicate him. If there is any, even the slightest, evidence 
 against him, he cannot be discharged as a party, and received 
 as a witness. The want of evidence against a partj^, in order 
 to entitle him to iDe a witness, should be so glaring and obvious 
 as to afford strong grounds of belief that he was arbitrarily 
 made a defendant, to prevent his testimony, {id. and note a.) 
 
282 KEW YORK JUSTICE. 
 
 2. Trial by Juky. 
 
 After issue joined, and before the Justice proceeds to an 
 investigation of tlie merits of the ^^nuse, by an examination of 
 a witness, or the hearing of any other testimony, either one of 
 the parties, or the attorney of either of them, may demand of 
 the Justice that the cause be tried by a jury. {Code, § 2990.) 
 
 As to jury in replevin, see Baxter vs. Putney, 37 How. 140.) 
 
 Where the Justice tells the plaintiff to go to trial, after both 
 parties have avowed themselves ready, and, on being asked, 
 the defendant admits part of the plaintiff's account, and a wit- 
 ness for the plaintiff is partly sworn, it is too late to demand a 
 trial by jury. {Gale vs. Barnes. 1 Cow. -235.) But, where a 
 Justice merely inspects a bill which is the subject of the action, 
 and no proof is called for or offered, it is not such a commence- 
 ment of the trial of a cause as to preclude either party from 
 demanding a trial by jury. {Olney vs. Bacon, 1 Johns. 142.) 
 
 (1.) Venire. 
 
 Upon the demand of a trial by jury, the Justice must issue 
 a venire, directed to any constable of the county wherein the 
 cause is to be tried, commanding him to notify twelve good 
 and lawful men, in the town where such Justice resides, quali- 
 fied to serve as jurors, and not exempt from serving on juries 
 in Courts of Record, who shall be in nowise of kin to the 
 plaintiff or defendant, nor interested in such suit, to appear 
 before such Justice, at a time and place to be named therein, 
 to form a jury for the trial of the action between the parties 
 named in such venire. {Code, § 2991/66 Barl. 375.) 
 
 The parties may, however, agree upon any number of jurors, 
 less than six, to try the cause; and the Justice must then direct 
 in the venire, the summoning of so many jurors as shall be 
 double the number so agreed upon. And such an agreement is 
 good, though not made till after the return of the venire, and 
 when the jury is drawn, if the parties proceed to trial pursuant 
 to the agreeinent. {Carman vs. Newell, 1 Den. 25.) 
 
 If the action in which such issue is joined, be between two 
 towns, the venire must direct the constable to notify twelve 
 good and lawful men of the county, qualified and not exempt 
 
VENIRE. 283 
 
 and not interested, as above provided, to make a jury for the 
 trial of such action. {Code, % 2992.) 
 
 [for form of Venire, seeMcCALL's Clerk's Assistant, p. 330.] 
 
 In an action against joint debtors, a venire mentioning only 
 the defendant brought into Court, without taking notice of the 
 others, is sufficient. (Hutchins vs. J^itch, 4 Johns. 222.) 
 
 A defective venire is cured if the party make no objection at 
 the time, but proceeds to trial. {Day vs. Wilbur, 2 Oaines, 
 134.) 
 
 The Justice issuing a venire, must deliver it, or cause it to be 
 delivered, to some constable of the county, disinterested between 
 the parties, and against whom no reasonable objection shall have 
 been made by either party. {Code, section 2993.) When the 
 Justice is satisfied that there is any reasonable objection against 
 a constable, he ought not to give the venire to him to be exe- 
 cuted. If the constable is personally hostile to either party, or 
 if he is on such terms of personal friendship with either party, 
 as to throw s'lspicion upon his integrity, or lead to the belief 
 that he will practice favoritism in the selection of the jury, the 
 Justice should not give him the venire. 
 
 If either party objects to a particular constable's serving a 
 venire, the party objecting should state his reasons under oath, 
 or the reasons may be proved by some other person than the 
 party. 
 
 No constable who has been employed to act, or who has acted, 
 as attorney or agent in respect to any claim or matter in contro- 
 versy, can summon any jury, in any Justice's Court, which shall 
 be summoned to try any question in relation to any such claim 
 or matter. («'(?.) 
 
 The constable to whom any venire is delivered must execute 
 the same fairly and impartially ; and must not notify any per- 
 son whom he has reason to believe biased or prejudiced for or 
 against either of the parties. He must notify the jury per- 
 sonally, and must make a list of the persons summoned, which 
 he must certify and annex to the venire, and return to the 
 Justice, {id^ 
 
 A venire must be served personally, and may be served like 
 a subpoena, by reading it to the juror, or stating its contents. 
 
284 NEW YORK JUSTICE. 
 
 .TuTOrs, like vsatnesses, ought to have a reasonable notice, that 
 their attendance upon Court may be as little prejudicial to them- 
 selves as possible. (1 Strange, 509.) 
 
 Where a venire is demanded by either party, the Justice may 
 deliver it himself to the constable, to be executed; but if he de- 
 livers it to the party, and the latter does not appear at the time 
 to which the cause is adjourned for trial, and the venire is not 
 returned, the Justice may consider the suppression of the venire 
 by the party, as a waiver of the trial by jury, and proceed to 
 hear and try the cause himself, as if no venire had been demand- 
 ed or issued. {^Coon vs. Snyder, 19 Johns. 384.) 
 
 If the venire be not returned at the time appointed for trial, 
 it is not a reason for nonsuiting the plaintiff, but another venire 
 may be issued. {Blanchard vs. Richly, 7 id. 198.) K the first 
 venire has not been carried into effect, the Justice may issue 
 another venire without the former having been returned; {8e- 
 bring vs. Wlieedon, 8 id. 460; 2 Gaines, 184;) and, if issued at 
 the instance of the party who obtained the first venire, it will 
 be considered as his process, and he will not be allowed to ob- 
 ject to the form of it. {id^ 
 
 Wlieu the venire has not been returned, and the party does 
 not demand another venire, but goes to trial, he thereby waives 
 a trial by jury. {^Blanchard vs. Richly, 7 Johns. 198.) 
 
 It is the duty of the constable to make a list of the persons 
 whom he has summoned, and certify it, and annex it to the 
 venire, and return the whole to the Justice. The certificate 
 should be endorsed on the list, as follows: 
 
 I certify that, by virtue of the annexed precept, I have per- 
 sonally summoned as jurors the several persons named in the 
 within list. Dated 1853. H C, Constable. 
 
 When a venire is issued, the costs of the venire abide the event 
 of the suit, {Rickey vs. Bowne, 18 Johns. 131,) but the party 
 calling for a jury is bound to pay the jurors' fees before they 
 render their verdict. 
 
 Every person who is duly summoned as a juror, and does not 
 appear, nor render a reasonable excuse for his default, or appear- 
 ing refuses to serve, is subject to the same fine, to be prosecuted 
 for. and collected with costs, in the same manner, and applied to 
 the same use, as is provided in respect to a persoii subpoenaed 
 
QUALIFICATIONS OF JURORS 285 
 
 as a witness, and not appearing, or appearing and refusing to tes- 
 tify. {Code, § 3009.) Or the Justice may issue an attachment, 
 and such defaulting jui'or to be brought before him and fined. 
 {Code, ch. 19, Tit. 4, Art. 2.) And the return of the constable 
 on the venire is evidence that the juror has been summoned. 
 (14 Johns., 481.) As to fining a defaulting witness, see ante, 
 pp. 275 to 279. 
 
 It ii illegal for the Justice to try the cause without a jury, 
 after a venire has been issued, unless by consent of the parties. 
 
 (2.) Qualifications and exemptions of jurors. 
 By statute, {See Code, § 1027,) the following persons are 
 qualified to serve as trial jurors : 
 
 1. Male inhabitants of the town, not exempt from serving on 
 juries; 
 
 2. Of the age of twenty-one years, or upwards, and under sixty 
 years old; 
 
 3. Who are at the time assessed for personal property belong- 
 ing to them in their own right, to the amount of two hundred 
 and fifty dollars, or who shall have a freehold estate in real 
 property in the county, belonging to them in their own right, or 
 in the right of their Avives, to the value of one hundred and fifty 
 dollars; 
 
 4. In the possession of their natural faculties, and not infirm 
 or decrepid; 
 
 5. Free from all legal exceptions, of fair character, of 
 approved integrity, of sound judgment and well-informed. 
 
 Every person residing in either of the counties of Niagara, 
 Erie, Chautauque, Cattaraugus, Allegany, Genesee, Oi'leans, 
 Monroe, Livingston, Jefferson, Lc^vis, St. Lawrence, Steuben and 
 Franklin, who does not possess either of the qualifications speci- 
 fied in the third of the above subdivisions, but is qualified in all 
 other respects, and who shall have been assessed on the last 
 assessment roll of the town for land in his possession wliich he 
 holds under contract for the purchase thereof, upon wliich 
 improvements shall have been made to the value of one hun- 
 dred and fifty dollars, and who owns such improvements, is 
 qualified to serve as a juror. (2 R. S. 211, § 14.) Every 
 person residing on the New Stockbridge tract, in the towns of 
 Vernon and Augusta, in the county of Oneida, and Lenox and 
 Smithfield, in the county of Madison, who is in possession of 
 lauds under a contract for purchase, and is worth one hundred 
 
286 NEW yOEK JUSTICE. 
 
 and fifty dollars in personal property, or shall have made im- 
 provements upon such lands to that amount, is, if otherwise 
 qualified according to law, qualified to serve as a juror in any 
 Court holden before any Justice of the Peace within the town. 
 {Laws of 1829, chap. 57.) In the city of NeAV York, all per- 
 sons otherwise duly qualified, are qualified jurors, whether they 
 have been assessed or not. {Laws of 1847, chap. 495, § 1.) 
 
 No inhabitant of any town, city or county, is disqualified as a 
 juror or witness in any case brought to recover any penalty or 
 forfeiture, on the ground that such penalty or forfeiture is to be 
 applied for the benefit of such town, city or county, or for the 
 benefit of the poor thereof; nor is any ofiicer, on such ground, 
 disqualified from serving any process for the summoning of a 
 juiy in such cause. {Code, § 1179.) Nor, in penal actions for 
 the recovery of any sum, is it a good cause of challenge to the 
 jurors summoned, or to any officer summoning them, that such 
 juror or officer is liable to pay taxes in any town or county 
 which may be benefited by such recovery. {Id., § 1179.) In 
 respect to the city of Syracuse, it is specially provided by stat- 
 ute that no person shall be an incompetent judge, juror, witness, 
 or justice, by reason of being an inhabitant or freeholder in the 
 city of Syracuse, in any action or proceeding in which the said 
 city is a party, or interested. {Laws of 1857, chap. 63.) The 
 same provision exists in reference to Fort Plain {Laws of 1855, 
 chap. 183) and Antwerp. {Laivs of 1854, chap. 296.) 
 
 The jurors must reside in the town where the Justice resides, 
 except, as we have before seen, where the action is between two 
 towns. 
 
 Each of the loiiowmg officers is disquahfied to serve as a trial 
 juror : 
 
 1. The governor ; the lieutenant-governor ; the governor's pri- 
 vate secretary. 
 
 2. The secretary of State ; the comptroller ; the State treas- 
 urer; the attorney -general ; the State engineer and surveyor; a 
 canal commissioner ; an inspector of State prisons ; a canal 
 appraiser ; the superintendent of public instruction ; the super- 
 intendent of the bank department ; the superintendent of the 
 insurance department ; and the deputy of each officer specified in 
 this subdivision. 
 
QUALIFICATIONS OF JURORS. 287 
 
 3. A member of tlie le^^islature, during the session of the 
 house, of which he is a member. 
 
 4. A judge of a court of record, or a surrogate. 
 
 5. A sheriff, under-sheriff", or deputy-sheriff. 
 
 6. The clerk or deputy-clerk of a court of record. {Code, 
 § 1029.) 
 
 Each of the following persons, although qualified, is entitled to 
 exemption from service, as a trial juror, upon his claiming exemp- 
 tion therefrom : 
 
 1. A clergyman, or a minister of any religion, officiating as 
 such, and not following any other calling. 
 
 2. A resident officer of, or an attendant, assistant, teacher, or 
 other person, actually employed in, a State asylum for lunatics, 
 idiots, or habitual drunkards. 
 
 3. The agent or warden of a State prison ; the keeper of a 
 county jail ; or a person, actually employed in a State prison or 
 county jail. 
 
 4. A practicing physician or surgeon, having patients requiring 
 his daily professional attention. 
 
 5. An attorney and counsellor-at-law, regularly engaged in the 
 practice as a means of livelihood. 
 
 6. A professor or teacher, in a college or academy. 
 
 Y. A person actually employed in a glass, cotton, linen, woolen, 
 or iron manufacturing company, by the year, month, or season. 
 
 8. A superintendent, engineer, or collector, on a canal, author- 
 ized by the laws of the State, which is actually constructed and 
 navigated, {id. § 1030.) 
 
 9- A master, engineer, assistant-engineer, or fireman, actually 
 employed upon a steam-vessel, making regular trips. 
 
 10. A superintendent, conductor, or engineer, employed by a 
 railroad company, other than a street railroad company ; or an 
 operator, or assistant-operator, employed by a telegraph company, 
 who is actually doing duty in an office, or along the railroad or 
 telegraph line of the company, by which he is employed. 
 
 11. An officer, non-commissioned officer, musician, or private 
 of the national guard of the State, performing military duty ; or 
 a person, who has been honorably discharged from the national 
 guard, after five years service , in either capacity. 
 
 12. A person who has been honorably discharged from the 
 mihtary forces of the State, after seven years faithful service 
 
288 NEW YORK JUSTICK 
 
 therein. But in order to entitle a person to exemption, undei 
 this subdivision, his service must have been performed before the 
 23d day of April, 1862, either as a general or staff-officer, or as 
 an officer, non-commissioned officer, musician, or private, in a 
 uniformed battalion, company, or troop of the militia of the 
 State, and armed, uniformed and equipped, according to law ; or 
 a portion thereof, during that period and in that capacity, and the 
 remainder, since the 23d day of April, 1862, as a member of the 
 national guard of the State. 
 
 13. A member of a fire company, or fire department, duly 
 organized according to the laws of the State, and performing his 
 duties therein ; or a person who, after faithfully serving five suc- 
 cessive years in such a fire company, or fire department, has been 
 honorably discharged therefrom. 
 
 14. A duly licensed engineer of steam boilers, actually 
 employed as such. 
 
 15. A person otherwise specially exempted by law. {Id., § 1030.) 
 The evidence of the right to exemption is as follows : 
 
 1. Under subdivision second thereof, the certificate of the super- 
 intendent, or other principal officer of the asylum. 
 
 2. Under subdivision third thereof, the certificate of the 
 warden, or other principal officer, of the State prison, or the 
 sheriff of the county, as the case requires. 
 
 3. Under subdivision eleventh thereof, where the applicant is a 
 non-commissioned officer, musician, or private, in a company or 
 troop of the national guard, the certificate of the commanding 
 officer of the company or troop, accompanied with proof, by 
 affidavit, of the genuineness of the signature thereto. 
 
 4. Under the last clause of subdivision eleventh, or under sub- 
 division twelfth thereof, in the discretion of the court, the dis- 
 charge of the person from military service, if it shows the facts 
 entitling him to exemption. 
 
 5. Under the first clause of subdivision thirteenth thereof, 
 where the applicant is under the rank of foreman, the certificate 
 of the foreman, or other chief officer of the company to which 
 the applicant belongs, accompanied with proof, by affidavit, of the 
 genuineness of the signature thereto. 
 
 6. Under the last clause of subdivision thirteenth thereof, the 
 certificate of the chief engineer of the fire department of the city 
 or village, where the service was performed, or of the mayor or 
 president of the city or village. 
 
QUALIFICATIONS OF JURORS. 289 
 
 A certificate, specified in this section, must be dated within 
 three months before the time of presenting it, and filed with the 
 clerk of the court, to which it is presented, {id. % 1031.) 
 
 The court must discharge a person from serving as a trial juror 
 in either of the following cases : 
 
 1. Where it satisfactorily appears that he is not qualified. 
 
 2. Where it satisfactorily appears that he is exempt, and he 
 claims the benefit of the exemption. 
 
 Where a person is discharged, for either of the causes specified 
 in this section, the clerk must destroy the ballot containing his 
 name. {id. § 1032.) 
 
 Upon satisfactory proof of the facts, a court, at the term to 
 which a person is returned as a trial juror, must excuse him from 
 serving during the whole, or a portion of the term, in either of 
 the following cases : 
 
 1. Where he is a justice of the peace, or executes any other 
 civil ofliee,- the duties of which are, at the time, inconsistent with 
 his attendance as a juror. 
 
 2. Where he is a teacher in a school, actually employed and 
 serving as such. 
 
 3. Where, for any other reason, the interests of the public, or 
 of the juror, will be materially injured by his attendance ; or his 
 own health, or the health of a member of his family, requires his 
 absence ; or he is temporarily incapacitated, for any reason, from 
 properly discharging the duties of a juror. 
 
 Where a person is excused, in either of the cases specified in 
 this section, the ballot, containing his name, must be returned to 
 the box from which it was taken, {id. § 1033.) 
 
 Section 1029 of the Code applies throughout the State. The 
 remainder of this article does not apply to the city and county of 
 New York or the county of Kings. 
 
 (3.) Drawing of the Jury. 
 
 The jury having been summoned in the manner heretofore 
 directed, and the parties and Justice being ready for trial, and 
 the jury having appeared, the next duty of the Justice is to 
 draw the jury. He should first, however, enter in his docket 
 the names of the jurors who appear, and of those who do not 
 appear. {Brisbane vs. Macomher, 56 Barb. 375.) 
 
 At the trial of the cause, the names of the persons returned 
 
290 NEW YORK JUSTICE. 
 
 as jurors, and wlio appear, must be respectively written on 
 several and distinct pieces of paper, as nearly of one size as may 
 be ; and the constable, in the presence of the Justice, must roll 
 up or fold such pieces of paper, as nearly as may be in the same 
 manner, and put them together in a box, or some convenient 
 thing. (See Code, % 2994.) 
 
 The Justice must then draw out six (or such number as the 
 parties may have agreed upon) of such papers, one after another, 
 and if any of the persons whose names are so drawn are challenged 
 and set aside, then such further number must be drawn as will 
 make up the number required, after all legal causes of challenge 
 allowed by the Justice. The persons so drawn, appearing and 
 approved as indifferent, must compose the jury. {id. § 2995.) 
 
 If a sufficient number of competent jurors is not drawn, the 
 Justice may supply the deficiency by directing the constable to 
 summon any of the bystanders, or others, who may be competent. 
 If the constable, to whom the venire has been delivered, does not 
 return the same as thereby required, or if a full jury is not 
 obtained in the manner above specified, the Justice must issue a 
 new venire, {id. §§ 2996, 2997 ; 56 Barl. 375.) 
 
 (4.) Challenges to jurors.\ Each party is entitled peremptorily 
 to challenge two of the persons drawn as jurors, {id. % 1176.) 
 
 Either party may challenge the array., that is, the whole panel 
 returned by the officer, on account of some supposed partiality or 
 irregularity in summoning, returning or drawing the jury ; and, 
 if that fails, he can have recourse to the challenge to the polls, 
 that is, a challenge to each particular juror. 
 
 A challenge to the array is either principal or for favor ; 
 prinei/pal, when it is based on the ground of gross or palpable 
 partiality or unfairness ; for favor, when it is on account of some 
 supposed partiality in the constable, as, if there is a relationship 
 between one of the parties and the officer who summoned the 
 jury. The principal challenge is determined by the Court, whose 
 decision is conclusive. The challenge for favor is investigated 
 by triers, whose verdict is final. In either case, the whole panel 
 is set aside, if the challenge is sustained. 
 
 It is a good cause of challenge to the array, that the jury 
 were summoned by a constable who acts as attorney of the 
 adverse party ; but, if the party challenging has expressly 
 assented to their being summoned by such constable, he can- 
 
CHALLENGES TO JURORS. 291 
 
 not afterwards challenge the array on that ground. (Watkins 
 vs. Wean, 10 Johns. 107.) 
 
 A Justice has no right, on his own motion, without any 
 exception being taken by either party, to challenge the panel of 
 jurors, and issue a new venire. {Cross vs. Moulton, 15 Johns. 
 469.) 
 
 Challenges to the polls, also, are principal, or for favor. A 
 principal challenge may be on account of some defect in the 
 qualifications of the juror; on account of some partiality pre- 
 sumed from relationship; or on account of incapacity arising 
 from a conviction for an infamous crime, or otherwise. A chal- 
 lenge to a juror for favor, is when the juror is not so palpably 
 partial as to be obnoxious to a principal challenge for that cause, 
 yet there are reasonable grounds to suspect that he will act 
 under prejudice or bias. 
 
 It is a good cause of principal challenge to a juror, that he has 
 previously given an opinion on the question in controversy 
 between the parties. (1 id. 316; JPeoplevs. Honeyman, 3 Den. 
 121.) But it must be a fixed and settled opinion, and not a con- 
 ditional one. It must be an opinion founded on his own know- 
 ledge, or on information from those who are acquainted with 
 the facts, and not on mere rumor. {Ex parte Vermilyea, 6 Cow. 
 554.) The opinion, to disqualify, need not be accompanied by 
 ill-will. {People vs. Vermilyea, 7 Cow. 108.) 
 
 It is a good cause of challenge to a juror, that he is not a free- 
 holder of the town; {Streeter vs. Hearsey, 11 Johns. 168;) and 
 the fact may be tried by the Court on the examination of the 
 juror under oath. {Sweet vs. Palmer, 16 id. 180.) The Justice 
 ought to exclude a drunken man from the jury, and also from 
 being a witness. {Bullard vs. Spoor, 2 Cow. 430.) 
 
 It is cause of principal challenge to a juror, that he is the 
 tenant of either of the parties to the suit. The act abolishing 
 distress for rent has not removed this ground of challenge. 
 {Ilathaioay vs. Helmer, 25 Barb. 29.) 
 
 A challenge to the array may be made at any time before any 
 of the jurors are sworn; and a challenge to the polls at any time 
 before the juror challenged is sworn, but after he is sworn, it is 
 too late. {Eggleston vs. Smiley, 17 Johns. 133.) The chal- 
 lenges may be either oral or in writing. An omission to chal- 
 
292 NEW YORK JUSTICE. 
 
 lenge is a waiver of all objection to a juror. {Clark vs. Van 
 Vrancken, 20 Barb. 278.) 
 
 A principal challenge, either to the array or to the polls, is 
 tried by the Justice alone, on the testimony of witnesses. (2 
 Cow. Treat. 8dl, 2d ed.) 
 
 The following is the oath to be administered to the witnesses, 
 on the trial of all challenges: 
 
 You do swear that you will true answers make to such ques- 
 tions as may be put to you, touching the challenge depending. 
 
 The juror may also be sworn, and he is bound to anwer the 
 same questions that other witnesses are compelled to answer. 
 The oath to the juror may be as follows: 
 
 You do swear that you will true answers make to such ques- 
 tions as may be put to you, touching your competency as a 
 juror, between John Doe, plaintiff, and Richard Roe, defendant. 
 
 If the challenge be to the array for favor, the Justice must 
 appoint two triers. They may be selected from the jury, or 
 other proper persons may be appointed. The following oath 
 may be administered to the triers on the challenge to the array 
 for favor: 
 
 You do swear that you will well and truly try this issue of 
 challenge to the array of the jurors in this action, between 
 John Doe, plaintiff, and Richard Roe, defendant, and a true 
 finding make according to evidence. 
 
 A challenge to a juror for favor is decided by triers, or, if the 
 adverse party consents, by the Justice. If such consent be once 
 given, it cannot be revoked, and a demand made for triers. 
 (People vs. Ratlihun, 21 Wend. 509.) In the absence of such 
 consent, the challenge is tried thus: If two jurors have been 
 already called and admitted without objection, they must try 
 the challenge; if not, the Justice must appoint two indifferent 
 persons to try it, who are called triers. If triers try one juror, 
 and he is found indifferent, he and the two triers must try the 
 next; and when two jurors are sworn upon the jury, they 
 become triers in the case of all subsequent challenges, and 
 supersede the persons previously sworn as triers. {Ora1iam!s 
 Prac. 267.) 
 
EVIDENCE. 293 
 
 The following is the oath to be administered to those who try 
 a challenge to a juror for favor: {^Freeman vs. The People, 4 
 Den. 9:) 
 
 You do swear that you will well and truly try, and truly 
 rind, whether John Brown, the juror challenged, stands indiffer- 
 ent between John Doe, plaintiff, and Richard Roe, defendant. 
 
 If the juror is found indifferent, he is immediately to be sworn 
 on the jury unless challenged peremptorily. If he is found not 
 indifferent, the Justice must proceed to swear the next juror, if 
 he is not challenged. If a juror be challenged and rejected, he 
 cannot afterwards be sworn as a talesman. {Grahanpls Prac. 
 2fi7.) 
 
 Where a party on a trial before a Justice, challenges a juror, 
 but the Justice overrules the objection, and allows him to sit as 
 a juror, and after the rest of the jurors have been drawn, the 
 Justice asks the parties if they have any objection to the jurors 
 as they stand, and they reply in the negative, this does not oper- 
 ate as a waiver of the objection taken to the juror challenged. 
 {Hathaway vs. Helmer, 25 Barb. 29.) 
 
 (5.) Swearing the jurors. 
 The Justice must administer to each juror an oath or affinna- 
 tion in the following form: 
 
 You do swear, [or, affirm,] well and truly to try the matter 
 in difference between John Doe, plaintiff, and Richard Roe, de- 
 fendant, and, unless discharged by the Justice, a true verdict to 
 give, according to evidence. {Code, § 2998.) 
 
 After the jury are duly sworn, they must sit together, and 
 hear the proofs and allegations of the parties, which must be 
 ■delivered publicly in their presence, (id. § 2999.) 
 
 (6.) Statement of the cause of action. 
 After the jury have been sworn, the plaintiff should state, in 
 a concise manner, his cause of action, the facts which he expects 
 to prove, and, if he can anticipate it, the character of the de- 
 fence; so that the jury may understand the nature of the action 
 which they are to try, and be enabled the better to appreciate 
 the testimony which may be offered. 
 
294 NEW YORK JUSTICE. 
 
 Though the plaintiff usually begins the case, it is not always 
 so; for, whichever party is to maintain the affirmative of the 
 issue, is entitled to the opening statement. 
 
 (7.) Evidence. 
 
 This statement having been made, the plaintiff proceeds to 
 introduce the evidence on his part. We shall consider fully 
 hereafter impost, part I., cJiap. XIII.) the subject of evidence, 
 and shall only mention here a few statutory provisions which 
 are specially applicable to evidence in Justices' Courts; and 
 which may more appropriately be mentioned in this place. 
 
 No ex parte affidavit of any person can be allowed or given 
 in evidence on any trial, either with or without a jury, unless 
 the parties agree to allow the same. {Code, § 3004.) 
 
 A party in the suit, or having an interest in the verdict, may 
 be a witness to prove the death, or absence beyond the reach 
 of a subpoena of the Justice, of a subscribing witness to, or the 
 loss of, any instrument, which shall come in question on the 
 ti'ial, in order to introduce other proof of the execution or con- 
 tents of such instrument. 
 
 If a witness, on being produced, is objected to as incompetent, 
 such objection must be tried and determined by the Justice. 
 Evidence may be given in support of, or against such objection, 
 as in other cases; or the proposed witness may be examined on 
 oath by the party objecting, and if so examined, no other testi- 
 mony can be received from either party, as to the competency 
 of such witness, {id. § 3005.) 
 
 Upon the application of a party to a suit before any Justice 
 of the Peace, a writ of habeas corpus may be issued by any Jus- 
 tice of the Supreme Court, or any officer authorized to perform 
 the duties of such Justice, to bring any prisoner confined in the 
 jail of the same county, or the county next adjoining that where 
 such Justice of the Peace may reside, before him, to be examined 
 as a witness, {id. § 2010.) The application must be in writing, 
 verified by affidavit, and must state the title and nature of the 
 suit or proceeding in regard to which the testimony of such 
 prisoner is desired, and that the testimony of sneli prisoner is 
 material and necessary to such party on the trial or hearing of 
 such suit or proceeding, as he is advised by con]isel, and verily 
 believes, {id. § 2012.) "VVhenover any person is in execution on 
 
SWEAKING WITNESSES. 295 
 
 any civil process, or committed on any criminal charge, and a 
 habeas corpus is issued to bring the body of such prisoner before 
 any Court to testifj'-, or to answer for any contempt, or any other 
 matter, and it is returned upon the writ that the prisoner is 
 charged in the execution, or committed as aforesaid, he must be 
 remanded, after having testified; and, if any order or commit- 
 ment be made against such prisoner, he must be so committed 
 to the prison from which he was taken, {id. § 2013.) 
 
 (8.) Swearing witnesses. 
 
 The witnesses must be sworn by the Justice who tries the 
 cause. {Per)'y vs. Weyman, 1 Johns. 520.) 
 
 Every person offered as a witness, before any testimony be 
 given by him, must be duly sworn or affirmed, that the evidence 
 he shall give relating to the matter in difference between 
 
 , plaintiff, and , defendant, shall be 
 
 the truth, the whole truth, and nothing but the truth. {Gods, 
 § 3000.) 
 
 The usual mode of administering oaths, by the person who 
 swears laying his hand upon and kissing the Gospels, must be 
 observed in all cases in which an oath is administered according 
 to law, except in the cases otherwise provided, as hereafter men- 
 tioned, {id. § 845.) 
 
 The following is the oath to be administered to a witness : 
 
 § 42. Oath of Witness, upon the Gospels. 
 
 You do swear, that the evidence you shall give, relating to 
 this matter in difference between C D, plaintiff, and A B, de- 
 fendant, shall be the truth, the whole truth, and nothing but 
 the truth. 
 
 Every person who desires it, must be permitted to swear in 
 the following form, and, while so swearing, such person may 
 or may not hold up his hand, in his discretion, {id. § 846.) 
 
 § 43. The 8ame, not on the Gospels. 
 
 You do swear, in the presence of the ever-living God, that, 
 &c., [as in § 42, to the end.'\ 
 
 Every person who declares that he has conscientious scruples 
 against taking any oath, or swearing in any form, must be per- 
 mitted to make his solemn declaration or affirmation in the fol- 
 lowing form. {id. § 847.) 
 
296 NEW YOEK JUSTICE. 
 
 § 44. Affirmation of Witness. 
 You do solemnly, sincerely and truly declare and affirm, that, 
 &c., [as in § 42, to the end.] 
 
 Whenever the Court before which any person is offered as a 
 witness, is satified that such person has any peculiar mode of 
 swearing, connected with, or in addition to, the laying of his 
 hand upon the Gospels and kissing the same, which is more 
 solemn and obligatory in the opinion of such person, the Court 
 may, in its discretion, adopt such mode of swearing such per- 
 son, (id. § 848) 
 
 Every person believing in any other than the Christian reli- 
 gion, must be sworn according to the peculiar ceremonies of his 
 religion, if there be any such ceremonies, instead of any of the 
 modes above prescribed, (id. § 849.) 
 
 Some observations on the question of the exclusion of wit- 
 nesses on the ground of religious belief, will be found hereafter, 
 in the chapter on Evidence, under the head of Comjoetenci/ of 
 Witnesses. (Post, part I. chap. XIII. subd. 14.) 
 
 The Court before whom an infant, or person apparently of 
 weak intellect, is produced as a witness, may examine such per- 
 son, to ascertain his capacity, and the extent of his religious and 
 other knowledge; and the Court may also inquire of any person 
 what are the peculiar ceremonies observed by him in swearing, 
 which he deems most obligatory, {id. § 850.) 
 
 In all cases in which an affidavit is required or authorized 
 by law, the same may be taken in any of the forms above pre- 
 scribed, in the several cases above specified; and every person 
 swearing, affirming, or declaring, in any such form, or in anj- 
 form authorized by law, will be deemed to have been lawfully- 
 sworn, and to be guilty of perjury for corruptly or falsely 
 swearing, affirming or declaring in aiiy such form, in the same 
 maimer as if he had sworn by laying his hand upon the Gos- 
 pels and kissing the same. {id. § 851.) 
 
 (9.) Punishment of witnesses who refuse to testify. 
 When a witness attending before any Justice, in any cause, 
 refuses to be sworn in any form prescribed by law, or to an- 
 swer any pertinent or propei' question, and the party at whose 
 instance he attended makes oath, that the testimony of such 
 
WAEKAIsT OF COMMITMENT. 297 
 
 ■witness is so far material, that without it he cannot safely pro- 
 ceed in the trial of such cause, such Justice may, by warrant, 
 commit such witness to the jail of the county, {id. § 3001.) 
 Such warrant must specify the cause for which the same is 
 issued, and, if it be for refusing to answer any question, such 
 question must be specified therein; and such witness must be 
 closely confined, pursuant to such warrant, until he submits to 
 be sworn or to answer, as the case may be. {id. § 3002.) The 
 ■ Justice must thereupon adjourn such cause at the request of the 
 party in whose favor such witness attended, from time to time, 
 until such witness shall testify in the cause, or be dead or insane. 
 {id. § 3003.) 
 
 To authorize a proceeding under these provisions, the witness 
 must, in all cases, be in actual attendance before the Justice; 
 and cannot be committed, except upon the oath of the party at 
 whose instance he attended, as to the materiality of his testi- 
 mony. 
 
 Before committing a witness, the Justice should be satisfied 
 that he has been duly subpoenaed, for, if he has not been, he is 
 not bound to be sworn; but if he has been sworn, although not 
 .subpoenaed, he is bound to testify. 
 
 The service of the subpoena may be proved by the return of 
 the constable, or the oath of the party, or of any other person, 
 in the manner heretofore laid down {ante, p. 272), for making 
 the same proof to obtain an attachment against a witness. 
 
 The followino; is the form of oath to be administered to the 
 party in regard to the materiality of the witness's testimony: 
 
 You do swear that you will true answers make to such ques- 
 tions as may be put to you, touching the materiality of the tes- 
 timony of James Brown, as a witness in the action now on trial 
 before me, between John Doe, plaintiff, and Eichard Eoe, de- 
 fendant. 
 
 If it appears from the examination of the party, that the tes- 
 timony of the witness is so far material that without it the 
 party cannot safely proceed in the trial, and the witness refuses 
 to be sworn, or, if sworn, to answer any pertinent and proper 
 question, the Justice must then commit the witness to jail by a 
 warrant. 
 
298 NEW YORK JUSTICE. 
 
 '■\.s: 
 
 § 45. Warrant of Commitment. 
 County, 
 Town of 
 
 The People of the State of New York, to any constable of 
 said county, and to the keeper of the jail of said county: 
 
 Whereas, in the trial of an action this day before me, G H, 
 a Justice of the Peace in and for said county, in which John 
 Doe was plaintiff, and Eichard Koe defendant, James Brown, 
 then being present before me,* was proved to my satisfaction to 
 have been duly subpcBuaed to attend as a witness before me on 
 said trial on the part of the said plaintiff, and whereas the 
 said James Brown refused to be sworn as such witness in any 
 form prescribed by law, [or, if the witness, after being sworn, 
 refuses to answer any pertinent and proper questions, proceed as 
 above to the* and then add: having been duly sworn as a wit- 
 ness on the part of the plaintiff on such trial, refused to answer 
 the following question, which question was decided by me to be 
 pertinent and proper, viz: "Did you, on the day of , 
 
 1853, at , see the plaintiff pay the defendant twenty dol- 
 
 lars?"] and the said John Doe having made oath before me that 
 the testimony of the said James Brown was so far material that 
 without it he could not safely proceed in the trial of the said 
 action: Now, therefore, you, the said constable, are hereby 
 commanded to commit the said James Brown to the jail of the 
 county of , and you, the keeper of the said jail, are hereby 
 commanded to receive the said James Brown into your custody 
 in the said jail, and closely confine him there, pursuant to this 
 warrant, until he shall submit to be sworn as such witness, \or, 
 until he shall submit to answer the said question,] or shall be 
 discharged according to due course of law. 
 
 Given under my hand, the day of , 1853. 
 
 G H, Justice of the Peace. 
 
 (10.) Examination of Plaintiff's witnesses. 
 
 The plaintiff may introduce such witnesses as he deems 
 necessary to establish his cause of action. After he has 
 interrogated them, the adverse party has a right to cross- 
 examine them. 
 
 Either party may object to the introduction of any evidence, 
 or to the putting of any question, which he thinks to be im- 
 proper. When an objection is made, the question is submitted 
 to the Justice, with or without argumeut, who must determine 
 whether the testimony offered is admissible, or whether the 
 question put is a proper one. 
 
NONSUIT. 299 
 
 The Justice should be careful neither to reject proper evi- 
 dence, nor to admit that which is improper, for either error may 
 afibrd ground for reversing his judgment. The admission of 
 improper evidence may have an influence upon honest jurors, 
 who are unconscious of the impressions which they receive; and 
 although the Justice, on discovering his error, directs the jury 
 to disregard the evidence, yet that will not cure the irregular- 
 ity. (PenfidA vs. Carpenter, 13 Johns. 350.) 
 
 When the plaintifi" has concluded the introduction of his evi- 
 dence, he rests his cause. 
 
 (11.) JSTonsuit. 
 h. the plaintifi" is satisfied that the evidence which he has 
 offered is insufficient to sustain his action, he may withdraw his 
 suit, or submit to a nonsuit. If the cause is tried before a Jus- 
 tice without a jury, the plaintiff may submit to a nonsuit, at any 
 time before or after the M-itnesses have been examined, and be- 
 fore the cause has been .submitted to the Justice; but not after 
 the cause is under advisement, though before four days have 
 elapsed. (10 id. 363; Hess vs. Beehnan, 11 id. 457.) If it is 
 tried by a jury, he may submit to a nonsuit at any time before 
 their verdict is announced by their foreman, {id.; Piatt vs. 
 Storer, 5 id. 346.) But he cannot submit to a nonsuit by failing 
 to appear to hear their verdict when they come in. {Code, 
 
 § 3007.) 
 
 And after the Justice has submitted the cause to the jury, he 
 cannot take it from them, and nonsuit the plaintiff. (Young vs. 
 Hubhell, 3 Johns. 430.) 
 
 When the cause is tried by the Justice, he may, after the 
 plaintiff has concluded his testimony, nonsuit the plaintiff, when, 
 in his opinion, the testimony does not sustain the action. (12 
 id. 229; Stuart vs. Simpson, 1 Wend. 376.) So, too, when the 
 cause is tried Ijy a jury, the Justice may grant a nonsuit on the 
 application of the defendant, if, in his judgment, the plaintiff has 
 failed, upon his own showing, to make out his case, whether on 
 the ground of the incompetency, or of the insufficiency, of his 
 evidence. {Elwell vs. McQueen, 10 Wend. 519.) 
 
 It is discretionary with the Justice to permit the plaintiff to 
 offer additional testimony, after the defendant has applied for 
 a nonsuit; but he may, in his discretion, grant the privilege to 
 
300 NEW YORK JUSTICE. 
 
 either party, after the evidence has been closed. {^Alexander 
 vs. Byron, 2 Johns. Oases,, 318.) 
 
 A nonsuit should be granted only in a clear case; and though 
 the proof to sustain the cause of action is only slight and doubt- 
 ful, yet it is the safer course for the Justice to permit it to go 
 to the jury. 
 
 If the Justice takes time to make up his judgment, he cannot 
 nonsuit the plaintiff; and even though he call it a nonsuit in his 
 docket, yet the judgment is final. (10 Wevd. 520; 3 Hill, 237; 
 Peters vs. Diosay, 3 E. D. Smith, 115.) 
 
 (12.) Statement of the defence. 
 After the witnesses on the part of the plaintiff have been 
 examined, if the defendant does not apply for a nonsuit, or if 
 he fails in his application, he should state his defence in a clear 
 and concise manner, and proceed to the examination of his wit- 
 nesses. 
 
 (13.) Examination of defendant's witnesses. 
 The defendant's witnesses are to be examined in the same 
 manner as the witnesses on the part of the plaintiff, and may be 
 cross-examined by the plaintiff. After the defendant has intro- 
 duced all his evidence, the plaintiff may give evidence to rebut 
 it, or to impeach the defendant's witnesses. 
 
 (14.) Amendment of pleadings. 
 
 During the progress of the trial, the parties may find it neces- 
 sary to amend their pleadings. The Code provides, that the 
 pleadings may be amended at any time during the trial, when 
 by such amendment substantial justice will be promoted; and 
 that the Court may, also, in its discretion, require as a condition 
 of an amendment the payment of costs to the adverse party. 
 {Code, § 2944.) 
 
 Where the plaintiff claims an amount beyond the jurisdiction 
 of the Justice, the plaintiff may amend the complaint so as to 
 bring the action within the jurisdiction of the Justice, though 
 the defendant objects. (4 Den. 570; see, also, Yager vs. Han- 
 nah, 6 Hill, 631.) 
 
 For further observations on the subject of amendments, see 
 ante, p. 218 
 
EETIRING OF THE JURY. 301 
 
 (15.) Summing up. 
 
 "When the evidence is closed, the parties, or their counisel, 
 may address the jury; the plaintiff usually, but the defendant 
 when he holds the alErmative, having the right to the closing 
 argument. 
 
 The Justice may, if he chooses, charge the jury on questions of 
 law, but he is not bound to do so; if, however, he does charge 
 thera, and charges erroneously, advantage of the error can be 
 taken on appeal: (6 Hill, 326; Delancy vs. JSfagle, 16 Barb. 
 96;) though not if it is obvious that his charge could not 
 materially have influenced the jury. {Smith vs. Kerr, 1 Barb. 
 155.) 
 
 Where the whole matter is left to the jury by the Justice, 
 without instruction, they are judges of the law as well as of 
 the fact; but in that case, if they judge wrong upon a point of 
 law, the error may be corrected on appeal. (Trustees of Penn 
 Tan vs. TJiorne, 6 Hill, 326; 18 Barb. 327.) 
 
 (16.) Retiring of the jury. 
 After hearing the proofs and allegations, the jury must be 
 kept together in some convenient place, under the charge of a 
 constable, until they all agree upon their verdict; and for that 
 purpose the Justice must administer to such constable the fol 
 lowing oath : [Code, § 3006.) 
 
 You swear, in the presence of Almighty God, that you will, 
 to the utmost of your ability, keep the persons sworn as jurors 
 on this trial, together, in a private and convenient place, without 
 any meat or drink, except suck as shall be ordered by me ; that 
 you will not sufler any comirmnication to be made to them (orally 
 or otherwise) ; that you will not communicate with them your- 
 self, orally or otherwise, unless by my order, or to ask them 
 whether they have agreed upon their verdict, until they are dis- 
 charged ; and that you will not, before they render their verdict, 
 communicate to any person the state of their deliberations, or the 
 verdict they have agreed on. 
 
 "Where the jury do not retire to consider their verdict, it is 
 unnecessary that a constable be sworn to attend them. (8 Johns. 
 43T; Douglass vs. Blachnan, 14 Barb. 381.) 
 
 A constable must be sworn to attend the jury, if they retire, 
 and it is a fatal objection, on appeal, if the return does not 
 
302 NEW YOEK JUSTICE. 
 
 show that a constable was sworn. (2 Catnes, 221; 11 Johns. 
 442; Ooughner vs. Easterbrook, id. 532.) The administration 
 of an erroneous oath to the constable is alike fatal. (2 Oaines, 
 134; HerricJc vs. Bedford, 3 id. 140.) 
 
 A Justice has no right, during the trial, to permit the parties 
 to treat the jury with liquor; (15 Johns. 455; Rose vs. Smith, 
 4 Cow. 17;) but where the jury drank liquor during the sus- 
 pension of the trial, but not to excess, and the liquor was not 
 furnished by one party more than the other, it was held to be 
 no cause for reversing the judgment. {Dennison vs. Collins, 
 1 Cow. 111.) And if the parties consent that the jury may 
 retire without a constable to attend them, they waive any 
 irregularity of the jury in drinking liquor, and in admitting 
 other persons into the room while deliberating on their verdict. 
 {Tower vs. Hewitt, 11 Johns. 134.) 
 
 It was formerly held that, if a juror drank even a trifling 
 quantity of liquor, the judgment should be set aside. {Brant 
 vs. Fowler, 7 Cow. 562.) But this principle has been overruled, 
 and it is now held, that the mere fact of drinking spirituous 
 liquors by a juror, during the progress of a trial, is not per se 
 sufficient to set aside the verdict, but there must be some reason 
 to suspect that the drinking had some influence on the final 
 result of the cause. If a juror should become incapacitated on 
 account of intoxication, the verdict would be set aside. {Wil- 
 son vs. Arams, 1 Hill, 207.) 
 
 If a juror leave his seat for a short time, without the know- 
 ledge of the Court or parties, but no testimony is given during 
 his absence, and he holds communication with no one on the 
 subject of the cause, though this be a contempt of Court, yet 
 it will not avoid the verdict. {Ex parte Hill, 3 Cow. 355.) 
 
 Mr. Justice Cowen, in a note to the case of Smith vs. Thomp- 
 son, {id. 221,) has collected a great variety of English and 
 American cases, in relation to the conduct of jurors, and the 
 necessity of their being kept together, and entirely separate 
 from all other persons. 
 
 A Justice has no right to go into the jury-room while the 
 jury are deliberating, and give them instructions, without the 
 express consent of the parties. {Moody vs. Pomeroy, 4 Den. 
 115; 13 Johns. 487; 7 id. 200.) 
 
 The jury have no right to take into their possession the 
 
KECEIVING THE VERDICT. 303 
 
 minutes of one of the counsel, without the consent of both 
 parties; and in a case 'vvhere they had the minutes of the suc- 
 cessful party, the judgment was reversed. {Durfee vs. Eveland, 
 8 Barb. 46.) But if the Justice goes into the jury-room at the 
 request of the jury, and with the knowledge and consent of the 
 defendant, his consent that the Justice may read the testimony, 
 will be implied. {Hancock vs. Salmon, id. 564.) 
 
 It is erroneous for the Justice to enter the jury-room, and 
 explain the testimony of a witness on a point of fact, without 
 consent; [Bunn vs. Croul, 10 Johns. 239;) or to give his min- 
 utes of evidence to the jury, without consent. {Niel vs. Abel, 
 24 Wend. 185.) But, after the jury have retired to consider 
 their verdict, the Justice may, if the parties are present, give 
 the jury fui-ther instructions as to the law of the case. {Rogers 
 vs. MouUhrop, 13 Wend. 274.) 
 
 It was held not to be error where the jury sent for the Jus- 
 tice, and asked him if they could add any thing to the demand 
 of the plaintiff, and he answered " no," and immediately 
 retired. {Thayer vs. Van Vliet, 5 Johns. 111.) But it is 
 erroneous for the Justice, after the jury have retired, and in the 
 absence of the parties, to answer their inquiry as to whether a 
 certain fact has been given in evidence. (10 id. 239, supra.) 
 
 Where the jury came into Court, and requested the Justice to 
 read over the testimony of a witness, which he did, but, owing to 
 his not having taken down all that the witness said, a part of it, 
 only i-clating remotely to the merits, was not mentioned to the 
 jury, it was held that, as neither party at the time had called 
 the Justice's attention to the omission, it was not a ground for 
 reversing the judgment, especially as there was no reason to 
 suppose that the omission was intentional. ( Whitney vs. Crim, 
 1 Hill, 61.) 
 
 After a jury have retired to consider their verdict, they may 
 «omc ])ack into Court, and hear evidence as to any matter 
 about which they have doubt, if both parties are present, and 
 neither objects. {Henlon vs. Leonard, 7 Johns. 32.) 
 
 In Keeler vs. LocJcwood, {Hill & D. Siipp. 137,) after the 
 jury in a Justice's Court had retired, they sent for the Justice; 
 he notified the parties, expecting them to follow him, and 
 went into the jury-room alone, when the jury informed him that 
 •they could not agree, and that they wished further instructions. 
 
304 NEW YORK JUSTICE. 
 
 The Justice, on discovering that the parties had not followed 
 him, declined giving instructions, advising the jury to make 
 another effort to agree, and then retired and informed the parties 
 what the jury had said. They all then returned to the jury- 
 room, where it was agreed that the jury might examine wit- 
 nesses further, which they did without objection. It was held 
 that there was no irregularity. 
 
 (17.) Receiving the verdict. 
 
 When the jurors have agreed on their verdict, they must 
 deliver the same to the Justice, publicly, who must enter it in 
 his docket. Previous to receiving it, the Justice need not call 
 the plaintiff. If he is absent, and no one appears for him, the 
 verdict can be received. {Code, § 3007.) 
 
 It is proper for the Justice, when the jury return to render 
 their verdict, to call over the names of the jurors, that he may 
 know whether they are all present, and then to inquire whether 
 they have agreed upon their verdict. 
 
 Whenever a Justice is satisfied that a jury sworn in any 
 cause before him cannot agree on their verdict, after having been 
 out a reasonable time, he may discharge them, and must then 
 issue a new venire, returnable within forty-eight hours, imless 
 the parties consent that the Justice may render judgment on 
 the evidence already before him ; which, in such cases, he may 
 do. {id. § 3008.) It is held that the provision of the stat- 
 ute prescribing the time within which a venire for a second jury 
 shall be made returnable is designed for the convenience of 
 parties; and compliance with it may be waived by their con- 
 senting that the process be returnable at a later period. (20 
 Barb. 275; Embury vs. Connor, 3 Cow. 511.) What is a rea- 
 sonable time to keep the jury together depends upon circum- 
 stances, and must be left to the sound discretion of the Justice. 
 The Justice should keep the jury together as long as there is 
 a reasonable probability that they will agree; but they should 
 not be kept out so long as to coerce an agreement by exhaustion 
 or other^nse. 
 
 The Justice may send a jury back to reconsider their verdict 
 before it is recorded, if there is a mistake. {Blackley vs. Shel- 
 don, 7 Johns. 32.) 
 
 If the jury state that they have agreed upon their verdict, 
 
KEOEIVING THE VEBDIOT. 305 
 
 the Justice should call the plaintifE as formerly directed by the 
 statute. It is not absolutely necessary that the plaintitt' or his 
 attorney be actually present when the verdict is rendered, for he 
 has no right to submit to a nonsuit before it is rendered, and his 
 absence is no evidence of his desire to do so. 
 
 It is, however, sufficient if he be actually present when his 
 name is called, though he does not answer, unless he expresses 
 a design not to answer, or immediately withdraws, in which case 
 the Justice should enter judgment of nonsuit for want of the 
 plaintiff's appearance. (Oakley vs. Van Horn, 21 Wend. 305.) 
 
 Unless the Justice states, in his return on appeal, that the 
 plaintiff was called and answered, or that he was actually pres- 
 ent, the judgment will be reversed; and where the Justice 
 returned that, on calling the plaintiff, " some person to me not 
 known answered to the name of the plaintiff," it was held to 
 be irregular, because the Justice was bound to see that the 
 plaintiff appeared in person, or by some one duly authorized. 
 [Shove vs. Raynor, 1 Den. 77.) 
 
 No Court can be opened, or transact any business on Sunday, 
 unless it be for the purpose of receiving a verdict or discharging 
 a jury; and every adjournment of a Court on Saturday to an- 
 other day, must always be to some other day than Sunday, ex- 
 cept such adjournment as may be made after a cause has been 
 committed to a jury. {Code, section Q.) It is proper, therefore, 
 to receive a verdict, or to discharge a jury on Sunday, where 
 the cause has been committed to the jury before that day; but 
 is irregular for a justice to enter a judgment on that day. 
 {Hoghtalifig vs. Oshorn, 15 Johns. 119.) No part of atrial can 
 be had on Sunday, except what is specially allowed by the 
 statute; and where a cause was submitted to a jury at two 
 o'clock on Sunday morning, and a verdict was rendered at three 
 o'clock, the judgment was reversed. (2 Sandf. 131; Pulling 
 vs. People, 8 Barb. 384.) 
 
 The verdict is not valid and final, until it is pronounced and 
 recorded in open Court; and before that time the jury may cor- 
 rect a verdict in regard to which they have made a mistake, or 
 about which, upon further reflection, they have doubt. (6 
 Johns. 68; BlacMey vs. Sheldon, 7 id. 32.) 
 
 The verdict may be delivered orally or in writing; and in 
 either case, each party has the right to poll the jury, that is, 
 20 
 
306 NEW YORK JUSTICE. 
 
 each juror may be asked if the verdict rendered is his verdict, 
 and if every juror does not expi'ess his assent to the verdict, 
 the Justice has no right to enter it, for there is no agreement 
 of the jury. (7 Johns. 32, supra.) 
 
 A verdict for more damages than the defendant claims in his 
 plea of set-off will not be set aside, where the plaintiff makes no 
 objection to the set-off at the trial, but suffers it to go to the 
 jury. ( Wilson vs. Larmoiith, 3 id. 433.) If the jury find a ver 
 diet of damages for the defendant, in a case in which he is not 
 entitled to damages, the Justice may remit the damages and give 
 judgment for the defendant generally. {Burger vs. Kortright, 
 4 Johns. 414.) A verdict for the defendant for six cents 
 damages and six cents costs, will be considered as a general 
 verdict for the defendant, and the damages and costs will be 
 rejected. {Goodenow vs. Travis, 3 id. 427.) A verdict of no 
 cause of action, is substantially a verdict for the defendant, and 
 the Justice must enter judgment accordingly. {Felter vs. Mid- 
 liner, 2 Johns. 181.) 
 
 If a verdict is rendered in favor of the plaintiff for an amount 
 exceeding the jurisdiction of the Justice, the plaintiff may remit 
 the excess. (3 Z>en. 319; Barber vs. Rose, 5 Hill, 76.) 
 
 (18.) Variance. 
 
 A variance between the proof on the trial, and the allegations 
 in a pleading, must be disregarded as immaterial, unless the 
 Court is satisfied that the adverse party has been misled to his 
 prejudice thereby. {Code, ^ 2943.) 
 
 After taking time, a Justice cannot give judgment for a var 
 riance, where the objection was not taken at the trial. {Shall 
 vs. Lathrop, 3 Hill, 237.) 
 
 (19.) Contempts of Court. 
 This subject will be fully treated of hereafter in Pax-t 11. of 
 this work, Chax)ter I. 
 
EVIDENCE. 307 
 
 CHAPTER XIII. 
 
 OF EVIDENCE. 
 1. The Nature and Principles of Evidence. 
 
 The word evidence, in legal acceptation, includes all the 
 means by which any alleged matter of fact, the truth of which 
 IS submitted to investigation, is established or disproved. This 
 tei-m, and the word proof, are often used indifferently, as 
 synonymous with each other, but the latter is applied by the 
 most accurate logicians, to the effect of evidence, and not to the 
 medium by which truth is established. None but mathematical 
 truth is susceptible of that high degree of evidence, called 
 demonstration, which excludes all possibility of error, and which, 
 therefore, may reasonably be required in support of every 
 mathematical deduction. Matters of fact are proved by moral 
 evidence alone; by which is meant, not only that kind of evi- 
 dence which is employed on subjects connected with moral con- 
 duct, but all the evidence which is not obtained either from 
 intuition, or from demonstration. In the ordinary affairs of life, 
 we do not require demonstrative evidence, because it is not 
 consistent with the nature of the subject, and to insist upon it 
 would be unreasonable and absurd. The most that can be 
 affirmed of such matters is, that there is no reasonable doubt 
 concerning them. The true question, therefore, in trials of 
 issues of fact, is not, whether it is possible that the testimony 
 may be false, but whether there is sufficient probability of its 
 truth; that iSj whether the facts are shown by competent and 
 satisfactory evidence. Things established by competent and 
 satisfactory evidence are said to be proved. (1 Green, on Ev. 
 \ 1; Wills on Oir. Ev. 2.) 
 
 By competent evidence is meant that which the very nature 
 of the thing to be proved requires as the fit and appropriate 
 proof in the particular case, such as the production of a writing, 
 when its contents are the subject of inquiry. By satisfactory 
 evidence, which is sometimes called sufficient evidence, is 
 
308 NEW YORK JUSTICE. 
 
 intended that amount of proof which ordinarily satisfies an 
 unprejudiced mind beyond reasonable doubt. The circumstan- 
 ces which will amount to this degree of proof can never be 
 previously defined. The only legal test of which they are sus- 
 ceptible, is their sufficiency to satisfy the mind and conscience 
 of a common man, and so to convince him, that he would 
 venture to act upon that conviction in matters of the highest 
 concern and importance to his own interest. Questions respect- 
 ing the competency and admissibility of evidence are entirely 
 distinct from those which respect its sufficiency or effect; the 
 former being exclusively within the province of the Court; the 
 latter belonging exclusively to the jury. Cumulative evidence, 
 is evidence of the same kind, to the same point. Thus, if a 
 fact is attempted to be proved by the verbal admission of a 
 party, evidence of another verbal admission of the same fact is 
 cumulative; but evidence of other circumstances, tending to 
 establish the fact, is not. (1 Green, on Ev. \ 2.) 
 
 2, Things Judicially Taken Notice of Without Proof. 
 
 The public Seal of a State, affixed to the exemplification of a 
 law or judicial proceeding, proves itself; it is a matter of noto- 
 riety, and will be taken notice of as a part of the law of nations 
 acknowledged by all. (Lincoln vs. Battelle, 6 Wend. 475.) 
 It is not necessary to verify it, for it imports absolute verity; 
 and, until the contrary appears, the presumption is that it was 
 affixed by the proper officer. At the common law, a seal is an 
 impression upon wax, wafer or some other tenacious substance. 
 In this State, an impression upon paper alone is not regarded as 
 a seal, except where it has been declared so by express statute; 
 (2 Hill, 227; 3 id. 493; Ooit vs. Millihin, 1 Den. 376;) nor is 
 a scroll a seal in this State. But, in a recent case in the Supreme 
 Court of the United States, where a deed executed in Wiscon- 
 sin, and attested by the seal of a Court, stamped upon the 
 paper, instead of upon wax or a wafer, was admitted in evidence 
 upon a trial in Arkansas, it was held, that the seal was good 
 and sufficient as a common law seal. (13 How. U. S. 472.) 
 
 The law of nations, the general customs and usages of mer 
 chants, and the public statutes and general laws of their own 
 country, as well ecclesiastical as civil, are recognized, without 
 proof, by the Courts of all civilized nations. (3 Wheat. 610, 
 
THE VARIOUS KINDS OF EVIDENCE. 309 
 
 634.) The seal of a notary public is also judicially taken notice 
 of by the Courts, he being an officer recognized by the whole 
 commercial world. {Ohanoine vs. Fowler, 3 Wend. 173.) But 
 the law under which he acts should be proved. Nor is it neces- 
 sary to prove things which must have happened according to 
 the ordinary course of nature, nor the coincidence of days of 
 the week with days of the month, nor the legal weights and 
 measures, nor any matters of public history affecting the whole 
 people, nor public matters affecting the government of the 
 country. Courts also take notice of the territorial extent of 
 the jurisdiction and sovereignty exercised by their own country, 
 and of the civil divisions of the country into States, counties 
 and towns, but not of their precise boundaries, farther than 
 they may be described in public statutes. (5 Wend. 530; Bran- 
 son vs. Oleason, 7 Barb. 472.) Notice is taken, by all tribu- 
 nals, of the accession of the Chief Executive of the nation or 
 State under whose authority they act, his powers and privileges, 
 and the genuineness of his signature; of the heads of depart- 
 ments, and principal officers of State; of the public seals; of 
 the election or resignation of a senator of the United States; 
 of the appointment of a cabinet or foreign minister; of the ap- 
 pointment of marshals and sheriffs, and the genuineness of their 
 .signatures. (1 Green, on Ev. \ 6.) Courts take judicial notice 
 of the Constitution of the United States, and of the acts of 
 Congress in pursuance thereof ; {Jack ys. Martin, 12 Wend. 311; 
 S. G. 14 id. 507;) but they do not take judicial notice of any 
 of the laws of our sister States which are at variance with the 
 common law. {Holmes vs. Broughton, 10 Wend. 75,) or of the 
 ordinances of a municipal corporation. {Herker vs. Mayor of 
 JV. Y. 17 id. 199.) Nor although a fact not judicially cogniz- 
 able is known to the members of the Court individually, does 
 this dispense with the necessity of proof upon the record, 
 (Wheeler vs. Webster, 1 E. D. Smith's, 1.) 
 
 3. The Various Kinds of Evidence. 
 
 Truth is either abstract and necessary, or probable and con- 
 tingent; and each of these kinds of truth is discoverable by 
 appropriate, but necessarily different, kinds of evidence. This 
 classification, however, is not founded on any essential differ- 
 ence in the nature of truths themselves, and has reference 
 
310 NEW YORK JUSTICE. 
 
 merely to our imperfect capacity and ability of perceiving 
 them. In many instances, the correspondence of our ideas 
 with realities is perceived instantaneously, in which case the 
 judgment is said to be intuitive. But innumerable truths, the 
 knowledge of which is indispensable to happiness, if not to 
 existence, depend upon evidence of a totally different kind, 
 and admit of no other guide than our own consciousness, or 
 the testimony of our fellow-men. {Wills on Circumstantial 
 Evidence, 4.) 
 
 In investigations of every kind, it is essential that a correct 
 estimate be made of the kind and degree of assurance of which 
 the subject admits. Unlike the assent which is the inevitable 
 result of mathematical reasoning, belief in the truth of events 
 may be of various degrees, from moral certainty, the highest, 
 to that of mere probability, the lowest. The general meaning 
 of the word probability is likeness or similarity to some other 
 truth, event or thing. Sometimes that word is used to express 
 the preponderance of the evidence or arguments in favor of 
 the existence of a particular event or truth, or adverse to it. 
 {id. 7, 8.) The degree of excellence and of strength to which 
 testimony may rise seems almost indefinite. There is hardly 
 any cogency which it is not capable, by possible supposition, 
 of attaining. The endless multiplication of witnesses, the un- 
 bounded variety of their habits of thinking, their prejudices, 
 and their interests, afford the means of conceiving the force of 
 their testimony augmented ad infinitum, because these circum 
 stances afford the means of diminishing indefinitely the chances 
 of their being all mistaken, all misled, or all combining to 
 deceive, {id. 10.) 
 
 The results of experience are expressly or impliedly assumed 
 as the standard of credibility in all questions dependent upon 
 moral evidence. By means of the senses, and of our own con- 
 sciousness, we become acquainted with external nature, and with 
 the characteristics and properties of physical things and moral 
 beings, which are then made the subject of memory, reflection, 
 and other intellectual operations; and ultimately, the inferences 
 and observations to which they lead are reduced to general 
 principles, and become the basis and standard of comparison 
 in similar circumstances. The ground-work of our reasoning 
 is our confidence in the permanence of the order of nature, and 
 
PRESUMPTIVE EVIDENCE. 311 
 
 in the existence of moral causes, which operate with an unvary- 
 ing uniformity, not inferior to, and perhaps surpassing even, 
 the stability of physical laws. (Wills on Cir. Ev. 16.) 
 
 Experience comprehends, not merely the facts and deduc- 
 tions of personal observation, but the observations of mankind 
 at large, in every age and country. It would be absurd to dis- 
 believe and reject as incredible the relations of events, because 
 such events have not occurred within the range of individual 
 experience. We may remember the unreasonable incredulity 
 of the king of Siam, who, when the Dutch ambassador told 
 him that in his country the water in cold weather became so 
 hard that men walked upon it, and that it would even bear an 
 elephant, replied: " Hitherto I have believed the strange things 
 you have told me, because I looked upon you as a sober man, 
 but now I am sure you lie." (id. 15.) By experience, we are 
 led to refer facts or events of the same character to causes of 
 the same kind. By analogy, facts and events similar in some, 
 but not in all of their particulars, to other facts and occur- 
 rences, are concluded to have been produced by a similar 
 cause. So that analogy vastly exceeds in its range the limits 
 of experience, (id. 17.) An enlightened knowledge of human 
 nature often enables us, on the foundation of apparently slight 
 circumstances, to follow the tortuous windings of crime, and 
 ultimately to discover its guilty author, as infallibly as the 
 hunter is conducted by the track to his game. (id. 19.) 
 
 4. Pkesumptive Evidence. 
 
 The term presumptive is frequently used as synonymous with 
 circumstantial evidence; but it is not so used with strict accu- 
 racy. Presumption imports an inference from facts. Circum- 
 stances generally, but not necessarily, lead to particular infer- 
 ences. For the facts may be indisputable, and yet their relation 
 to the principal fact may be only apparent and not real; and 
 even when the connection is real, the deduction may be erro- 
 neous. Circumstantial and presumptive evidence therefore dif- 
 fer. The force and effect of the former depend upon its incom- 
 patibility with, and incapability of, explanation or solution upon 
 any other supposition than that of the truth of the fact which 
 it is adduced to prove, (id. 25, 26.) 
 
 A presumption is a probable consequence, drawn from facts, 
 
312 NEW YOEK JUSTICE. 
 
 (either certain, or proved by direct testimony,) by which may 
 be determined the truth of a fact alleged, but of which there is 
 no direct proof. A wounded and bleeding body is discovered; 
 it has been plundered; wide and deep foot-marks are found in 
 a direction proceeding from the body; or a person is seen run- 
 ning from the spot. In the one case are observed marks of 
 flight; in the other is seen the fugitive; and we know that guilt 
 naturally endeavors to escape detection. These circumstances, 
 therefore, induce the presumption that crime has been committed, 
 and the presumption is a conclusion or consequence from the 
 circumstances. Of presumptions afforded by moral phenomena, 
 a memorable instance is recorded in the judgment of Solomon, 
 whose knowledge of the all powerful force of maternal love 
 supplied him with an infallible criterion of truth. [Wills Cir. 
 Ev. 26, 27.) 
 
 Presumptions of every kind, to be just, must be dictated by 
 nature and reason. It is impossible to lay down arbitrary rules 
 of presumption, as every case must of necessity be connected 
 with peculiarities of circumstances, which cannot be reduced to 
 any fixed principle. In criminal jurisprudence, no arbitrary 
 presumptions should ever be admitted. It would be as unrear 
 sonable to subject human actions to unbending rules of presump- 
 tion, as to prescribe to the commander of a ship inflexible rules 
 for his conduct, without giving him any discretion in the unfore- 
 seen and innumerable accidents and contingencies of the tempest 
 and the ocean, (id. 28, 31.) 
 
 Presumptive evidence is generally divided into two branches, 
 namely j)re*Mmj5<eo?ts of Imv, a,nd presumptions of fact. Presump- 
 tions of law consist of those rules, which in certain cases either 
 forbid or dispense with any ulterior inquiry. They are founded, 
 either upon the first principles of justice; or the laws of nature; 
 or the experienced course of human conduct and affairs, and the 
 connection usually found to exist between certain things. The 
 general doctrines of presumptive evidence are not therefore 
 peculiar to municipal law, but are shared by it in common with 
 other departments of science. Thus, the presumption of a mali- 
 cious intent to kill, from the deliberate use of a deadly weapon, 
 and the presumption of aquatic habits in an animal found with 
 webbed feet, belong to the same philosophy, differing only in 
 the instance, and not in the principle of its application. The 
 
PKESUMPTIVE EVIDENCE. 313 
 
 one fact being proved or ascertained, the other, its uniform con- 
 comitant, is universally and safely presumed. (1 Greenl. on 
 Evi. \ 14.) 
 
 Presumptions, again, are conclusive, and disputahle. Conclu- 
 sive presumptions are rules determining the quantity of evidence 
 requisite for the suppoi-t of any particular averment, which is 
 not permitted to be overcome by any fact that the proof is other- 
 wise. They have been adopted by common consent, from mo- 
 tives of public policy, for the sake of greater certainty, and for 
 the promotion of peace and quiet in the community; and there- 
 fore all corroborating evidence is dispensed with, and all opijos- 
 ing' evidence is forbidden. Sometimes this common consent is 
 expressly declared by statute. By the statute of limitations, a 
 debt founded on simple contract, which has not been recognized 
 within six years as a subsisting obligation, cannot be recovered, 
 for it is conclusively presumed to have been paid. In other 
 cases, the common consent by which conclusive presumptions 
 are established, is declared by the common law. Thus, the un- 
 interrupted enjoyment of an incorporeal hereditament, for a 
 period beyond the memory of man, is held to furnish a conclu- 
 sive presumption of a prior grant of that which has been so en- 
 joyed, {id. § 14-18.) Twenty years' exclusive enjoyment of 
 the water of a stream in any particular manner, affords a con- 
 clusive presumption of title by grant or statute; but if the party 
 has, within the twenty years, increased the height of the dam, 
 the presumption does not apply to the increased height. {Bald- 
 win vs. Calkins, 10 Wend. 167.) It is not necessary that the 
 water should have been used in the same precise manner during 
 the twenty years, provided the mode of using it has not been 
 materially varied to the prejudice of others. (3 Paige, 577; 
 Smith vs, Adams, 6 id. 435.) A sane man is conclusively pre- 
 sumed to contemplate the natural and probable consequences of 
 his own acts; and therefore the intent to murder is conclusivelj' 
 inferred from the deliberate use of a deadly weapon. (1 Rus- 
 sell on Gnmes, 558.) When husband and wife perish together 
 at sea, it is presumed that the husband survives the wife, in 
 the absence of any evidence to justify a different conclusion; 
 but when mother and daughter perish by the same disaster, 
 and there is no evidence of survivorship, there is no legal 
 presumption that the daughter survives the mother. {Moeh- 
 
314 NEW YORK JUSTICE. 
 
 ring vs. Mitchell, 1 Barb. Oh. 264.) There is no legal pre- 
 sumption that a child was born alive, and a person claiming 
 from it by descent, is bound to prove the fact. {Marsellis vs. 
 Thalhimer, 2 Paige. 35.) The existence of a person, a personal 
 relation, or a state of things, being proved, the law presumes 
 its continuance till the contrary is shown, or until a different 
 presumption is raised from the nature of the subject in question; 
 and this principle is applicable, within reasonable limits, to the 
 character of a witness proved to have once sustained a bad repu- 
 tation for truth and veracity. {^Sleeper vs. Van Middlesworth, 
 4 Den. 431.) The identity of parties is always presumed from 
 the identity of names, but it may be repelled by proof. {Jack- 
 son vs. King, 5 Cow. 237.) 
 
 The presumption in favor of a legal performance of duty by 
 public officers is very strong. (9 id. 94; 12 Wend. 145; Dow- 
 ning vs. Rugar, 21 id. 178.) This presumption applies in favor 
 of the regularity of proceedings before a Justice, on a review 
 of them upon appeal. {Stafford vs. Williams, 4 Den. 182.) 
 But the presumption in favor of the performance of official 
 duty, does not apply to the doing of a vital jurisdictional act. 
 If, however, the doing of the act be proved, the law will pre- 
 sume that it was done at the proper time, if the proof is such 
 that it may have been so done. (7 Barb. 39; Bwbank vs. 
 Beach, 15 Barb. 326.) The general rule is, that where a per- 
 son is bound to do a certain act, the omission of which would 
 be a culpable neglect of duty, the performance of it will be 
 presumed until the contrary is proved. {Hartwell vs. Root, 
 19 Johns. 345.) The law presumes against the slightest vio- 
 lations of duty, in the business and other relations of private 
 life; and we must presume against a notorious act of immoral- 
 ity, almost as strongly as we would against the commission of 
 a legal crime. {Starr vs. Peck, 1 Hill, 270.) 
 
 Where a party has a legal right to enter into possession of 
 /and in one character, or under one title, the law will presume 
 that he enters in that character, and under that title, and not in 
 the character of a mere trespasser. {Benson vs. Bolles, 8 Wend. 
 175.) Upon a common law question, the law of a sister State 
 is presumed to be similar to our own; {Holmes vs. Broughton, 
 10 id. 75;) and in the absence of proof to the contrary, the 
 common law as to the contract of marriage, is presumed to be 
 
PRESUMPTIVE EVIDENCE. 315 
 
 law of a sister State. {StaiT vs. Peck, 1 Hill, 270.) So, also, 
 our Courts, in the absence of evidence to the contrary, assume 
 that the law regulating interest in other States is similar to our 
 own. (2 id. 201; 1 Paige, 220; Robinsonys. Duerchy, 3 Barb. 
 20.) In the absence of the husband, the wife is presumed to 
 have a general authority to exercise the usual and ordinary con- 
 trol over his property, which must be possessed by some one, 
 unices it be expressly shown that the husband has constituted 
 some other person his agent. {Church vs. Sanders, 10 Wend. 
 79.) Where stock is transferred by the holder, and there is no 
 evidence that such holder did not receive payment for the stock 
 transferred, the legal presumption is that he did receive such 
 payment. {Spencer ys. Spencer, 11 Paige, 299.) And, if one 
 delivers a sum of money to another, and there is nothing to 
 explain the transaction, the presumption always is, that the 
 money belonged to the person who received it, and not that he 
 thereby became a debtor to the other. {Bogert vs. Morse, 1 
 Goms. 377.) A receipt for rent accruing at a subsequent pe- 
 riod, is presumptive evidence that all rent previously accruing 
 had been paid. {Decker vs. Livingston, 15 Johns. 479.) And, 
 where A sued B's executors for board furnished B, and the 
 executors proved that A gave to B his promissory note some 
 three years after the board accrued, it was held, that the giving 
 of the note was presumptive evidence of a settlement for the 
 board, and that A could not recover without proving that the 
 note was given for a distinct consideration. (De Freest vs. 
 Bloomingdale, 5 Den. 304.) Where a mortgagee has never en- 
 tered into possession of the mortgaged premises, and no de- 
 maud has been made or interest paid for twenty years, the 
 mortgage is presumed to have been satisfied. {Jackson vs. 
 Wood, 12 Johns. 242.) 
 
 If a litigant is pressed by circumstantial evidence, and it ap 
 pears that, if its pressure be unjust, he has it in his power to 
 produce evidence to explain it, and he omits to produce it, his 
 omission affords a strong presumption against him. But the 
 presumption does not arise from an omission to produce those 
 who might by possibility have knowledge on the subject, but 
 those only who are proved to have been, so circumstanced as to 
 warrant the conclusion that they must have such knowledge 
 {People vs. McWhorter, 4 Barb. 438.) 
 
316 NEW YORK JUSTICE. 
 
 Conclusive presumptions are made in favor of judicial pro- 
 ceedings. Thus, the records of a Court of Justice are presumed 
 to have been correctly made; a party to the record is presumed 
 to be interested in the suit; and, after verdict, it will be pre- 
 sumed that those facts, without proof of which the verdict could 
 not have been found, were proved, though they are not express- 
 ly and distinctly alleged in the record, provided it contains 
 terms sufficiently general to comprehend them by fair and reason- 
 able intendment. The presumption will also be made after 
 twenty years, in favor of every judicial tribunal acting within 
 its jurisdiction, that all persons concerned had due notice of its 
 proceedings. (1 Greenl. on Ev. § 19.) The same principle 
 applies to the proof of the execution of ancient deeds and wills. 
 Where these instruments are more than thirty years old, and are 
 unblemished by any alterations, they are said to prove them- 
 selves; the bare production of them is sufficient, the subscribing 
 witnesses being presumed to be dead. But it must appear that 
 the instrument comes from such custody, as to affiard a reason- 
 able presumption in favor of its genuineness, and that it is 
 otherwise free from just grounds of suspicion; and in the case 
 of a bond for the payment of money, there must be some en- 
 dorsement of interest, or other mark of genuineness, within the 
 thirty years, to entitle it to be read. After thirty years' undis- 
 turbed possession of any property, real or personal, it is too 
 late to question the authority of an agent who undertook to 
 convey it, unless his authority was bv matter of record, {id. 
 
 h 21.) 
 
 In regard to recitals in deeds, the general rule is, that all par- 
 ties to a deed are bound by the recitals therein. (9 Wend. 209; 
 Chautauqua Co. Bk. vs. Risley, 4 Den. 480.) And a grantor 
 is, in general, estopped by his deed from denying that he had 
 title to the thing granted; but this does not apply to a grantor 
 dcting officially, as a public agent or trustee. (2 Tei'm Rep. 
 171.) A covenant of warranty, also, estops the grantor from 
 jetting up an after acquired title against the grantee, for it is a 
 perpetually operating covenant. {Jackson vs. Matsdorf, 11 
 Johns. 97.) A tenant by indenture is not permitted to deny 
 the title (if his lessor, while the relation thus created subsists. 
 It is of the essence of the contract under which he claims, that 
 the paramount ownership of the lessor shall be acknowledged 
 
PRESUMPTIVE EVIDENCE. 317 
 
 during the continuance of the lease, and that possession shall be 
 surrendered at its expiration. (1 ComynJs Digest, Estoppel, 
 A, 2.) 
 
 Conclusive presumptions of law are also made in respect to 
 infants and married women. Thus, an infant under the age of 
 seven years, is conclusively presumed to be incapable of com- 
 mitting any felony, for want of discretion; and under fourteen, 
 a male infant is presumed incapable of committing a rape. A 
 female under the age of ten years is presumed incapable of con- 
 senting to sexual intercourse. If a wife act in company with her 
 husband, in the commission of a felony, other than treason or 
 homicide, it is conclusively presumed that she acted under his 
 coercion, and consequently without any guilty intent. {Greenl. 
 on Ev. § 28.) 
 
 It is provided by statute, that if any person, upon whose life 
 any estate in lands or tenements shall depend, shall remain be- 
 yond sea, or shall absent himself, in this State or elsewhere, for 
 seven years together, such person shall be accounted naturally 
 dead, in any action concerning such lands or tenements in which 
 his death shall come in question, unless sufficient proof be made 
 in such case, of the life of such person, {Code, section 841.) It 
 is also provided, that if any person whose husband or wife shall 
 have absented himself or herself for the space of five successive 
 years, without being known to such person to be living during 
 that time, shall marry during the life-time of such absent hus- 
 band or wife, the mai-riage shall be void only from the time that 
 its nullity shall be pronounced by a Court of competent author- 
 ity. (2 id. 139, § 6.) One who is absent seven years without 
 being heard from, is presumed to be dead; but he is presumed 
 to have lived throughout the seven years from the time he was 
 last heard of, and to have then died. (4 Wheat. 150; 1 Metcf. 
 204; see Eagle's Case, 3 Abb. 218.) 
 
 The presumptiou is, that a party continues to live, until some 
 evidence is ofiered to rebut it: but evidence that he has not been 
 heard of for seven years, rebuts this presumption. (11 Neiv 
 Hampshire Rep. 191.) 
 
 Disputable presumptions, like conclusive presumptions, are 
 the result of the general experience of a connection between cer- 
 tain facts or things, the one usually being found to be the com- 
 panion or the eflfect of the other. The connection, however, in 
 
318 NEW YORK JUSTICE. 
 
 this class, is neither so intimate, nor so universal, as to render 
 it expedient that it should be absolutely and imperatively pre- 
 sumed to exist in every case, and that all evidence to the con- 
 trary should be rejected; but yet it is so general, and so nearly 
 universal, that the law itself, without the aid of a jury, infers 
 the one fact from the proved existence of the other, in the ab- 
 sence of all opposing evidence. In this mode, the law defines 
 the nature and amount of the evidence which it deems sufficient 
 to establish a jpWma!_/ac2e case, and to throw the burden of proof 
 on the other party; and, if no opposing evidence is offered, the 
 jury are bound to find in favor of the presumption. A contrary 
 verdict would be liable to be set aside, as being against evidence. 
 (1 Oreenl. on Ev. § 33.) 
 
 The rules in this class of jDresiimptions do not forbid all 
 other evidence, but only excuse or dispense with it, till some 
 proof is given, on the other side, to rebut the presumption thus 
 raised. Thus, as men do not generally violate the penal code, 
 the law presumes every man innocent: but men do transgress 
 it, and therefore evidence is received to repei this presumption. 
 This legal presumption of innocence is to be regarded by the 
 jury, in every case, as matter of evidence, to the benefit of 
 which the party is entitled. And, where a criminal charge is 
 to be proved by circumstantial evidence, the proof ought to be 
 not only consistent with the prisoner's guilt, but inconsistent 
 with any other rational conclusion. On the other hand, as men 
 seldom do unlawful acts with innocent intentions, the law pre- 
 sumes every act, in itself unlawful, to have been criminally 
 intended, until the contrary appears. Thus, on a charge of 
 murder, malice is presumed from the fact of killing, unaccom- 
 panied with circumstances of extenuation; and the burden of 
 disproving the malice is thrown upon the accused, {id. § 34.) 
 
 A sane man, a voluntary agent, acting upon motives, must be 
 presumed to contemplate and intend the necessary, natural and 
 probable consequences of his own acts. If, therefoi-e, one vol- 
 untarily or wilfully does an act which has a direct tendency to 
 destroy another's life, the natural and necessary conclusion from 
 the act is, that he intended so to destroy such person's life. So, 
 if the direct tendency of the wilfuU act is to do another some 
 great bodily harm, and death in fact follows, as a natural and 
 probable consequence of the act, it is presumed that he intended 
 
PRESUMPTIVE EVIDENCE. 319 
 
 such consequence, and he must stand legally responsible for it. 
 So, where a dangerous and deadly weapon is used with violence 
 upon the person of another, as this has a direct tendency to 
 destroy life, or do some great bodily harm to the J)erson as- 
 sailed, the intention to take life, or do him some great bodily 
 harm, is a necessary conclusion from the act. However sud- 
 denly any act is done, the intent to do it precedes the doing of 
 it, and the act is done in pursuance of the intent and formed 
 design. However short the interval, the intent necessarily pre- 
 cedes. (9 Metcalf, 93.) 
 
 Malice, in the common acceptation, means ill-will against a 
 person; but in its legal sense it means a wrongful act, done 
 intentionally, without just cause or excuse. If I give a perfect 
 stranger a blow likely to produce death, I do it of malice, 
 because I do it intentionally, and without just cause or excuse. 
 If I maim cattle, without knowing whose they are, or if I poison 
 a fishery without knowing the owner, I do it of malice, because 
 it is a wrongful act, and done intentionally. If I am arraigned 
 of felony, and wilfully stand mute, I am said to do it of malice, 
 because it is intentional, and without just cause or excuse. (1 
 Russ. on Qrimes., 614, note 1.) The same presumption arises in 
 civil actions, where the act complained of was unlawful; and, 
 generally, the rules of evidence are the same in criminal cases 
 as in civil. (1 Mass. Rep. 71, 335; 4 id. 593; 9 Pick. 39.) 
 
 As men generally own the personal property they possess, 
 proof of possession is presumptive proof of ownership. But 
 possession of the fruits of crime, recently after its commission, 
 is prima facie evidence of guilty possession; and, if unexplained 
 either by direct evidence, or by the attending circumstances, 
 or by the character and habits of life of the possessor, or other- 
 wise, it is taken as conclusive. This rule of presumption is 
 not confined to the case of theft, but is applied to all cases of 
 crime, even the highest and most penal. Thus, upon an indict- 
 ment for arson, proof that property which was in the house at 
 the time it was burnt was soon afterwards found in the posses- 
 sion of the prisoner, was held to raise a probable presumption 
 that he was present and concerned in the ofience. (2 East P. 
 Q. 1035.) The like presumption is raised in the case of mur- 
 der, accompanied by robbery; {Wills on Cir. Ev. 72;) and in 
 
320 NEW YORK JUSTICE. 
 
 the case of the possession of an unusual quantity of counterfeit 
 money. {Russell & Ryan, 308.) 
 
 The presumption of innocence is so strong, that even when 
 guilt can be established only by proving a negative, that nega- 
 tive must, in most cases, be proved by the party alleging the 
 guilt; though the general rule of law devolves the burden of 
 proof on the party holding the affirmative. (1 Green, on Ev. 
 § 35.) An exception to this rule respecting the presumption of 
 innocence, is admitted in the case of a libel. For, where a libel 
 is sold in a bookseller's shop, by his servant, in the ordinary 
 course of his employment, this is evidence of a guilty pubKca- 
 tion by the master; though in general an authority to commit a 
 breach of the law is not to be presumed. This exception is 
 founded upon public policy, lest irresponsible persons should 
 be put forward, and the principal and real offender should 
 escape, {id. § 36.) The presumption of innocence may be 
 ovei'thrown and a presumption of guilt be raised, by the 
 misconduct of a party in suppressing or destroying evidence, 
 which he ought to produce, or to which the other party is en- 
 titled. A strong presumption is raised against a party who 
 withholds papers which he has obtained possession of from a 
 witness, after the sez'vice of a subpoena diuies tecum upon the 
 latter for their production. His conduct is attributed to his 
 supposed knowledge that the truth would have operated against 
 him. (id. § 37.) 
 
 In all doubtful cases, where the scales of justice are nearly 
 poised, the correct legal presumption is in favor of the prisoner's 
 innocence; and that presumption should not be permitted to be 
 disturbed by any inference whatever from the absence of testi- 
 mony to prove good character and virtuous life. The rule and 
 practice of our law in relation to evidence of chai-acter, rest on 
 the deepest principles of truth and justice. The protection of 
 the law is due alike to the righteous and the unrighteous. The 
 sun of justice shines alike " for the evil and the good, the just 
 and the unjust." Crime must be proved, not presumed; on the 
 contrary, the most vicious is presumed innocent until proved 
 guilty. The admission of a contrary rule, even in any degree, 
 would open a door not only to the direct oppression of those 
 who are vicious because they are ignorant and weak, but even 
 to the operation of prejudices as to religion, politics, character, 
 
 a 
 
PRESUMPTIVE EVIDENCE. 321 
 
 profession, and manners, upon the minds of honest and well- 
 intentioned jurors. Although evidence of previous good char- 
 acter should operate strongly in favor of a prisoner, a judge 
 has no right to allude to the absence of such proof as affording 
 a presumption against a prisoner. {People vs. White, 24 Wend. 
 520.) Accordingly, where a judge instructed the jury that fair 
 character was important to the prisoner, and that they were to 
 enquire why it was that he had given no evidence of his gene- 
 ral character, it was held that such instruction suggested the 
 inference that his character was bad, and was, therefore, erro- 
 neous. {People vs. Bodine, 1 Den. 281.) Where no evidence 
 of general character has been given, the subject of character is 
 not one for the consideration of the jury; and where, upon the 
 trial of an indictment, no proof is given as to the general char- 
 acter of the defendant, the law assumes that it is of ordinary 
 fairness. A prisoner on trial may show what his reputation is, 
 and then the question is open to the prosecution, and is one for 
 the jury to determine, like other controverted facts. But if the 
 prisoner chooses to give no evidence on the subject, the jury 
 are not at liberty to indulge in conjecture that his character is 
 bad, in order to infer that he is guilty of the particular crime 
 charged. {AcJcley vs. People, 9 Barb. 609.) 
 
 The connection between a man's conduct and his motives, is 
 one of a moral nature, pointed out by experience. It is by their 
 experience of such connection, that jurors are enabled to infer 
 a man's motives from his acts, and also to infer what his conduct 
 was, from the motive by which he is known to have been influ- 
 enced. In criminal cases, proof that the party accused was in- 
 fluenced by a strong motive of interest to commit the offence 
 proved to have been committed, although exceedingly weak and 
 inconclusive in itself, and a circumstance which ought never to 
 operate as proof of the corpus delicti, is yet, when that has 
 once been established aliunde, a circumstance to be considered 
 in conjunction with others which plainly tend to implicate the 
 accused. On the other hand, the total absence of any apparent 
 motive must always operate strongly as a circumstance in favor 
 of the accused, especially where there is no reason to appre- 
 hend any unsoundness of intellect. ( 1 Star, on Ev. 491.) 
 
 Facts are often simulated for the purpose of attracting suspi- 
 cion in a direction different from the true one. Sometimes the 
 21 
 
322 NEW YORK JUSTICE. 
 
 object of simulated facts is not merely to direct suspicion from 
 the real culprit, liut to attract it toward a particular individual; 
 and such is the weakness of human nature, that there are even 
 instances where innocence has degraded and betrayed itself by 
 the simulation of facts, for the purpose of evading the force 
 of circumstances of apparent suspicion. {Wills on Circumstan- 
 tial Evidence, 113.) 
 
 An unsuccessful attempt to establish an alibi, is always a 
 circumstance of great weight against a prisoner, because the 
 resort to that land of evidence implies an admission of the 
 truth and relevancy of the facts alleged, and the correctness 
 of the inference drawn from them; and where the defence of 
 an alibi fails, it is generally on the ground that the witnesses 
 are disbelieved, and the story considered to be a fabrication. 
 The defence of an alibi often involves considerations of the 
 most difficult and perplexing nature. It is not an uncommon 
 artifice, to endeavor to give coherence and efiect to a fabricated 
 defence of an alibi, by assigning the events of another day to 
 that on which the offence was committed, so that the events, 
 being true in themselves, are necessarily consistent with each 
 other, and false only as they are applied to the day in question. 
 {id. 115.) After all, the jury are frequently reduced to the 
 difficult and painful duty of weighing the testimony on the one 
 side against that on the other; and in doing so it is their duty, 
 nu the one hand, to recollect that the presumption of law as 
 well as of justice is against the prosecutor, and therefore that 
 if the evidence on both sides is equal, or nearly so, they should 
 incline to the side of mercy; and on the other, how much more 
 easy it is to get up a fictitious alibi, where all that is to be 
 proved is the presence of the prisoner at a particular place at 
 a particular time, than a false account of all the minute par- 
 ticulars relating to so many difierent matters, which is neces- 
 sarily implied in the proof of a false charge against a prisoner. 
 {id. 120.) In the celebrated trial of Doctor Webster for the 
 murder of Doctor Parkman, several Avitnesses testified posi- 
 tively that they met the latter alive in the streets of Boston, 
 after the time when he must have been killed, if at all; and 
 although there is no reason to suppose that the witnesses in- 
 tended to testify falsely, it afterward appeared conclusively 
 that they were mistaken as to the identity of the person. Ulus- 
 
PKESUMPTIVE EVIDENCE. 323 
 
 tratioiis are numerous to show, that what are supposed to be 
 the clearest intimations of the senses, may be fallacious and 
 deceptive. 
 
 A partnership or other similar relation, once shown to exist, 
 is presumed to continue, until it is proved to be dissolved. 
 And a seisin, once proved or admitted, is presumed to con- 
 tinue, until a disseisin is proved. The opinions, also, of indi- 
 viduals, once entertained and expressed, and the state of mind 
 once proved to exist, are presumed to remain unchanged, until 
 the contrary appears. Every man is presumed to be of sane 
 mind, until the contrary is shown; but if derangement or im- 
 becility be proved or admitted at any particular period, it is 
 presumed to continue until disproved, unless the derangement 
 was accidental, as when caused by the violence of disease. 
 (1 Greenl. on Evid. § 42.) 
 
 The relative value of direct and of circumstantial evidence. 
 
 It has been said that circumstances are inflexible proofs; that 
 witnesses may be mistaken or corrupted; but things can be 
 neither. " Circrrustances," says Paley, "cannot lie." It is 
 astonishing that sophisms like these should have passed cur- 
 rent without animadversion. The circumstances are assumed 
 to be in every case established, beyond the possibility of mis- 
 take, and it is implied, that a circumstance established to be 
 true, po; sesses some mysterious force peculiar to facts of a cer- 
 tain cla=s. Now a circumstance is neither more nor less than a 
 minor fact, and it may be admitted of all facts, that they cannot 
 lie; for a fact cannot at the same time exist and not exist; so 
 that in truth the doctrine is merely the expression of a truism, 
 that a fact is a fact. It may also be admitted that circumstances 
 are inflexible proofs, but assuredly of nothing more than their 
 own existence; so that this assertion is only a repetition of the 
 same truism in different terms. It seems also to have been over- 
 looked, that circumstances and facts of every kind must be 
 proved by human testimony; that although circumstances can- 
 not lie, the narrators of them may; and that, like witnesses of 
 all other facts, they may be biased or mistaken. So far, then, 
 circumstantial possesses no advantage over direct evidence. 
 {Wills on Circumstantial Evidence, 38, 39.) If evidence be 
 so strong as necessarily to produce certainty and conviction, it 
 
324 NEW YORK JUSTICE. 
 
 matters not by what kind of evidence the effect is produced; 
 and the intensity of the proof must be precisely the same, 
 whether tlie evidence be direct or circumstantial. It is not 
 intended to deny that circumstantial evidence affords a safe 
 and satisfactory ground of assurance and belief; nor that, in 
 many individual instances, it may be superior to other indi- 
 vidual cases of proof by direct evidence. But a judgment 
 based upon circumstantial evidence, cannot, in any case, be 
 more satisfactory than when the same result is produced by 
 direct evidence, free from suspicion of bias or mistake. (Wills 
 on Gir. Ev. 41.) 
 
 It is essential to circumstantial proof, that the circumstances 
 from which the conclusion is drawn should be fully established. 
 If the basis be removed, the superstructure cannot be secure. 
 The party upon whom the burthen of proof rests is bound to 
 prove every single circumstance which is essential to the con- 
 clusion, in the same manner, and to the same extent, as if the 
 whole issue had rested upon the proof of each individual and 
 essential circumstance. It is obvious that proof of this nature 
 is more strong and cogent when the circumstances are numer- 
 ous, and derived from many different and independent sources, 
 than when they are but few, and depend on the credit and 
 testimony of one or two witnesses. Where all the circumstances 
 rest on the testimony of a single witness, the evidence can never 
 be superior to the lowest degree of direct evidence, and must 
 frequently fall below it. For, in addition to the question whe- 
 ther the witness is worthy of belief, another question will arise, 
 that is, whether the inference is correctly drawn from the facts 
 which he is supposed to prove. (1 Starkie on Evidence, 502.) 
 
 It is essential that all the facts should be consistent with the 
 hypothesis. The circumstances should be of a conclusive na- 
 ture and tendency. Evidence is always indefinite and inconclu- 
 sive when it raises no more than a definite probability in favor 
 of the fact, as compared with some definite probability against 
 it, whether the precise proposition can or cannot be ascertained. 
 It is also essential that the circumstances should, to a moral 
 certainty, actually exclude every hypothesis but the one pro- 
 posed to be proved. Mere circumstantial evidence ought in no 
 case to be relied on, where direct and positive evidence, which 
 might have been given, is wilfully withheld by the prosecutor. 
 
RELEVANCY OF EVIDENCE. 325 
 
 Where direct evidence is attainable, circumstantial evidence is 
 of a secondary nature. Besides, the great excellence of indi- 
 rect evidence is its freedom from suspicion and no greater dis- 
 credit can be thrown upon it than when direct evidence is with- 
 held. {Starkte on Ev. 505 to 515.) 
 
 5. Relevancy of Evidence. 
 
 We have seen that there are two ways in which an issue of 
 fact may be tried in a Justice's Court, viz : by the Justice with- 
 out a jury, and by a jury. In the former case, the question of 
 the admissibility of evidence, properly speaking, can seldom 
 arise; since the evidence, whatever the objection, must neces- 
 sarily be heard by the Justice before he can decide upon its 
 character or value. But when the issue is tried by a jury, it is 
 the duty of the Justice to determine all questions on the ad- 
 missibility of evidence, as well as to inform the jury by what 
 rules it is to be weighed. Whether the evidence offered is 
 sufficient, is a question for the jury. (Douglas, S7 4c; 10 Mefcalf, 
 285; 7 Wend. 57; 1 Greenl. on Ev. % 49.) If the question of 
 admissibility is intimately connected or blended with a question 
 of fact, the evidence is to be submitted to the jury, with the 
 instructions of the Justice, if he thinks proper to give them, 
 as to the principles and rules of law by which the jury are to 
 be governed in finding their verdict. (5 Johns. 112; 14 id. 
 304; 6 Hill, 326.) 
 
 The party who objects to the admissibility of evidence must 
 state specifically the grounds of his objection. It is not suffi- 
 cient to object generally that the evidence is illegal; but the 
 party objecting must put his finger on the very point, in order 
 to apprise the Court and his adversary of the precise objection 
 he intends to make. (5 Barb. 398; 1 Cow. 662; 12 Wend. 504, 
 id. 418; Lahron vs. Woram, 1 Hill, 91.) 
 
 The production of evidence to the jury is governed by cer- 
 tain well-settled principles or rules, which will uow be con- 
 sidered. The first of these rules is, that the evidence must 
 correspond with the allegations in the pleadings, to l)e confined 
 to the points in issue. Indeed, the object of a trial is to ascer- 
 tain the truth of the allegations put in issue; and therefore any 
 evidence which does not tend to prove or disprove the issue 
 
326 NEW YOEK JUSTICE. 
 
 joined, is foreign to the purpose for which the suit was insti- 
 tuted, and consequently inadmissible. (1 Starliie. on Ev. 386; 
 Best on Ev. § 288.) This rule supposes that the averments or 
 allegations in the pleadings are material and necessary, for it is 
 only such averments that require to be proved. (1 Starkie on 
 Ev. 387.) Immaterial and irrelevant matters, although within 
 the terms of the issue, need not be proved; and if proof of 
 them is offered, it maybe rejected. (15 Wend. 502; Van Rens- 
 selaer Ex. vs. Gallup, 5 Den. 451; 1 Greenl. on Ev. \ 51.) 
 These irrelevant matters are, in the language of the law, de- 
 nominated surplusage, and comprehend whatever may be stricken 
 from the pleadings without destroying the plaintiff's right of 
 action, {id.) 
 
 In determining whether a particular averment can be reject- 
 ed as immaterial, regard is to be had to its nature, and to its 
 connection with the substance of the charge. For instance, if, 
 in action for a breach of warranty of goods, the complaint should 
 allege that the goods were not what they were warranted to be, 
 and that the defendant well knew that they were not, the aver- 
 ment of knowledge on the part of the defendant may be reject- 
 ed, and proof of the fact is unnecessary. (2 East, 446.) 
 
 It is not requisite that the evidence should bear strictly upon 
 the point in issue. It is admissible if it tends to prove the 
 point, or constitutes a link in the chain of proof. (1 Greenl. on 
 Ev. § 51.) But if the evidence thus offered is objected to, the 
 party offering it is bound to show its relevancy, by reference 
 either to the testimony already given, or to the facts to be sub- 
 sequently proved on his part. A Court, in the exercise of a 
 sound discretion, may require counsel to state the substance of 
 the evidence offered to be given, so as to enable it to judge of 
 its materiality and relevancy, and a Court of review will not 
 control an inferior tribunal in the exercise of such discretion. 
 (Roy vs. Targee, 7 Wend. 359.) The Justice may reject evi- 
 dence, if he deems it irrelevant, or, if it is already given, may 
 instruct the jury to disregard it. The better course, however, 
 is to reject it in the first instance. (19 id. 203; 7 id. 359; 14 
 id. Ill; Cooper Ys. Barber, 24 id. 105.) 
 
 In cases in which the knowledge or intent of the party is a 
 material fact, evidence apparently collateral to the main issue, 
 but which has, nevertheless, a direct bearing upon the question 
 
BURDEN OF PROOF. 327 
 
 of knowledge or intent, is admissible. (3 Term Rep. 481; 1 
 Story, 135.) Where a party is charged with a specific fraud in 
 a civil action, his character is not in issue, and the evidence of 
 fiaud cannot be repelled, therefore, by proving his general good 
 character for integrity. (6 Cowen. 673; Oough vs. St. John, 
 16 Wend. 646.) 
 
 6. Burden of Proof. 
 
 The second general rule is, that the burden of proving the 
 issue lies on the party holding the affirmative; or, in other 
 words, the burden of proof lies on the party who would be 
 defeated if no evidence were given on either side. {Best on Ev. 
 \\ 254, 288.) It is for the party holding the affirmative, to 
 make out a preponderance of proof; and the burden is upon 
 the defendant, in relation to every matter of defence which does 
 not come in by way of answer to the plaintiff's evidence. The 
 substance of the allegation to be tried, rather than the particular 
 form of the pleading, must determine upon whom the burden 
 lies. (1 Hill, 150; Costigan vs. Mohawk &H.R.B. Co. 2 Den. 
 609.) 
 
 The rule just referred to has been adopted for the sake of 
 convenience, because it is much easier to obtain positive and di- 
 rect proof of an affirmative fact, than of a negative one. One 
 consequence of the rule, therefore, is that when an affirmative 
 proposition is asserted, it is sufficiently met by a general denial, 
 and then, if no evidence is offered, the party denying succeeds. 
 {Best on Ev. § 253.) 
 
 Another consequence of the rule is, that the party holding the 
 affirmative of the issue is entitled to open the cause, and to reply. 
 {id) Having once begun, however, he must exhaust all the 
 evidence in support of the issue on his side, as it is alleged in 
 his pleading, before closing, and can, thereafter, only introduce 
 evidence in reply. {Ford vs. Niles, 1 Hill, 300; 15 Wend. 502.) 
 After the evidence in support of the issue is completed, then the 
 evidence of the negative side is heard, and then the rebutting 
 proof of the affirmative. {Hastings vs. Palmer, 20 id. 225.) 
 This rebutting proof or evidence in reply, must be directed 
 strictly to answering or qualifying the case as it is made out by 
 the party holding the negative, {id) The Justice, in his dis- 
 cretion, may, however, change this order of the evidence, if he 
 
328 NEW YORK JUSTICE. 
 
 deems it necessary in order to obtain complete justice. (Hast- 
 ings vs. Palmer, 20 Wend. 225; 17 id. 103; 1 Hill, 300; 4 id. 
 202; Leland vs. Bennett, 5 id. 286.) 
 
 The burden of proof is shifted by presumptions of law, pre- 
 sumptions of fact of the stronger kind, and evidence strong 
 enough to establish a pnma facie case. {Best on Ev. ^ 258.) 
 When the presumption is in favor of the party who asserts the 
 negative, that only affords an additional reason for casting the 
 burden of proof upon his adversary. When the presumption is 
 in favor of the affirmative side, the opposite side is then called 
 on to prove the negative. {Best on Ev. % 258.) 
 
 When there is a necessity of proving damages, the case falls 
 within the general rule, and the damages must be shown. (1 
 Oreen. on Ev. § 75.) But, if it is admitted that the damages to 
 be recovered are merely nominal, or there is no dispute except 
 as to their computation, and the residue of the case is affirma- 
 tively justified by the defendant, he will have the right to begin 
 and reply, {id.) If, for example, in an action of trespass 
 quare clausum f regit, the defendant should plead not guilty as 
 to the force and arms, and justify as to the residue, and the 
 damages should be laid, as in the usual formula of an old dec- 
 laration, of treading down the grass and subverting the soil, 
 the defendant would be permitted to begin and reply, there 
 being no necessity for any proof on the part of the plaintiff. 
 {id.) 
 
 To this general rule, however, that the onus is upon the 
 party holding the affirmative of the proposition, there are some 
 exceptions, the most numerous class of which arises in those 
 cases in which the action is founded upon a negative allegation. 
 In such cases, the plaintiff must give some affirmative proof, 
 though the allegation be negative in its terms, {id. § 78.) 
 
 There is another circumstance by which the burden of proof is 
 affected. Whether the question at issue be one of which both 
 the affirmative and negative are equally probable, or whether 
 either side be strengthened by a presumption in its favor, still 
 the capacity of the parties relative to giving evidence about it 
 often differs materially. The averment may be of such a char- 
 acter that the evidence must necessarily be in the possession of 
 one pai'ty who could produce it, and thus put an end to. the 
 litigation. {Best on Ev. \ 259.) Particularly is this the ca^e 
 
AMOUNT OF PROOF. 329. 
 
 in prosecutions for penalties for doing acts which the statute 
 does not permit to be done by any persons except those who 
 are duly licensed therefor. (1 Green, on JSv. § 79.) To call oq 
 the plaintiff in such an action to establish his case, on the 
 ground that he holds the affirmative or that the presumption of 
 law is against him, would, if not " amounting to injustice, be 
 productive of circuity and delay. {Sheldon vs. Clark, 1 Johns. 
 513; 1 East, 643.) In order to prevent this, it has been estab- 
 lished as a general rule of evidence, that in every case the onus 
 probandi rests on the person who wishes to support his case by 
 a particular fact which lies more peculiarly within his own 
 knowledge, or of which he is supposed to be cognizant. (6 
 Term Re;p. 57.) 
 
 Where the negative allegation is of a criminal neglect of 
 duty, the neglect must be proved, for the presumption of law 
 is, that Avhere a person is required to do a certain act, the omis- 
 sion of which would make him guilty of a culpable neglect of 
 duty, he has duly performed it, unless the contrary be shown. 
 {Hartwell vs. Boot, 19 Johns. 345; 3 East, 192; 10 id. 216.) 
 
 So also the burden of proof is upon the party alleging infancy, 
 (1 Term Rep. 648,) or nonfeasance, or negligence, in actions on 
 conti-act. (1 Green, on Ev. § 81.) 
 
 7. Amount of Proof. 
 
 The third general rule is, that it is sufficient if the substance 
 of the issues raised by the pleadings is proved. (^Best on Ev. 
 ^ 262.) On the trial of an issue of fact, its substance is all that 
 need be proved. Immaterial and irrelevant matter, although 
 within the terms of the issue, may be disregarded. (1 Phillips 
 & Amos on Ev. 200, 205.) 
 
 Thus, in an action for a breach of warranty in the sale of 
 goods, an averment of deceit upon the sale, is impertinent, and 
 need not be proved. [Williamson vs. Allison, 2 East, 446.) 
 
 Allegations of time, place and quantity, when not descrip- 
 tive of the identity of the suliject of the action, need not be 
 strictly proved as alleged. (2 id. 8; Tiffany vs. Driggs, 13 id. 
 253.) Thus, in an action for malicious prosecution for a crime 
 of which the plaintiff alleges that he was acquitted on a certain 
 day, the acquittal being the gist of the averment, it is sufficient 
 to prove it, though not on the day alleged. ("3 Term Bep. 65, 
 
330 NEW YOKK JUSTICE. 
 
 b7.) Nor is it necessary to prove the precise value of the goods 
 taken, in trespass or trover. (5 Term Rep. 248; 3 Green. 174.) 
 In actions on contract, the plaintiiF can give evidence of less than 
 the sum alleged; and in actions of tort, it is sufficient for him 
 to prove a substantial portion of the grievances or trespasses 
 complained of. (^Best on Ev. \ 266.) 
 
 But, although the law is thus liberal in looking through mere 
 form, in order to see the substance of the issue raised, it does 
 not permit a positive variance between the pleadings and 
 the proof. Such a variance has always been held fatal. {Oreenl. 
 on Ev. § 63; Best on Ev. § 197.) By the Code, however. Jus- 
 tices are directed to disregard as immaterial a variance between 
 the proof on the trial and the allegations in a pleading, unless 
 they shall be satisfied that the adverse party has been misled 
 to his prejudice thereby. {Code, \ 64, svtbd. 10.) The adverse 
 party must, therefore, not only object that the evidence does 
 not support the pleading, but must show that he has been mis- 
 led thereby. If the objection to the variance is not taken on 
 the trial, it cannot be made available afterwards. (17 Wend. 
 71; Bhall ys. Lathrop, 3 Hill, 237.) 
 
 8. The Best Evidence. 
 
 The fourth general rule which governs in the production of 
 evidence is, that the best evidence must be given of which the 
 nature of the case will admit. (^Best on Ev. § 82; 1 Atkyns, 
 49; Bullock vs. Koon, 9 Cow. 30.) The true meaning of this 
 rule is, that no evidence shall be brought, which, ex natura rei, 
 supposes better evidence behind in the party's own possession 
 or power. {Gilbert on Ev. 4.) In other words, the party who 
 is to prove any fact, must do it by the highest evidence of 
 which the matter is, by its nature, capable. A common illus- 
 tration of this rule is, that a party who relies upon a deed or 
 a contract in writing, must produce it, and will not be permit- 
 ted to give evidence of its contents unless it has been lost or 
 destroyed, or is in the possession of the adverse party, who 
 refuses to produce it on notice. (12 Johns. 221; 16 id. 193, 
 7 Wend. 31.) If a party ofiers a copy of a deed, when he 
 ought to produce the original, this carries the presumption 
 with it, that there is something in the deed that works against 
 
THE BEST EVIDENCE. 331 
 
 him, or else he would have produced it. {Best on Ev. § 82; 
 Jackson vs. McVey, 18 Johns. 330.) 
 
 A consequence of this rule is the division of evidence into 
 primary and secondary. Primary evidence is the best evidence, 
 or that kind of evidence which affords the greatest possible 
 certainty of the fact in question. Evidence falling short of 
 this is secondary. If the execution of an instrument is to be 
 proved, the primary evidence is the testimony of a subscribing 
 witness. (1 Greenl. on Ev. § 84; 3 Johns. 477; 13 Wend. 178; 
 Jones vs. Underwood, 28 Barb. 481.) If his testimony cannot 
 be procured, then proof of his hand-writing, or, in the absence 
 of that, proof of the hand-writing of the party executing the 
 instrument, is admissible as secondary evidence. (1 Johns. 
 Oases, 230; 19 Johns. 386; 9 Cow. 140; 4 Wend. 313; 11 id. 
 96; 13 id. 178; 2 Barb. 644; Teall vs. Van WycJc, 10 id. 376.) 
 In a Justice's Court, if the subscribing witness is neither in the 
 county where the cause is tried, nor in an adjoining county, 
 such secondary evidence is admissible. By the statute of 1883, 
 chapter 195, it is no longer necessary to call the subscribing wit- 
 ness. It may be proved as though there was no witness. 
 
 Where the instrument is one which the law requires to be in 
 writing, secondary or oral evidence cannot be substituted for 
 its production, unless the absence of the primary evidence, 
 that is, of the instrument itself, is satisfactorily accounted for. 
 {Best on Ev. § 78; 1 Greenl. on Ev. § 86.) The reason of this 
 is plain. In the first place, the presumption of law is, as Ave 
 have seen, against the party withholding the instrument; and 
 in the next place, the secondary evidence must necessarily be 
 derivative, and derivative proof is always rejected until the 
 absence of the original proof is satisfactorily explained, {id.; 
 16 Meeson <& Welsby, 513.) 
 
 The confession of a party does not obviate the necessity of 
 legal evidence of the execution of a speciality; much less is it 
 admissible as proof of matters of record. (6 Johns. 9; Welland 
 Canal Co. vs. Hathaway, 8 Wend. 480.) Thus, the confession 
 of the defendant that he executed a bond which is offered in 
 evidence, would be properly excluded as incompetent proof of 
 the fact. (2 Johns. 451; Fox vs. Beil, 3 id. 477.) But the 
 rule is otherwise, if the instrument is one not under seal, 
 {Maun vs. Heffernan, 13 Johns. 58.) 
 
332 NEW YORK JUSTICE. 
 
 Where the instrument is one which the parties themselves 
 have put in writing, it must be proved by producing it. The 
 reason of this rule is, that where parties have deliberately put 
 their agreement in writing, it is presumed that the whole of 
 their undertaking, and its extent and manner, are expressed in 
 the writing. (11 Mass. Rejp. 27.) Therefore, where there is 
 a written contract of tenancy, a party is not permitted to re- 
 cover, in an action for use and occupation, without producing 
 it. (3 Espinasse, 213.) The same doctrine applies to every 
 species of written contracts. In an action for work and labor, 
 where it is shown that the work was commenced under a writ- 
 ten agreement, the agreement ought to be produced, else the 
 plaintiff cannot recover, even for extra work; {Phillips <& Amos 
 on Ev. 443;) for the written contract may be important, even 
 with respect to the extra work, as furnishing some evidence of 
 the rate at which the work should be paid for. {Phillips <& 
 Amos on Ev. 444; 4 Wendell, 285; 12 id. 334; Hollinshed vs. 
 Mactier, 13 id. 276.) 
 
 The proof necessary to establish the loss or destruction of a 
 written instrument, in order to introduce secondary evidence of 
 its contents, and the question when parol evidence is admissible 
 to explain or contradict the language of a written contract, will 
 be considered hereafter. 
 
 Oral evidence cannot be substituted for any writing, the ex- 
 istence of which is disputed, and which is material either to the 
 issue between the parties, or to the credit of the witnesses, and 
 is not merely a memorandum of some other fact. One advan- 
 tage derived from the application of the rule to such cases is, 
 that a knowledge of the whole contents of the instrument is ac- 
 quired, which may have an effect very different from the state- 
 ment of a part. Lord Tenterden, in alluding to this rule, ob- 
 serves: [Moody & MalMn, 258:) "I have always acted most 
 strictly on the rule, that what is in writing shall only be proved 
 by the writing itself. My experience has taught me the extreme 
 danger of relying on the recollection of witnesses, however 
 honest, as to the contents of written instruments; thej'' may be 
 so easily mistaken, that I think the purposes of justice require 
 the strict enforcement of the rule." It is not allowable, on a 
 cross-examination, in the statement of a question to a witness, to 
 represent the contents of a letter, and then to ask the witness 
 
HEARSAY EVIDENCE. 333 
 
 if he wrote a letter to any person with such contents, or to the 
 like effect, because the Court Avould then be put in possession 
 of a part only of a written paper. If the witness acknowledge 
 the letter to be in his hand- writing, he cannot then be questioned 
 as to its contents; but the whole letter must be read in evi- 
 dence. {Phillips & Amos on Ev. 442.) Where, however, a 
 written communication or agreement between parties is collateral 
 to the question in issue, it need not be produced; as, where the 
 writing is a mere proposal, which has not yet been acted upon; 
 {id. 444; 2 Camp. 521;) or where, during an employment under 
 a written contract, a separate order is given by parol; {Moody 
 & Malkin, 413;) or where the action is for the plaintiff's share 
 of money had and received by the defendant under a written 
 security for a debt due to them both. (4 Espinasse, 13; 10 
 Johns. 443; McFadden vs. Kingsbury, 11 Wend. 667.) 
 
 To this rule requiring primary evidence, or the production 
 of the instrument itself, there are certain statutory exceptions, 
 making exemplifications and certified copies of certain papers, 
 evidence, which will be noticed hereafter. 
 
 There is also another exception to this rule. In the case of 
 peace officers, Justices of the Peace, and indeed all officers from 
 the highest to the lowest, proof that they are reputed to be or 
 have acted as such, is sufficient, without the production of their 
 appointments. (5 Wend. 231; 9 id. 17; 11 id. 667; 23 id. 
 490; 3 Johns. 431; 12 id. 296; PeopleYS. Steven, 5 Hill, 630.) 
 If, however, the officer sues to recover fees, or sets up any right 
 to property virtute officii, it will not be enough to show that he 
 is an officer de facto; he must also show that he is an officer de 
 jure. (23 Wend. 490: 24 id. 520; People vs. Hopson, 1 Den. 
 574.) But the acts of an officer de facto, though his title may 
 be bad, are valid, so far as they concern the public, or the rights 
 of third persons who have an interest in the things done, {id.) 
 And an officer duly commissioned, and acting in the duties of 
 his office, is presumed to have taken the regular oath. (2 Gal- 
 lison, 15.) 
 
 9. Hearsay Evidence. 
 
 When a witness, in the course of stating what has come under 
 the cognizance of his own senses relative to a matter in dispute, 
 states the language of others which he has heard, or produces 
 
534 NEW YORK JUSTICE. 
 
 papers which he identifies as having been written by particular 
 individuals, he ofiers what is called hearsay evidence. The term 
 is used with reference both to that which is spoken and to that 
 which is written. In its legal sense, however, it is confined to 
 that kind of evidence which does not derive its effect solely from 
 the credit to be attached to the witness himself, but rests also 
 in part on the veracity and com]petency of some other person 
 from whom the witness may have received his information. 
 {^Phillips <& Amos on Ev. 196.) 
 
 The general rule is, that testimony thus traditionary and de- 
 rivative in its character, is not receivable as evidence in a cause; 
 or, as the rule is more generally enunciated, " Hearsay is not 
 evidence." The language of this maxim is not strictly accurate, 
 conveying as it does the idea, that what a person has been heard 
 to say, is not receivable as evidence; an assertion which every 
 day's experience refutes. What a man has been heard to say 
 against his own interest is not only receivable in evidence, but 
 is generally the best evidence against him. (14 Mass. Rep. 
 245; 4 Johns. 230; Best on Ev. \ 330; Gilbert on Ev. 119; 2 
 Greenl. 243.) The maxim also conveys the idea, by implication, 
 that if the words uttered had been committed to writing, or 
 rendered permanent in any other way, they would then be re- 
 ceivable; a proposition at least doubtful; for written docu- 
 ments, with which a party is not identified, are often rejected. 
 {Best on Ev. § 330.) 
 
 The true idea intended to be conveyed by the maxim is, 
 that all second-hand evidence, whether consisting of the contents 
 of a document, or of the language of a third person, and not 
 connected by responsible testimony with the person against 
 whom it is offered, must be rejected, (id. § 329.) The rule 
 which we have already noticed, permitting secondary evidence 
 to be given, has no application to second-hand or hearsay evi- 
 dence. For, in the latter case, no matter how iinanswerably 
 the absence of the original evidence is accounted for, the infe- 
 rior evidence will not be received. Thus, what A, (a witness,) 
 has heard B, (a stranger,) say, is not only not admissible in the 
 first instance, but the clearest evidence of the death of B would 
 not render it so. (id.) 
 
 The foundation of the maxim may be found in another rule 
 of law, which requires all evidence to be given on oath, and 
 
DEAKSAT EVIDENCE. 3S6 
 
 each witness to give bis testimony under such circumstances as 
 exposes him to all the penalties of falsehood. (3 Term Rep. 
 707.) Therefore it is, that hearsay evidence is uniformly held 
 incompetent to establish any sjsecific fact, which in its nature is 
 susceptible of being proved from the lips of those who can 
 speak from personal knowledge. (5 Qow. 314; 15 Johns. 226; 
 Jackson vs. Browner, 18 id. 39.) And second-hand evidence is 
 excluded, not merely because it creates an impression of some- 
 thing better; its intrinsic weakness, its incompetency to satisfy 
 the mind, and the frauds which might be practiced under its 
 cover, combine to support the rule that it is totally inadmissi- 
 ble. {Per Marshall, Oh. J., 7 Crunch, 290.) 
 
 The true principle to consider, in deciding the question of 
 the admissibility of this species of evidence is, not whether it 
 comes by word of mouth or by writing, but whether it is orig- 
 inal in its nature, and does not indicate any better source of 
 proof. [Best on Bv. § 330.) It does not follow, because the 
 words or writings are those of third persons not under oath, 
 that they are to be considered as hearsay. It frequently occurs 
 that the very question in issue is, whether such things were 
 written or spoken, not whether they were true. And in other 
 cases, such language or statement, whether written or spoken, 
 may be the material or inseparable concomitant of the principal 
 fact in controversy. {Gh^een. on Ev. § 100; 4 Mass. Rep. 702; 
 2 Oamp. 512.) 
 
 "Where the question is whether a party acted prudently, or 
 in good faith, the information on which he acted, whether true or 
 false, is original and material evidence. {Green, on Ev. § 101.) 
 Thus, in an action for slander, it has been held that the defend- 
 ant may give in evidence, in mitigation of damages, that a third 
 person told him what he related. (1 Binney, 85, 90; Coleman 
 vs. Souihwick, 9 Johns. 45.) In such case, the person giving 
 the information should be called as the witness, and not a by- 
 stander who overheard the conversation, {id.') This doctrine 
 a,pplies to all cases where the fact that a communication was 
 made, and not its truth or falsity, is the point in controversy. 
 Upon the same principle, evidence of general reputation, re- 
 puted ownership, public rumor, and general notoriety, though 
 composed of the speech of third persons not under oath, is 
 original evidence, and not hearsay; the subject of inquiry being 
 
336 NEW YORK JUSTICE. 
 
 the concurrence of many voices to the same fact. (1 Green, on 
 Ev. \ 101.) 
 
 There are certain declarations which are admissible in evi- 
 dence, on tlie ground that they constitute a part of the res 
 qestcB and are therefore admissible as original evidence, being 
 distinguished from hearsay by their connection with the princi- 
 pal fact under investigation. But such declarations must have 
 been contemporaneous with the principal fact, and have been 
 intended to give character to it. {id; 9 Paige, 611; 15 Barb. 
 560; Moore vs. Meacham, 10 N. Y. 207.) Thus, the declara- 
 tions of parties in relation to the terms of settlement between 
 them, made at the conclusion of it, are admissible as part of the 
 res gestae. {^Kimball vs. Huntington, 10 Wend. 675.) So, also, 
 where the state of the mind or disposition of a person at a 
 given period becomes a pertinent subject of inquiry, his decla- 
 rations and conversations, being part of the res gestae, may be 
 resorted to. {Barthelemy vs. People, 2 Hill, 248.) So in an 
 action for damages for injuries to the person, evidence of the 
 plaintiff's complaining of distress and pain at the time of the 
 injury, is admissible. {Caldwell vs. Murphy, 1 Keim. 416.) 
 But the declarations of a plaintiff, made to a third person, as to 
 his having done an act forming no part of the transaction which 
 is the suliject of the suit, are not admissible as constitutmg a 
 part of the res gestae. {Weeks vs. Lourie, 8 Barb. 530.) Nor 
 are the declarations of a lender, made to a third person, after a 
 loan, though on the same day, admissible as part of the res gestae, 
 to prove usury. 
 
 The declarations of an agent, acting within the scope of his 
 authority, are admissible to bind his principal, when they are 
 part of the res gestae. (4 Wend. 394; 6 id. 281; 6 Ooio. 90; 7 
 id. 752; Hunter ^s. Hudson, 20 Barb. 493.) But if the declara- 
 tions were made subsequently to the transaction, they are not 
 admissible. (7 Wend. 446; 7 Johns. 390; Vail ys. Jvdson, 4 
 E. D. Smith, 165.) The principal's own admission or declara- 
 tion may generally be given in evidence against him, but the 
 declaration or admission of his agent binds him only when made 
 during his agency, and concerning a transaction within the scope 
 of his agency. (6 Wend. 281; 7 Johns. 390; 1 Qreenl. on Ev. 
 ^113; Vail vs. Judson, siqira.) What an agent, who makes a 
 sale for his principal, does at the time of the sale is admissible 
 
HEARSAY EVIDENCE. 337 
 
 in evidence, and so also is what he says; and it is not necessary 
 to call him to prove it. {Phillips & Amos on Ev. 402.) But 
 where the agent's authority to act in a particular matter has 
 ceased, his subsequent declaration, being mere hearsay, can no 
 longer affect his principal. (1 Greenl. on Ev. ^ 113.) 
 
 The test to be applied, to ascertain whether the declarations 
 offered are admissible, is, to inquire whether they are merely 
 narrations of a past occurrence, or whether they were made 
 contemporaneously with the principal matter in issue. In the 
 former case, they are to be rejected; in the latter, admitted. 
 {id. § 110; 9 Bingham, 349.) 
 
 Upon the same ground, certain entries made by third persons 
 ai'e treated as original evidence. There are two classes of en- 
 tries — those made in the discharge of official duty, and private 
 entries. Of the latter we shall speak hereafter. In the case of 
 the former, the entry, to be admissible, must be one which it 
 was the person's duty to make, and must speak to that which it 
 was his business to do, and not to extraneous or foreign circum- 
 stances. (2 Smith's Leading Cases, 183; 10 East, 109; 15 id. 
 32; 6 Meeson & Welsby, 166; 2 Hill, 531.) The party making 
 the entry must have had knowledge of the fact, and must have 
 made the entry at or about the time of the transaction recorded, 
 (r Greenl. on Ev. \ 115.) If the party is living, and competent 
 to testify, it is necessary to produce him. {Brewster vs. Doane, 
 2 Hill, 537.) Yet, though he is called as a witness to the fact, 
 his entry of it is not thereby excluded. If he is unable to call 
 to mind the original transaction, but verifies the entry as having 
 been made by himself, as a part of his proper employment, it 
 maj' be given in evidence, and will be allowed to speak for 
 itself. {Bank of Monroe vs. Culver, 2 Hill, 531.) 
 
 There is another class of cases in which declarations are ad- 
 missible, namely, where the question of pedigree is involved. 
 But as that question can hardly be supposed to arise in a Jus- 
 tice's Court, no mention is here made of the authorities on the 
 subject. Subject to the foregoing qualifications and seeming 
 exceptions, the general rule of law rejects all hearsay reports, 
 whether verbal or written, given by persons not produced aa 
 VTitnesses. {Greenl. on Ev. § 124.) 
 
 There are certain exceptions to the rule excluding hearsay 
 evidence, which it is proper now particularly to notice. 
 22 
 
338 NEW YORK JUSTICE. 
 
 (1.) Matters of public or general interest. 
 
 In rcgai'd to matters of public or general interest, such as the 
 boundaries of towns and counties, claims of highways, &c., 
 ^Best on Ev. \ 332,) evidence of common reputation is received, 
 and the declarations of deceased persons, who may be presumed 
 to have had competent knowledge on the subject, are admissi- 
 ble, (id^ But this exception is admitted only in the case of 
 ancient rights, and in respect to persons supposed to be dead; 
 (11 Price, 162;) and even then the declaration is admissible, 
 unless it was made before any controversy arose on the subject 
 to which the declarations relate. {Best onEv. \ 332; 1 Greenl. 
 on Ev. \ 132.) These declarations are admitted as well against 
 a public right as in its favor. Thus, where the question was, 
 whether a landing place Avas public or private property, repu- 
 tation, from the declarations of ancient deceased persons, that 
 it was a private landing place of the party and his ancestors, 
 was held admissible. (7 Carrington & Payne, 181.) 
 
 (2.) Ancient documents. 
 
 An exception to the rule rejecting hearsay evidence, is allowed 
 in cases of ancient possession, in the admission of ancient docu- 
 ments in its support. {Phillips <& Amos on Ev. 285.) The 
 occasion calling for the admission of such evidence can seldom 
 arise in a Justice's Court. The exception, however, is well 
 settled by authority. {Best on Ev. § 334.) In order to guard 
 against the manifest danger of this kind of proof, it is estab- 
 lished, as a condition precedent to its admissibility, that the 
 document must be shown to have come from the proper cus- 
 tody; that is, it must be found in a place in which, and under 
 the care of persons with whom, it might naturally be expected 
 to be found. (3 Bingham's JST. O. 200.) Even then, it will not 
 be sufficient, if no possession has been taken, or other act done, 
 under it, and the laud has been held adversely. (4 Ben. 201; 
 6 Barb. 109; 5 Cow. 221; Schermer/wm vs. JVegus, 2 Hill, 335.) 
 
 (3.) Declarations of deceased persons. 
 
 Another exception is laid down in the books, as arising in 
 cases of declarations and entries made by persons since de- 
 ceased, and against their interest at the time of maldng them, 
 
HEAKSAY EVIDENCE. 339 
 
 {^Phillips & Amos on Ev. 307; Best on Ev. § 335; 1 Oreenl. 
 on Ev. § 147,) when such declarations are offered in evidence 
 against third persons. It may well be doubted whether this 
 exception obtains in this State. In Kent vs. Walton, (7 Wend. 
 256,) which was an action by an endorsee against the maker of 
 a promissory note, evidence of the declarations of the deceased 
 payee, that the note was usurious, was held inadmissible. So, 
 in Beach vs. Wise, (1 Hill, 612,) which was also an action upon 
 a note, the defendant offered to show the declarations oi the 
 deceased payee, made while he was the holder of the note. 
 The evidence was rejected, the Court citing the case of Kent 
 vs. Walton, and remarking that the fact that the payee had 
 died before the hearing did not affect the principle. In Cajjron 
 vs. Austin, (7 Johns. 96,) the Court remarked, that what a de- 
 ceased person had been heard to say, except upon oath, or in 
 extremis, when he came to a violent end, had never been con- 
 sidered as competent evidence. Much less, would his declarer 
 tious be admissible, if they were made after his interest ceased 
 by transfer. (1 Blatchford's C. O. R. 376; 1 Cow. 519; 7 id. 
 752; 8 Wend. 490; 12 id. 142; Stark yb. Bosioell, 6 Hill, 405.) 
 
 These cases proceed upon the ground, that the former owner 
 of property, whether it be a note, chose in action, or other per- 
 sonal property, is only to be regarded as a witness, without 
 reference to the fact that the title to the property may have 
 been derived through him. Regarded as a witness, his declara- 
 tions are but hearsay, and are alike inadmissible whether he be 
 living or dead. {Beach vs. Wise, 1 Hill, 612.) 
 
 The rule is different, however, in the case of real property. 
 The declarations of a person in possession of lands are com- 
 petent evidence against himself and all persons claiming under 
 him, for the purpose of showing the character of his possession 
 and by what title he claims. (4 J'oAns. 230; 10 2^377; 18 ed 
 330; 6 Paige, 323; Pitts vs. Wilder, 1 Com. 525.) But his 
 declarations after he has conveyed are not admissible against 
 his grantee. (13 Johns. 106; 6 Paige, 323; Crowner vs. Hop- 
 kins, 10 id. 183.) 
 
 (4.) Dying declarations. 
 
 In this State, the rule is, that the declarations, made in ex- 
 tremis, of a person who would, if living, be a competent wit- 
 ness, are inadmissible evidence, either in a civil or criminal 
 
340 NEW YORK JUSTICE 
 
 prosecution, with the single exception of cases of homicide, 
 where the declarations of the deceased, after the mortal blow, 
 as to the fact of the murder are admitted. (7 Johns. 95; Wil- 
 son vs. Boerein, 15 id. 286.) The declarations of a testator that 
 a will previously executed by him was extorted by duress are, 
 therefore, inadmissible. {Jackson vs. Kniffen, 2 Johns. 31.) 
 
 (5.) Testimony of deceased witnesses. 
 
 It seems to be a well settled rule of evidence, that the testi- 
 mony of a deceased witness, who was examined upon oath on 
 the trial of a former action between the same parties, and 
 where the point in issue was the same that it is in the second 
 action, is admissible on the trial of the second action, and may 
 be proved by those who heard him give the testimony. {Phil- 
 lips & Amos on Ev. 354; 2 Johns. 17; Jackson vs. Lawson, 
 15 id. 539.) It is indispensable, however, that the second 
 trial should be between the same parties as the first one, {Wil- 
 bur vs. Selden, 6 Cow. 162,) that the point in issue should be 
 the same, {id.; Weeks vs. Lowrie, 8 Barb. 531,) and that the 
 witness should be dead, {id.; 2 Johns. 17; \1 id. 176; 5 Hill, 
 295; Osborn vs. Bell, 5 Den. 370.) That the witness is beyond 
 the reach of a subpoena will not render the secondary evidence 
 admissible. (6 Oow. 162; 8 Barb. 531, supra.) 
 
 The evidence of the deceased witness may be proved by any 
 person who will swear from his own memory, or by notes taken 
 by any person who will swear to their accuracy. It has been 
 said that the person called to prove the testimony given on the 
 former trial, must undertake to repeat the precise language or 
 words of the witness, and not merely to swear to their effect. 
 (6 Cow. 162, supra.) But in elementary works the rule is laid 
 down, that it will be generally considered sufficient if the wit- 
 ness is able to swear to the substance of what was said on the 
 former trial. {Phillips & Amos on Ev. 354; 1 Greenl. on Ev. 
 ^ 165.) 
 
 In Clark vs. Vorce, (15 Wend. 193,) the minutes taken by 
 counsel on a former trial were offered in evidence and ex- 
 cluded. The witness testified, that he took very full and par- 
 ticular minutes; that he intended to take down the words of 
 the former witness, but could not pretend to give his precise 
 words; that he could not swear to the testimony except from 
 
HEAESAY EVIDENCE. 341 
 
 his minutes, and could not, testify that he had taken down every 
 word of the testimony, but intended at the time to take down 
 all that was material. On appeal. Savage, Ch. J., remarked: 
 "With respect to the testimony of a deceased witness, the rule 
 is laid down with much strictness; but if nothing will answei 
 but an exact transcript of the testimony of the witness, in his 
 very words and all his words, it will exclude all such testi 
 mony. There are few or no cases where a cautious and pru 
 dent man will swear that his notes of testimony of a witness, 
 taken down at the time, contain his very words and all his 
 words. It seems to me that the witness's notes should have 
 been received, connected with his oath as to their accuracy. 
 It was his intention at the time to take down the words of the 
 former witness, not the substance or legal eifect of his testi- 
 mony. He was ready to swear to liis belief as to the accuracy 
 of his minutes, and it was his intention to take down the very 
 words of the deceased witness." A new trial was granted, 
 and, on a second appeal, (19 id. 232,) Mr. Justice Bronson 
 adopted as his own the views thus expressed by Ch. J. Savage. 
 In Huff vs. Bennett, (4 Sandf. 120,) the minutes of the judge 
 who presided on the former trial were offered in evidence and 
 rejected. The judge swore that he presided and took notes of 
 the testimony on the former trial; that he could not recollect, 
 of his own knowledge, what the witness testified to on the 
 trial, except as he referred to his minutes; that he would not 
 say that they contained the testimony of the witness accurately; 
 that he might have omitted things which the witness testified 
 to. On appeal, Oakley, Ch. J., remarked: "It was contended 
 upon the trial, as was also strongly urged upon the argument 
 before us, that the minutes were of themselves evidence. But 
 we are not aware that they are ever regarded as such. If the 
 party maldng them swears that they are correct, or that he has 
 no doubt of their being so, in such a case, we think they would 
 be admissible. But where this is not the case, the minutes can- 
 not of themselves be regarded as evidence. In this case the 
 judge was unwilling so to swear. He testified that he had taken 
 minutes upon the trial; that he would not say that they were 
 full or accurate; and that he might have omitted things to 
 which the witness had testified. We think the minutes were 
 properly rejected." The rule to be deduced from these cases 
 
342 NEW YORK JUSTICE. 
 
 seems to be, that where the witness swears to the accuracy ancl 
 correctness of his minutes, that he has no doubt of their being 
 so, ancl that it was his intention to take down the words of the 
 former witness, and not their substance or legal effect, then and 
 in such case the minutes, taken in connection with the oath, are 
 admissible. 
 
 The case of Oreen vs. Brown (3 Barb. 119) is adverse to the 
 rule just given, and to the cases from which it is deduced. It 
 is there held that the minutes of testimony taken by counsel, 
 or judge, on a former trial, can only be resorted to as memo- 
 randa to refresh his memory, when testifying to what then 
 took place; and that a person who has no remembrance of the 
 testimony of the witness, independently of his minutes, cannot 
 be allowed to state the contents of his minutes. The case makes 
 no mention of the decision in Olark vs. Vorce, (15 Wend. 193; 
 19 id. 232,) and the decision in Huff vs. Bennett, (4 8andf. 
 120,) has the sanction of a more recent date. 
 
 A plaintiff cannot, on the second trial of a cause, use the 
 testimony of a witness on a former trial, who was then called 
 by the defendant, and is since dead, where it is shown that 
 such witness, at the time of testifying, was interested in tho 
 event of the cause, on the side of the plaintiff. {Grary vs. 
 Sprague, 12 Wend. 41.) 
 
 It does not appear to have been decided in this State, whether 
 evidence of the former testimony of a witness whose lips have 
 been sealed by the act of the law, and not by death, is admissi- 
 ble on the second trial of a cause between the same parties. In 
 Massachusetts, such evidence, where the witness on the former 
 trial has since been convicted of an infamous crime, is not re- 
 ceived. (14 Mass. Rep. 234.) There seems to be no sound 
 reason for this decision, and it is not supported by authority. 
 (1 Starkie on Ev. 265.) In cases where the question arises^ 
 the proper inquiry seems to be, whether the witness was com- 
 petent at the time of giving his testimony. His subsequent 
 conduct, and the consequences of it, can only affect his credi- 
 bility. Generally speaking, if the Avitness was competent when 
 he gave his testimony, it should be received; if he was then 
 incompetent, it should be rejected. 
 
ADmssiONS. 343 
 
 10. Admissions. 
 Under the head of exceptions to the rule rejecting hearsay 
 evidence, it has been usual to class the admissions and confes- 
 sions of a party, considering them as declarations against his 
 interest, and therefore true. (1 Greenl. on Ev. § 169.) But, as 
 many admissions are made under cii'cumstances which preclude 
 the supposition that the partj^ making them intended or believed 
 that they would militate against his interest, it is obvious that 
 their competency as evidence must in some cases depend upon 
 some other reason than the one above given. But however the 
 admission may have been made, whether intentionally or unin- 
 tentionally, if it is offered against the party making it, it is 
 competent evidence; {Best on Ev. \ 360;) if it is offered in his 
 favor, it is incompetent, {id. § 351.) And a party cannotgive 
 in evidence, in his own favor, what he swore to on a former oc- 
 casion, though it may be given in evidence against him. (7 
 Johns. 132; 3 Bar-b. 410; Pickard vs. Collins, 23 Barb. 444.) 
 
 (1.) By whom an admission may be made. 
 
 The general rule is, that the declarations of a party to the 
 record, or of one identified in interest with him, are, as against 
 such party, admissible in evidence. (9 Barnwall & Qresswell, 
 935; Phillips & Amos on Ev. 392.) The admission must be 
 brought home to the party against whom it is to be used, or to 
 some one identified with him; (2cZ.;) and being so brought home, 
 the rule applies, -whenever the party has any interest in the 
 action, whether others have a joint interest with him on the 
 same side or not, and whatever may be the relative amount of 
 the interest. (1 Greenl. on Ev. \ 172.) 
 
 The Code requires every action to be prosecuted in the name 
 of the real party in interest, except that an executor or admin- 
 istrator, a trustee of an express trust, and a person expressly 
 authorized by statute, may sue without joining the person for 
 whose benefit the action is prosecuted. {Code, §§ 449, 450.) 
 This provision narrows considerably the question as to what 
 persons are to be deemed parties, and renders it unnecessary to 
 consider the cases which arose under the former practice, when 
 actions could be instituted by parties having no real interest in 
 their subject matter. The exceptions just referred to will be 
 noticed in their proper order. 
 
344 NEW YORK JUSTICE. 
 
 Though the admissions of a party to the record are generally 
 receivable in evidence against him, yet when there are several 
 parties on the same side, the admissions of one are not allowed 
 to affect the others, unless there is some joint interest between 
 them. [D.aw vs. Brown, 4 Cow. 483.) Thus, in an action upon 
 a joint note, the admission of one of the makers, by suffering 
 judgment by default, does not obviate the necessity of proving 
 his signature as against the other maker. (1 Esjiinasse, 135: 1 
 East, 48.) But, in the absence of fraud, if the parties have a 
 present joint interest in the matter in suit, whether as plaintiffs 
 or defendants, an admission made by one is evidence against all. 
 They stand to each other in this respect in a relation similar to 
 that of existing co-partners. (1 Gre&nL on Ev. \ 174.) The 
 admission, however, to be admissible to charge all, must have 
 been made during the existence of the joint interest or copart- 
 nership, and that relation must have been avowed. An admis- 
 sion of the indebtedness of a firm, made by one partner after its 
 dissolution, is not evidence against the other partners. (3 Johns. 
 536; 15 id. 409; 7 Cow. 650; 9 id. 57, 420; 7 Barb. 143; Bar- 
 rich vs. Austin, 2 Barb, 241.) And, if A contract a debt in his 
 own name, his subsequent declaration that it was contracted for 
 A & Co., is inadmissible to charge his firm. (21 Wend. 365; 
 Bank of Vergennes vs. Cameron, 7 Barb. 143.) 
 
 It is a joint interest and not a mere community of interest that 
 renders such admission receivable. (1 Greenl. on Ev. 176; 3 
 Johns. 536; 6 id. 267; Whitney vs. Ferris, 10 id. 66.) There- 
 fore, the admissions of one tenant in common are not receivable 
 against his co-tenant, though both are parties on the same side 
 in the action. {Dan vs. Brown, 4 Cow. 483.) An admission 
 by one of several executors or administrators, that a debt is due 
 from his testator or intestate, does not conclude the others from 
 showing that the debt has been paid. (16 Johns. 273; Mclntire 
 vs. Morris' administrators, 14 Wend. 98.) Nor is such an ad- 
 mission sufficient to establish the original demand against the 
 estate; [Harmon vs. Huntley, 4 Con: 493;) nor can it be received 
 in evidence as against co-executors or co-administrators, or as 
 against heirs or devisees. (3 id. 612; 6 Johns. Ch. R. 360; 
 Elwood vs. Deifandorf, 5 Barb. 398.) 
 
 An apparent joint interest will not sufiice to render an admis- 
 sion by one, competent e^-idence against other's, where the re- 
 
ADMISSIONS. 345 
 
 ality of that interest is the point in controversy. {Greenl. on Ev. 
 § 177.) A foundation must first be laid by sho'wmg prima facie 
 the existence of the joint interest, (^id.) Thus, the declara- 
 tions of one partner are not admissible to prove the partner- 
 ship, when that is the point in question. They are evidence 
 only against himself, not against others. (10 Johns. 86; 
 McPherson vs. Rathbone, 7 Wend. 216.) So, also, in an action 
 upon a joint note, the execution of which was in issue, the 
 admission of his signature by one defendant only, was held in- 
 sufficient to entitle the plaintiff to recover against him and the 
 other makers, though their signatures had been proved; the 
 point to be proved against all being sl joint promise by all. (1 
 Espinasse, 135.) 
 
 An admission may have been made by a party when acting in 
 a different capacity from that in which ho is concerned in the 
 suit; and it seems to be considered, in such a case, that his ad- 
 mission ought not to be evidence against him. {^Phillips & 
 Amos on Ev. 398.) The admission, therefore, of an executor, 
 administi'ator, or guardian, made before he was clothed with 
 his trust, or of a next friend, made before the commencement 
 of the action, cannot be received, either as against the ward or 
 infant in the one case, or against himself as the representative 
 of heirs, devisees, or creditors, in the other; (2 Starkie, JV. P 
 41;) though it may bind the person himself, when he is after- 
 wards a party, suo jure, in another action. (1 Greenl. on Ev. 
 § 179.) But in an action brought to recover upon transactions 
 had with the defendant during his infancy, the admissions of 
 the defendant are admissible to show the transactions relied 
 upon, notwithstanding those admissions were made before he 
 attained his majority. [Ackerman vs. Punyon, 3 Abb. 111.) 
 
 Notwithstanding the provisions of the Code requiring actions 
 to be prosecuted in the name of the real party in interest, ques- 
 tions may still arise in regard to admissions made by persons 
 who are not parties to the record, but yet are interested in the 
 subject matter of the action. The law in regard to this species 
 of evidence looks chiefly to the real party in interest, and gives 
 to his admission the same weight as though he were a party to 
 the record. (1 Greenl. on Ev. \ 180.) Thus, the admissions 
 of a cestui que trust are competent, so far as his interest and 
 that of his trustees are identical; and the confessions and decla- 
 
34G NEW YOKK JUSTICE. 
 
 rations of a deputy sheriff, made "vvhile process is in his hands, 
 and in the course of execution, are admissible evidence to 
 charge the sheriff; (10 Johns. 478; Stewart vs. Wells, 6 Barb. 
 79;) sometimes, for the reason that they are part of the res 
 qestcB, (id.,) and at other times on the ground that the deputy, 
 being liable over to the sheriff, is the real party to the action. 
 (1 Lo7'd Raymond, 190.) 
 
 Admissions made by a stranger to an action are sometimes 
 received in evidence, (Phillijps & Amos on Ev. 396; 1 Greenl. 
 on Ev. \ 181,) where the question is, whether a particular claim 
 might have been enforced against such stranger. Thus, in an 
 action against a sheriff for an escape, the debtor's acknowledg- 
 ment of the debt, being sufficient to charge him in the original 
 action, is sufficient as against the sheriff, to support the averment 
 in the complaint that the party so escaping was so indebted. 
 (2 Espinasse, 695.) So, also, the admissions of a bankrupt, or 
 entries made in his books before his bankruptcy, are good evi- 
 dence to prove a petitioning creditor's debt. (1 Camjph. 376.) 
 
 The admissions of a third person are sometimes received in 
 evidence against a party who has expressly referred another to 
 such tliird person for information, (1 Greenl. on Ev. § 182,) 
 provided the admissions were strictly within the subject matter 
 in relation to which the reference was made. {Duval vs. Coven- 
 hoven, 4 Wend. 561.) Thus, if A refers B, for information upon 
 any particular subject, to C, what C says concerning it, when 
 api^lied to by B, or his agent, is evidence for B in an action 
 against A. (1 Qampb. 364.) In the case of Daniels vs. Pitt, 
 {id. 366, note^ which was an action of assumpsit for goods sold, 
 the plaintiff asserted that the goods had been delivered by a 
 cartman. The defendant said that if the cartman would say 
 that he did deliver the goods, he would pay for them. The 
 plaintiff called a witness to prove that the cartman, (who had 
 since died,) had been applied to, in consequence of the defend- 
 ant's referring to him, and had said that he did deliver the 
 o-oods. The evidence was objected to, but Lord EUenborough 
 ruled, that whenever a party referred to the evidence of 
 another, he was bound by it. 
 
 Whether the answer of the third person in such a case is con 
 _lusive against the party, does not seem to have been directly 
 settled. But, where one party agrees to admit what the other 
 
 & 
 
ADMISSIONS. 347 
 
 party Tvill say or testify to, the rule appears to be settled in 
 favor of the conclusiveness of the admission. Thus, in Lloyd 
 vs. Willan. (1 Espinasse, 178,) it was decided, that where one 
 party to an action offers to settle, if the other party will make 
 an affidavit of certain facts which are disputed, and the affidavit 
 is made, the party makmg the offer is bound by the affidavit, 
 and will not be permitted to dispute the question by a trial. 
 In BrooJcs vs. Ball, (18 Johns. 337,) Spencer, Ch. J., in deli- 
 vering the opinion of the Court, remarked: " The principal 
 question presented by this case is, whether a promise to pay 
 a sum claimed to be due by one party, and denied by the other, 
 if the party claiming would swear to the correctness of the 
 claim, and he does so swear, is a valid promise. Another ques- 
 tion was made on the trial, whether it was competent for the 
 defendant below to prove that the plaintiff below either swore 
 falsely, or was grossly mistaken, in the affidavit which he made. 
 It has been frequently decided, that a promise to pay money, 
 in consideration that the creditor would take an oath that it 
 was due, was a valid and binding promise. {Sir T. Raymond, 
 153; 1 3Iodern Rep. 166.) The cases so deciding, and which 
 stand uncontradicted, abundantly show that such a promise as 
 the present is good in poiirt of law: and that the making the 
 proof or affidavit, whether by a third person or by the party 
 himself, is a sufficient consideration for the promise. It is not 
 making a man a judge in his own cause; but it is referring a 
 disputed fact to the conscience of the party. It is begging the 
 question to suppose that it will lead to perjury. If the pro- 
 mise is binding, because the making the proof or affidavit is a 
 consideration for it, the defendant must necessarily be precluded 
 from gainsaying the fact. Pie voluntarily waives all other 
 proof; and, to allow him to draw in question the verity or cor- 
 rectness of the proof or affidavit would be alloTsdng him to 
 alter the conditions of his engagement, and virtually to rescind 
 his promise." This case, necessarily decides, also, that the 
 declarations of the third person are competent evidence. 
 
 In Hurd vs. Pendrigh, (2 Hill, 502,) the question raised was, 
 whether an affidavit given under circumstances similar to those 
 in Brooks vs. Ball, just cited, was admissible in evidence. 
 Nelson Ch. J., remarked: "The affidavit was properly received, 
 m connection with the defendant's agreement (to pay the 
 
348 NEW YORK JUSTICE. 
 
 amount, if sworn to), as evidence of his own view of the just- 
 ness of the plaintiif's claim. Taking the whole together, it 
 amounted to an admission that the plaintiff was entitled to 
 recover the value of the goods sworn to. Indeed, if the plain- 
 tiif had discontinued this suit, and commenced an action of 
 assumpsit, predicated upon the promise, the affidavit would 
 have afforded a valid and binding consideration. (18 Johns. 
 337, supra.) If this is so, it was properly received in evidence 
 to show the extent of the defendant's conceded liability." 
 
 Admissions made by a wife will bind her husband only where 
 she has authority to make them. (^Phillips & Amos on Ev. 
 408; 1 Greenl. on Ev. \ 185.) But where a husband permits 
 his wife to act as his agent in a particular business, he is bound 
 by her acts and admissions, and they may be given in evidence 
 against him. (1 Espinasse, 142; 10 Johns. 38; Riley vs. 
 Suydam, 4 Barb. 222.) 
 
 The admissions of a principal are receivable in evidence in 
 an action against his surety, upon his collateral undertaking, 
 where they were made during the transaction of the business 
 for which the surety became bound, so as to become a part of 
 the res gestce. {Phillips & Amos on Ev. 411.) 
 
 An admission by an attorney of record binds his client in all 
 matters relating to the progress and trial of the cause. (1 Ohio 
 Rep. 270; 13 Moss. Rep. 319; 1 Piclc. 161, 347; Anon. 1 Wend. 
 108.) 
 
 The admissions or declarations of a vendor of personal pro- 
 perty, whether made before or after the sale, cannot be given 
 in evidence as against the subsequent owner; (12 id. 161; 5 
 Johns. 412; 1 Bai-b. Ch. R. 105; Smith vs. Webb, 1 Barb. 
 232;) nor are his declarations competent for the vendee in an 
 action for the property; {Hurd vs. West, 7 Cow. 752;) nor are 
 they admissible to prove a sale of such property to the person 
 claiming under him. (JVorrall vs. Parmelee, 1 Coins. 519,) 
 
 It is provided by statute, that in suits by or against an aggre- 
 gate corporation, the admission of any member thereof, not 
 named on the record as a party to such suit, shall not be 
 received as evidence against such corporation, unless such 
 admission was made concerning some transaction in which such 
 member was the authorized agent of such corporation. (2 R. 
 
ADMISSIONS, 349 
 
 S. 407, § 80; Commissioners of Schroeppell vs. 0. & I. P- R. 
 Go. 7 How. R. 94.) 
 
 The question iu all these cases being, whether the party made 
 the admission, and not whether it was true in fact the admission 
 may be proved by any competent witness who heard it made, 
 without calling the party who made it. The admission, when 
 competent at all, is received as original evidence, and not as 
 secondary. (1 Gree.nl. on Ev. § 191.) 
 
 2.) The time and circumstances of tfie admission. 
 
 If the admission of a party is in the form of an offer to pay 
 so much for the sake of buying peace, it is inadmissible as evi- 
 dence of the demand. An admission of a debt, if proved, is the 
 strongest evidence; but an offer to pay money by w:iy of com- 
 promise is not such an admission. {Buller's iV^ P- 236; 3 Es- 
 'pinasse, 113.) An unqualified admission, however, of a particu- 
 lar fact, though made in a negotiation for a compromise, is evi- 
 dence against the party maldng it. (4 Cow. 617, 635; 7 Wend. 
 354; 16 id. 632; Marvi7i vs. Richmond, 3 De7i. 58.) 
 
 Admissions made before an arbitrator are receivable on a sub- 
 sequent trial of a cause, the reference haviug proved ineffectual. 
 (3 Espinasse, 113.) 
 
 There is no difference in regard to the competency of admis- 
 sions, whether they are direct or indirect. (1 id. 342; Van 
 Allen vs. Bliven, 4 Den. 455.) Thus, in an action upon a bill 
 of exchange, where the attorney for the defendant gave the 
 plaintiff notice to produce all papers relating to the bill of ex- 
 change, describing it as having been " accepted by the defend- 
 ant," this was held to be prima facie evidence of the acceptance. 
 {Ryan & Moody, 282.) 
 
 (3.) Implied admissions. 
 
 Admissions are sometimes implied from assumed character, 
 language and conduct. Thus, to prove a general allegation that 
 a party holds a particular olEce, it is sufiicient to show that he 
 acts ill that capacity. (3 Johns. 431; 12 id. 296; 1 Coiv. 251; 
 iJean vs. Gridley, 10 Wtnd. 254.) So, if an account be ren- 
 dered against a party and he does not object to it within a 
 reasonable time, his implied admission of its correctness is pre- 
 sumed. (4 Johns. 377; 3 Johns. Ch. R. 569; 2 Barh. 586; 
 
350 NEW YORK JUSTICE. 
 
 Loclcwood VS. Thome, 11 M Y. 170.) So, also, if a principal 
 does not dissent from the acts of his agent within a reasonable 
 time, and give notice thereof, his assent will be presumed. (1 
 Caines, 539; 1 Johns. Cases, 110; 12 Johns. 300; JRossiter vs. 
 Rossiter, 8 Wend. 494.) And a promise by a party to pay a 
 note or bill, after maturity, is an implied admission of his lia- 
 bility, and is sufficient evidence of a protest for non-payment, 
 and of notice of dishonor. ( 1 Campbell, 188.) A notice to quit 
 at a certain time, if received by a tenant without objection, is an 
 admission that his tenancy expires on that day. (2 Campbell, 
 559.) 
 
 (4.) The whole admission must be given in evidence. 
 
 With respect to all verbal admissions, it has been well re- 
 marked, that they should be always scrutinized, and received 
 with great caution; (1 Wend. 652; 6 id. 268; Garrison 'vs. 
 Akin, 2 Barb. 25;) and no rule of evidence is better settled 
 than that wliich requires the whole of an admission or declara- 
 tion to be taken together. A part cannot be taken and a part 
 rejected. (3 Johns. 427; 9 id. 141; 10 id. 38, 365; Borlonvs. 
 Douglass, 6 Barb. 431.) 
 
 The general rule is, that where the admission of a party is 
 resorted to as evidence against him, he is at liberty to call out 
 the whole conversation of which the admission was a part. (2 
 Hill, 440; 3 id. 144; JVesbit vs. Stringer, 2 Buer, 26.) But the 
 additional conversation should be relevant to the matter in issue, 
 and relate to the point or fact called for by questions on the 
 other side. {Kelsey vs. Bmh, 2 Hill, 440, note.) A party is 
 at liberty to call for such parts of a conversation had by him as 
 relate to independent assertions which would operate in his 
 favor upon the general merits of the case, but have no connec- 
 tion with the admission brought out by the other side. (24 
 Wend. 350; Rouse vs. Whited, 25 Barb. 279.) He has a per- 
 fect right, however, to prove such other parts of his conversa- 
 tion as tend to explain or modify his admission, {id.] Dorlon 
 vs. Boiiglass, 6 Barb. 451.) Therefore, if a defendant admits 
 that he received money from the plaintiff, but that it was his 
 due, the whole admission must be taken together, and as, in fact, 
 a denial of the plaintiif 's claim. {Carver vs. Tracy, 3 Johns. 
 427.) And if a party acknowledges that he killed another's 
 
ADMISSIONS. 361 
 
 dog, but says that the dog attacked him, the whole conversation 
 must be admitted, and amounts to a justification. (10 Johns. 365 ; 
 11 id. 161; 15 id. 229; Bennett vs. Bw^ch, 1 Den. 141.) If 
 that part of the confession which discharges the party is in 
 itself highly improbable, or if there be other evidence, though 
 it be slight, tending to discredit it, the jury may reject it, and 
 act upon the other part alone. But, where there is nothing im- 
 probable in it, and it is consistent with the other testimony in 
 the cause, its rejection is error. {Kelsey vs. Bush, 2 Hill, 440.) 
 
 (5.) The conclicsiveness of an admission. 
 
 Verbal admissions, as such, are not, as a general rule, held 
 conclusive upon the party making them; but if they are not 
 explained or avoided by evidence, neither the Justice nor the 
 jury are justified in disregarding them. (1 Greenl. on Ev. 
 \ 204.) 
 
 An admission made by the payment of money into Coui-t, is 
 conclusive upon the party paying it, as to every fact which the 
 plaintifi^ would be obliged to prove in order to entitle him to 
 recover it; and a tender out of Com-t admits the same facts. 
 {id. § 205; 6 Meeson & Welsby, 9; 7 Johns. 315; 13 Wend. 
 390; 14 id. 223; 2 Hill, 538; Wood vs. Peiry, 1 Barh. 114.) 
 But the admission goes no farther. If, therefore, the contract 
 is illegal or invalid, the payment of the money into Court 
 gives it no validity. (1 Greenl. on Ev. § 205; 2 Espinasse, 
 481.) 
 
 Where the admission has been acted upon by others, it is con- 
 clusive against the party making it, in all cases that may arise 
 between him and those whose conduct it has influenced. {Otis 
 vs. Sill, 8 Barh. 102.) Thus, a tenant who has acted as such, 
 and paid rent, is not permitted to set up a title in a third per- 
 son as against his landlord; (1 Caines, 444; 3 Johns. 499; 1 
 Cow. 248; 7 id. 717; Jackson vs. Spear, 7 Wend. 401;) and a 
 bailee of goods cannot, in an action to recover their possession, 
 dispute the title of the bailor. (11 Mass. Rep. 219; 3 Picker- 
 ing, 38; 8 Wend. 610; Dezell vs. Odell, 3 Hill, 215.) But 
 where an admission, either verbal or in writing, has not been 
 acted upon, it is not conclusive upon the party making it, 
 although it is competent evidence. (1 Greenl. on Ev. § 209.) 
 Nor does a receipt, although absolute in its terms, and ex- 
 
352 NEW YORK JUSTICE. 
 
 pressed to be in full, preclude the party giving it from explain- 
 ing it by parol evidence. (1 Johns. Cases, 145; 2 Johns. 378; 
 3 id. 319; 5 id. 68; 8 id. 389; 9 id. 310; 1 Paiye, 13; 3 Barb. 
 100; 8 id. 48; Catlin vs. Grote, 4 E. D. Smith, 296.) 
 
 11. Evidence Excluded fkom Public Policy. 
 
 There are some kinds of evidence which the law excludes 
 from public policy, because greater mischief would probably 
 result from requiring or permitting its admission, than from 
 wholly rejecting it. (1 Greenl. on Ev. \ 236.) Thus, com- 
 munications made on the faith of that professional confidence 
 which a client reposes in his counsel or attorney, cannot be 
 revealed in a Court of Justice to the prejudice of the client. 
 (4 Wmd. 558; 1 Hill, 33; Kellogg vs. Kellogg, 6 Barb. 116.) 
 The expediency of this rule depends not so much upon the 
 impropriety of violating the confidence reposed, as upon the 
 consideration that the inconvenience which would ensue if no 
 such confidence were reposed, would preponderate over the 
 direct mischief produced by the chance of a wrong decision, 
 or a failure of justice, resulting from the want of evidence. 
 {Phillips & Amos on Ev. 174.) Therefore, where an attorney 
 is professionally employed, any communication made to him by 
 his client, with reference to the object or the subject of such 
 employment is under the seal of professional confidence, and is 
 a privileged communication; and the seal thus placed by the 
 law remains sacred ybrewer, unless removed by the client. (19 
 Wend. 353; Bank of JJtica vs. Mersereau, Z Barb. Ch. R. 528.) 
 But if the client, after the relation has ceased, voluntarilj'^, and 
 without being drawn to it by artifice, repeats to his attorney a 
 communication previously made to him, it is not protected. 
 {Yordan vs. Hess, 13 Johns. 492.) 
 
 The privilege extends only to information derived from the 
 client, as such, either by oral communications, or books or pa- 
 pers shown to the attorney or counsel, or put into his hands, 
 by the client, and not to information derived from other per- 
 sons or sources, while acting as such attorney or counsel. 
 (3 Johns. Cases, 198; Crosby vs. Berger, 11 Paige, 377.) 
 
 The policy of the law also excludes the testimony of a wife, 
 when her evidence would be a violation of the confidence which 
 aiis^js from the marriage relation. She must be excluded, there- 
 
EVIDENCE REQUIRED BY STATUTE OF FRAUDS. 353 
 
 fore, whenever she is called against the husband, or his repre- 
 sentative, and is asked to disclose any fact imparted to her by 
 her husband in the trust and confidence of the marriage rela- 
 tion. (3 Paige, 36; 8 id. 47; 2 Hill, 181; 3 irf. 513; 9 Barh. 
 493; Erwin vs. Smaller, 2 Sandf. 340.) 
 
 It is provided by statute, that no minister of the gospel, or 
 priest of any denomination whatsoever, shall be allowed to dis- 
 close any confessions made to him in his professional character, 
 in the course of discipline enjoined by the rules or prac- 
 tice of such denomination. {Oode, § 833 ; People vs. Gates, 13 
 Wend. 811.) It is also provided, that no person duly author- 
 ized to practice physic or surgery shall be allowed to disclose 
 any information which he may have acquired in attending any 
 patient in a professional character, and which information was 
 necessary to enable him to prescribe for such patient as a 
 physician, or to do any act for him as a surgeon. [Code, 
 § 834 ; Pe(yple vs. Stout, 3 Park. Gr. R. 670.) The privilege 
 thus accorded, as in the case of the privilege given by the com- 
 mon law to communications made to a legal adviser, is the 
 privilege of the party, and not of the witness. If the party 
 waives it, the witnes may be examined. (14 Wend. 637; Ben- 
 jamin vs. Coventry, 19 Wend. 353.) A physician consulted 
 by a party as to the means of procuring an abortion is not pri- 
 vileged, under this statute, from testifying to the fact on the 
 trial of the party. {Hewitt vs. Prime, 21 id. 79; 4 Paige 60.) 
 
 12. Evidence Required by the Statute of Frauds. 
 
 By this statute, which has been treated of in a previous 
 portion of this work, (Ante, p. 40,) some written evidence is 
 universally required of all conveyances of lands, or of any 
 interest in lands, other than leases for the term of one year, 
 and of all trusts and powers over or concerning lands, or in any 
 manner relating thereto, and of every grant, assignment, or sur- 
 render of any such estate, interest, trust, or power. (2 R. S. 
 134, § 6.) The writing which the statute requires must be signed 
 by the party creating, granting, assigning, surrendering, or de- 
 claring the estate, interest, trust, or power, or by his lawful 
 agent thereunto authorized by writing, (id.) So, also, every 
 contract for the leasing for a longer period than one year, or for 
 the sale of any lands, or of any interest in lands, must be evi- 
 23 
 
354 NEW YORK JUSTICE. 
 
 denccd by a written contract, note, or memorandum, and sub- 
 scribed by the party hy whom the lease or sale is to be 
 made, or by his lawfully authorized agent. {2 B.S. 135, §§ 8, 9.) 
 By the same statute, written evidence, expressing the consider- 
 ation, and signed by the party to be charged therewith, is 
 required in the following cases: 1. Every agreement that by its 
 terms is not to be performed in one year from the makinp- 
 thereof; 2. Every special promise to answer for the debt, 
 default, or miscarriage of another person; 3. Every agreement, 
 promise, or undertaking, made upon consideration of marriage, 
 except mutual promises to marry, (id. § 2.) So, also, every 
 contract for the sale of any goods, chattels, or things in action, 
 for the price of fifty dollars or more, is void, unless, 1. A note 
 or memorandum of such contract is made in writing, and sub- 
 scribed by the parties to be charged thereby; or, 2. Unless the 
 buyer accepts and receives part of such goods, or the evidences, 
 or some of them, of such things in action; or, 3. Unless the 
 buyer pays, at the time, some part of the purchase money. (2 
 E. S. 136, § 3.) And further, every grant or assignment of 
 any existing trust in lands, goods, or things in action, is void, 
 unless the same is in writing, and subscribed by the party mak- 
 mg it, or by his agent lawfully authorized, (id. 187, ^ 2.) 
 
 The sigm'ng of the agreement by one party only is sufficient, 
 provided it be the party sought to be charged. He is estoppeci 
 by his signature from denying that the conti-act was validly 
 executed, though the paper be not signed by the other party 
 who sues for a performance. The signature may be made Mdth 
 a lead-pencil: and if the name is inserted in such a manner as 
 to have the effect of authenticating the instrument, it is imma- 
 terial in what part it is found. (2 Kent's Comm. 511; Clason 
 vs. Bailey, 14 Johns. 484.) The contract must be stated with 
 reasonable certainty, so that it can be understood from the writ- 
 ing itself, without having recourse to parol proof. (Bailey vs 
 Ogden, 3 id. 399.) Unless the essential terms of the agree- 
 ment can be ascertained from the writing itself, or by a refer 
 ence contained in it to something else, the writing is not a com- 
 pliance with the statute; and the agreement, if thus defective 
 cannot be supplied by parol proof, for that would introduce the 
 ,rery mischief which the statute of frauds was intended to prp- 
 
PAKOL EVIDENCE TO VARY WRITTEN INSTRUMENTS. 355 
 
 vent. (13 Johns. 297; ParJchurst vs. Van Oortland, 1 Johns. 
 Ch. R. 280, 281.) 
 
 13. Parol Evidence to Vary Written Instruments. 
 
 It is a well established rule of evidence, and one subject to but 
 few exceptions, that written agreements, whether specialties or 
 simple contracts, and whether within or without the statute of 
 frauds, are not to be contradicted, varied, or materially affected 
 by oral testimony; (1 Johns. Oases, 273; 8 Johns. 375; 11 id. 
 201; 1 Cow. 249; 5 id. 497; 9 id. 1^1; 6 Hill, 219; 8 Barb. 
 102, 205, 585; 2 Corns. 153; Patterson vs. O'Hara, 2 E. D. 
 Smith, 58;) or, as the rule has been more briefly expressed, 
 parol contemporaneous evidence is inadmissible to vary or con- 
 tradict the terms of a valid written instrument. {Phillips <& 
 Amos on Ev. 753.) The rule, however, only excludes any 
 other evidence of the language used by the parties in making 
 the contract, than that which is used by the instrument itself. 
 It excludes the colloquium or oral negotiation leading to the 
 very contract which the parties consummate by reducing it to 
 writing; but it does not necessarily reject the antecedent parol 
 agreement of a different character, and imposing a very differ- 
 ent but not inconsistent obligation. {^Blossom vs. Griffin, 3 
 Kern. 569.) 
 
 The effect of this rule is, to exclude any other evidence of the 
 language or words used by the parties, than that which is 
 afforded by the instrument itself. {Schermerhorn vs. Vander- 
 heyden, 1 Johns. 139.) Thus, where a promissory note is drawn, 
 and no time of payment is mentioned, it is payable immediately, 
 and oral evidence is inadmissible to show a different time of 
 payment. {Thompson vs. Ketcham, 8 id. 189.) Nor can such 
 an instrument be contradicted, or its legal effect be controlled, 
 by oral evidence that it was given under an agreement that it 
 should be void on the happening of a certain event, {Erwin vs. 
 Saunders, 1 Cow. 249,) or should have no validity except in a 
 certain event. {Payne vs. Ladue, 1 Hill, 116.) 
 
 Written instruments are to be construed according to their 
 sense and meaning, as collected from the terms used; which 
 terms are to be understood in their plain, ordinary, and popular 
 sense, unless, by the known usage of trade, they have acquired 
 a meaning distinct and separate from their popular sense, or 
 
356 NEW YORK JUSTICE. 
 
 unless the context indicates that, in the particular instance, they 
 must be understood to have a special and peculiar meaning, in 
 order to effectuate the immediate intention of the contracting 
 parties. (4 East, 135.) And in construing the writing it is 
 proper to look at all the surrounding circumstances, and the 
 pre-existing relation between the parties, and then to see what 
 they mean when they speak. (3 Kern. 569, supra; 22 Barb. 
 326.) The meaning of letters and abbre'viations used in a 
 written contract may be proved by parol. {Dana vs. Fiedler, 
 1 E. B. Smith's 463, aff'd. 2 Kern. 40.) And where parol evi- 
 dence is offered not to show the existence of a mistake in a 
 written instrument, but to show one patent on the face of the 
 writing, it is admissible. {McNulty vs. Prentice, 25 Barb. 204.) 
 
 Where a part of a contract is printed and a part wiitten, 
 greater effect must be given to the written words, they being 
 the terms which the parties themselves have chosen to express 
 their meaning; the printed words being a formula, applicable 
 as well to the agreement in question as to other agreements 
 similar in character. (4 East, 135.) 
 
 The rule that a written instrument cannot be explained by 
 oral testimony, applies only to parties and privies to the agree- 
 ment. They are estopped from contradicting their written un- 
 dertaking. But the rule does not extend to strangers who have 
 an interest in investigating and knowing the real truth of the 
 case. Thus, in a contest between the overseers of the poor of 
 two towns, relative to the settlement of a pauper, the overseers 
 of one town having proved that the pauper had purchased a lot 
 of land, and given back a mortgage for less than the considera- 
 tion expressed in the deed, the overseers of the other town were 
 permitted to show by parol proof that the pauper paid no con- 
 sideration for the land. {Overseers of Berlin vs. Overseers of 
 Norwich., 10 Johns. 229.) 
 
 Where the instrument is written in a foreign language, a 
 translator may be called to read it to the jury. Where the 
 dijBBculty arises from the hand-writing, one skilled in decipher- 
 ing hand- writing may be called; and where it arises from a 
 doubt as to what the words really are, it is for the jury to de- 
 termine what they were meant to represent. (18 id. 107; 
 Sheldon vs. Benham, 4 Hill, 129.) If the instrument does not 
 purport on its face to be a complete agreement between the 
 
PAROL EVIDENCE TO VAKY WRITTEN INSTRUMENTS. 357 
 
 parties, and if the contract is one not required to be in writing, 
 oral testimony is admissible to supply the deficiency. [^Potter 
 vs. Hopkins, 25 Wend. 417.) 
 
 Very diflferent questions, however, from those decided in the 
 above cases arise, where it is proposed wholly to annul, by 
 parol evidence, a written instrument, by showing that it was 
 invalid ab initio, or to show that since its execution new terms 
 have been introduced and substituted by the parties, or that the 
 instrument has been entirely abrogated by them. 
 
 (1.) Parol evidence to annul vyritten instruments. 
 
 In an action between the parties to a wi-itten instrument, parol 
 evidence is admissible to show that it is altogether void, or that 
 it never had any legal existence. (Phillips & Amos on Ev. 
 757; 1 Oreenl. on Ev. \ 284.) And this applies to all con- 
 tracts, whether under seal or not. (id.; 20 Johns. 478; 11 
 Wend. 534; Price vs. Price, 5 Parh. 533.) Actual fraud may 
 be proved by parol, (yan Valkenburgh vs. Rouk, 12 Johns. 
 337.) So, too, it may be shown that a contract was made for 
 the furtherance of objects forbidden by law; (1 Smith's Lead- 
 ing Cases, 154, 168;) or that the instrument was obtained by 
 duress, (Thompson vs. Lockwood, 15 Johns. 256,) or when the 
 party was non compos mentis, or intoxicated, (2 Kenfs Oomm. 
 451; 3 Cow. 445; Prentice vs. Achorn, 2 Paige, 30,) or that it 
 was never delivered, (Clark vs. Gifford, 10 Wend. 310,) and 
 therefore never had any legal existence in the hands of the 
 holder. 
 
 (2.) Parol evidence to show a subsequent variance of a written 
 
 agreement. 
 
 We have before stated the general rule, that oral testimony 
 is inadmissible to contradict, vary, or materially affect written 
 agreements; but this rule does not exclude parol evidence of 
 fraud, nor does it exclude parol evidence of the enlargement 
 of the time for the performance, or a waiver of the perform- 
 ance, of written simple contracts. (1 Johns. Cases, 22; Erwin 
 vs. Saunders, 1 Co2i\ 249.) 
 
 If the agreeiiiont be by deed, it cannot in general be dissolved 
 by any executory agreement of an inferior nature. (10 Wend. 
 180; 13 id. 71; 21 id. 628; JVelson vs. Sharp, 4 Hill, 584.) 
 
358 NEW YORK JUSTICE. 
 
 But any obligation in writing, not under seal, may be totally 
 dissolved by a subsequent oral agreement; {^Brewster vs. Coun- 
 tryman, 12 Wend. 446;) or it may be merged in a new and 
 distinct agreement upon a new consideration; or the time for 
 performance may bo enlarged; or performance may be waived; 
 {Fleming vs. Gilbert, 3 Johns. 528;) of any of which changes 
 or variances parol evidence is admissible. (1 Oreenl. on Ev. 
 § 303; 1 Johns. Oases, 22; 1 Cow. 249; 5 id. 497; 7 id. 48- 
 Blood vs. Goodrich, 9 Wend. 68.) 
 
 (3.) Parol evidence as to the consideration of ivritten 
 instruments. 
 
 It is provided by statute, that in every action upon a sealed 
 instrument, and where a set-off is founded upon any sealed 
 instrument, the seal thereof shall only be presumptive evidence 
 of a sufficient consideration, which may be rebutted, in the same 
 manner, and to the same extent, as if such instrument were not 
 sealed. (Code, § 840.) And the- defense thus allowed can be 
 made, although the defendant does not plead the same, or give 
 notice thereof, at the time of pleading the general issue, or 
 some other plea denying the contract on which the action 
 is brought. Under these provisions of the statute, a want 
 or failure of consideration in a sealed instrumtnt, as well a& 
 fraud or illegality, may be shown by parol testimony (11 Wend. 
 106; 14 id. 195; 31wnn vs. Eclsford's Exec, 15 id. 502), 
 ]f the defence has been properly pleaded, or notice thereof 
 given. (21 id. 626; 25 id. 107; Van Epps vs. Harrison, 5 
 Hill, 66.) The statute, however, does not change the rule, that 
 parol evidence is inadmissible to contradict or vary a written 
 agreement. It merely allows evidence to be adduced, which 
 was previously available only in a cross-action, or in another 
 form. Therefore, in a suit upon a bond conditioned to convey 
 lands by a certain day, parol evidence, to prove that the con- 
 veyance was not to be made until the obligee had paid a sum 
 of money, has been held inadmissible. {McCurtie vs. Stevens, 
 13 Wend. 527.) 
 
 The consideration of negotiable instruments, as between the 
 original parties, may be inquired into, and a total or partial 
 fciilure of consideration be shown by parol evidence. (4 Johns. 
 
COMPETENCY OF WITNESSES. 859 
 
 296; 7 Johns. 26; 11 id. 50; 17 id. 301; 20 id. 130; 7 Cow. 
 322; 9 Wend. 273; Pay?i vs. Cutter, 13 ecZ. 605.) 
 
 (4.) Usage. 
 
 Parol evidence of usage is admitted, either to interpret the 
 meaning of the language of a contract, when it is equivocal and 
 obscure, or to ascertain its nature and extent, in the absence 
 of express stipulations. (1 Greenl. on Ev. § 292.) So, also, evi- 
 dence may be received of a mercantile usage, to show the 
 meaning of the terms used in a contract. [Boorman vs. John- 
 son, 12 Wend. 566.) But such evidence will not be received 
 to contradict a settled rule of law, (2 Johns. 327; 14 id. 316; 
 Hinton vs. Locke, 5 Hill, 437,) or to give a diiferent meaning 
 to a term which has a legal or statutory signification; (1 Johns. 
 192; Sleght vs. Hartshorn, 2 id. 531;) as, for example, to prove 
 that "ton" in a contract was meant by the parties as gross 
 weight, or 2,240 pounds, the statute having defined it as 2,000 
 pounds. {Laws o/"1851, chap. 134, § 7; 9 Paige, 188.) 
 
 The proof of usage, to vary the usual import of words in a 
 contract, ought to be so clear, as to leave no doubt that the 
 parties contracted in reference to it. The terms of the con- 
 tract, in their ordinary construction, must prevail, unless there 
 is evidence that they have a particular meaning attached to 
 them by the usages of trade — a usage known to the party at 
 the time of contracting, or which he is presumed to have known 
 and assented to. Thus, a memorandum, acknowledging the re- 
 ceipt of grain in store, or on sale, imports a bailment; but 
 proof is admissible, to show that, hy the usage of dealers in 
 grain, the memorandum means a sale, and that the parties so 
 understood it, {Dawson vs. ITittle, 4 Hill, 105, 107.) A mer- 
 cantile usage cannot, however, be proved by the understanding 
 of mercantile men as to the law, but only by proof of their 
 acts and customs. (15 Wend. 482; 22 id. 215- Hawes vs. Laxo- 
 rence, 4 Corns. 345.) 
 
 14. Competency of Witnesses. 
 
 The instruments of evidence are divided into two general 
 classes, namely, unwritten and written. By unwritten evidence 
 is meant the testimony given by witnesses viva voce, in open 
 
360 NEW YORK JUSTICE. 
 
 Court, or before persons authorized by law to act as magis 
 trates, commissioners, &c. 
 
 In a former portion of this work we consider the means by 
 which the attendance and testimony of witnesses may be com- 
 pelled, and ^vc now propose to consider who are proper and 
 competent as witnesses. 
 
 (1.) Persons excluded hy statute, and by the common law. 
 
 There are certain classes of persons, whom, on account of 
 some personal disability or defect, the law excludes from giving 
 testimony. One of these classes comprehends those persons 
 who are deficient in understanding, or, in other words, who are 
 idiots, lunatics, or madmen. It makes no difference from what 
 cause the defect of understanding may have arisen, nor whe- 
 ther it be temporary and curable, or permanent. While the 
 deficiency exists, be the cause what it may, the person is not 
 competent as a witness. (1 Oreenl. on Ev. § 365; 10 Johns. 
 362; Hartford vs. Palmer, 16 id. 143.) If he is offered, proof 
 is admissible to show his incompetency. {Livingston vs. Kin- 
 sted, 10 id. 362.) If objection is made, that an infant offered as 
 a witness is incompetent, from a deficiency of understanding 
 arising from immaturity of intellect, he should be examined in 
 presence of the party objecting to his capacity, and if he ap- 
 pears to have sufficient natural intelligence, and to have been 
 so instructed as to comprehend the nature and effect of an oath, 
 he may be admitted to testify, whatever his age. (18 id. 98; 
 People vs. McJVair, 21 Wend. 608.) 
 
 Persons who are intoxicated are within the principle of the 
 above rule; for, as has been well said, "intoxication is a minor 
 madness," producing a temporary derangement of the mind, 
 and incapacitating the person affected from narrating events in 
 a credible manner. A Justice has power to decide, from his 
 own view of the situation of the witness offered, whether he is 
 intoxicated to such a degree that he ought not to be heard, and, 
 if he is, to exclude him. (16 Johjis. 143, supra.) 
 
 Another class comprehends persons who have been convicted 
 of infamous crimes. It was provided by statute, that every per- 
 son who shall, upon conviction, be adjiidged guilty of perjury, 
 or of subornation of perjury, shall not thereafter be received 
 as a witness to be sworn in any matter or cause whatever, until 
 
COMPETENCY OF WITNESSES. 361 
 
 the judgment against him has been reversed. (2 R. 8. 681, 
 §§ 1, 4.) The statute also provides, that no person sentenced 
 upon a conviction for felony, shall be competent to testify in 
 any cause, matter, or proceeding, civil or criminal, unless he be 
 pardoned by the governor, or by the legislature, except iu the 
 cases specially provided for by law; but that no sentence upon 
 a conviction for any offence other than a felony, shall disqualify 
 or render any person incompetent to be sworn, or to testify, in 
 any cause, matter, or proceeding, civil and criminal, {id. 701.) 
 Eut now the convict may testify, and the conviction may be 
 proved for the pin-pose of affecting fhe weight of his testi- 
 mony, either by the record or by his cross-examination upon 
 which he must answer any question relative to that inquiry, and 
 the party cross-examining him is not concluded by his answer to 
 such question. {Code, § 832.) 
 
 Where the objection is made, that the witness offered has 
 been convicted of a felony, parol evidence is inadmissible to 
 prove the incompetency. {Hilts vs. Qolvin, 14 Johns. 182.) 
 If no record of judgment was made up, the incompetency 
 must be proved, either by producing a copy of the minute of 
 the conviction, with the sentence of the Court thereon, duly 
 certified by the clerk in whose custody the minutes are, under 
 his official seal, and a copy of the indictment on which sucti 
 conviction was had, certified in the same manner; (2 R. 8. 739, 
 \ 10;) or, by producing the minutes of the clerk of the Court, 
 if they have been inspected by the Court, and made to conform 
 to the facts. If a record of judgment was made, that must be 
 produced. (14 Johns. 182, supra; 25 Wend. 465.) 
 
 Husbands and wives are also excluded from being witnesses 
 either for or against each other, in any cause, civil or criminal. 
 (1 Green, on Ev. \ 334; 7 Johns. Gh. R. 229; 8 Johns. 72; 2 
 Hill, 181; 3 id. 513; Burrell vs. Bull, 3 Sandf. Gh. 15.) In 
 the language of Chancellor Kent: "A husband and wife cannot 
 be witnesses for or against each other in a civil suit; nor can 
 either of them be permitted to give any testimony, either in a 
 civil or criminal case, which goes to criminate the other. And 
 this rule is so inviolable, that no consent will authorize the 
 breach of it." (2 KenCs Gomm. 178.) There appears to be 
 only one exception to this rule; which is, that where the hus- 
 band is charged, in a criminal .<3ctioii, with committing an injury 
 
362 NEW YORK JUSTICE. 
 
 on the person of his wife, or threatening one, she may be a wit- 
 ness against him. {People vs. Carpenter, 9 Barb. 580.) And 
 the rule remains the same, notwithstanding the provision of the 
 Code authorizing the examination of a party to an action. {Code, 
 § 828 ; Laws of 1847, chap. 462.) It is held that sections 828 
 and 829 of the Code do not affect the rule excluding the hus- 
 band or wife from testifying in causes in which the other is a 
 party or is interested. That rule does not rest on the ground 
 of the interest of the witness in the suit, but depends merely 
 upon the existence of the marriage relation. Where a husband 
 or wife has an interest in the event of the suit which would 
 render his or her wife or husband incompetent at common law, 
 the incompetency of the wife or husband remains. While the 
 interest of the one exists, the other being incompetent as wife 
 or husband, not on the ground of interest, cannot be a compe- 
 tent witness, until some further statute shall remove the incom- 
 petency arising from the marriage relation. (HasbroucJc vs. 
 Vandervort, 5 Seld. 153.) An opposite construction would 
 allow a party to secure the testimony of convicted felons, idiots, 
 lunatics, and children too young to understand the obligation of 
 an oath, by making them parties to an action. (5 Barb. 156; 
 2 Sandf. 340; Hasbrouch vs. Yandervort, 4 id. 596; S. C. 1 
 Code Rep. {n. s.) 81.) In the application of the rule, it makes 
 no difference at what time the relation of husband and wife com- 
 menced, nor is it material that it should still exist. Thus, where 
 the defendant married one of the plaintiff's witnesses, after she 
 was actually summoned to testify in the suit, she was held in- 
 competent to give evidence against him. (3 Oarrington & 
 Payne, 558.) So, also, a divorced wife is not a competent wit- 
 ness against her former husband, with reference to transactions 
 which occurred during the coverture. (^Ba^iies vs. Camack, 
 1 Barb. 392.) 
 
 Persons insensible to the obligations of an oath have always 
 been held to be incompetent to testify as witnesses. The provi- 
 sions of the statute, relative to the religious belief of witnesses, 
 are as follows: Every person believing in the existence of a 
 Supreme Being who will punish false swearing, shall be admit- 
 ted to be sworn, if otherAvise competent. (2 R. 8. 408, § 87.) 
 No person shall be required to declare his belief in the existence 
 of a Supreme Being, or that he will punish false SAvearing, or 
 
COMPETENCY OF WITNESSES. 3G3 
 
 his belief or disbelief of any other matter, as a requisite to his 
 admission to be sworn or to testify in any case. But the l)ehef 
 or unbelief of eveiy person offered as a witness, may be proved 
 by other and competent testimony. (2 R. S. 4,08, §88.) But 
 the last section shall not be construed to prevent any Court 
 before whom an infant, or a person of apparently weak intellect, 
 shall be produced as a witness, fi'om examining such person, to 
 ascertain his capacity, and the extent of his religious and other 
 knowledge; nor shall it be construed to prevent a Court from 
 inquiring of any person, what are the peculiar ceremonies ob- 
 served by him in swearing, which he deems most obligatory. 
 (id. § 89.) Under these provisions, it was decided, that a per- 
 son who does not believe in the existence of a God, nor in a 
 future state of rewards and punishments, cannot be a witness in 
 a Court of Justice, under any circumstances; (Jackson vs. Gri'd- 
 ley, 18 Johns. 98;) that a belief in the existence of a God is 
 an essential prerequisite to the competency of a witness; but 
 that a belief in the eternity of punishment is not essential, 
 (Bvtts vs. 8wartwood, 2 Coio. 431,) nor a belief in future punish- 
 ment, if the Avitness believes that perjury will be punished in 
 this world. {People vs. Matteson, id. 433, note.) The Consti- 
 tution of 1846, however, contains the following provision: 
 " The free exercise and enjoyment of religious profession and 
 worship, without discrimination or preference, shall forever be 
 allowed in this State to all mankind; and no jperson shall be 
 rendered incompetent to be a witness, on account of his opinion 
 on matter's of religious belief; but the liberty of conscience 
 hereby secured shall not be so construed as to excuse acts of 
 licentiousness, or justify practices inconsistent with the peace 
 or safety of this State." (Qonstitution of 1846, Art. i., sec. 3.) 
 A party on cross-examination may show by the witness that he 
 does not believe in the existence of a God who will punish false 
 swearing ; and the fact thus proved will go to the credit of the 
 witness. (28 Barh. 265.) 
 
 (2.) Persons rendered competent iy special statute. 
 
 Certain classes of persons are rendered competent as witnesses 
 by special statute, as follows : 
 
 1. Corporators.'] Any member of a corporation aggregate, 
 not named on the record as a party to a suit brought by or 
 
364 NEW YORK JUSTICE. 
 
 against such corporation, is a competent witness to testify to any 
 matter against the interest of such corpoi'atiou. (2 R. S. 407, 
 \ 81.) And, if he has no personal interest, it seems that he is 
 a competent witness ybr the corporation. (1 Paige, 601; Pack 
 vs. Mayor of JST. Y. i Com. 489.) 
 
 2. Indiann-I The giving or selling any spirituous liquors or 
 intoxicating drink to any Indian residing within this State, is, 
 by statute, [Laws of 1849, chajp. 420, § 1,) declared a misde- 
 meanor; and the receiving of any goods or chattels from any 
 Indian, in payment or exchange for any spirituous liquor or in- 
 toxicating drink, is punishable by a forfeiture of ten times the 
 value of the articles received; (id. § 2;) and such goods or 
 chattels may be reclaimed by the Indian selling or pledging 
 them, from the vendee or pledgee, or any assignee of his, by 
 action in any competent Court, (id.) By the same statute, any 
 Indian is rendered a competent witness to prove the receipt of 
 the goods and chattels, and the sale or gift of any intoxicating 
 drink to any Indian. (Laws of 1849, chap. 420, § 2.) 
 
 3. Owners of lost baggage.^ It is provided, by the general 
 railroad act, that a check must be affixed to every parcel of 
 baggage received by a railroad corijoration for transportation, 
 and a duplicate thereof be given to the passenger, or the 
 person delivering the same on his behalf; and that if, on pro- 
 ducing the check, his baggage be not delivered, the passenger 
 may himself be a witness, in any suit brought by him, to prove 
 the contents and value of the baggage. (Laws of 1850, chap. 
 140, § 37.) 
 
 4. Persons betting and gaming.] The statute provides, that 
 no person other than the parties in the cause, shall be incapaci- 
 tated or excused from testifying, touching an offence against any 
 of the provisions of the statute relating to gaming, by reason of 
 his having played, betted, or staked at any game, as therein 
 prohibited; but that the testimony of any such person shall not 
 be used against him in any suit or prosecution authorized by 
 that statute. (1 R. S. 663, § 18.) 
 
 5. Plaintiff, where the defence is usury.] Whenever, in an 
 action at law, the defendant pleads or gives notice of the defence 
 of usury, and verifies, l)y affidavit, the truth of his plea or 
 notice, he may, for the purpose of proving the usury, call and 
 examine the plaintiff as a witness, in the same manner as other 
 
COMPETENCY OF WITNESSES. 365 
 
 witnesses may be called and examined. {Laws of 1837, chap. 
 430, § 2.) Under this act, the defendant may examine the real 
 plaintiff in interest, whether he be named as a party or not; (5 
 Hill, 523; 9 Paige, 226;) but the fact of his being the real 
 party in interest, if he is not a party to the record, must fii'st 
 be proved. (2 Den. 155; Henry vs. Salina Bank, 1 Coins. 
 83.) The provisions of the Code have undoubtedly done away 
 with the necessity of proving him to be the real party in interest. 
 The plaintiff is not bound to regard a notice to attend the trial, 
 but should be subpoenaed. (4 Hill, 119; Draper vs. Hern- 
 nigsen, 1 Bosw. 611.) 
 
 6. Persons interested in actions on demands brought for suit.'[ 
 The defendant in any action of debt, covenant, or assumpsit, 
 may give notice with his plea, in addition to any other matter 
 of defence, that, on the trial of the cause, he will insist and 
 prove that the demand on which such action is founded has been 
 bought and sold, or received, for prosecution, contrary to law, 
 without setting forth any other particulars. {Code, § 3139.) 
 On the trial of tlie cause in which such notice is given, if the 
 defendant requires it, the plaintiff and his attorney, and any 
 other person who may be interested in the recovery in such 
 cause, must be examined on oath touching the matters set forth 
 in such notice. {Id., § 3139.) No evidence derived from the 
 examination of any such plaintiff or other person can be admitted 
 in proof on any criminal prosecution against the party so exam- 
 ined, for violating any of the provisions of the statute prohibit- 
 ing the buying of securities, demands, &c., for the purpose of 
 commencing suits thereon. {Id., § 3139.) 
 
 7. Parties to actions.] By the common law, a party to the 
 record in a civil suit could not be a witness in a cause. (1 Oreenl. 
 on Ev. \ 329.) Nor could a party to the record compel an 
 adverse party to give evidence against himself upon a trial. 
 {id. \ 330; 20 Johns. 142; 7 Cow. 174; 1 Wend. 20; 11 id. 
 533; Benjamin vs. Coventry, 19 id. 353.) There were, indeed, 
 some exceptions to this rule; as, in the case of a lost instru- 
 ment, where a party was permitted to testify as to its loss. 
 {Chamberlain vs. Qorham, 20 Johns. 144.) But generally, the 
 mere fact of being a party to the record created a disability 
 beyond the power either of the party himself or of the adverse 
 party, to remove. And this disability was the foundation of the 
 
366 NEW YORK JUSTICE. 
 
 jurisdiction iii Chancery of bills of discovery in aid of suits at 
 law, and otherwise. 
 
 The rules on this subject in this State are now materially 
 changed. The change was first introduced by an act passed in 
 1847, {cha'p. 462,) the most important provisions of which have 
 since been incorporated in the Code. 
 
 The Code provides (§ 1914) that no action to obtain a dis- 
 covery under oath, in aid of the prosecution or defense of 
 another action, shall be allowed, nor shall any examination of a 
 pai'ty be had, on behalf of the adverse party, except in the 
 manner prescribed by the Code. This provision not only takes 
 away the equitable jurisdiction which the Courts formerly had 
 of actions of discovery, but necessarily repeals all the statutory 
 enactments by which the plaintiff in an action to recover money 
 lost by betting and gaming, (1 It. S. 664, § 19,) to recover ex- 
 cess of brokerage, (id. 709, § 4,) to set aside usurious contracts, 
 (id. 772, § 6; Laws of 1837, c/iap. 430, § 3,) to compel a dis- 
 covery by judgment creditors, (2 li. 8. 174, § 39,) to discover 
 frauds in confessing judgments, (id. § 41,) or in executing as- 
 signments or conveyances, (Laws of 1833, chap. 14, § 1,) could 
 require the defendant to answer under oath. 
 
 The Code, in the section following the one just cited, (§ 828,) 
 authorizes the examination of a party to the record, at the in- 
 stance of an adverse party, or of any one of several parties; 
 and in section P29, as recently amended, authorizes a party to 
 offer himself as a witness in his own behalf. These sections we 
 shall consider hereafter. 
 
 8. Interested witnesses.] There was formerly, also, a rule of 
 evidence, which excluded the testimony of interested witnesses, 
 whether their names appeared as parties upon the record or 
 not. (1 Greenl. on Ev. § 386.) The Code has likewise altered 
 this rule, and now, no person offered as a witness can be ex- 
 cluded by reason of his interest in the event of the action. 
 The mere fact that the name of a witness appears as a party 
 upon the record is not sufficient to exclude him, if it appears 
 affirmatively that he has no interest in the event of the suit. 
 (8afford vs. Lawrence, 6 Barb. 566.) A stockholder in a cor- 
 poration is a competent witness for the corporation notwith- 
 standing his interest; he is not a party to the action, nor a 
 person for whose immediate benefit it is prosecuted or de- 
 
EXAMINATION OF PARTIES. 367 
 
 fended. {Montgomery Co. Bank vs. Marsh, 3 8eld. 481; 3 
 Corns. 489; 2 8andf. 690, 732; 7 How. 360.) And, in an action 
 against an executor foi- services rendered the deceased, a resid- 
 uary legatee under the will is a competent witness for the exe- 
 cutor. {Weston vs. Hatch, 6 id. 443.) A husband is a competent 
 witness to prove the marriage, where his wife sues for her sepa- 
 rate property without joining him as a party. {yVillis vs. Un- 
 derhill, 6 How. 396; hvi see HashrooJc vs. Vandervoori, 5 Seld. 
 153.) In an action on a note made by a firm consisting at the 
 time of three members, but since dissolved, one of the co-part- 
 ners, who is not joined as a defendant in the action, is a com- 
 petent Avitness for the other co-partners, to defeat a recovery. 
 The suit is not defended for the immediate benefit of the 
 witness. (10 JV. Y. Legal Observer, 248.) And, since the 
 Code, an agent is a competent witness against his principal, 
 though the efiect of his evidence is to discharge himself from 
 a written contract which he has entered into in his own name, 
 and to charge his principal, (id. 40.) 
 
 Where a person who is directly interested in favor of the 
 plaintiff in a cause, is called and examined as a witness by the 
 defendant, the objection to his competency is thereby waived, 
 and he is made a witness generally in the cause. {Combs, vs. 
 Bateman, 10 Barb. 573.) 
 
 15. Examination of Parties. 
 
 It has already been stated that a party may call the adverse 
 party as a witness. The sections of the Code authorized this 
 to be done are as follows: 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 compelled, in the same manner, and subject to the same 
 rules of examination, as any other witness, to testify, either at 
 the trial, or conditionally, or upon commission. (§ 828.) The 
 examination, instead of being had at 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 part}^ to be ex- 
 amined, and any other adverse party, of at least five dajs, 
 unless, for good cause shown, the judge order otherwise. But 
 the party to be examined shall not be compelled to attend in 
 
368 NEW YORK JUSTICE. 
 
 any other county than that of his residence, or where he may 
 be served with a summons for his attendance. (Code, § 886.) 
 
 Considerable diversity of opinion has existed as to the extent 
 of the powers conferred by these sections in relation to the ex- 
 amination of the parties to an action before trial. Thus, it has 
 been held, that a party could not compel the examination of an 
 adverse party before the issue in the action was joined; and 
 again, that such examination could not take place before issue 
 joined, unless by the special order of the Court, on cause 
 shown by affidavit. {Chichester vs. Livingston, 1 Code Rep. 
 (?i. s.) 108; 8. O. S Sandf. 718.) In other cases, on the con- 
 trary, it has been held, that a party to the suit might be exam- 
 ined as a witness before the joining of issue; {Miller vs. Mather, 
 2 Code Rep. 101;) and that the examination might be had with- 
 out obtaining an order, {id. 82; Taggard vs. Gardner, 2 Sandf. 
 669,) and without reference to the residence of the party to be 
 examined, or to the probability of his being able to attend the 
 trial, {id. 667; 1 Code Rep. 95; Partin vs. Thackstone, 2 id. 
 66.) These cases are apj)arent]y in conflict. Those which have 
 held that the examination could not be had until after issue 
 joined, arose in the Supreme Court, and one of them was a de- 
 cision at chambers. The other cases arose in the Superior Court 
 of the city of New York, and the decisions are represented to 
 have been concurred in by all the judges of that Court. With- 
 out attempting to reconcile these diflferent views, those of the 
 latter Court would seem to be justified by the language of the 
 Code, which provides that the examination, instead of being had 
 at the trial, may be had at any time before the trial, at the 
 option of the party claiming it. (§ 870.) 
 
 If the party is out of the State, his testimony may be taken 
 by commission. (1 Code Rep. 28 ; Brockway vs. Stanton, 2 
 Sandf. 640.) 
 
 It was formerly held unnecessary to obtain an order for the 
 examination of the adverse party ; {idem, 669 ;) that it was 
 sufficient to give him a notice of at least five days, requiring him 
 to appear and be examined ; and that the only ease in which the 
 order was necessary was where the party seeking the examination 
 wishes it to be had on a shorter notice than five days, {id.) 
 It was thought, however, to be most prudent to obtain the order, 
 for the reason that it gives the party obtaining it many inde- 
 
EXAMINATION OF PARTIES. 369 
 
 pendent advantages, particularly with reference to future pro- 
 ceedings, should the party notihed neglect or refuse to attend. 
 [Draper vs. Henningsen, 1 Bosw. 611.) 
 
 The notice must be served upon the party to l)e examined 
 and upon every other adverse party, and should state the con- 
 sequences of a non-attendance, as hereafter specified. {Ander- 
 son vs. Johnson, 1 Code Mep. 95; /S. C. 1 Sandf. 713.) The 
 party to be examined should be served with a subpoena, in ad- 
 dition to the order and summons, (2 Sandf. 669; supra,) and 
 be paid or tendered the usual fees of a witness. (1 Code Bep. 
 95; 1 Sandf. 713; supra.) 
 
 The examination may be had in a county other than the one 
 in which the party resides, if the order or notice is served upon 
 him in such other county, (id.) 
 
 The party thus to be examined may be compelled to attend 
 in the same manner as a witness who is to be examined condi- 
 tionally; and the examination must be taken and filed by the 
 judge in like manner, and may be read by either party on the 
 trial. {Code, § 874, 880.) 
 
 If a party refuses to attend and testify, either at the trial or 
 whenever else required, he may be punished as for a contempt, 
 and his complaint, answer, or reply, may be stricken out. {Code, 
 § 853.) A joint defence, however, will not be stricken out be- 
 cause one defendant refuses to appear and testify. (1 Sandf. 
 713; supra.) 
 
 The party thus examined becomes a general witness in the 
 cause, {Ainsworth vs. Bolmer, id. 688,) and his examination is 
 conclusive upon the party taking it, until it is rebutted by ad- 
 verse testimony, {Sheldon vs. Weeks, 7 JSfew York Legal Obs. 
 57,) which may be done. {Code, § 838.) The following is a 
 leading case on the subject: In an action in a Justice's Court, 
 the plaintiff called the defendant as a witness, and then called 
 witnesses to contradict him. Judgment was given for the plain- 
 tiff. The defendant appealed, on the ground that, as the plain- 
 tiff had called him, he became the plaintiff's witness, and it was 
 not competent for the plaintiff to contradict his own witness. 
 Tlie appellate Court affirmed the judgment, remarking that 
 " the Code, which allows the examination of a party, permits 
 his testimony to be rebutted by adverse testimony. This can 
 only mean, that the party calling him may examine other wit- 
 24 
 
370 NEW YOEK JUSTICE. 
 
 nesses to rebut the testimony of such party. Adverse testimony 
 means testimony opposed and contrary to the testimony of the 
 party examined. This cannot mean that he may call witnesses 
 to contradict himself; and, if not, then there is no other mean- 
 ing to be given to it, than that the party calling his adversary 
 may contradict him if he thinks proper." (Armstrong vs. Clark, 
 2 Code Rep. 143.) 
 
 A person for vrhose immediate benefit the action is prose- 
 cuted or defended, though not a party to the action, may be 
 examined as a witness, in the same manner, and subject to the 
 same rules of examination, as if he were named as a party. 
 {Code, § 828.) 
 
 A party examined by an adverse party, as above provided, 
 may be examined on his own behalf, subject to the same rules 
 of examination as other witnesses. But, if he testify to any 
 new matter, not responsive to the enquiries put to him by the 
 adverse party, or necessary to explain or qualify his answers 
 thereto, or discharge when his answers would charge himself, 
 such adverse party may ofier himself as a witness, on his own 
 behalf, in respect to such new matter, subject to the same rules 
 of examination as other witnesses, and shall be so received. 
 Where a party, examined at the instance of the adverse party, 
 testifies to new matter in answer to a question put to him by the 
 Court, the adverse party is entitled to offer his own evidence 
 in respect to such new matter. (Myers vs. McCarthy, 2 
 Sand. 399.) 
 
 A party may be examined on behalf of his co-plaintiff, or 
 of 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 the 
 examination thus taken cannot be used in the behalf of the 
 party examined. And whenever, in the ease mentioned in 
 sections three hundred and ninety and three hundred and 
 ninety-one, 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 him- 
 self as a witness to the same cause of action or defence, and 
 shall be so received. The last preceding clause extends to 
 
EXAMINATION OF PARTIES. 371 
 
 all who are sued as joint contractors, although the defence of 
 some of the defendants may be that there was, in fact, no joint 
 contract. {Oomstock vs. Roe, 2 Qode Rep. 140.) 
 
 Where, in an action of trover against two defendants, one 
 of them pleads, and the other suifers judgment fey default, the 
 latter is, under the Code, a competent witness for the plaintiff 
 against his co-defendant. {Thompson vs. Blanchard, 4 Qoms. 
 303.) And where, on the trial of an action against two per- 
 sons for a joint assault, no evidence appears against one of 
 them, he is entitled to be discharged, for the purpose of being 
 examined as a witness for his co-defendant. But if there be 
 any evidence, however slight, against the defendant sought to 
 be discharged, it must go to the jury with the evidence against 
 the other defendants. {Lobar vs. Koplin, id. 547.) 
 
 Where a defendant cannot give any evidence but that which 
 must, of necessity, operate in his own favor, as well as in favor 
 of his co-defendants, he is not a competent witness. Thus, in 
 an action against several executors, one of the defendants can- 
 not be a witness for his co-defendants. {Fort vs. Gooding, 9 
 Barb. 371.) The plaintiff cannot, by joining as defendants in 
 an action, parties who, if separate actions had been brought 
 against them for the same matter, would have been competent 
 witnesses for each other, deprive them of the benefit of each 
 other's testimony; as, in an action on a joint and several pro- 
 missory note, or bond, against two makers, where one is surety 
 for the other, and the latter is offered as a witness on behalf 
 of the former. (8 Barb. 664; Mayor of If. Y. vs. Price, 4 
 Sandf. 616; 8. C. 1 Code Rep. {n. s.) 85.) 
 
 The importance of some of these provisions respecting the 
 examination cf parties, is to a certain extent qualified by the 
 provisions of sections 828, 829 and 830 of the Code, as amended 
 in 1878 and 1879. 
 
 The sections read as follows : 
 
 § 828. Except as otherwise specially prescribed in this title, a 
 person shall not be excluded or excused from being a vntness by 
 reason of his or her interest in the event of an action, or special 
 proceeding, or because he or she is a party thereto ; or the hus- 
 band or wife of a party thereto, or of a person in whose behalf 
 an action or special proceeding is brought, prosecuted, opposed 
 or defended. 
 
372 JSTEW YORK JUSTICE. 
 
 § 829. Upon the trial of an action, or the hearing upon the 
 merits of a special proceeding, a party, or a person interested in 
 the event, or a person from, through or under whom such a party, 
 or interested person derives his interest or title, by assignment or 
 otherwise, shall not be examined as a witness, in his own behalf 
 or interest, or in behalf of the party succeeding to his title or 
 interest, against the executor, administrator, or survivor of a 
 deceased person, or the committee of a lunatic, or a person deriv- 
 ing his title or interest from, through, or under a deceased per- 
 son or lunatic, by assignment or otherwise, concerning a personal 
 transaction or communication between the witness and the 
 deceased person or lunatic, except where the executor, adminis- 
 trator, survivor, committee, or person so deriving title or interest 
 is examined in his own behalf, or the testimony of the lunatic or 
 deceased person is given in evidence concerning the same transac- 
 tion or communication. 
 
 § 830. Where a party has died since the trial of an action, on 
 the hearing upon the merits of a special proceeding, the testi- 
 mony of the decedent, or of any person who is rendered incom- 
 petent by the provision of the last section, taken or read in 
 evidence at the former trial or hearing, may be given or read in 
 evidence at a new trial or hearing by either party, subject to any 
 other legal objection to the competency of the witness, or to any 
 legal objection to his testimony or any question put to him. 
 
 16. Mode of Examining Witnesses. 
 (1.) Privilege of witnesses. 
 
 The statute provides {Code, % 837), that no competent wit- 
 ness in a cause shall be excused from answering a question 
 relevant to the matter at issue, on the ground merely that the 
 answer to such question may establish or tend to establish that 
 such witness owes a debt, or is otherwise subject to a civil suit; 
 but that this shall not be construed to require a witness to give 
 any answer which will have a tendency to accuse himself of any 
 crime or misdemeanor, or to expose him to any penalty or for- 
 feiture, nor in any respect to vary or alter any other rule 
 respecting the examination of witnesses. 
 
 The cases in which the question of a witness's privilege can 
 arise, are distinguishable into the following classes: 
 
MODE OF EXAMINING WITNESSES. 373 
 
 1. TV here the witness, by answering, would subject himself to 
 a civil action, or pecuniary loss, or charge himself with a debt. 
 In such case the statute declares that the witness shall not be 
 excused. {Code, § 837; Matter of Kip, 1 Paige, 601.) 
 
 2. "Where it appears that the answer will have a tendency to 
 expose the witness to a penalty or forfeiture, or to accuse him 
 of any crime or misdemeanor. In such case, the statute and 
 the authorities are equally clear that the witness is not bound 
 to answer. (13 Johns. 82; 6 Oow. 254; 3 Hill, 564; 4 id. 468; 
 2 Den. 155; 1 Corns. 83; Vila^ vs. Jones, id. 274.) The wit- 
 ness may claim the protection of his privilege, at any stage of 
 the inquiry, whether he has already answered the question in 
 part or not at all. (1 Greenl. on Ev. ^ 454.) He cannot be 
 required, at any stage of the examination, to disclose what will 
 show, or what has a tendency to show, that he is guilty of a 
 crime for which he is yet liable to be punished. {People vs. 
 Mather, 4 Wend. 229.) Nor is the witness bound to answer 
 how he testified on a former trial, when his answer may form a 
 link in a chain of ciidence that would convict him of perjury. 
 (8 id. 667; People vs. Bodine, 1 Den. 281.) A person called 
 as a witness may not only object to testify to the main fact 
 Avhich would subject him to a penalty or forfeiture, but may 
 also refuse to disclose any one of a series of facts which 
 together would expose him to such penalty or forfeiture. 
 {Henry vs. Salina Panic, 1 Corns. 83.) Whether the answer 
 may tend to criminate the witness, is a point upon which the 
 oourt are bound to instruct him. (6 Coiv. 254; 4 Wend. 229; 
 Close vs. Olney, 1 Den. 319.) 
 
 To make the statute which imposes a limitation to the time 
 within which an indictment may be found, a bar to the witness's 
 claim of privilege, it must be shown affirmatively, that no pro- 
 ceedings were commenced against him, or, if commenced, that 
 they were discontinued, so that the statute will afford him a 
 complete protection, (2 id. 155; 1 Cojns. 83, supra.) If this 
 is shown, the witness is bound to answer. (1 Greenl. on Pv. 
 ^ 452.) 
 
 3. Where the answer, though it will not expose the witness 
 to any criminal prosecution, or to a penalty or forfeiture, has a 
 direct tendency to degrade his character. On this point there 
 has been a diversity of opinion. Where the transaction to 
 
374 NEW YORK JUSTICE. 
 
 which the witness is interrogated forms a part of the issue to 
 be tried, it seems he is bound to give the evidence, however 
 strongly it may reflect upon his character. (Phillips <& Amos 
 on Ev. 917.) But where the question is collateral, and its sole 
 object is to impair the credibility of the witness, the weight of 
 authority appears to be in favor of allowing the witness his 
 privilege, (id. 918; Lohman vs. People, 1 Qoms. 379.) So, 
 if a witness is asked whether he has not been convicted of a 
 felony, he may refuse to answer. (People vs.- HerricJc, 13 Johns. 
 82.) And such a question is also objectionable for irrelevancy, 
 for the answer to it would not be the best evidence of the fact, 
 nor that which the statute requires. (^Ante, p. 331.) 
 
 A witness may be asked a question, the answer to which will 
 criminate him, and, if he has no objection, may answer it. 
 (Southard vs. Bexford, 6 Cow. 254.) The privilege of the wit- 
 ness is his o^vn, and neither party can object to his waiving it. 
 (3 Hill, 395; Ward vs. People, 6 id. 144.) If he chooses to 
 answer, he is bound to answer every thing relative to the trans- 
 action. If he declines answering, no inference of the truth of 
 the fact is permitted to be drawn from the refusal. (1 (jfreenL 
 on Ev. § 451.) 
 
 (2.) Direct examination. 
 
 When a witness has been duly sworn, and all questions rela- 
 tive to his competency has been decided, he is first examined 
 by the party producing him; which is called his direct examin- 
 ation. He is also interrogated as to the same matters by the 
 adverse party; which is called his cross-examination. These 
 examinations are conducted orally, in open Court, in the pres- 
 ence of the parties and their counsel, and of the Justice and 
 jury, who have thus an oppoi-tunity of observing the under- 
 standing, demeanor, and inclination of the witnesses. 
 
 The first general rule to be observed in the examination of a 
 witness is, that the party by whom he is called cannot ask him 
 leading questions, that is, questions suggesting the answer 
 desired. {Phillips & Amos on Ev. 884: People vs. Mather, 
 4 Wend. 229.) This rule proceeds upon the supposition, that 
 the witness is favorable to the party calling him. Where such 
 is not the fact, and the witness appears to be hostile, the rule is 
 relaxed, and a more searching mode of examination is permit 
 
MODE or EXAMINING WITNESSES. 375 
 
 ted, partaking of the character of a cross-examination. Ques- 
 tions which are intended naerely as introductory, and which, 
 whether answered in the affirmative or negative, will not be 
 conclusive upon any of the points in the case, are not liable to 
 the objection of being leading. {^Phillips & Amos on Ev. 
 888.) 
 
 In some cases, however, leading questions are permitted en a 
 direct examination. Thus, where an omission in the testimony 
 of the witness is caused by a want of recollection, which a sug- 
 gestion may assist, such suggestion is permitted to be made. 
 As, where a witness called to prove a partnership, is not able, 
 at the moment, to specify the several names of the partners, a 
 number of names containing those of the partners, among 
 others, may be suggested to him, for the assistance of his 
 memory. (1 8tarMe JV. JP- 100.) Whether a leading ques- 
 tion should be put is a matter resting in the discretion of the 
 Justice, and to be decided by him as the circumstances of the 
 case, and the character and disposition of the witness, may 
 dictate. (1 Greenl on JEv. § 435; 17 Pick. 498.) 
 
 The most direct mode of assisting the memory of the witness 
 IS, by allowing him to look at written memoranda, which he 
 has before seen, relating to the facts in question. There seem 
 to be three classes of cases in which such memoranda may be 
 referred to or introduced: 
 
 First. Where the memorandum is used only to revive or as- 
 sist the memory of the witness, and to bring to his mind a 
 recollection of facts. In such case, the rule is well settled, that 
 the witness may use his memorandum to refresh his recollec- 
 tion. But it is not evidence to go to the jury, even though he 
 swears he thinks it is correct. He may refresh his memory, 
 and then, if his recollection recalls the transaction, that recol- 
 lection is testimony to go to the jury. He must be conscious 
 of the reality of the matters he swears to, at the time he testi- 
 fies; and it is not sufficient that his mind recurs to the memo- 
 randum, and that he believes that to be true. (3 Wend. 142* 
 5 id. 301; 11 id. 477; 1 Barb. 526; 2 Sandf. 269; Rowland 
 vs. Willetfs, 5 id. 219.) 
 
 Second. Where the witness recollects having seen the wi-iting 
 before, and, though he has no independent recollection of the 
 facts mentioned in it, remembers that, at the time he saw it, he 
 
376 NEW YOEK JUSTICE. 
 
 knew the contents to be correct. Thus, where original entries, 
 made in the course of business, are produced, and the person 
 who made them, or saw them made by another, knowing them 
 at the time to be true, testifies that he made them, or saw them 
 made, and believes them to be true, although he has, at the 
 time of testifying, no recollection of the facts set forth in the 
 entries, such entries are admissible. (16 Wend. 586; 19 id. 
 162; 2 Hill, 531; 1 Barb. 526; but see Halsey vs. Sinsebaugh, 
 15 N. Y. 485.) But the entries themselves must be produced. 
 (1 Greenl. on Ev. § 437.) 
 
 Third; "Where the writing brings to the mind of the witness, 
 neither any recollection of the facts mentioned in it, nor any 
 recollection of the writing itself, but nevertheless enables him 
 to swear to a particular fact, from the conviction of his mind 
 on seeing a writing which he knows to be genuine. {Phillips 
 <& Amos on Ev. 893.) Of this class the usual illustration is, 
 where a deed is produced, and the witness says: "Here is my 
 name, as a subscribing witness to the deed; I remember nothing 
 of placing it there; but I never would have done so, had I not 
 seen it executed." In such case, the deed is sufficiently proved. 
 (16 Wend. 598; 19 id. 167; 8 Pick. 143.) 
 
 The opinion of a witness is, in general, not evidence; he must 
 speak to facts. Nor is his belief admissible, however confident 
 he is, unless he recollects facts. (19 id. 477; Butler vs. Ben- 
 son, 1 Barb. 526.) The opinions of a witness as to the amount 
 of damages sustained by the plaintiff in an action are always 
 incompetent and inadmissible. (3 Wend. 425; 7 id. 136; 4 
 Barb. 236, 261; 4 Den. 311; Morehouse vs. Matthews, 2 Corns. 
 514.) 
 
 There are exceptions, however, to the rule that the opinions 
 of a witness are incompetent, where the qiiestion is one of 
 science or skill, or has reference to some subject upon which 
 the jury are supposed not to have the same degree of knoM'- 
 ledge as the witness. (4 Den. 370; Griffin vs. Rice, 1 Hilt. 
 184.) Witnesses may speak as to the value of personal pio- 
 perty or labor, where it ajDpears that they have peculiar sources 
 of knowledge to guide them on the subject. Thus, it is proper 
 to ask a witness what a cow, which he has seen and knows, 
 would be worth, if she gave but four quarts of milk per day. 
 (Joy ■vs. Hopkins, 5 Den. 84.) And so, a builder may be asked, 
 
MODE OF EXAMINING WITNESSES. 377 
 
 when, in his opinion, a house finished ut a certain time, will be 
 fit for occupation. (7 Wend. 72; Smith vs. Giigerty, 4 Barb. 
 614.) In the one case the opinion of the witness is admissible, 
 because he has had an opportunity which the jury have not had, 
 of seeing and knowing the animal, and therefore, can judge of 
 her value better than they. In the other case, the question is 
 proper, because it calls for the opinion of the witness in rela- 
 tion to matters, a knowledge of which is, peculiar to his pro- 
 fession as a builder. 
 
 Another general rule to be observed in the examination of a 
 witness is, that the party calling him is not permitted to im- 
 peach his general reputation for truth, or to impugn his credi- 
 bility, by general evidence tending to show that he is unworthy 
 of belief. {Phillips & Amos on Ev. 902; 1 Oreenl. on JEv. 
 § 442; 5 Wend. 305; 5 Den. 112; Hunt vs. Fish, 4 Barb. 324.) 
 But a party may prove, by other evidence, the truth as to a 
 material fact relevant to the issue in the cause, though it may 
 collaterally have the effect of discrediting his own witness. 
 (2 Campbell, 556; 5 Wend. 301; 12 id. 105; 21 id. 90; 5 Den. 
 112; 4 Barb. 324; Thompson vs. Blanchard, 4 Qoms. 303.) 
 And this privilege is allowed, whether a witness is forced upon 
 the party by the law, as in the case of a subscribing witness to 
 a deed, or is voluntarily selected to give evidence. 
 
 Whether it is competent for a party to prove that a witness 
 whom he has called, and whose testimony is unfavorable to his 
 cause, had previously stated the facts in a different manner, is 
 a question upon which there exists some diversity of opinion. 
 The conclusion arrived at in the elementary treatises is in favor 
 of permitting the party to show that the evidence has taken 
 him by surprise, and is contrary to what the witness had siated 
 before the trial. (1 Greenl. on Ev. § 444; Phillips & Amos 
 on Ev. 905.) But in this State it is settled, that a party cannot 
 discredit his own witness, by showing that he had previously 
 made statements contradictory to, or inconsistent with, his evi- 
 dence. {4: Den. 112; 111111,^24.; 4 Barb. 324; but see Thomp- 
 son vs. Blanchard, supra.) 
 
 (3.) Qross-examination. 
 
 When a witness has been examined in chief, the opposite 
 party is allowed to cross-examine him, and, as a cross-examinar 
 
378 NEW YORK JUSTICE. 
 
 tion affords one of the best securities against incomplete, gar- 
 bled, or false evidence, great latitude is allowed in putting the 
 questions. It is not easy for a witness, who is subjected to the 
 test of a rigid cross-examination, to impose upon the Justice or 
 the jury; for, however artful the fabrication of a falsehood may 
 be, it can rarely embrace all the circumstances to which such a 
 cross-examination may be extended. {Phillips & Amos on Ev. 
 908.) Indeed, so highly is this power of cross-examination 
 valued, that if, through the misconduct of the witness, or the 
 fault or negligence of the party calling him, the right to exer- 
 cise it is taken away, the direct examination will not be allowed 
 to stand as evidence. (25 Wend. 651; Forrest vs. Kissam, 7 
 Hill, 463.) 
 
 If a witness is called by a party merely for the purpose of 
 producing a written instrument, which is to be proved by an- 
 other witness, he need not be sworn, and, if not sworn, will not 
 be subject to cross-examination. (1 Adolphus <& Ellis, 48.) 
 If the witness is sworn, and gives some evidence, however formal 
 the proof may be, he is made a witness for all purposes, and 
 may, therefore, be cross-examined. {Jackson vs. Varick, 7 
 Cow. 238.) 
 
 Where the adverse party chooses to exercise the right of cross- 
 examining a witness, he cannot introduce through him any proof 
 which would not have been legal, had he originally produced 
 him; {Jackson vs. Son, 2 Gaines, 178;) nor can he ask him 
 questions which assume facts to be proved that are not proved; 
 {People vs. Mather, 4 Wend. 229;) nor can he cross-examine 
 him as to a distinct collateral matter, for the purpose of after- 
 wards impeaching his testimony by contradicting him; (5 id. 
 301; Harris vs. Wilson, 7 id. 57;) and, if the witness is ques- 
 tioned as to any such collateral matter, and answers, his answer 
 is conclusive, and cannot be contradicted, {id.; 4 Pen. 502; 
 Allen vs. Bodine, 6 Barb. 388.) 
 
 It is, however, proper to ask a witness whether he has not on 
 some former occasion given a different account of the matter of 
 fact to which he has already testified, in order to lay a founda- 
 tion for afterwards impeaching him. (1 Greenl. on Ev. § 567.) 
 Indeed, if it is intended to impeach him by proof of prior state- 
 ments inconsistent Avilh his present testimony, it is necessary to 
 interrogate him as to those statements, and to call his attention 
 
MODE OF EXAMINING WITNESSES. 379 
 
 to the time, place, and person, when, where, and to whom they 
 are alleged to have been made. (17 Wend. 419; 2 Barb. 210; 
 Sprague vs. Caldwell, 12 Barb. 516.) And the fact that the 
 witness was examined under a commission, does not vary the 
 rule, though the statements are alleged to have been made after 
 such examination. (19 Wend. 437; Brown vs. Kimball, 25 id. 
 259.) Nor is it irrelevant to inquire of a witness whether he 
 does not entertain, or has not expressed, feelings of hostility 
 towards the person against whom he is called. [^StarJc vs. The 
 People, 5 Den. 106.) If he denies having expressed such feel- 
 ings, and his attention has been properly called to the time, 
 place, and person, he may be contradicted. (7 Connecticut Rep. 
 66.) 
 
 Leading questions are admitted on the cross-examination of a 
 witness, and he may be led immediately to the point on which 
 his answei's are required. If he betrays a zeal against the party 
 cross-examining him, or shows an unwillingness to speak fairly 
 and impartially, he may be questioned with minuteness as to 
 particular facts, or even particular expressions. There can be 
 no danger in leading too much, where the witness is obstinately 
 determined not to follow. On the other hand, instances fre- 
 quently occur, where the witness is adverse to the party calling 
 him, and leans strongly to the other side, waiting for a hint to 
 shape a favorable answer. In such a case, counsel should not 
 be allowed to put into the mouth of the witness the very words 
 of the desired answer. [Phillips & Amos on Ev. 913.) 
 
 In cross-examining as to the contents of a letter, a witness 
 cannot be asked whether he wrote a letter with such and such 
 contents. He must first have the letter shown to him, and say 
 whether he wrote it. If he admits that he did, then the letter, 
 being the best evidence, must speak for itself. And, if a witness 
 is asked whether he has made representations of a particular 
 nature, counsel may be required to state whether written or 
 verbal representations are referred to; and if the former, the 
 inquiry should not be allowed, because the writing is the best 
 evidence. (1 Greenl. on Ev. \ 465.) 
 
 If the memory of a witness has been refreshed by a writing 
 put into his hands, the adverse party may cross-examine the 
 witness as to the paper, without making it his own evidence in 
 the cause. (1 Greenl. on Ev. § 466.) But if the writing was 
 
380 NEW YORK JUSTICE. 
 
 an entry in a book, the adverse party cannot cross-examine as 
 to other entries in the book, without making them his own evi- 
 dence, {id.) 
 
 (4.) Impeachment of witnesses. 
 
 After a witness lias been examined in chief, his credit may 
 be impeached in several ways: 
 
 First. The party against whom the witness is called, may 
 disprove the facts stated by him, or may examine other wit- 
 nesses as to his general character. In impeaching the credit of 
 a witness, the examination must be confined to his general 
 character, and cannot be extended to particular facts. {Phillips 
 & Amos on Ev. 923; 1 Greenl. on Ev. § 461; Buller's JV. P. 
 296.) The reason is, that if evidence of particular facts were 
 admitted, it Avould be impossible for the witness, having no 
 notice of what would be sworn against him, to come prepared 
 to give an answer to it; and thus his character might be vilified 
 without his having any opportunity of vindicating it. {Phillips 
 & Amos on Ev. 924.) 
 
 The general character of every witness may be drawn in 
 question by the party against whom he is called; and this, even 
 though the party calling him has interrogated him only as to 
 the character of another witness. (5 Den. 106, supra.) The 
 impeaching witnesses are not allowed to be selected from among 
 those who are comparatively strangers to the former witness, 
 nor from among those who have been sent to the locality of the 
 witness's residence, to inquire what his reputation is. Such 
 persons cannot show the general character of the witness, as 
 that phrase is understood in the law. General character means, 
 or rather is the estimation in which a person is held in the com- 
 munity where he has resided; and therefore, as a general rule, 
 the members of that community are the only proper witnesses 
 to testify as to such character. {Douglass vs. Toucey, 2 Wend 
 352.) 
 
 The proper mode of examination is, to inquire of the witnesses 
 whether they have the means of knowing the general character 
 of the former witness, and whether, from such knowledge, they 
 would believe him on oath. {People vs. Mather, 4 id. 229.) 
 Even if the witnesses do not know the reputation of the former 
 witness for veracity, tlicj- may, if they know his general char- 
 
MODE OF EXAMINING WITNESSES. 381 
 
 acter, be asked whether, from that general character, they would 
 believe him on oath. {Johnson vs. People, 3 Hill, 178.) Proof 
 that a witness's character, which has been slightly impeached, 
 was bad four years ago, is admissible; for there is a strong 
 probability, that the reputation of the witness, if bad four years' 
 since, continues bad, and persons who have not known him or 
 his reputation within that time, are competent to prove his rep- 
 utation at that time. (19 Wend. 192; Sleeper vs. Van Middles- 
 worth, 4 Den. 431.) 
 
 In answer to all such evidence against the character of a wit- 
 ness, the opposite party may go into a cross-examination, to 
 ascertain the grounds of the unfavorable opinions; and, in doing 
 that, he may interrogate the witnesses as to their opportunities 
 of knowing the character of the impeached witness, how long 
 and how generally the unfavorable reports have prevailed, and 
 from what particular individuals they heard them. (^People vs. 
 Math&r, 4 Wend. 258.) 
 
 Second. The credit of a witness may be impeached, by proof 
 that he has made statements out of Court, contrary to what he 
 has testified on the trial. (^Phillips & Amos on Ev. 925.) But 
 it is only in regard to such matters as are relevant, that the wit- 
 ness can be contradicted; and as we have seen, {Ante, p. 378,) 
 before this can be done, it is necessary, in the case of verbal 
 statements, to call the attention of the witness to the time, 
 place, and person, when, where, and to whom the contradic- 
 tory statement is alleged to have been made. (19 Wend. 437; 
 25 id. 259; Palmer ys. Haight, 2 Barb. 210.) It is not enough 
 to ask the witness whether he has ever said so and so, and 
 whether he has always told the same story, but his attention 
 must be called to the particular conversation in which the con- 
 tradictory statement was made. (1 Cfreenl. on Ev. § 462.) The 
 declarations of a witness, after he has left the stand, are ad- 
 missible to impeach him. 
 
 (5.) Re-direct examination. 
 
 After a witness has been cross-examined respecting a formei 
 statement made by him, the party who called him has a right 
 to re-examine him as to the same matter. {Phillips & Amos 
 on Ev. 940; 1 Oreenl. on Ev. § 467.) The object of this ex- 
 amination is, to give the witness an opportunity of showing the 
 
382 NEW YOKK JUSTICE. 
 
 consistency of his statements, and of vindicating his character. 
 The counsel calling the witness has a right, upon such re-exam- 
 ination, to ask all questions which may be proper to draw forth 
 an explanation of the sense and meaning of the exjjressions 
 used by the witness on cross-examination, if they are in them- 
 eelves doubtful, and also an explanation of the motives by 
 which the witness was induced to use those expressions; but 
 he has no right to go farther, and to introduce matter new in 
 itself, and not suited to the purpose of explaining either the 
 expressions or the motives of the witness. The re-examination 
 is to be confined to showing the true color and bearing of the 
 matter elicited by the cross-examination. New facts or new 
 statements, not tending to explain the witness's previous an- 
 swers, ought not to be allowed. {Phillips (& Amos on Ev. 940; 
 1 Oreenl. on Ev. § 467.) If the counsel choose to cross-examine 
 a witness as to facts which are not admissible in evidence, the 
 other party has a right to re-examine him as to the evidence so 
 given, (id. § 468.) 
 
 (6.) Sustaining impeached witnesses. 
 
 For the purpose of corroborating a witness whose veracity 
 has been impeached, it has been deemed reasonable to admit 
 general evidence, that he is a man of strict integrity, and of a 
 scrupulous regard for truth. 
 
 The general rule is, that a party can give evidence of the 
 good character of his witness, only where impeaching witnesses 
 have been called on the other side — that is, such as have 
 spoken against his general character, and not such as have 
 merely given a different account of the facts, or proved that he 
 has made declai-ations out of Court inconsistent with his testi- 
 mony. (23 Wend. 50; 3 Hill, 309; Starks vs. People, 5 Den. 
 106.) But evidence that the witness has made statements out 
 of Court, consistent with his testimony, is inadmissible. [Robb 
 vs. Hachley, 23 Wend. 50.) And evidence that the reports 
 against a witness, whose general character has been impeached, 
 originated from a particular party or body of men, and were 
 founded on a pai-ticular transaction, which had been intention- 
 ally perverted to injure his character, is also inadmissible. {Bnt 
 see Olapp vs. Wilson, 5 Den. 285.) 
 
 If a witness, called to sustain another, testifies that he ne^ er 
 
PUBLIC DOCUMENTS. 383 
 
 heard his character for truth and veracity spoken of, but that 
 he knows him, and the persons with whom he has associated, 
 he may be asked wliether he would believe him upon oath. 
 {People vs. Davis, 21 Wend. 309.) 
 
 If a witness is impeached and sustained by an equal number 
 of witnesses, it is proper for the Justice to state to the jury, 
 that the credibility of the witness is a matter for them to 
 decide; (14 id. 10-5; Bakeman vs. Rose, 18 id. 146;) but it can 
 very rarely be proper for him to state to them that they are 
 not at liberty to believe a witness. {Conrad vs. Williams, 6 
 Hill, 444.) 
 
 17. Public Documents. 
 
 "Writings are divisible into two classes, namely, public and 
 private. The former consist of the acts of public functionaries, 
 in the executive, legislative, and judicial departments of govern- 
 ment. Public writings are either judicial or not judicial; and 
 with respect to the means and mode of proving them, they may 
 be classed into those which are of record, and those which are 
 not of record. 
 
 Where writs, or other papers in a cause in a Court of Eecord, 
 are officially in the custody of an officer of the Court, he may 
 be compelled by a rule of Court to allow an inspection of them; 
 but, in regard to the records of inferior tribunals, the right of 
 inspertion is more limited. As all persons have not necessarily 
 a,n interest in them, it is not necessary that they should be open 
 to the inspection of all, without distinction. The party, there- 
 fore, who wishes to inspect the proceedings of a Justice's Court 
 should apply to the Justice, showing that he has some interest 
 in the document and that he requires it for a proper purpose. 
 
 There are records which partake both of a public and pri- 
 vate character, and are treated as the one or the other, according 
 to the relation in which the applicant stands to them. The 
 books of a corporation are public with respect to its members, 
 but private with respect to strangers. 
 
 We now proceed to consider the mode of proving public 
 documents, beginning with those which are not judicial. 
 
 (1.) Public documents not judicial. 
 The Code, § 942, provides, that printed copies in volumes, 
 -of statutes, code, or other written law, enacted by any othej' 
 
384 NEW YORK JUSTICE. 
 
 State, or Territory, or foreign government, purporting or 
 proved to have been published by the authority thereof, or 
 proved to be commonly admitted as evidence of the existing 
 lavir in the Courts and judicial tribunals of such State, Territory, 
 or government, shall be admitted by the Coui'ts and officers of 
 this State, on all occasions, as presumptive evidence of such 
 laws. The unwritten or common law of any other State, oi 
 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. 
 
 All laws passed by the Legislature of this State may be read 
 in evidence from the volumes printed under the direction of the 
 Secretary of State. {Code, § 922; Wood vs. Jefferson Co. BTc., 9 
 Cow., 194.) Any person residing in this State may publish 
 the whole or any part of the Revised Statutes ; but, to entitle 
 any copy of a law so published, to be read in evidence, tliere 
 must be contained in the book or pamphlet a printed certifi- 
 cate of the Secretary of State, or of two of the revisers, that 
 the copy is a correct transcript of the text of the Revised 
 Statutes as published, except such typographical errors in the 
 original as may be corrected in such co^j, and except such parts 
 as have been altered by acts of the Legislature ; and that, with 
 respect to such parts, it conforms to the acts by which such 
 alterations have been made. {Laws of 1830, chap. 259.) 
 
 The Courts of this State take judicial notice of the civil di- 
 visions of this State created by statute, (4 Oow. 345; lid. 429; 
 Gluipman vs. Wilber, 6 Hill, 475,) and of the Constitution of 
 the United States, and the acts of Congress in pursuance thereof 
 (10 Wend. 75; 12 id. 311; 14 id. 507; But see U. S. Bankvs. 
 Stearns, 15 Wend. 314.) But they do not talce official notice 
 of the laws of other States. {Hosford vs. Nichols, 1 Paige, 220.) 
 It is a general rule that a party seeking advantage from a foreign 
 law, or from the law of another State of the Unien, must prove 
 its existence, as matter of fact, by evidence. (22 Barb. 118; 
 Throop vs. Hatch, 3 Abbott, 23.) The journals of the Legis- 
 lature may be proved by the copies printed by the authority 
 of either house. {Root vs. King, 7 Oow. 613.) 
 
PUBLIC DOCUMENTS. 385 
 
 (2.) Records and judicial writings. 
 Records are proved, either by the mere production of them, or 
 by a copy. Copies of records are either exemplifications, or 
 copies made by an authorized officer, or sworn copies. Exem- 
 plifications are either under the great seal, or under the seal of 
 the particular Court where the record remains. (1 Greenh on 
 Ev. \ 501.) 
 
 In proving a record by a copy under seal, the great seal of a 
 Stt(f e, and the seals of the Supreme Courts of Justice, and of all 
 Courts established by public statutes, are recognized without 
 proof So, too, no extraneous proof is required of the seal of 
 any Department of State, or public office established by law, 
 and required or known to have a seal. {id. § 503.) 
 
 The Constitution of the United States provides, (§ 1,) that 
 tuU faith and credit shall be given, in each State, to the public 
 acts, records, and judicial proceedings of every other State, and 
 that Congress may, by general laws, prescribe the manner in 
 which such acts, records, and proceedings shall be proved, and 
 the effect thereof. It has accordingly been enacted, (U. 8. 
 R&oised Statutes, § 905,) that the acts of the Legislatures of the 
 several States shall be authenticated by having the seals of their 
 respective States affixed thereto ; that the records and judicial 
 proceedings of the Courts of any State shall be proved or 
 admitted in any other Court within the United States, by the 
 attestation of the clerk, and the seal of the Court annexed, if 
 there be a seal, together with a certificate of the Judge, Chief 
 Justice, or presiding magistrate, as the case may be, that 
 said attestation is in due form ; and that the said records and 
 judicial proceedings, authenticated as aforesaid, shall have 
 such faith and credit given to them in every Court within 
 the United States, as they have by law or usage in the Courts 
 of the State from whence the said records are or shall be taken. 
 These provisions are, by a subsequent act, extended to the 
 Courts of all Territories subject to the jurisdiction of the United 
 States. 
 
 The mode of authentication thus provided by Congress is not 
 exclusive of any other which the States may adopt. The judi- 
 cial proceedings referred to in the act of Congress are under- 
 stood to be the proceedings of Courts of general jurisdiction, 
 
386 NEW VORK JUSTICE. 
 
 and not those of merely municipal authority. Accordingly it 
 has been held, that the judgments of Justices of the Peace are 
 not within the act or the constitutional provision. (1 Greenl. 
 on JEv. 505.) 
 
 The proof of records by a sworn copy, is by producing a wit- 
 ness who has compared the copy with the original, or with what 
 the .officer of the Court, or any other person, read as the con- 
 tents of the record. (1 Greenl. on Ev. \ 508.) 
 
 There are various statutory provisions in regard to the mode 
 of proving records and judicial writings, which may properly 
 be given here: 
 
 In cases where by law the affidavit of any person residing in 
 another State of the United States, or in any foreign country, 
 is required, or may be received, in judicial proceedings in this 
 State, to entitle the same to be read, it must be authenticated 
 as follows: 1. It must be certified by some Judge of a Court 
 having a seal, to have been subscribed and taken before him, 
 specifying the time and place where taken; 2. The genuineness 
 of the signature of said Judge, the existence of the Court, and 
 the fact that such Judge is a member thereof, must be certified 
 by the clerk of the Court under the seal thereof. (2 R. 8. 
 396, § 26.) A substantial compliance with the provisions of 
 this statute is all that is requisite. (12 Wend. 225; M. & M. 
 BanJc vs. Cowden, 3 Hill, 461.) 
 
 The records and judicial proceedings of any Court in a foreign 
 country may be admitted in evidence in the Courts of this State, 
 upon being authenticated as follows: 1. By the attestation of 
 the clerk of such Court, with the seal of such Court annexed, 
 or of the officer in whose custody such records are legally kept, 
 with the seal of his office annexed; 2. By a certificate of the 
 Chief Justice, or presiding magistrate, of such Court, that the 
 person attesting such record is the clerk of the Court, or that 
 he is the officer in whose custody such record is required by 
 law to be kept; and, in either case, that the signature of such 
 person is genuine; and, 3. By the certificate of the Secretary 
 of State, or other officer of the government under whose au- 
 thority such Court is held, having the custody of the great or 
 principal seal of such government, purporting that such Court 
 is duly constituted, specifying generally the nature of its juris- 
 diction, and verifying the signature of the clerk or other officer 
 
DOCUMENTARY EVIDENCE. 387 
 
 having tlie custody of such record, and also verifying the sig- 
 nature of the Chief Justice or presiding magistrate. {Code, 
 § 962.) 
 
 Copies of such records and proceedings in the Courts of a 
 foreign country, may also be admitted in evidence, upon due 
 proof, 1. That the copy offered has been compared by the wit- 
 ness with the original, and is an exact transcript of the whole 
 of such original; 2. That such original was in the custody of 
 the clerk of the Court, or other officer legally having charge 
 of the same; and, 3. That such copy is duly attested by a seal, 
 which shall be proved to be the seal of the Court in which 
 such record or proceeding shall be. {id. § 953.) 
 
 The preceding sections do not prevent the proof of any 
 record or judicial proceeding of the Courts of any foreign 
 country, according to the rules of the common law, in any other 
 matter than that herein directed, nor are they to be construed 
 as declaring the effect of any record or judicial proceeding 
 authenticated as therein prescribed. (2. E. S. 397. § 28) 
 
 A transcript of the docket of any Justice of the Peace of 
 any town, city or county in any adjoining State, of any judg- 
 ment had before him; of the proceedings in the cause before 
 such judgment; of his jurisdiction in said cause; of the execu- 
 tion issued thereon, if any; and of the return of said execution, 
 if any; when subscribed by such Justice, and verified in the 
 manner prescribed in the next succeeding section, is deemed 
 presumptive evidence to prove the facts stated in such tran- 
 script. {Code of 1878, § 948.) To entitle such transcript to • 
 be read in evidence, there must be attached thereto a certifi- 
 cate of the said Justice, that the said transcript is in all respects 
 correct, and that he, the said Justice, had jurisdiction of 
 the said cause; and also, a further certificate of the clerk or 
 prothonotary of the county in which such Justice resided at 
 the time of rendering said judgment, under the seal of the 
 Court of Common Pleas of said county, specifying that the 
 person subscribing such transcript was, at the date of such 
 judgment, a Justice of the Peace of said county, and that the 
 signature thereto is in his own proper hand-writing. (§ 949.) 
 Such judgments and proceedings, and the authority to render 
 such judgment, may also be proved by the Justice who ren- 
 dered such judgment, by producing his docket or a copy of 
 
388 NEW YOEK JUSTICE. 
 
 the said judgment in court, and appearing, and being sworn 
 and examined as a witness to the truth and correctness thereof, 
 and of his authority to render such judgment. (^Cods, § 950.) 
 l^othing in this statute contained is to be construed to prevent 
 the introduction of evidence to controvert any and all parts of the 
 proof in relation to the validity of said judgment so rendered in 
 an adjoining State, {jd. § 951.) 
 
 A copy of any record and proceeding of the District and 
 Circuit Courts of the United States, may be received in evi- 
 dence in all Courts of this State, when certified by the clerk 
 or officer in whose custody the same is required by law to 
 be, to have been compared by him with the original, and to 
 be a correct transcript therefrom, and of the whole of such 
 original, and attested by the official seal of such officer. (Code, 
 § 943.) 
 
 A copy of any act, proceeding, record, document, roll, war- 
 rant, order, or other paper or writing, now or hereafter re- 
 maining in any of the Departments of the government of the 
 United States, may, when certified by the head or acting chief 
 officer at the time being of such Department, to have been com- 
 pared by him with the original, and to be a correct transcript 
 therefrom, and of the whole of such original, and attested by 
 the seal of his Department, be given in evidence in all Courts 
 of this State, with the like effect as the orignal. {Code, § 944.) 
 But this does not prevent the proof of such record, act, pro- 
 ceeding, document, roll, warrant, order, or other paper or writ- 
 ing, according to the rules of the common law, or in any other 
 manner. 
 
 We shall hereafter give {post, part I., chap. 15) the statutory 
 provisions in regard to the mode of proving judgments and 
 other proceedings had before Justices of the Peace. 
 
 (3.) Documentary Evidence generally. 
 
 The following are statutory provisions in regard to docu- 
 mentary evidence : 
 
 Aliens, Depositions q/".] Certified copies of the depositions 
 filed in the office of the Secretary of State by aliens, in order 
 to enable them to hold real estate, ai"e evidence of the facts 
 therein contained. {Laws of 1834, chap. 272.) 
 
 Attorney, Letters of.] Every letter of attorney or other in- 
 
DOCUMENTARY EVIDENCE. 389 
 
 strument, containing a power to convey lands as agent or attor- 
 ney for the owner of such lands, and every executory contract 
 for the sale or purchase of lands, when proved or acknowledged 
 in the manner prescribed in the statute, may be recorded in the 
 clerk's office of any county, in which any real estate, to which 
 such power or contract relates, may be situated ; and, when so 
 proved or acknowledged, and the record thereof when recorded, 
 or the transcript of such record, may be read in evidence, in 
 the same manner and with the like eflfect as a conveyance re- 
 corded in such county. (1 R. 8. 762, § 39.) 
 
 Certificates to documentary evidence, Form q/".] Whenever a 
 certified copy of any affidavit, record, document, or other paper 
 is declared by law to be evidence, such copy must be certified 
 by the clerk, or officer in whose custody the same is required 
 by law to be, to have been compared by him with the original, 
 and to be a correct transcript therefrom, and of the whole of 
 such original ; and if such officer have any official seal hj law, 
 such certificate must be attested by such seal ; and if such cer- 
 tificate be given by the clerk of any county, in his official char- 
 acter as such clerk, it must be attested by the seal of the Court 
 of Common Pleas of the county of which he is clerk. {Code, 
 sec. 933.) Copies of records in the office of a clerk of a board 
 of supervisors, certified by such clerk, with the seal of the 
 office, are made, by statute, evidence, like the originals. {id. 
 §933.) 
 
 Canal maps.^ A transcript from the original canal maps, or 
 from a copy thereof, certified as correct by the comptroller or 
 county clerk with whom such map or copy may be filed, is to 
 be received as presumptive evidence in all judicial or legal 
 proceedings. (1 R. ^. 218, § 7 ; Code, § 933.) 
 
 The original maps of the canals of this State, which purport 
 to have been made and comphited under and in virtue of the 
 first article of title nine, chapter nine, of the first part of the 
 Revised Statutes, which said maps are now filed in the office of 
 the comptroller ; and such maps of said canals as hereafter shall 
 be made, completed, approved, signed, certified and filed under 
 and in virtue of the act referred to, are by law declared to be 
 presumptive evidence that the lands indicated on said maps as 
 belonging to this State, have been taken and appropriated by 
 the State as and for the canals ; and a transcript from any such 
 
390 NEW YORE JUSTICE. 
 
 maps, certified as required by the act referred to, are of equal 
 effect with the original. {Laws of 1837, cha'p. 451, § 6.) 
 
 Qanal contractors' bonds.^ Actions on canal contractors' bonds 
 may be commenced before Justices of the Peace, when the 
 amount claimed does not exceed their jurisdiction ; and, in such 
 actions, transcripts of such bonds, duly authenticated by the 
 clerk of the county with whom the originals of such bonds are 
 filed, may be used as evidence In such actions. {Laws of 1850, 
 chap. 278, § 2.) 
 
 Chattel onortgages, Copies o/".] A copy of any chattel mort- 
 gage, or of a copy there of filed pursuant to the statute. Including 
 any statement of the Interest of the mortgagee In the property 
 claimed by him by virtue of such mortgage, certified by the 
 clerk or register in whose office the same is filed. Is to be re- 
 ceived In evidence, but only of the fact that such mortgage or 
 copy, and statement, was received and filed according to the 
 endorsement of the clerk or register thereon, and of no other 
 fact ; and in all cases the original endorsement by the clerk or 
 register, made In pursuance of the statute, upon such mortgage 
 or copy, Is to be received in evidence only of the facts stated in 
 such endorsement. {Laws of 1833, clmp. 279, § 5/ Code, §933.) 
 
 Common Council of New Yorh, Proceedings o/".] Every act, 
 ordinance, resolution or proceeding of the common council of 
 the city of New York may be read in evidence In all Courts of 
 Justice in this State, either, 1. From a copy of such act, ordi- 
 nance, resolution or proceeding, certified by the clerk of the 
 common council, with the seal of the corporation affixed ; or 2. 
 From the volume of ordinances printed by authority of the com- 
 mon council. The charter of the city of New York may be 
 read in evidence from the volume containing such charter, 
 printed by authority of the common council, or from a copy 
 certified by the clerk of the common council. A copy of the 
 proceedings of either chamber of the common council, certified 
 by the clerk thereof, may be read in evidence in all Courts of 
 Justice of this State. A certificate of the Mayor of New York, 
 or of the clerk of the common council, of the granting or re- 
 newal of any license, may be read in evidence in any Court of 
 Justice in this State, to prove the existence of such license. 
 The proceedings of the board of health may be read in evidence 
 from a copy of such proceedings, certified by thp secretary of 
 
DOCUMENTARY EVIDENCE. 391 
 
 the board of health, or the presiding officer of such board. All 
 proclamations by the mayor of the city of New York may be 
 proved in all Courts of Justice, by producing a copy of such 
 proclamation, with the certificate of the mayor that the same is 
 a copy, and has been published according to law. {Laws of 
 1832, chap. 158.) The volumes entitled " The special and local 
 laws affecting public interests in the city of New York " may be 
 read in evidence. {Laws of 1882, chap. 410, § 1107.) 
 
 Conveyances, (&c., Certificates of proof and acknowledgment 
 o/".] Every conveyance, acknowledged or proved and certified 
 in the manner prescribed by law, {post, part III. chap. 1), be- 
 fore any of the officers duly authorized by statute, may be read 
 in evidence without further proof thereof, and is entitled to be 
 recorded. (1 R. S. 759, § 16.) 
 
 To entitle any conveyance to be recorded or read iu evi- 
 dence, it must be acknowledged by the party or parties execu- 
 ting the same, or be proved by a subscribing witness thereto, 
 before some one of the following officers : 1. If acknowledged 
 or proved within this State, the Justice of the Supreme Court, 
 County Judges, mayors and recorders of cities, commissioners 
 of deeds, and Justices of the Peace in towns; (but no County 
 Judge or commissioner of deeds for a city, or Justice of the 
 Peace in a town, can take any such proof or acknowledgment 
 out of the city or county for which he was appointed.) 2. If 
 acknowledged or proved out of this State, and within the United 
 States, the Chief Justice and Associate Justices of the Supreme 
 Court of the United States, District Judges of the United States, 
 the Judges or Justices of the Supreme, Superior, or Circuit 
 Court of any State or Territory within the United States, and 
 the Chief Judge or any Associate Judge of the Circuit Court of 
 the United States in the District of Columbia; (but no such offi- 
 cer can take any such proof or acknowledgment out of the place 
 or territory to which the jurisdiction of the Court to which he 
 belongs extends.) {id. 756, § 4.) 
 
 Notaries Public shall also have power to take affidavits and 
 certify to the same, and to take and certify the acknowledgment 
 and proof of deeds and other instruments in writing in all cases 
 where Justices of the Peace or commissioners of deeds may now 
 take and certify the same. {Laws o/^ 1863, chap. 508.) 
 
 If any party or parties executing such conveyance, be, or 
 reside, in any State or kingdom in Europe, or in North or South 
 
392 NEW YORK JUSTICE. 
 
 America, the same may be acknowledged or proved before any 
 minister plenipotentiary, or any minister extraordinary, or any 
 charge des affaires, of the United States, resident and accredited 
 within such State or kingdom. If such parties be, or reside, in 
 France, such conveyance may be acknowledged or proved before 
 the consul of the United States appointed to reside at Paris ; 
 and if such parties be, or reside, in Russia, such conveyance 
 may be acknowledged or proved before the consul of the United 
 States appointed to reside at St. Petersburgh. (1 R. 8. 757, § 5.) 
 If the party to such conveyance be, or reside, within the 
 United kingdom of Great Britain and Ireland, or the dominions 
 thereunto belonging, the same may be acknowledged or proved 
 before the mayor of the city of London, the mayor or chief 
 magistrate of the city of Dublin, or the provost or chief magis- 
 trate of the city of Edinburgh, or before the mayor or chief 
 magistrate of Liverpool, or before the consul of the United 
 States appointed to reside at Loudon, (id. § 6.) 
 
 Such proof or acknowledgment, duly certified under the hand 
 and seal of office of such consuls or of the said mayors or chief 
 magistrates respectively, or of such minister or charge des affaires, 
 has the like force and validity as if the same were taken before 
 a Justice of the Supreme Court of this State, (id. § 7.) 
 
 The acknowledgment or proof of a deed or mortgage, made 
 or taken before the mayor of either of the cities of Philadelphia 
 or Baltimore, or before any consul of the United States resident 
 in any foreign port or country, or before a Judge of the highest 
 Court in Upper Canada, or Lower Canada, and certified by them 
 respectively, is as valid and effectual as if taken before one of 
 the Justices of the Supreme Court of this State. {Laws of 1829, 
 chap. 222.) 
 
 Every acknowledgment or proof of a deed or mortgage made 
 or taken before the mayor of any city in the United States, and 
 certified by him, is as valid and effectual as if taken before one 
 of the Justices of the Supreme Court of this State. {Laws of 
 1843, chaj). 109.) 
 
 The acknowledgment of any deed, mortgage, or other convey- 
 ance of any real estate within this State, and of any contract in 
 relation to such real estate, and of any power of attorney au- 
 thorizing the conveying, mortgaging, or othenvise disposing of 
 such real estate, or of making any contract in relation thereto, 
 
DOCUMENTARY EVIDENCE. 393 
 
 which has been or shall be executed by an officer or soldier of 
 the army of the United States, employed at the time of making 
 such acknowledgment within the territory of the republic of 
 Mexico, may be taken within such territory before, and certified 
 by, any major-general, brigadier-general, or colonel of the said 
 army, to whom the person making such acknowledgment shall 
 be personally known at the time of making the same. The cer- 
 tificate of any acknowledgment, taken and certified by virtue 
 of this act, must state the place at which it is taken, and the 
 fact that the person making the same is an officer or soldier of 
 the said army, of which fact such acknowledgment shall be pre- 
 sumptive evidence. Every acknowledgment so taken and certi- 
 fied has the same force and efiect in all respects as if the same were 
 taken and certified within this State by an officer authorized by 
 law to take and certify the same. {Laws of 1847, chap. 170.) 
 
 The proof or acknowledgment of any deed or other written 
 instrument required to be proved or acknowledged, in order to 
 entitle the same to be recorded or read in evidence, when made 
 by any person residing out of this State, and within any othei 
 State or Territory of the United States, may be made before any 
 officer of such State or Territory, authorized by the laws thereof 
 to take the proof and acknowledgment of deeds; and when so 
 taken and certified as herein provided, is entitled to be recorded 
 in any county in this State, and may be read in evidence in 
 any Court in this State, in the same manner and with like 
 efiect as proofs and acknowledgments taken before any of the 
 officers now authorized by laiv to take such proofs and acknowl- 
 edgments. But it is provided, that no such acknowledgment 
 shall be valid unless the officer taking the same knows or has 
 satisfactory evidence that the person making such acknowledg- 
 ment is the individual described in and who executed the said 
 deed or instrument. {Laws of 1848, chap. 195, § 1.) To en- 
 title any conveyance or other written instrument, acknowledged 
 or proved under the preceding section, to be read in evidence 
 or recorded in this State, there must be subjoined or attached 
 to the certificate of proof or acloiowledgment, signed by such 
 officer, a certificate under the name and official seal of the cleik, 
 register, recorder, or prothonotai'v of the county in which such 
 officer resides, or of the County or District Court, or Court of 
 Common Pleas, thereof, specifj-ing that such officer was, at the 
 
394 NEW YORK JUSTICE. 
 
 time of taking such proof or acknowledgment, duly authorized 
 to take the same, and that such clerk, register, recorder, or pro- 
 thonotary is well acquainted with the hand-writing of such 
 officer, and verily believes that the signature to such certiiicate 
 of proof and acknowledgment is genuine. [Laws of 1848, 
 cJiap. 195, § 2; Laws of 1856, chap. 61.) 
 
 Commissioners appointed by the Governor of this State in 
 other States and Territories of the United States, and in the 
 District of Columbia, are authorized to take the acknowledg- 
 ment and proof of the execution of any deed, mortgage, lease 
 or other, conveyance of any lands lying in this State, or of any 
 contract, assignment, transfer, letter of attorney, satisfaction of 
 a judgment, or of a mortgage, or of any other writing or in- 
 strument under seal, to be used or recorded in this State, also 
 to administer an oath or affirmation to any person or persons 
 who may desire to make such oath or affirmation. {Laws of 
 1850, chap. 270, § 1.) Any acknowledgment or proof taken 
 in the manner directed by law with respect to the taking of the 
 same Avithin this State, and certified by any such commissioner 
 by whom the same is taken, under his hand and official seal, 
 such certificate to be endorsed on the instniment, is, when au- 
 thenticated as hereafter provided, entitled to be recorded in 
 any county in this State, and has the same force and eiFect, and 
 is as good and available in law for all purposes, as if taken 
 before an authorized officer residing in this State; and any affi- 
 davit or affirmation made before any such commissioner, certified 
 and authenticated as aforesaid, may be read in evidence, and is 
 as good and efiectual to all intents and purposes, as if taken 
 and certified by an authorized officer residing in this State. 
 (id. \ 2.) Before any such deed, instrument, oath, or affirma- 
 tion, is entitled to be used, recorded, or read in evidence, there 
 must be subjoined or affixed to the certificate of the commis- 
 sioner, a certificate under the hand and official seal of the 
 Secretary of State of this State, certifying that such commis- 
 sioner was, at the time of taking such proof or acknowledg- 
 ment, or of administering such oath or affirmation, duly 
 authorized to take the same, and that the Secretav}^ is ac- 
 qfuainted with the hand-writing of such commissioner, or has 
 compared the signature to such certificate with the signature 
 of such commissioner deposited in his office, and has also com- 
 
DOCUMENTAKT EVIDENCE. 395 
 
 pared the impression of the seal affixed to such certificate, with 
 the impression of the seal of such commissioner deposited in 
 his office, and that he A'erily believes the signature and the 
 impression of the seal of the said certificate to be genuine. 
 {Laws of 1850, chap. 270, §§ 4, 5.) No such commissioner can 
 take any proof or acknowledgment, or administer ai:y oath or 
 affirmation, at any place other than within the city and county 
 within which he resides at the time of his appointment, (1 R. S. 
 756, § 4,) and every certificate of such commissioner must spe- 
 cify the day on which, and the city or town and county within 
 wliich, the proof or acknowledgment was taken, or the oath 
 or affirmation administered, and Mathout such specification the 
 certificate is void. {Laws of 1850, chap. 270, § 4.) 
 
 "When any married woman, not residing in this State, joins 
 with her husband in any conveyance of real estate situated 
 within this State, the conveyance has the same effect as if she 
 were sole; and the acknowledgment or jjroof of the execution 
 of such conveyance by her may be the same as if she were 
 sole. (1 R. S. 758, § 11.) So where a resident wife conveys 
 her propertj^ since 1848. {Blood vs. Humphrey, 17 Barh. 660.) 
 
 The record of a conveyance duly recorded, or a transcript 
 thereof, duly certified, may also be read in evidence, with the 
 like force and effect as the original conveyance. Neither the 
 certificate of the acknowledgment, or of the ]Droof, of any con- 
 veyance, nor the record, or the transcript of the record, of such 
 conveyance, is conclusive, but may be rebutted, and the force 
 and effect thereof may be contested by anj^ party affected 
 thereby. If the partj'^ contesting the proof of a convej^ance, 
 makes it appear that such proof was taken upon the oath of 
 an interested or incompetent witness, neither such conveyance, 
 nor the record thereof, can be received in evidence, mitil estab- 
 lished by other competent proof {id. 759, § 17.) 
 
 Where any conveyance is proved or acknowledged before 
 any Judge of the county courts, not of the degree of counsellor 
 at law in the Supreme Court, or before any commissioner of 
 deeds appointed for any cit}', or before any Justice of the 
 Peace in a town, it is not entitled to be read in evidence, or to 
 be recorded, in any other county than that in which such Judge, 
 or commissioner, or Justice resides, unless, in addition to the 
 otlier requisites prescribed by law^ there is subjoined to the 
 
396 NEW YORK JUSTICE. 
 
 certificate of proof or acknowledgment signed by such Judge, 
 commissioner, or Justice, a certificate under the hand and official 
 seal of the clerk of the county in which such Judge, or commis- 
 sioner, or Justice resides, specifying that such Judge, or com- 
 missioner, or Justice was, at the time of taking such proof or 
 acknowledgment, duly authorized to take the same, and that the 
 said clerk is well acquainted with the hand-writing of such 
 Judge, or commissioner, or Justice, and verily believes that the 
 signature to the said certificate of proof or acknowledgment is 
 genuine. (1 R. 8. 759, § 18.) The certificate of the proof or 
 acknowledgment of every conveyance, and the certificate of the 
 genuineness of the signature of any Judge, or commissioner, or 
 Justice, in the cases in which such last mentioned certificate is 
 required, must be recorded together with the conveyance so 
 proved or acknowledged; and unless the said certificate be so 
 recorded, neither the record of such conveyance, nor the tran- 
 script thereof, can be read or received in evidence, {id. § 20.) 
 
 To entitle the transcript of any i-ecord of any conveyance 
 which has been recorded, and of the certificate of the acknowl- 
 edgment or proof thereof and of the genuineness of any signa- 
 ture to such certificate, to be read in evidence, the same must 
 be certified to be a true copy of such record, by the clerk of the 
 county in whose custody the same is, under the seal of the county 
 court of the county of which he is clerk, or by the register of 
 the city and county of New York, when such record is in his 
 custody, {id. 761, ^ 26.) 
 
 Every conveyance of real estate situated without this State, 
 and which is acknowledged or proved in the manner prescribed 
 by the laws of this State in relation to conveyances of lands 
 within this State, may be read in evidence in any Court without 
 further jjroof thereof, in the same manner and with the same 
 effect as if such conveyance related to real estate within this 
 State; but this section cannot be construed to prevent the read- 
 ing in evidence of any conveyance of lands within any other of 
 the United States, which has been duly authenticated according 
 to the laws of such State, so as to be read in evidence in the 
 Courts thereof {id. 761, § 27.) 
 
 A copy of any deed, conveyance, or other instrument in writ- 
 ing, relating to, or in any manner affecting, the title to any real 
 estate, Avhich is or may be recorded or filed in the office of the 
 
DOCUMENTARY EVIDENCE. 397 
 
 Secretary of State, upon being certified by the said Secretary 
 in the manner required by law to entitle the same to be read in 
 evidence, may be recorded in the office of the clerk of any county 
 in this State, or in the office of the register of deeds in the city 
 of New York, with the Secretary's certificate; and such record, 
 and a duly certified copy thereof, may be read in evidence, in 
 the same manner and with the like effect as the record of a 
 conveyance of real estate situate in such county, originally 
 recorded in the said clerk's office, or in the office of said 
 register. {Laws of 1839, chap. 295, § 5.) 
 
 The copy of any record, or of any recorded deed or instru- 
 ment, attested and authenticated in such manner as would by 
 law entitle it to be read in evidence, may, on proof of the loss 
 of the original and of the record, be again recorded, and such 
 record will have the same efiect as the original record. {Laws 
 of 1843, chap. 210, § 5.) 
 
 Any will duly proved, with the proofs, and certificate of proof, 
 may be recorded in any county clerk's office, or in the register's 
 office of the city and county of New Yoi'k, and so may any 
 exemplification of the record of any such will from any office 
 where the same may be recorded. The record of such will or 
 exemplification, and the exemplifications of such record, may be 
 received in evidence, and will be as effectual in all cases as the 
 original will would be if produced and proved, and may in like 
 manner be repelled by contrary proof. {Laws of 1846, chap. 
 182, § 1; Laws of 1851, chap. 277; Code, § 2633.) 
 
 An exemplification of a judgment record or decree in parti- 
 tion may be recorded in any county clerk's office, or in the 
 register's office of the city and county of New York, according 
 to the situation of the lands described therein; and such record, 
 or an exemplification thereof, is entitled to be received in 
 evidence, and is as effectual in all cases as the original exempli- 
 fication would be if produced, and is open to the same objections. 
 {Laws of 1848, chap. 182, § 2 ; Code, § 933.) 
 
 A recent act, {Laws of 1858, chap. 259,) further provides as 
 follows: Any deed, or conveyance, or other written instrument, 
 affecting real estate within this State, proved or acknowledged 
 in any other State or Territory of the United States, where the 
 grantor or grantors of such deed or conveyance, and the officer 
 before whom the same shall be proved or acknowledged shall 
 
398 NEW YORK JUSTICK. 
 
 be dead; and where such proof or acknowledgment shall be 
 certified as herein provided, may be recorded in any county of 
 the State and may be read in evidence in any Court of this 
 State, in the same manner and with the like effect, as though 
 the same had been proved or acknowledged as required by the 
 laws of this State, provided that the death of the grantor or 
 grantors and of the officer before whom the same shall be proved 
 or acknowledged, shall be proved by the affidavit of one or more 
 persons, sworn to before some officer authorized by law to 
 administer oaths in each State or Territory and certified as herein 
 provided. {See Code, § 844.) 
 
 To entitle such deed or conveyance or other written instru- 
 ment, to be read in evidence or recorded in this State, there 
 shall be annexed to the certificate of proof or acknowledgment, 
 signed by such officer, a certificate under the name and official 
 seal of the clerk or register of the county in which such officer 
 resided, specifying that such officer was at the time of taking 
 «uch proof or acknowledgment, duly authorized to take the 
 same, and that such clerk or register is well acquainted with 
 the hand-writing of such officer, and verily believes that the 
 signature to said certificate of proof or acknowledgment is gemi- 
 ine, and that such deed or conveyance or written instrument is 
 proved or acknowledged in all respects, as required by the laws 
 of such State or Territory. There shall also be a like certificate 
 of such clerk or register, attached to the jurat or affidavit prov- 
 ing the death of the grantor or grantors, and of the officer before 
 whom the deed or written instrument was proved or acknowl- 
 edged, certifying that such officer was, at the time of taking such 
 affidavit or affidavits duly authorized to take the same, and that 
 such clerk or register is well acquainted with the hand-writing 
 of such officer, and verily believes that the signature of such 
 jurat or affidavit is genuine. Such affidavit or affidavits shall be 
 recorded with such deed or other written instrument, and be 
 presumptive evidence of the facts therein stated. 
 
 Corporations, Certificates of incorporation o/".] Certified copies 
 of the certificates of incorporation of building-associations, 
 [Laws of 1858, chap. 122, § 21,) gas-companies, (Laws of 184:8, 
 chap. 37, § 9,) and manufacturing, mining, mechanical, or chemi- 
 cal-companies, (id. chap. 40, § 9,) from the office of a county 
 clerk, are presumptive legal evidence of the facts thex-ein slated. 
 
DOCUMENTARY EVIDENCE. 399 
 
 Certified copies of the certificates of incorporation of banking- 
 associations, [Laws of 1838, chap. 260, § 17,) and telegraph- 
 companies, (^Laws of 1848, chap. 265, § 3,) from the office of the 
 Secretary of State, or of a county clerk, are presumptive legal 
 evidence of the facts therein stated. 
 
 A copy from the office of the State engineer and surveyor, or 
 of a county clerk, of the articles of association of any bridge- 
 company, tiled in pursuance of the act authorizing the incorpor- 
 ation of such company, with a copy of the affidavit of three of 
 the directors of such company, endorsed thereon, or annexed 
 thereto, expressing that the amount of stock required by said 
 act has been subscribed, and that five per cent, on the amount 
 has been actually paid, certified to be a copy by the proper offi- 
 cer, is, in all Courts and places, presumptive evidence of the 
 facts therein contained. {Laws of 1848, chap. 259, § 4.) 
 
 A copy of the articles of association of any plank or turnpike- 
 road company, formed under the general statute authorizing 
 the formation of such companies, which have been filed in pur- 
 suance of the terms of that statute, with a copy of the affidavit 
 of three of the directors of such company; certifying that the 
 amount of capital stock required by the said statute has been 
 subscribed, and that five per cent, on the amount has been ac- 
 tually paid in, certified to be a copy by the Secretary of this 
 State, or his deputy, is, in all Courts and places, presumptive 
 evidence of the incorporation of such company, and of the facts 
 therein stated. [Laws of 1847, chap. 210, § 3.) 
 
 A copy of the articles of association of any rail-road company 
 formed under the general rail-road statute, which have been 
 filed and recorded in pursuance of the terms of that statute, 
 with a copy of the affidavit of three of the directors of such 
 campany, endorsed thereon, or annexed thereto, expressing that 
 the amount of stock required by the act has been subscribed, 
 and ten per cent, paid in cash thereon, and that it is intended, 
 in good faith, to construct, or to maintain and operate, the road 
 mentioned in the said articles, certified to be a copy by the 
 Secretary of this State, or his deputy, is presumptive evidence 
 of the incorporation of such company, and of the facts therein 
 stated. {Laws of 1850, chap. 140, \ 3.) 
 
 In suits brought by (or against) a corporation created bj-, or 
 under, any statute of this State, it shall not be necessary to 
 
400 NEW YORK JUSTICE. 
 
 prove, on the trial of the cause, the existence of such corpora- 
 tion, unless the defendant shall have alleged, in the answer in 
 the action, that the plaintiffs, (or defendants, as the case may 
 be,) are not a corporation. (Laws of 1864, chap. 422, § 1.) 
 
 Corporations, Seals o/".] In all cases, when a seal of any cor- 
 poration is authorized or required by law, the same may be 
 affixed by making an impression directly on the paper, which is 
 as valid as if made on a wafer or on wax. {Laws of 1848, chap. 
 195, § 1; Code,%9m.) 
 
 County Clerks, Papers certified 5y.] Copies of all papers 
 duly filed in the office of a county clerk, and transcripts from 
 the books of records kept therein, certified by such clerk, with 
 the seal of his office affixed, are evidence in all Courts in like 
 manner as if the originals were produced, {icl.% 933.) 
 
 Depositions in perpetuam rei memoriam.J Depositions taken 
 in perpetuam rei memoriam, or certified copies thereof, may be 
 given in evidence in case of a trial between the persons named 
 as parties in the original affidavits upon which the order to take 
 such depositions was granted, or in case of a trial between the 
 persons named in such affidavits as expected parties, or between 
 any parties claiming under such persons or either of them, 
 upon due proof of the death or insanity of the witness exam- 
 ined, or of his inability to attend the trial by reason of old 
 age, sickness, or settled infirmity, (id. § 870 ; Jackson vs. Sice, 
 3 Wend. 180.) 
 
 Evidence that a woman is in an advanced state of pregnancy, 
 so that it would not be safe for her to attend the trial, is sufficient 
 evidence of sickness to justify the reading of her deposition 
 taken conditionally. {Clark vs. Dibhle, 16 id. 601.) 
 
 The depositions, so taken and read in evidence, have the same 
 efEect, and no other, as the oral testimony of the witness would 
 have, if given on such trial ; and every objection to the compe- 
 tency or credibility of such witness, or to the relevancy of any 
 question put to him, or of any answer given by him, may be 
 made in the same manner as if such witness were personally 
 examined on such trial. {Code, § 883.) 
 
 Firemen, Certificates as to service of'\ The certificate of the 
 chief engineer of fire department in any incorporated village, 
 specifying the fire company or companies in which any fireman 
 
DOCUMENTARY EVIDENCE. 401 
 
 has served for ten years, is presumptive evidence of such serv- 
 ice. {Code, % 1031.) 
 
 Insolvent'' s discharge.] The recitals in an insolvent's discharge 
 granted under the two-thirds aat, {Code, section 21S>\,) &ve con- 
 clusive evidence of the facts recited, except as to those neces- 
 sary to give the oflScer jurisdiction; as to such facts they are 
 prima fade evidence, but no more. {Stanton vs. Ellis, 2 Kern. 
 575.) 
 
 Legislative papers.] All petitions and papers presented to 
 the senate or assembly, must be kept on file in each of the 
 houses where they were originally presented; and copies of 
 said petitions or papers, certified by the clerk of the house in 
 which they were presented and filed, are prima facie evidence 
 ' thereof, wherever the same may be required within this State. 
 {Laws of 1837, chap. 140; Code, § 933.) 
 
 Land-Companies, Papers and field-notes of] Copies of 
 papers received from the Holland Land-Company, and which 
 have been recorded and put on file in the clerk's offices of the 
 counties of Genesee, Orleans, Niagara, Erie, Chautauque, and 
 Allegany, or any exemplification thereof, are, in the absence of 
 the originals, as high evidence in any Court or proceeding, as 
 the originals would be. {Laws of 1836, chap. 329.) 
 
 The original and copies of the field-notes of the Holland 
 Land-Company and the Ogden Company, when proved before 
 or certified by a Justice of the Supreme Court, are entitled to 
 be received in evidence in all Courts of Justice in this State, as 
 presumptive evidence of the facts therein contained and stated. 
 {Laws of 1850, chap. 221.) 
 
 Loan-Commissioners, Certificates of] Statements made by 
 the commissioners of loans and loan-officers, (under the loans of 
 1786, 1792, and 1808,) of the county of Ontario, of all mort- 
 gages taken by them, recorded or registered with them, and 
 which are a lien on lands situated in the counties of Yates, 
 Monroe, Orleans, Livingston, and Wayne, containing the dates 
 of such mortgages, the names of the mortgagors, a description 
 of the premises mortgaged, and the amount of moneys secured 
 to be paid by such mortgages, certified and signed by such 
 commissioners of loans or loan-officers, and filed in the offices 
 of the clerks of said counties, are deemed matters of record, 
 
 and the same, or certified copies thereof, are, in all Courts and 
 26 . .: 
 
402 NEW YORK JUSTICE. 
 
 places, evidence of the facts therein contained, in the same 
 manner as the registry of any mortgage duly registered and 
 recorded is evidence; and such transcripts, so filed, of the said 
 mortgages, have the like force and efiect as a registry or record 
 of the said mortgages under the law for the registering and 
 recording of mortgages. {Laws of 1829, chap. 91, § 5.) 
 
 Q'ho mortgages taken by the loan-commissioners of the United 
 States deposit fund, must be executed in the presence of two or 
 more witnesses, and be subscribed by them as such witnesses, 
 aiid the substance thereof must be minuted in a book to be kept 
 by the said commissioners; which mortgages and minutes are 
 matters of record ; and an attested copy of any mortgage, if in 
 being, or of any minute, in case the mortgage is lost, under the 
 hands and seals of the commissioners, is good evidence of the 
 mortgage in any court within this State. (Laws of 1837, chap. 
 150, § 27.) 
 
 Whenever any mortgaged premises are bid in by the loan- 
 commissioners of the United States deposit fund, for an amount 
 less than the principal, interest, and costs due, the comptroller 
 is required to credit such commissioners with the full amount 
 due on the mortgage at the time of the sale, on their delivering 
 to him the original mortgage, and all other securities for the 
 mortgage debt; (id. § 54;) and it is the duty of the comptroller, 
 upon the application of any person interested therein, to fur- 
 nish a certified copy, under his seal of office, of any original 
 mortgage so delivered to him ; and such certified copy must, if 
 required by the holders thereof, be recorded, together with the 
 certificate of the comptroller, in the office of the register or 
 clerk of the county in which the lands described in the said 
 mortgage are situated ; and every such certified copy, and such 
 record thereof, or a transcript of such record, may be read in 
 evidence in any Court of this State, without any further proof 
 thereof, with the like force and efiect as the said original mort- 
 gage. {Laws of 1844, chap. 326, § 2.) 
 
 The loan-commissioners of the United States deposit fund, 
 when required by any person interested in any lands sold under 
 the foreclosure of any mortgage made to them, are authorized 
 and directed to furnish a brief certificate of all or any of the 
 proceedings of the commissioners under the said act, and of the 
 proofs of such proceedings, as the same appear from the minute- 
 
DOCUMENTAKY EVIDENCE. 403 
 
 books, entries, and records kept by the said commissioners, in 
 relation to any such foreclosure and sale, so far as the same 
 may affect such lands ; and every such certificate under the 
 hands and seals of the said commissioners, or under the hand 
 and seal of any one of them, duly acknowledged or proved in 
 the manner required by law to entitle a deed of real estate to 
 be recorded, may be recorded in the ofiice of the register or 
 clerk of the county in which the said lands are situated ; and 
 ev^ery such certificate so acknowledged or proved, and the 
 record thereof, or a transcript of such record, is 'prima facie 
 evidence of the facts therein stated, and may be read in evi- 
 dence in any Court in this State. {Laws of 1844, chap. 326, 
 ^3.) 
 
 Lost papers. Certificate as to.] "Whenever any officer to whom 
 the legal custody of any document or paper belongs, certifies, 
 under his official seal, that he has made diligent examination in 
 his office for such paper, and that it cannot be found, such cer- 
 tificate is presumptive evidence of the facts so certified, in all 
 causes, matters and proceedings, in the same manner and with 
 the like effect as if such officer had personally testified to the 
 same, in the Court, or before the officer before whom such 
 cause, matter, or proceeding may be pending. {Code, % 921.) 
 
 Marriage Certificates.'] Every original marriage certificate, 
 and the original entry thereof, made in compliance with the 
 requirements of the statute, {post, part III. chap. 18,) and a 
 copy of such certificate, or of such entry, duly certified, {id.) 
 must be received in all Courts and places as presumptive evidence 
 of the fact of such marriage. {Code, § 928.) 
 
 Notary's Certificates. The dishonor of a promissory note, 
 payable at a place within a foreign State, cannot be proved by 
 the certificate of a notary. It is only in relation to foreign bills 
 of exchange that the protest of a foreign notary can be admitted 
 in evidence; and a note is not rendered a bill of exchange by 
 being made payable in a foreign place. The provisions of our 
 own statute only apply to protests made within this State, and 
 by our own notaries. And even a statute of the State within 
 which the note is made payable, declaring the notary's certifi- 
 cate of protest legal evidence, does not justify its admission in 
 the Courts of this State. {Eirtland vs. Wanzer, 2 Duer, 278.) 
 
404 NEW YORK JUSTICE. 
 
 Offices of the State Government, Papers deposited in the.^ 
 Copies of papers in the ofBce of the superintendent of the 
 banking department, duly certified by him under his official 
 seal, are evidence in all cases, equally and in like manner as 
 the originals of said papers; and an impression of such seal 
 directly on paper is as valid as if made on wafer or wax. 
 {Laws of 1851, chap. 164, § 4.) 
 
 A copy of any resolution of the board of canal commis- 
 sioners, authorizing the erection of a building on any dam, 
 pier, mole, or other work, certified by the secretary of the 
 board, is, in all cases, evidence equally and in the same man- 
 ner as the original. ( Code, § 933.) 
 
 Copies of all books and papers pertaining to the duties of 
 the auditor of the canal department, or to the duties of the 
 commissioners of the canal fund, or of the canal board, and 
 transcripts from the minutes of the proceedings of the com- 
 missioners of the canal fund and of the canal board, certified 
 by the said auditor, under his official seal, are evidence equally 
 and in like manner as the originals. {Laws of 1848, chap. 162, 
 §§ 4, 5.) 
 
 Copies of papers deposited or filed in the offices of the comp- 
 troller and surveyor-general, certified by the officer in whose 
 office they are deposited, are, in all cases, evidence equally and 
 in like manner as the originals. {Code, § 933.) 
 
 Every certificate or conveyance executed by the comptroller, 
 in pursuance of the provisions of the chapter of the Revised 
 Statutes entitled, " Of the assessment and collection of taxes," 
 may be recorded in the same manner and with the like effect as 
 a deed regularly acknowledged or proved before any officer 
 authorized by law to take the proof and acknowledgment of 
 deeds. (1 E. 8. 420, § 10.) 
 
 Copies of accoimts against persons who have balances of the 
 public money in their hands unaccounted for, duly certified by 
 the comptroller, are sufficient evidence to support an action for 
 the balances therein stated, subject to the right of the defend- 
 ants to plead and give in evidence all such matters as shall be 
 legal and proper for their defence or discharge, {id. 173, 
 §^ 24, 28.) 
 
 The comptroller is authorized to insert at the head of each 
 column on the first page of each of the several books of sales 
 
DOCUMENTAKY EVIDENCE. 405 
 
 of lands for taxes in his office, a brief statement of what the 
 w^ords or abbreriations or figures contained in the several col- 
 umns are intended to represent. {Laws of 1849, chap. 180, 
 § 1.) He is also authorized to insert in any certified copy given 
 by him from any part of the books aforesaid, at the head of the 
 respective columns therein, the statement at the head of the 
 corresponding column in the book from which it was made, 
 with the same effect as if the column from which such copy was 
 taken were headed in like manner, (id. § 2.) He is also au- 
 thorized to furnish extracts from the returns of his department 
 of unpaid taxes, and from the tax books therein in reference to 
 any lot or piece of land, certifying that such extract contains 
 all that is stated in such return or book relating to such lot or 
 piece of land, and such certified extract may be read in evi- 
 dence in all Com-ts and proceedings with the same effect as the 
 original return or book. {id. % 3.) 
 
 All copies of records and papers in the office of the Secre- 
 tory of State, certified by him, and authenticated by the seal 
 of his office, are, in all cases, evidence equally and in like man- 
 ner as the originals. ( Code, % 933.) 
 
 Plank and tumpihe-roads, Transfer books o/".] The transfer 
 books of plank and turnpike-road companies formed under the 
 general law, are presumptive evidence of the facts therein 
 stated, in favor of the plaintiff, in any suit or proceeding 
 against such company, or against any one or more stockhold- 
 ers, or against such company and one or more stockholders 
 jointly. {Laws of 1847, chap. 210, § 43.) The appropriate 
 evidence of the completion of a plank road, or of a sufficient 
 portion thereof to justify the erection of toll-gates and the 
 exaction of toll, is the inspector's certificate. Certificates, un- 
 certain in respect to the portion of the road to which they are 
 intended to apply, or as to the fact of the three miles required 
 being consecutive miles, are fatally defective, and parol evi- 
 dence is inadmissible to help them. {H. & B. P P. Co. vs. 
 Prundagre, 13 How. 448.) 
 
 ^ Printers' affidavits. The affidavit of the printer, or foreman 
 of such printer, of any public newspaper published in this State, 
 of the publication of any notice or advertisement which, by any 
 law of this State, is required to be published in such newspaper, 
 is entitled to be read in evidence in all Courts of Justice in thia 
 
406 NEW YORK JUSTICE. 
 
 State, and in all proceedings before any officer, body, or board, 
 in which it shall be deemed necessary to refer thereto, and will 
 be prima facie evidence of such publication, and of the facts 
 stated therein. {Gode, § 926.) 
 
 Redemption of real estate, Certificates o/".] Whenever any 
 redemption of real estate sold on execution is made, it is the 
 duty of the officer making the sale, and of every other person 
 lawfully acting on his behalf, to execute to the person making^ 
 such redemption, his certificate, truly stating all the facts trans- 
 piring before him at the making of such redemption, as shall be 
 sufficient to show the fact of such redemption. {Laws of 1847, 
 chap. 410, § 5.) Such certificate may be proved or acknowl- 
 edged as deeds are required to be, and, being recorded in the 
 clerk's office of the county where the real estate lies, has the 
 same efiect, as against subsequent purchasers and incumbrancers, 
 as deeds and conveyances duly proved and recorded; and such 
 certificate, or the record thereof, or a duly authenticated copy 
 of such record, must be received in all Courts and places as 
 •prima facie evidence of the facts therein stated, {id. \ 6.) 
 
 8tatvies of this 8tate.^ A certificate by the revisers of the 
 Revised Statutes, or by any two of them, certifying the same to 
 have been examined and compared by them with the original 
 acts, and with the acts amending such originals, and deposited, 
 with a copy of such Statutes, in the office, of the Secretary of 
 State, is conclusive evidence of such statutes. {Laws of 1828, 
 chap. 20, ^25.) Such certificate must be printed in each copy 
 of the Revised Statutes published under the direction of the 
 revisers; and every copy so printed by the printers employed 
 for that purpose, in which such certificate shall be inserted, may 
 be read in evidence in all Courts of Justice, and in all proceed- 
 ings before any officer, board, or body, in this State, {id. § 26.) 
 
 Each volume of the laws hereafter printed for the State, must 
 contain the certificate of the Secretary of State, to the efiect that 
 the said volume was printed under his direction. {Laws of 
 1843, chap. 98, § 1.) All laws passed by the Legislature may 
 be read in evidence from the volumes printed under the direc- 
 tion of the Secretary of State, pursuant to the sixth section of 
 the act entitled, "An act to provide for the public printing," 
 passed January 21, 1843, in the same manner and with the like 
 
DOCUMENTARY EVIDENCE. 407 
 
 effect as laws heretofore published by the State printer. {Laws 
 of 1843, chap. 98, § 2.) 
 
 Taxes unpaid, Certificate o/".] Certificates given by county 
 treasurers, of the amount of taxes on lands, with their receipts 
 endorsed for the amount paid thereon, are presumptive evidence 
 of such payment, and of the facts stated therein. {Laws of 
 
 1850, chap. 298, \ 34.) 
 
 Town-Qlerks, Papers in office of.'\ Copies of all papers duly 
 filed in the office of a town-clerk, including those filed with him 
 as clerk of the town superintendent of common schools, and 
 transcripts from the book of records certified by him, are 
 evidence in all Courts, in like manner as if the originals were 
 produced. (1 B. 8. 350, § 16; Code, § 934.) 
 
 Trustees of absconding debtor.] The appointment of trustees, 
 and the report of the officer making the same in proceedings 
 under the Revised Statutes against an absconding, concealed or 
 non-resident debtor, are, by force of the statute, (2 id. 13, §§ 62, 
 68,) evidence in favor of a party deriving title from the trustees, 
 that the proceedings stated therein were had. ( Wood vs. Cha- 
 pin, 3 ITer. 509.) 
 
 Villages, Certificates of incorporation and proceedings of] 
 Certificates of the incorporation of villages, or transcripts from 
 the record thereof, certified by the county clerk with whom the 
 same shall have been filed, are presumptive evidence of the facts 
 therein stated. {Laws of 184:7, chap. 426, § 16.) 
 
 The leases for unpaid taxes, executed by the trustees of incor- 
 porated villages, ai"e presumptive evidence that all proceedings 
 which terminated in making such leases, from and including the 
 voting of the tax, or the directing of the side- walk to be made 
 or repaired, to and including such leasing, were legal, {id. § 54.) 
 
 The certificates of the clerks of such villages are evidence of 
 the publication of the village ordinances or by-laws. {Laws of 
 
 1851, chap. 519, § 4.) 
 
 Wills.] Every will of real estate, duly proved, must have a 
 certificate of such proof endorsed thereon, signed by the surro- 
 gate, and attested by his seal of office, and may be read in evi- 
 dence, without further proof thereof The record of such will, 
 made by the surrogate before whom the same was proved, and 
 the exemplification of such record by the surrogate in whose 
 custody the same may be, may be received in evidence, and will 
 
408 NEW YORK JUSTICE, 
 
 be as effectual, in all cases, as the original will would be, if pro- 
 duced and proved, and may in like manner be repelled by con- 
 trary proof. {Code, § 2629.) 
 
 Written instruments generally, Proof or acknowledgment o/".] 
 Every written instrument, except promissory notes and bills 
 of exchange, and except the last wills of deceased persons, may 
 be proved or acknowledged in the manner now provided by 
 law for taking the proof or acknowledgment of conveyances of 
 real estate; and the certificate of the proper officer, endorsed 
 thereon, will entitle such instrument to be received in evidence 
 on the trial of any action, with the same effect, and in the same 
 manner, as if such instrument were a conveyance of real estate. 
 (Co<?e, §937.) 
 
 18. Pkivate Writings. 
 
 The last class of written evidence which we propose to con- 
 iider, is that of private writings. 
 
 (1.) Production of j^rivate writings. 
 
 In general, all private writings given in evidence, must be 
 produced, and the execution of them be proved; or their ab- 
 sence must be duly accounted for, and their loss supplied by 
 secondary evidence. (1 Greenl. on Ev. § 557.) 
 
 If the instrument is lost, the party is required to give evi- 
 dence that such a paper once existed, and that a bona fide and 
 diligent search has been unsuccessfully made for it in the place 
 where it was most likely to be found, if the nature of the case 
 admits of such proof, {id. § 558.) The testimony of the party 
 is admissible to prove those facts. (16 Johns. 193; 20 id. 144; 
 Vedde!)' vs. Wilkins, 5 Den. 64.) The statute provides, that 
 whenever a party to an action shall have been permitted to prove 
 by his own oath the loss of any instrument, in order to admit 
 other proof of the contents thereof, the adverse party may also 
 be examined by the Court on oath, to disprove such loss, and to 
 account for such instrument; (2 R. S. 406, ^ 74;) but the evi- 
 dence of the parties in such case is to be confined to the question 
 of the loss. {Woodworth vs. Barker, 1 Hill, 172.) 
 
 When a foundation is thus laid for the admission of secondai-y 
 evidence of the execution and contents of an instrument, parol 
 
PKIVATE WRITINGS. 409 
 
 evidence is admissible to show what the instrument contained. 
 (1 Gainer, 27; 2 id. 363; 2 Johns. Oases, 488; 6 Goic. 404; 
 PecJc vs. Ouerney, 2 Hill, 605.) 
 
 But the party oifering the secondary evidence must still com- 
 ply with the rule requiring the best evidence. Thus, to prove 
 the contents of a lost or destroyed paper by a copy, proof that 
 it is in the hand-writing of one who was requested to make a 
 copy, and that it is substantially the same as the original, is not 
 the best evidence; the copyist himself should be produced. 
 (Brewster vs. Countryman, 12 Wend. 446.) 
 
 Where the instrument or writing is in the hands or power of 
 an adverse party, the Code, (§ 808,) makes this provision for 
 obtaining an inspection of it: The Court before Avhich an action 
 is pending, or a Judge or Justice thereof, may, in their discre- 
 tion, 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 books, papers, and documents in 
 his possession, or under his control, containing evidence relating 
 to the merits of the action, or the defence therein. If compliance 
 with the order be refused, the Court, on motion, may exclude 
 the paper from being given in evidence, or punish the party re- 
 fusing or both. 
 
 Besides the mode thus pointed out by the Code, in which to 
 obtain an inspection of an instrument in the hands of an adverse 
 party, there is another mode which obtains in practice, of com- 
 pelling such party to produce original papers, namely, by 
 serving on him or his attorney a written notice to produce them; 
 not that, on proof of such notice, he is compellable to give evi- 
 dence against himself, but to lay a foundation for the introduc- 
 tion of secondary evidence of the contents of the document or 
 writing, by showing that the other party has done all in his 
 power to produce the original. (1 Gh'eenl. on Ev. \ 560.) A 
 party is not bound to produce a paper, unless the opposite party 
 bas given him notice for that purpose; {Waring vs. Warren, 1 
 Johns. 340;) and where the paper on which the action is 
 founded is in possession of the adverse party, and the other 
 party has not given notice to produce it, whereby to entitle 
 himself to prove its contents, he will be nonsuited. [Rogers 
 vs. Van Hoesen, 12 Johns. 221.) 
 
 Where the notice to produce has been regularly served, and 
 
410 NEW YORK JUSTICE. 
 
 the instrument is not produced, pai-ol evidence may be given 
 of its contents. (7 Johns. 19; 11 id. 446; 13 id. 539; 18 id. 451; 
 Thallhimer vs. Brincherhoff, 6 Cowen, 90.) But before such 
 evidence is admitted, it should be show^n that the instrument is 
 in existence, and in the possession or power of the other party, 
 and that it is genuine. If the paper is produced, and the party 
 producing it claims an interest under it, its execution need not 
 be proved. (12 Johns. 233; 17 id. 158; McPherson vs. Rath- 
 bone, 7 Wend. 216.) But where the party producing the in- 
 strument claims no interest under it, it must be regularly 
 proved. (Jackson vs. Kingsley, 17 John. 158.) If the party 
 refuses to produce the paper, the refusal does not afford any 
 presumptive evidence of its contents, or any inference as to the 
 truth of the fact to prove which it is called for. (L. & F. Ins. 
 Co. vs. M. F. Ins. Co. 7 Wend. 31.) 
 
 There are three cases in which a notice to produce is not 
 necessary: 1st. Where the instrument to be produced and that 
 to be proved are duplicate originals; for, in such case, the origi- 
 nal being in the hands of the other party, it is in his power to 
 contradict the duplicate original, by producing the other, if 
 they vary; (1 Oreenl. on Ev. § 561; Hubard vs. Riissell, 24 
 Barb. 404;) 2d. Where the instrument to be proved is itself a 
 notice, such as a notice to quit or notice of the dishonor of a 
 bill of exchange; {Johnson vs. Haight, 13 Johns. 470;) 3d. 
 Where the form of the pleadings, or of the action, gives a party 
 notice that the plaintiff intends to charge him with the posses- 
 sion of the instrument, {id. 90; 17 id. 293; 20 id. 63; 3 Wend. 
 486; 13 id. 505; Edwards \s. Bonneau, 1 Sandf. 610.) 
 
 The notice may be directed to the party, or to his attorney, 
 and may be served on either It must describe the writing de- 
 manded, so as to leave no doubt what particular instrument is 
 intended to be called for. (1 Oreenl. on Ev. \ 562.) What is 
 a reasonable notice must depend upon the circumstances of the 
 case. Where the paper is in Court, or near at hand, a notice 
 after the trial has commenced maj^ be sufficient. (3 Wend. 296; 
 7 id. 216; Hammond vs. Hopping, 13 id. 505.) But where the 
 paper is at a distance, the party or his attornej^ is not bound, 
 upon receiving notice, to leave the Court to procure it. {id.; 
 Gorhani vs. Gale, 7 Cow, 739.) 
 
 If the paper is in the possession of the attorney for the ad- 
 
PRIVATE WRITINGS. 411 
 
 verse party, the party desiring it must give notice to produce 
 it; he cannot have the benefit of the evidence by subpoenaing 
 the attorney to produce it, and compelling him to testify, if it 
 was delivered to him by his client as supporting the action or 
 defence. (4 Wend. 558; McPherson vs. Rathbone, 7 id. 216.) 
 
 (2.) Mode of proving private vjritings. 
 
 The Code, § 735, makes the following provision in regard to 
 the proof of private writings: Either party may exhibit to the 
 other, or to his attorney, at any time before the trial, any paper 
 material to the action, and request an admission in writing of 
 its genuineness. If the adverse party or his attorney fail to 
 give the admission, within four days after the request, and if 
 the party exhibiting the paper be afterwards put to 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 appears to tlie satisfaction of the Court that there were good 
 reasons for the refusal. 
 
 If the adverse party or his attorney refuses to give the admis- 
 sion, the instrument, being produced in Court, must be proved 
 in one of the following ways: 
 
 1st. If it is not attested by a subscribing witness, it will be 
 sufGciently proved by competent proof that the signature of 
 the person, whose name is subscribed thereto, is genuine. After 
 proof that the signature is genuine, the law presumes that the 
 instrument is genuine throughout, when there are no indications 
 to be found upon it to rebut such a presumption. (12 Shepley, 
 254.) If the instrument appears to have been altered, it is 
 incumbent on the party offering it in evidence, to explain this 
 appearance. (1 Greenl. on Ev. § 565.) 
 
 2d. Formerly if the instrument had been attested by one or 
 more subscribing witnesses, it must be proved by them or one 
 of them. The subscribing witness must be called, for the 
 reason that he is the person selected and agreed on by the par- 
 ties as the witness of their act in making the instrument, and 
 because he may be able to state the time of the execution, and 
 other material facts attending the transaction, which may not 
 be within the knowledge of any other person. (Mollenbaclc vs. 
 Fleming, 6 Hill, 303.) This rule is of universal application, 
 
412 NEW YORK JUSTICE. 
 
 and is extended to every species of -writing attested by a wit- 
 ness. (2 Starlcie N. P. 180; 6 Binney, 16; 3 Johns. 477; 
 Henry vs. Bishop, 2 Wend. 575.) The subscribing witness must 
 have been present when the instrument was executed, and must 
 then have subscribed his name to it as a vdtness of its execu- 
 tion, {id.) He need not, however, have been present at the 
 very moment of its execution; for, if he is called in by the par- 
 ties immediately afterwards, and told that it is their deed or 
 agreement, and requested to subscribe his name as a witness, 
 that will be enough. The execution by the parties, and the 
 subscribing by the witness, are then considered as parts of the 
 same transaction. (1 Espinasse, 97; 3 id. 171; 3 WasMngton's 
 CO. li. 31, 42.) But, although the witness was present at 
 the execution, if he did not subscribe the instrument at that 
 time, but did it afterwards, without the request of the parties, 
 he is not a good subscribing witness. He may prove the instru- 
 ment, if there was no attesting witness, because he saw it exe- 
 cuted, and there is no better evidence of the execution. But, 
 if there was a subscribing witness at the time, he must be 
 called. (2 Wend. 575, supra; 3 Campbell, 232.) Proof of the 
 confession or acknowledgment of the party, that he executed 
 the instrument, was not received as a substitute for the testimony 
 of the subscribing witness. (2 East, 183 ; 3 Johns., 47 ; 6 SiU, 
 303.) But now the subscribing witness need not be called. 
 {Zaws of 1883, chap. 195.) 
 
 To the rule which required the production of the subscribing 
 witness, there are several exceptions. The fii-st is, where the 
 instrument is thirty years old, in which case it is said to prove 
 itself. (3 Johns. Cases, 283; 5 Cow. 221; 4 Wend. 277; 7 id. 
 371; 11 id. 603; Troup vs. Hurlbut, 10 Barb. 354.) 
 
 A second exception is, where the instrument is produced 
 pursuant to notice, by an adverse party who claims an interest 
 under it, or is a party to it. In such case, the party producing 
 the instrument is not permitted to call on the other for proof 
 of its execution; for, by claiming an interest under it, he ad- 
 mits its execution. (12 Johns. 233; 17 id. 158; McPherson 
 vs. Rathbone, 7 Wend. 216.) 
 
 A third exception arises where a party, cither from physical 
 or legal causes, is unable to produce the subscribing witness. 
 Thus, if the witness is proved or presumed to be dead, (1 
 
PRIVATE WRITINGS. 413 
 
 Johns. Oases, 230; 9 Ooic. 140; Van Rensselaer vs. Jones, 
 
 2 Barb. 644,) or cannot be found, after diligent inquiry, 
 (8 Johns. 121; 11 id. 64; 9 Wend. 162,) or is out of the 
 jurisdiction of the Court, (4 id. 313; People vs. Rowland, 5 
 Barb. 449,) the instrument may be proved by proving his 
 hand- writing. (4 Johns. 461; Lush vs. Druse, 4 Wend. 313.) 
 Where there are two witnesses to a deed, both of whom are 
 dead, proof of the hand-writing of either entitles it to be read 
 in evidence. (9 Cow. 140; 2 Barb. 644, supra.) The declara- 
 tions of the witness are admissible, to show that he is beyond 
 the jurisdiction of the Court, (5 id. 449, supra,) and his death 
 may be proved by a party in interest, or a party to the record. 
 {Jackson vs. Davis, 5 Oow. 123.) 
 
 If the subscribing witness denies the execution of the instru- 
 ment, it maybe established by other evidence. {Douglas, 216; 
 
 3 Espinasse, 173, note; Hall vs. Phelps, 2 Johns. 451.) If the 
 hand-writing of the witness cannot be proved, then proof of the 
 hand-writing of the parties will be sufficient to authorize the 
 reception of the instrument. {McPherson vs. Rathbone. 11 
 Wend. 96.) 
 
 The hand-writing of the party, or of the attesting witness, 
 may be proved by a witness who has had previous knowledge 
 of it, derived either from having seen the person write, or from 
 authentic papers received in the course of business. (2 Johns. 
 Cases, 211; 5 Johns. 144; Johnson vs. Duverne, 19 id. 134.) 
 But, if the witness has had no previous knowledge of the hand- 
 writing, he cannot be permitted to decide on it in Court, from 
 a comparison of hands. (9 Cow. 94; 5 Hill, 182; People vs. 
 Shooner, 1 Den. 343.) The testimony of experts, or of per- 
 sons supposed to be skilled in detecting forgeries, as to the 
 genuineness of an instrument, based upon a mere inspection 
 of the instrument itself, is not admissible, {id.; Phoenix F. 
 Ins. Co. vs. Philip, 13 Wend. 81.) 
 
 (3.) Admissibility of shop-boohs. 
 
 We come now to the consideration of the admissibility of a 
 party's shop-books in his own favor. The entries in such books 
 may be divided into entries made by the clerk of the party, 
 and entries made by the party himself. 
 
 In the former case, to render the entries made by the clerk 
 
414 NEW YORK JUSTICE. 
 
 admissible as evidence of goods sold, they must have been 
 made by him in the course of his duty, in books kept for the 
 purpose, and contemporaneously with the delivery of the 
 goods, (1 Greenl. on Ev. \ 117,) and the clerk must be dead. 
 {Brewster vs. Doane, 2 Hill, 537; 2 Salkeld, 690.) If he is 
 living, though out of the State, he must be called, or examined 
 on commission; otherwise, his entry or memorandum cannot 
 be received. (6 Cow. 162; 16 Wend. 586; 2 Hill, 537, swpra.) 
 If the clerk is called, .his evidence must be governed by the 
 same rules as those before stated in respect to refreshing the 
 memory of witnesses by peimitting them to inspect written 
 memoranda made by them. {Ante p. 375.) 
 
 In the latter case, with respect to the admission of books kept 
 by the pai-ty himself, the true rule is well stated in the case of 
 Vosburgh vs. Thayer, (12 Johns. 461,) where the Court remark, 
 in speaking of the admissibility of the plaintiff's books, as 
 evidence of his demand: "In a case like the present, it is 
 believed that the usage and the necessity of admitting such 
 proof, has been so long sanctioned and felt in our Courts of 
 Justice, that it is now too late to question its admissibility. The 
 admission of books of accoimt in evidence, under proper limita- 
 tions and restrictions, is not calculated to excite alarm, or to 
 produce injurious consequences. They are not evidence of 
 money lent; because such a transaction is not, in the usual 
 course of business, a matter of book account. {Case vs. Potter, 
 8 id. 212.) They are not evidence in the case of a single charge; 
 because there exists, in such case, no regular dealing between 
 the parties. {Corning vs. Ashley, 4 Den. 354.) They ought 
 not to be admitted where there are several charges, unless a 
 foundation is first laid for their admission, by proving that the 
 party had no clerk, that some of the articles charged, have been 
 delivered, [id^ that the books produced are the account-books 
 of the party, and that he keeps fair and honest accounts; (11 
 Wend. 568, 7 Barh. 107; Foster vs. Coleman, 1 E. D. Smith, 
 -85;) and this by those who have dealt and settled with him. 
 Under these restrictions, from the necessity of the case, and 
 from the consideration that the party debited is shown to have 
 reposed confidence, by dealing with and being trusted by the 
 other party, they are evidence for the consideration of the jury." 
 In addition to the requisites thus stated, there must also have 
 
PRIVATE WRITINGS. 415 
 
 existed, to render the books admissible, a right to charge, at the 
 time when the service was rendered, or the goods delivered. 
 (MernU vs. J. & 0. R. R. Co. 16 Wend. 586.) The oath of 
 the party is not allowed. (^Sickles vs. Mather, 20 id. 72.) 
 
 If a party oflPers his books, he must produce all of them, and 
 must allow the opposite party the benefit of all the entries they 
 contain; (15 Johns. 409; 7 Barb. 107, supra;) and if the books 
 are offered to establish certain matters, with the qualification 
 that they shall not be received to prove other matters, to show 
 which they are equally competent, they should be rejected. 
 {Winants vs. Sheo^nan, 3 Utll, 74.) After books of account 
 have been introduced in evidence, they become the property of 
 both parties as evidence, and the party producing them cannot 
 be allowed to withdraw them from the consideration of the jury, 
 without the consent of the opposite party. [Clinton vs. Row- 
 land, 24 Barb. 634.) 
 
 The party against whom the books are offered may prove any 
 circumstances which affect their credit, and thus render them 
 incompetent. Thus, he may show that gross or material altera- 
 tions have been made, or that entries have been made since the 
 controversy arose, and even that they were not made at or near 
 the time of the transaction. In short, anything may be proved 
 which will show that the books are unworthy of credit; and, if 
 the proof sustains the objection, it is the duty of the Court to 
 reject the evidence as incompetent, and leave the party to his 
 common law proof. (7 id. 107, supra; 2 Massachxisetts Rep. 
 217.) It is not an invariable rule that a party is required to 
 produce two witnesses who have dealt and settled'accounts with 
 him, to testify that he keeps fair and honest accounts, before he 
 can introduce his books as evidence. If the proof is in other 
 respects sufficient, a single witness is enough to prove the cor- 
 rectness of the book so far as to render it competent. In 
 general more witnesses are required, because it rarely happens 
 that one witness, alone, knows all the facts which constitute the 
 preliminary proof. The credit of the book may be greatly 
 weakened, where it rests upon the testimony of a single witness, 
 but it is competent, if the witness testifies to all the requisite 
 preliminary facts. {Beattie vs. Q^ua, 15 Barb. 132.) 
 
416 NEW TOEK JUSTICE. 
 
 19. Evidence in Particular Actions. 
 
 Having thus considered the general rules of evidence, we 
 propose now to consider the particular evidence applicable to 
 some of the actions, and subjects and incidents of actions, which 
 most usually arise in Justices' Courts. 
 
 (1.) Agency. 
 
 It may be stated as a general rule, that the authority of an 
 agent may be proved by words spoken, or by any writing, 
 under seal or not, or by acts and implications. (Story on 
 Agency, § 47.) Thus, an authority to sign promissory notes 
 may be proved by verbal communications, or by implication. 
 (id. § 50.) But where the act to be done is required to be done 
 bj a writing under seal, there the authority to do it must also 
 be under seal, and be produced. (Hanford vs. McJSTair, 9 
 Wend. 54.) The authority of agents of corporations may be 
 proved by parol evidence, and. their appointment, and the ex- 
 tent of their authority, may be established by circumstances. 
 (Perkins vs. Wash. Ins. Co., 4 Cow. 645.) If the authority 
 of the agent was verbally conferred, the agent himself is a 
 competent witness to prove it. (1 Greenl. on Ev. § 416.) 
 
 If the relation of principal and agent did not exist at the 
 time of the transaction, it may be shown to have arisen after- 
 wards, by evidence of a subsequent ratification by the principal; 
 (8 Cow. 60; 4 Wend. 465; 5 Hill, 107; JParmers Loan and 
 Trust Co. vs. Walworth, 1 Corns. 403;) though, if the action 
 is against the agent, on the ground that he had no authority to 
 use the name of his principal, he cannot set up in defence a 
 subsequent ratification, but must show that he had authority at 
 the time the act was done. (Rossiter vs. Rossiter, 8 Wend. 
 494.) The understanding of the mutual agent of the buyer and 
 seller of chattels as to the terms of sale, unless communicated 
 by him to one party, and acceded to or not objected to, by the 
 other, is not evidence of a contract which will bind both. 
 (Fiedler vs. Tucker, 13 How. 9.) 
 
 (2.) Assumpsit. 
 The Code having abolished all forms of actions, the action 
 of assumpsit, eo nomine, no longer remains; but, though its 
 
ASSUMPSIT. 417 
 
 distinctive appellation is taken away, the action, and the rules 
 of evidence applicable to it, will endure as long as right and 
 remedy have any place in a Court of Justice. The action is 
 now called an action arising on contract for the recovery of 
 money only, (Co<Ze,§ 2862.) and is founded upon a promise or 
 undertaking of the defendant, not under seal; the plaintiff 
 always averring substantially that the defendant undertook and 
 promised to pay the money sued for, or to do the act men- 
 tioned. 
 
 We have before spoken of express and implied contracts, 
 {Ante, j9. 38.) One great difference between them is in the mode 
 of proof. In an action on an express contract, the evidence 
 of the promise is direct, the contract being produced; while in 
 an action on an implied contract it may be circumstantial, to 
 be considered and weighed by the jury. Thus, in an action 
 for work and labor, under a written contract, the production 
 of the contract evidences the promise. If the contract waa 
 verbal, proof of the services rendered, and of a request, war- 
 rant the legal implication of a promise to pay for them, and, 
 after verdict, the promise is presumed to have been made. 
 {Hicks vs. Burhans, 10 Johns. 243.) 
 
 In all actions upon contracts not under seal, except actions 
 by endorsees upon bills and notes, the plaintiff must prove a 
 consideration for the alleged prc^mise of the defendant, {Bailey 
 vs. Freeman, 4 id. 280,) and all the other material facts alleged, 
 such as, performance of conditions precedent, (14 Wend. 257; 
 16 id. 622; Paige vs. Ott, 5 Den. 406,) notice and demand, 
 when necessary, &c.; and, if the action is for the non-delivery 
 of goods at a particular time and place, he must prove readi- 
 ness and willingness to receive and pay for the goods. (12 
 Johns. 209; 5 Cow. 404; 13 Wend. 285; Ooonhy vs. Anderson, 
 1 Hill, 519.) So, also, in actions for goods sold and delivered, 
 money lent or paid, or materials furnished, where there is no 
 written evidence of the contract, a request by the defendant 
 should be proyed; (3 Johns. 434; 8 id. 436; Beach vs. Van- 
 denhwgh, 10 id. 361;) for, generally, no man can make himself 
 a creditor of another, unsolicited and unasked. Where there 
 has been a subsequent express promise, or a subsequent assent, 
 the jury may find a previous request; and the assent may bo 
 27 
 
418 NEW YORK JUSTICE. 
 
 inferred from the defendant's knowledge of, and silent acquies- 
 cence in, the plaintiff's act. (2 Greenl. on JEv. §§ 107, 108.) 
 
 Where there arc several plaintiffs, it naust be shown that the 
 contract was made with them all; and, where the plaintiff sues 
 in a particular character, as guardian, or receiver, he must show 
 how he was appointed. (17 Wend. 197; 4 Den. 80; White vs. 
 Low, 7 Barb. 204; 8 Cow. 235.) 
 
 In an action for money lent, the loan must be proved; 
 (4 Den. 108; Bogert vs. Morse, 1 Goms. 377;) and, in an 
 action for money paid, it must appear that money, or its equi- 
 valent, was actually advanced, (7 Johns. 132; 8 id. 202; 11 
 id. 464; Van Ostrand vs. Reed, 1 Wend. 424.) In the latter 
 case, where no express order or request has been given, it will 
 ordinarily be sufficient for the plaintiff to show, that he has 
 paid money for the defendant for a reasonable cause, and not 
 officiously. (4 Taunton, 190.) 
 
 In an action for money had and received, the plaintiff's claim 
 may be sustained by any legal evidence which shows that the 
 defendant has received or obtained possession of the money of 
 the plaintiff, and ought, in equity and good conscience, to pay 
 it over to him. (2 Greenl. on Ev. § 117.) Thus, evidence of 
 the rescis^on of a contract is admissible to sustain an action to 
 recover back money paid upon it. (5 Johns. 85; Raymond vs. 
 Brainard, 12 id. 274.) Positive evidence that the defendant 
 has received money belonging to the plaintiff, is not in all cases 
 necessary; but where, from the facts proved, it may be fairly 
 presumed that he has received the plaintiff's money, the plain- 
 tiff is entitled to recover. {Tuttle vs. Mayo, 7 Johns. 132.) 
 
 (3.) Gommon Garriers. 
 
 In an action against a common carrier, it is necessary for the 
 plaintiff to establish, first, the contract; secondly, the delivery 
 of the goods, or the presence of the passenger in the convey- 
 ance; and thirdly, the defendant's breach of his contract. 
 
 Whatever may be the character of the demand against the 
 defendant, whether it be for the wrongful conversion of goods, 
 or for their non-delivery, or for misfeasance or malfeasance 
 while in charge of them, the contract, as averred in the com- 
 plaint, must be proved. (1 Bingham's JV. G. 162.) 
 
 If the defendant is shown to be a common carrier, the law 
 
COMMON CAERIERS. 419 
 
 supplies proof of the contract, so far as regards the extenc and 
 degree of his liability. (2 Greenl. on Ev. § 210.) But, if he 
 is not a common carrier, the terms of his undertaking must be 
 proved. And, in either case, if there was an express contract, 
 that alone must be relied on, and no other can be implied. (3 
 Bosanquet & Puller, 416.) The defendant is proved to be a 
 common carrier, by evidence that he undertakes to carry for 
 persons generall}^, exercising the business as a public employ- 
 ment, and holding himself out as ready to engage in the trans- 
 portation of money or goods for hire, as a business, and not as 
 a casual occupation. (Btory on Bailments, § 495; 2 Oreenl. on 
 Ev. \ 211; Orange, Bank vs. Brown, 3 Wend. 158.) 
 
 The contract must also appear to have been made with the 
 plaintiff, and by the defendant. When, therefore, goods are 
 sent by the vendor to the vendee, at the risk of the latter, the 
 contract of the carrier is with the vendee, whose agent he be- 
 comes by receiving the goods, and who alone is entitled to sue; 
 unless the vendor expressly contracts with the carrier, in his 
 o^vn behalf, for the payment of the freight, or unless the prop- 
 erty was not to pass to the vendee until the goods reached his 
 hands, in which case the vendor is the proper plaintiflF. (1 
 Term Rep. 659; 8 id. 330.) 
 
 If a receipt was given for the goods it should be produced; 
 and notice should be given to the defendant to produce his 
 book of entries and way-bill, if any, in order to show a delivery 
 of the goods to him. (2 Greenl. on Ev. § 213.) The plaintiff 
 must also prove what orders were given at the time of delivery, 
 as to carriage of the goods, and what direction was upon the 
 package. (2 StarMe on Ev. 331.) It has been held that, in 
 an action to recover the value of a trunk and contents lost on 
 the defendants' railroad, the fact that plaintiff had possession 
 of a baggage-check, coupled with the testimony of the baggage- 
 master as to the custom of giving checks, was sufficient proof 
 that plaintiff was a passenger and that defendant took his bag- 
 gage. {Davis vs. Oayuga <& S. R. R. Co. 10 How. 330.) 
 
 To support an averment of the loss of goods, it is enough for 
 the plaintiff to show that the goods have not in fact arrived. 
 (2 Starkie on Ev. 335.) 
 
 A carrier may avoid the charge of the plaintiff, by evidence 
 of an express contract limiting his common law liability; {Dorr 
 
420 NEW YORK JUSTICE. 
 
 VS. JV. J. Steam JSF. Co. 4 8andf. 136;) or by evidence that the 
 loss resulted from the negligence of the plaintiff in the packing 
 or delivery of the goods, or was occasioned by the act of God, 
 or of the public enemy; but in all such cases the burden of 
 proof is upon the carrier. (2 Greenl. on Ev. k, 220.) 
 
 (4.) Damages. 
 
 In the proof of damages, the plaintiff is not confined to the 
 precise number, sum, or value laid in his complaint, nor is he 
 bound to prove the breach of contract to the full extent alleged. 
 {id. § 260.) Though he cannot recover greater damages than 
 he has claimed, yet the jury may find damages for the value of 
 goods wrongfully taken, beyond the value alleged. (1 Ware, 
 147.) So, where the plaintiff has claimed damages for a total 
 loss of his property or goods, it is sufficient for him to show a 
 partial loss. (2 Burrow, 905.) So, also, in covenant or assump- 
 sit, proof of part of the breach alleged is sufficient to entitle the 
 plaintiff to recover. 
 
 It is frequently said, that in actions for a wrong, evidence is 
 admissible in aggravation or in mitigation of damages. But this 
 means nothing more, than that evidence is admissible of facts 
 and circumstances which go in aggravation or mitigation of the 
 injury itself The circumstances thus proved ought to be those 
 only which belong to the act complained of. The plaintiff is 
 not justly entitled to receive compensation beyond the extent 
 of his injury; nor ought the defendant to pay to the plaintiff 
 more than the plaintiff is entitled to receive. (2 Greenl. on Ev. 
 % 266.) 
 
 In giving evidence of damages, both parties must be confined 
 to the principal transaction complained of, and to its attendant 
 circumstances and natural results, for these alone are put in 
 issue. The results include all the damages to the plaintiff of 
 which the act of the defendant was the efficient cause, {id. 
 \ 268.) 
 
 "Whether evidence of intention is admissible to affect the 
 amount of damages, depends upon its materiality to the issue. 
 Where an evil intent has manifested itself in acts and circum- 
 stances accompanying the principal transaction, they constitute 
 part of the injury, and, if properly alleged, may be proved, 
 like any other facts material to tne issue. Thus, in trespass 
 
INFANCY. 421 
 
 for taking goods, besides proof of their value, the inconvenience 
 and injury occasioned to the plaintiff by taking them away 
 under the particular circumstances of the case, and the abusive 
 language and conduct of the defendant at the time, are admissible 
 in evidence. (2 Greenl. on Ev. \ 272; 2 Day, 259; 5 id. 140.) 
 
 And generally, whenever the wrongful act of the defendant 
 was accompanied by aggravating circumstances of indignity and 
 insult, whether in the time, place, or manner, though they may 
 not form a separate ground of action, yet, if properly alleged, 
 they may be given in evidence, to show the whole extent and 
 degree of the injury. (3 Wilson, 19.) Thus, in an action for 
 beating the plaintiff's horse to death, evidence is admissible to 
 show the defendant's wantonness and cruelty. ( Wort vs. Jenk- 
 ins, 14 Johns. 352.) 
 
 The defendant, on the other hand, may show any other cir- 
 cumstances of the transaction in mitigation of the injury done 
 by his trespass. Thus, where the defendant shot the plaintiff's 
 dog soon after he had been worrying the defendant's sheep, this 
 fact, and the habits of the animal, were held to be competent 
 evidence for the defendant, in the estimation of damages. (4 
 Carrington & Payne, 568.) And, in trespass for carrying away 
 the plaintiff's goods, the defendant may show that the goods did 
 not belong to the plaintiff, and that they have gone to the use 
 of their owner. (9 Pickering, 551.) 
 
 (5.) Infancy. 
 
 Infancy is a personal privilege, of which no one but the in- 
 fant can avail himself; (2 Johns. 279; Hartness vs. Thompson, 
 5 id. 160;) and the burden of proof rests on him, to show his 
 infancy, even though the issue is upon a ratification of his con- 
 tract after he became of age. (1 Tenn Rep. 648.) The in- 
 fant's age may be proved by the testimony of persons acquainted 
 with him from his birth. (2 Greenl. on Ev. \ 363.) The in- 
 fant's admissions are competent evidence against him, both in 
 civil and criminal cases. [Haile vs. Lillie, 3 Hill, 149.) 
 
 The defence of infancj'^ may be avoided, by showing that the 
 contract which forms the subject matter of the action was for 
 necessaries furnished, and that the infant had no means of ob- 
 taining them except by the pledge of his personal credit; or by 
 showing a ratification of the contract, by a new promise, after 
 
422 NEW YORK JUSTICE. 
 
 he became of age. (2 Paige, 419; 1 Den. 460; Smith vs. OK' 
 phant, 2 Sandf. 306.) But, in the latter case, the promise must 
 have been to a party in interest, or to his agent; or there must 
 have been an explicit admission of an existing liability, from 
 which a promise may be implied. A mere admission to a 
 stranger, that such a contract existed, is not a ratification. (3 
 Wend. 479; Bigelow vs. Grannis, 2 Hill, 120.) Evidence that 
 articles furnished were necessaries, may be rebutted by proof 
 that the infant lived under the roof of his parent, who provided 
 him with such things as in his judgment appeared proper. (2 
 Oreenl. on Ev. § 366; 9 Johns. 141; Kline vs. L^ Amoureux, 2 
 Paige, 419.) 
 
 (6.) Limitations. 
 
 Where the statute of limitations is set up in defence, by a 
 plea that the cause of action did not accrue within the period 
 prescribed by law prior to the commencement of the action, and 
 that is denied, the burden of proof is on the plaintiff to show 
 both a cause of action, and that the action was commenced with- 
 in the period prescribed. (2 Greenl. on Ev. § 431.) We have 
 heretofore stated the rules as to when an action is commenced, 
 and as to when the attempt to commence an action is equivalent 
 to its commencement, within the meaning of the statute of limi- 
 tations. {Ante, pp. 140, 156.) 
 
 The plea of the statute may be avoided, by showing that the 
 plaintiff was, at the time the cause of action accrued, under 
 some one of the disabilities mentioned in the Code; (§ 396;) 
 or, that the defendant was out of the State when the cause of 
 action accrued, and the action was commenced within the pre- 
 scribed time after his return; {id. § 401;) or that, after it 
 accrued, he departed from and resided out of the State; {id.]) 
 or that the claim has been recognized by him as valid, by an 
 acknowledgment or a new promise within the statute period. 
 (2 Oreenl. on Ev. §§ 436, 440.) 
 
 No acknowledgment or promise is sufficient evidence of a 
 new or continuing contract, whereby to take the case out of 
 the operation of the statute in regard to the time of commenc- 
 ing civil actions, unless the same be contained in some writing 
 signed by the party to be charged thereby; but that provision 
 does not alter the effect of any payment of principal or inte- 
 
PAETNERSHIP. 423 
 
 rest. {Code, § 395.) The payment of principal or interest is 
 considered to be a sufficient acknowledgment that the whole 
 debt is still due, to authorize the presumption of a promise to 
 pay the remainder. (2 Greenl. on Ev. \ 444.) 
 
 The acknowledgment, in order to take the case out of the 
 statute, must be such as raises an implication of a promise to 
 pay, and its terms must all be taken together, so that it maybe 
 seen whether, upon the whole, the party intended distinctly to 
 admit a present debt or duty. {Sands vs. Oelston, 15 Johns. 
 511.) If the acknowledgment admits the indebtedness, but 
 asserts an intention to rely upon the statute of limitations as a 
 defence, it is not sufficient as evidence of a new promise. 
 {Danforth vs. Quiver, 11 id. 146.) 
 
 (7.) Partnership. 
 
 The question of partnership arises in actions between part- 
 ners themselves, or between them and third persons. When 
 they are plaintiffs, they must prove either an express contract 
 by the defendant with them all, or the joint interest of all in 
 the subject of the suit; and they must show that all who sue 
 were partners at the time the contract was made. (2 Oreenl. 
 on Ev. § 476; 3 Oampb. 239.) 
 
 The evidence of a partnership usually consists in the oral 
 testimony of clerks, or other agents, or of persons who know 
 that the alleged partners have actually carried on business in 
 partnership. But it is unnecessary, even in criminal cases, to 
 produce any deed or other agreement by which the copartner- 
 ship has been constituted. {McGregor vs. Cleveland, 5 Wend. 
 475.) General reputation, however, uncorroborated by facts, 
 is not sufficient evidence of a partnership. (20 id. 81; 22 id. 
 264; Smith vs. Griffith, 3 Hill, 333.) 
 
 In an action against partners, upon a contract, it is essential 
 that the evidence of partnership should extend to all the 
 defendants; (4 Taunt. 582;) otherwise the plaintiff will be 
 nonsuited. It is sufficient, however, for the plaintiif to show 
 that the defendants have acted as partners, and that, by their 
 habit and course of dealing, conduct, and declarations, they 
 have induced those with whom they dealt to consider them aa 
 partners. (2 Starhie N. P. 585, 586.) And, even though the 
 partnership was established by a written agreement, yet, as 
 
424 NEW YORK JUSTICE. 
 
 against the parties themselves, it may be proved by oral evidence 
 of partnership transactions. (1 Starkie JV. P. 405.) A partner- 
 ship may also be proved against the parties by their respective 
 declarations and admissions, whether verbal, or in letters or 
 other writings; (2 Greenl. on Ev. § 484;) but the act, declara- 
 tion or admission of one person, is not competent evidence as 
 against others, to establish the fact that they are his partners, 
 though it is ordinarily sufficient to prove it as against himself. 
 (10 Johns. 66; McPherson vs. Rathbone, 7 Wend. 216.) But 
 if, in an action against three as partners, two have acknow- 
 ledged the existence of articles of copartnership, which the 
 third, on due notice, refuses to produce at the trial, the jury 
 will be warranted in finding the fact of partnership upon this 
 evidence alone. {Whitney vs. Stirling, 14 Johns. 515.) 
 
 Proof of partnership may be answered by evidence of an 
 arrangement between the partners, by which either the power 
 of the acting partner to bind the firm, or the liability of certain 
 of the partners on the contracts of the firm, was limited, pro- 
 vided the plaintifi" had express notice of the limitation. (1 
 Oampb. 404.) 
 
 (8.) Payment. 
 
 When a defendant, in answer to the complaint of the plaintifi", 
 pleads payment of the demand therein made, the burden of proof 
 lies upon him to prove the payment of the money, or of some- 
 thing accepted in its stead, to the plaintifi", or to some person 
 authorized in his behalf to receive it. 
 
 If a receipt was given for the money, it is proper and expe- 
 dient to produce it; but it is not necessary; parol evidence of 
 the payment being admissible, notwithstanding the written 
 receipt, and without accounting for its absence. (7 Campbell, 
 334.) If it is produced, it is not conclusive against the plaintifi", 
 but may be disproved and contradicted by pai'ol evidence. 
 {Ante, jp. 352.) If the payment was made to a third person, as 
 the agent of the plaintifi", the agency may be shown by parol 
 evidence, in the mode already pointed out. {id. p. 416.) 
 
 As to the mode of paj^ment, it may be by any lawful method 
 agreed upon between the parties, and fully executed. It may 
 be in genuine bank notes, (5 Paige, 48; Hull vs. Fisher, 9 
 Barb. 17,) or in negotiable instruments, such as promissory 
 
PROMISSORY NOTES. 425 
 
 notes. But, if the ptiyment has been made by giving the note 
 of a third person, it is incumbent upon the defendant to prove 
 that it was accepted in payment of the precedent debt; (2 John. 
 Cases, 438; 5 Johns. 68; 9 id. 310; 5 Wend. 85; 1 Hill, 516; 
 8t. John vs. Purdy, 1 Sand. 9;) and whether such note was 
 taken absolutely as payment, or not, is a question for the jury. 
 {Johnson vs. Weed, 9 Johns. 310.) But proof of the giving of 
 the note of the debtor, and of its acceptance by the creditor, in 
 satisfaction of the precedent indebtedness, will not suppoi't a 
 plea of payment, unless it is also shown that the note was paid. 
 And a creditor, although he has accepted the note of his debtor 
 in payment, can maintain an action upon the original indebted- 
 ness; (15 id. 247; 1 Hill, 516; 5 id. 448; Elwood vs. Deifen- 
 dorf, 5 Barb. 398. But see 3 Ben. 410;) but he cannot recover 
 in such action, unless he shows that the note has been lost, or 
 produces and cancels it on the trial. (1 Johns. 34; 10 id. 104; 
 15 id. 247; Sole vs. Sackett, 1 Hill, 516.) 
 
 Payment may also be presumed or inferred hy the jury, from 
 sufficient circumstances. Thus, where, in the ordinary course 
 of dealing, a security is, when paid, given up to the party who 
 pays it, the possession of the security by the debtor, after the 
 day of payment, is prima facie evidence that he paid it. 
 (1 Starkie JST. P- 374.) But payment will not be presumed 
 from the circumstances of the defendant's having drawn a check 
 on a bank, payable to the plaintiff or bearer, without proof that 
 the money has been paid thereon to the plaintiff ; and of this, 
 the plaintiff's name on the back of the check will be sufficient 
 evidence. (3 Bspinasse, 196.) 
 
 (9.) Promissory notes. 
 
 In an action upon a promissory note, the plaintiff must prove, 
 1. The existence of the note; 2. How the defendant became a 
 party to it, and his subsequent contract; 3. The mode by which 
 the plaintiff derived his interest in and right of action upon it; 
 and, 4. The breach *of contract by the defendant. (Qhitty on 
 Bills, chap. 5.) In ordinary cases, the plaintiff is not required 
 to prove a consideration for the note. (3 Johns. Gases, 5, 359; 
 9 Wend. 273; 13 id. 557; 6 Hill, 336; Bank of Orleans vs. 
 Barry, 1 Deyi. 116.) 
 
 1. The existence of the 7iote.] The first step on the part of 
 
426 NEW YORK JUSTICE. 
 
 the plaiutifE is, to prove the existence of the note as described in 
 his complaint, and this is done by producing it. 
 
 If the instrument had been lost while it belonged to the plain- 
 tiff, he himseK may be a witness to prove that fact. > {Code, 
 §§ 828, 829.) But in such case the adverse party may also be 
 examined on oath by the Justice, to disprove the loss, or to 
 account for the note. (2 R. S., 406, § 74.) 
 
 If the lost note was not negotiable, which fact is presumed 
 until the contrary is shown, (5 Wend. 344; Blade vs. JSfoland, 
 12 id. 173,) the plaintiff should be permitted to recover upon 
 the usual secondary evidence of its contents. {Rvtard vs. 
 TacJcington, 10 Johns. 104.) But the loss or destruction must 
 be accounted for, in such a manner as to repel all inferences of 
 fraud, before the secondary evidence is admissible. (12 Wend. 
 173; supra.) 
 
 If the note was negotiable, the following provisions of the 
 statute apply: In any suit founded upon any negotiable promis- 
 sory note, or bill of exchange, or in which such note, if pro- 
 duced, might be allowed as a set-off in the defence of any siiit, 
 if it appear, on the trial, that such note or bill was lost while it 
 belonged to the party claiming the amount due thereon, parol 
 or other evidence of the contents thereof may be given on suck 
 trial, and, notwithstanding such note or bill was negotiable, such 
 party will be entitled to recover the amount due thereon, as if 
 such note or bill had been produced. {Code, section 1916.) But» 
 to entitle the party to such recovery, he must execute a bond 
 to the adverse party, in a penalty of at least double the amount 
 of such note or bill, with two sureties, to be approved by the 
 Justice, conditioned to indemnify the adverse partj^, his heirs 
 and personal representatives, against all claims by any other 
 person on account of such bill or note, and against all costs and 
 expenses by reason of such claim. (ecZ. §1917.) These provi- 
 sions do not extend to non-negotiable instruments, {Smith vs. 
 Rockwell, 12 Wend. 173, supra,) nor do they affect any of the 
 rights or liabilities of the parties, arising out of the proceed- 
 ings to charge the drawer or endorser. (2 Hill, 482.) And 
 an action may be maintained upon a promissory note which has 
 been accidentally destroyed, without the plaintiff's giving the 
 indemnity required in an action upon a lost note. {Des Arts 
 vs. Leggett, 16 N. Y. 582.) 
 
PROMISSORY NOTES. 427 
 
 After the note is produced, the next step is to prove the sig- 
 nature of the defendant, -n-here, by the nature of the action or 
 the state of the pleadings, this proof may be required. The 
 usual mode of proof is, by evidence of the person's hand-writ- 
 ing, or of his admission of the fact. If the note is negotiable, 
 proof of the admission of its execution by the party making it, 
 or proof of his hand-writing, is sufficient, even though there 
 was a subscribing witness to the note, and he is neither pro- 
 duced nor accounted for. (2 Johns. 451; 3 id. 477; Shaver 
 vs. Ehle, 16 id., 201.) If the note is not negotiable it is not now 
 necessary to call the subscribing witness. {Ante, pp. 331, 412.) 
 If the note was executed by an agent, his authority and hand- 
 writing must be proved. {Ante, p. 416.) 
 
 If there are several signatures, they must all be proved; and 
 an admission by one will not in general bind the others. {Ante, 
 p. 345; Thorn vs. Wright, 21 Wend. 365; 1 Espinasse, 135.) 
 If the note is signed by a partnership firm, evidence of the 
 partnership, and of the hand-writing of the partner who signed 
 the note, will be sufficient. (2 Greenl. on Ev. § 159.) 
 
 2. 2Vie relation of the defendant to the note.] The contract of 
 the defendant is generally evidenced by producing the note. He 
 will necessarily stand in the position of maker, endorser, or 
 guarantor; and where the performance by the plaintiff of any 
 condition precedent to the liability of the defendant was neces- 
 sary, as, where the defendant was endorser, demand of payment 
 of the maker, and notice to the defendant, then the plaintiff 
 must show that he has performed the condition. The evidence 
 of such performance will be considered hereafter. 
 
 3. The interest of the plaintiff in the note.] The plaintiff 
 must also prove his interest in the note, or his title to sue there- 
 on. Where the action is between the immediate parties to the 
 contract, as the payee and maker of the note, the plaintiff ordi- 
 narily has only to produce the note and prove the maker's sig- 
 nature. Where, however, the plaintiff was not a party to the 
 note, but has derived his title by means of some immediate 
 transfer, the steps of this transfer become, to some extent, 
 material to be proved. The extent to which the proof must be 
 carried will generally depend upon the extent of the allega- 
 tions in the complaint. Thus, if a note made payable to A B, 
 or bearer, is endorsed in blank by the payee, and the holder, in 
 
428 NEW YORK JUSTICE. 
 
 an action upon it against the maker, declares upon the endorse- 
 ment, he must prove it; although the allegation of the endorse- 
 ment was unnecessary, for he might have sued as bearer only, 
 in which case the endorsement need not have been proved. 
 (2 Oampb. 5; 5 Pick. 556; 2 Greenl. on Ev. § 163.) 
 
 The plaintiff is not bound to allege or prove any endorse- 
 ments but such as are necessary to convey title to himself. (2 
 Greenl. on Ev. § 166.) Thus, if the plaintiff is the endorsee of 
 a note which purports to be endorsed in blank by the payee 
 and by several others, it will be sufficient for the plaintiff, in an 
 action against the maker, to prove the endorsement by the 
 payee. (_Pente vs. Winterbottom, 5 Denio, 51.) All the other 
 endorsements may be stricken out, even after the bill has been 
 read in evidence. (Mottram vs. Mills, 1 Sandf. 37.) 
 
 If the plaintiff formerly held the note and parted with it, and 
 his endorsement appears upon it, still the presumption of title 
 arising from possession entitles him to recover upon it, without 
 proving that it was subsequently re-transferred to him, and 
 without cancelling any endorsements subsequent to his own. 
 {id; 3 Wheaton, 172.) 
 
 If the note was made payable to the order of a fictitious per- 
 son, and the party sued knew that fact when he became a party 
 to it, or before he transferred it, this will dispense with proof 
 of the hand-writing of the fictitious endorser; (3 Term. Rep. 
 481; 1 H. Blacks. 569;) and the note may be treated as though 
 it were payable to bearer. (1 R. S. 768, § 5; 3 Hill, 112; 
 Qoggill vs. Am. Ex. Bank, 1 Corns. 113.) 
 
 If the plaintiffs sue as endorsees of a note endorsed in blank 
 they need not prove their partnership; (3 Oamp. 239;) but if 
 the note was endorsed to them specially by their firm name, 
 and they sue thereon, strict proof must be given that the part- 
 nership consists of the persons who sue. (id. 240, note.) 
 
 4. The breach of contract by the defendant.'] The engage- 
 ment of the defendant is either direct and absolute, or condi- 
 tional. In the former case, as in an action against the maker 
 of the note, it is not necessary for the plaintiff to show that a 
 demand of payment was made at the place where the note was 
 paj^able. (4 Johns. 183; 17 id. 248; 3 Ooiu. 147; 8 id. 271; 
 3 Wend. 13; Green vs. Goings, 7 Barb. 652.) In the latter 
 case, as in an action against an endorser, or a guarantor of the 
 
PROMISSORY NOTES. 429 
 
 collection of a note, the undertaking of the defendant being 
 conditional, that i«, to pay in case the party primarily liable 
 does not, the default of such party must be proved, unless the 
 proof is in some way dispensed with. 
 
 The party who receives a promissory note is understood 
 thereby to contract with every other party who would be enti- 
 tled to bring an action on paying it, that he will present it in 
 proper time to the maker, or at the place where it is made pay- 
 able, for payment; to allow no extra time to the maker foi 
 payment; and to give notice in a reasonable time, and without 
 delay, to every such person, of a failure in the attempt to pro- 
 cure its payment. Any default or neglect in any of these re- 
 spects will discharge every such person from responsibility on 
 account of the non-payment of the note, and will operate, gen- 
 erally, as a satisfaction of any debt, demand, or value for which 
 it was given. (2 Greenl. on Ev. § 175.) In an action, there- 
 fore, against the endorser of a promissory note, it is necessary 
 to prove a presentment of the note, and a demand of its pay- 
 ment, at the place where it was made payable; (Berry vs. 
 Rohinson, 9 Johns. 121;) or, if the note was not made payable 
 at any particular place, then a demand at the residence of the 
 maker. (14 id. 114; 19 id. 391; 3 Den. 145; 1 Barb. 158; 
 Spies vs. Gihnore, 1 Corns. 321.) And the demand must be 
 shown to have been made on the proper day, that is, the day 
 when the note fell due, or, if it fell due on a Sunday or holi- 
 day, the day before. {Laws of 1849, chap. 261.) A demand 
 of payment may be made by a notary public, or by a person 
 having a parol authority for that purpose, or by any one having 
 lawful possession of the note. (Bank of Utica vs. Smith, 18 
 Johns. 230.) 
 
 The plaintiff must also prove that notice of the demand, and 
 of the non-payment of the note, was given to the endorser 
 within a reasonable time. (Cayuga Co. Bank vs. Warden, 1 
 Corns. 413.) The notice may be given by a notary public, or 
 by any person duly authorized by the owner of the note; (18 
 Johns. 230, supra;) but a notice from a mere stranger vsdll not 
 enure to the benefit of the holder. (Chanoine vs. Fowler, 3 
 Wend. 173.) The law does not prescribe any form of notice. 
 It may be verbal, (Owijler vs. Stephens, 4 id. 566,) or in writing. 
 All that is necessary is, that it should be sufficient to put the 
 
430 NEW YOEK JUSTICE. 
 
 endorser on inquiry, and to prepare him to pay or defend. (9 
 Wend. 279; 21 id. 10, 1 Corns. 413, supra.) If the notice was 
 given by any other person than a notary, he should be called 
 as a witness. 
 
 The statute makes the following provision in regard to giving 
 evidence of the official acts of a notary public, in protesting a 
 note for non-payment, and giving notice thereof: In case of the 
 death or insanity of any notary public, or of his absence or re- 
 moval, so that his personal attendance or testimony cannot be 
 procured in any mode provided by law, the original protest of 
 such notary, under his official seal, upon such seal and his signa- 
 ture being duly proved, shall be presumptive evidence of the 
 fact of any demand of acceptance or of payment, therein stated. 
 ( Code, section 924.) Any note or memorandum made by a no- 
 tary public in his own hand-writing, or signed by him at the 
 foot of any protest, or in a regular register of official acts kept 
 by him, shall, in the cases specified in the last section, be pre- 
 sumptive evidence of the fact of any notice of non-acceptance or 
 of non-payment having been sent or delivered, {id.^ 924.) It 
 is further provided by a subsequent statute, as follows: In all 
 actions at law, the certificate of a notary, under his seal of office, 
 of the presentment by him of any promissory note or bill of 
 exchange for acceptance or payment, and of any protest of such 
 bill or note for non-acceptance or non-payment, and of the ser- 
 vice of notice thereof on any or all of the parties to such bill 
 of exchange or promissory note, and specifying the mode of 
 giving such notice, and the reputed place of residence of the 
 party to whom the same was given, and the post-office nearest 
 thereto, shall be presumptive evidence of the facts contained in 
 such certificate; but this section shall not apply to any case in 
 which the defendant shall annex to his plea an affidavit denying 
 the fact of having received notice of non-acceptance or of non- 
 payment of such note or bill. {See Code, section 923.) 
 If such an affidavit is made, the plaintiflP must call the notary 
 and prove the facts by him. If the attendance or testimony of 
 the notary cannot be procured, or he is dead or insane, the 
 plaintiff may give the original protest in evidence, as above pro- 
 vided for, notwithstanding the defendant has denied by affidavit 
 the receipt of any notice. {McKnight vs. Lewis, 5 Barb. 681.) 
 
 The contents of a notice of protest may be proved, without 
 
PROMISSORY NOTES. 431 
 
 notice to produce it, either by a copy made by the witness at 
 the same time with the original, or by parol. {Johnson vs. 
 Haight, 13 Johns. 470.) 
 
 The plaintiff need not prove that notice of the dishonor of the 
 note was given, if the defendant has waived his right to such 
 notice; {Coddington vs. Davis, 1 Corns. 186; 3 Den. 17;) nor 
 need he prove a demand of payment, if that also has been waived. 
 {id.) But the burden of proof is upon the plaintiff to show a 
 waiver; and a waiver of demand will not be inferred from a 
 waiver of notice. {Backus vs. 8hi]pherd, 11 Wend. 629.) 
 
 If the action is against a defendant as guarantor of the collec- 
 tion of a note, the plaintiff must give evidence of an attempt to 
 collect the money from the principal debtor. Of this attempt, 
 a judgment and execution against such debtor are jirima facie 
 evidence. {11 Wend. %29,swpr a.) If there has been negligence 
 or omission on the part of the holder of the note to sue the 
 principal debtor, whereby a loss has ensued, the burden of 
 proving such loss rests upon the defendant, {id.) 
 
 There are some defences, peculiar to actions on promissory 
 notes, which will now be considered. 
 
 The consideration of a note, as between the original parties 
 to it, may always be inquired into, and the want or failure of 
 consideration may be set up in bar of the action. (4 Johns. 
 296) 7 id. 26; 11 id. 50; 17 id. 301; 7 Cow. 322; 9 Wend. 
 273; 12 id. 470; Payne vs. Cutler, 13 id. 605.) Thus, such a 
 defence may be insisted on by the maker against the payee, and 
 by the payee against his endorsee. The same rule applies to 
 purchasers of paper overdue, (2 Johns. 300; 8 id. 454; 3 Coio. 
 252; 5 Wend. 600; 24 id. 97; 5 Paige, 650; DeMott vs. Star- 
 key, 3 Barb. Ch. R. 403,) to purchasers with notice, {Winters. 
 Kihling, 11 Johns. 128,) and to purchasers who have given no 
 value for it. (23 Wend. 311; 1 Dm. 583; Manhat. Co. vs. 
 Reynolds, 2 Hill, 140.) But on the other hand, as a general 
 rule, no defect or infirmity of consideration, either in the crea- 
 tion or transfer of a negotiable security, can be given in evidence 
 against a bona fide holder of it, who received it for a valuable 
 consideration, before it became due, and without notice of any 
 infirmity attaching to it. (3 Caines, 279; 1 Johns. Cases, 169; 
 13 Johns. 52; Coggill vs. Am. Ex. Bank, 1 Cams. 113.) 
 
 If the consideration has only partially failed, that may be 
 
432 NEW YORK JUSTICE. 
 
 shown in defence pro tanto, where it can be inquired into at all. 
 (12 Wend. 246; Payne vs. Cutler, 13 id. 605.) But, in order 
 to take advantage of such partial failure, the defendant must set 
 it up in his own answer, {id.) 
 
 Promissory notes and bills of exchange enjoy the privilege, 
 conceded to no unsealed instrument not negotiable, of being 
 presumed to be founded upon a valid and valuable considera- 
 tion. (9 id. 273; Bank of Troy vs. Topping, 13 id. 557.) 
 Hence it is generally unnecessary for the plaintiff to establish 
 in the first instance that a note was given for such a considera- 
 tion; {id.;) the burden of proof resting upon the defendant to 
 establish the contrary. And where a chattel mortgage given to 
 secure a note is impeached, production of the note is prima 
 facie evidence of a just debt. {Dunham vs. Whitehead, 3 Abb. 
 207.) In an action l)y an endorsee of a note against the maker, 
 if there are equities existing between the maker and the payee, 
 the plaintiff's title must first be impeached before they can be 
 given in evidence. {Nelson vs. Corning, 6 Hill, 336.) 
 
 If the note was usurious in its inception, the maker may give 
 evidence of the fact against any party who sues upon it; {Laws 
 of 1837, chap. 430, § 1;) and, if he has verified his answer, may 
 call the plaintiff to prove the usury, {id. 2.) And, generally, 
 he may call any one whose name appears upon the note, to 
 prove that it was void in its inception, for usury or other cause. 
 (5 Cow. 23, 153; Williams vs. Walbridge, 3 Wend. 415.) 
 
 (10.) Tender. 
 
 To support the issue of a tender of money, it is necessary 
 for the defendant to show, that the precise sum, or more, was 
 actually produced in current money, and offered to the plaintiff. 
 {Bakeman vs. Pooler, 15 Wend. 637.) It is sufficient to show 
 a tender in bank notes, unless the creditor objected to the tender 
 for that reason. (3 Wheat. 333; Warren vs. Mains, 7 Johns. 
 476.) It must also be shown that the tender was absolute; for, 
 if it was coupled with a condition, as that the holder of a note 
 should strike out an endorsement upon it, in compromise of 
 another matter, {Eddy vs. CHarra, 14 Wend. 221,) or that the 
 creditor should accept the amount tendered as the whole balance 
 due, (fWood vs. Hitchcock, 20 id. 47,) or if any other terms 
 were added which the acceptance of the amount tendered would 
 
TRESPASS. 433 
 
 cause the other party to admit, it was not a good tender. The 
 tender must also be shown to have been made to the creditor 
 himself, or to his agent, or to some person who had authority 
 to receive the money for him. (1 Qampb. All; Smith vs. Smith, 
 2 Hill, 351.) 
 
 The plaintiff may avoid a plea of tender, by showing a subse- 
 quent demand of the money, and a refusal; the burden of prov- 
 ing which, if it is denied, lies upon him. And he must also 
 prove that such demand was made by some one who was author- 
 ized to give the debtor a discharge. (1 Oampb. 478, note; Kort- 
 right vs. Oady, 23 Barb. 490.) 
 
 If the contract was for the delivery of specific articles, of a 
 cumbrous nature, and a breach of it is alleged, it will be suffi- 
 cient for the defendant to show that he offered to deliver them 
 as the plaintiff should direct. (3 Johns. Oases, 243; 8 Johns. 
 474; Myers vs. Davis, 26 Barb. 367.) And the plaintiff may 
 avoid the evidence of a readiness and offer to deliver, by show- 
 ing that the articles offered were defective in quality. {Gould 
 vs. Banks, 8 Wend. 562.) Where a tender is an act in pais and 
 no part of the contract, evidence of the waiver of a tender by 
 the opposite party is competent and sufficient to support the 
 averment of a tender. (Holmes vs. Holmes, 5 Seld. 525.) 
 
 (11.) Trespass. 
 
 The substance of the complaint in an action of trespass is, 
 that the defendant has forcibly and wrongfully injured property 
 in the possession of the plaintiff. If the answer of the defend- 
 ant contains, as it probably will, a general denial of the com- 
 plaint, it will be necessary for the plaintiff to prove, 1. That 
 the property was in his possession at the time of the injury, 
 and this rightfully as against the defendant; and, 2. That the 
 injury was committed by the defendant with force. The pos- 
 session of the plaintiff may be either actual, or constructive; 
 but it must be the one or the other. [Putnam vs. Wiley, 8 
 Johns. 432.) He must have such a right, as to be entitled tc 
 reduce the property to actual possession whenever he chooses. 
 Possession of property by the agent or servant of the plaintiff, 
 is a sufficient possession by the plaintiff, to enable him to main- 
 tain an action of trespass against a third person for taking it 
 
 away. (Aikin ads. Buck, 1 Wend. 466.) Bare possession of 
 28 
 
434 NEW YORK JUSTICE. 
 
 a chattel is sufficient to maintain an action for the taking of it 
 by a wrongdoer. (13 Johns. 141, 561; Hoyt vs. Van Alstyne, 
 15 Barb. 568.) Thus, the finder of goods has a sufficient pos- 
 session to maintain an action against every person but the true 
 owner. (2 Saund. 47, d.) 
 
 The plaintifi" must also prove, that the injury was committed 
 by the defendant with force. And the defendant will be charge- 
 able, if it appear that the act was done by his direction or com- 
 mand; or by his servant, in the course of his master's business, 
 or while executing his orders with ordinary care; or by his 
 domestic or reclaimed animals. If the action is for injuries 
 done by a domestic animal, it is also necessary for the plaintiff 
 to show that the owner had notice that it was accustomed 
 to do mischief (13 Johns. 339; 4 Ben. 127; Van Leuven vs. 
 Lyke, 1 Corns. 515.) But the rule is otherwise where the mis- 
 chief is done by such an animal while committing a trespass 
 upon the close of another, (id.) 
 
 It is not necessary for the plaintiff to show that the act was 
 done with any unlawful or wrongful intent. It is enough if it 
 was done without justifiable cause or motive, though it may 
 have been done accidentally and by mistake. (19 Johns. 381; 
 Vandenburcfh vs. Truax, 4 Den. 464.) 
 
 The allegation of the time when the trespass was committed 
 is not ordinarily material to be proved. (2 Green, on JEv. § 624.) 
 The answer of the defendant in an action of trespass usually 
 contains a general denial of the allegations in the complaint, 
 under which he may give evidence of any facts tending to dis- 
 prove either of the propositions which the plaintiff is obliged 
 to make out in order to maintain the action. Thus, under such 
 issue it may be proved, that the plaintiff had no property in the 
 goods in question, and that the defendant did not take them. 
 {id. § 625.) But every defence which admits the defendant to 
 have been prima facie a trespasser, and seeks to avoid the tres- 
 pass, must be specially set forth. {Code, § 64; 11 Johns. 132; 
 Newberry vs. Xee, 3 Hill, 523; Simpson vs. Watinis, id. 619.) 
 
 If the defendant justifies a destruction of the plaintiff's pro^ 
 perty on the ground that such destruction was necessary to the 
 preservation of his own, he must aver and prove that he could 
 not otherwise have preserved his own. (2 Green, on Ev. \ 630.) 
 
 If the trespass is justified under civil or criminal process, that 
 
TRESPASS. 435 
 
 defence must be specially pleaded; (3 Hill, 523, 619; Coats 
 vs. Darby, 2 Corns. 517;) aud the party must prove every 
 material fact of the authority under which he justifies. If a 
 constable is sued for trespass iu levying upon the plaintiff's 
 property under an execution against him, and pleads accordingly, 
 the execution must be produced, and, if regular on its face, will 
 protect the officer; (12 Johns. 257; 6 Wend. 367; Sheldon vs. 
 Van BusMrk, 2 Corns. 477;) and it is not necessary for him to 
 produce the judgment on which the execution was issued, (id. 
 475; Holmes vs. JSFuncaster, 12 Johns. 395.) But, if the officer 
 is sued by A for taking his property under an execution against 
 B, the question to be tried is whether the property belonged 
 to A or to B. If it belonged to A, the execution, with or with- 
 out the judgment, is no protection, for it does not command 
 the officer to take A's property. But if A claims title to the 
 property by virtue of a sale from B to him, which is alleged to 
 be fraudulent against B's judgment creditor, then it is necessary 
 for the officer to produce the judgment on which the execution 
 issued against B. But this for the purpose of proving, in con- 
 nection with other testimony, that the pretended sale from B to 
 A was fraudulent and void, and that the property, therefore, 
 still belongs to B, and not to A. The judgment in such case is 
 given in evidence, because it affects the title to the property in 
 question, and not because it is for any other purpose necessary 
 to protect the officer. (5 Hill, 194; 2 Corns. 447, supra.) 
 
 If the plaintiff in a judgment is sued for trespass in taking 
 property by virtue of an execution issued on such judgment, he 
 must produce and prove the judgment. (^Simpson vs. Watrus, 
 3 Hill, 619.) 
 
 If there are several defendants in an action of trespass, the 
 plaintiff must show that they acted in concert in committing the 
 trespass, in order to entitle him to a verdict against them as 
 joint trespassers. (Williams vs. Sheldon, 10 Wend. 654.) 
 
 (12.) Trespass on the Case. 
 
 The distinction between an action of trespass, and one of tres- 
 pass on the case, at common law, was, that by the former redress 
 was sought for an injury accompanied by actual force, and by 
 the latter for a wrong without force, (2 Gfreenl. on Uv. § 224.) 
 The distinction was often very subtle and perplexing, and of 
 
436,^ NEW YORK JUSTICE. 
 
 course no longer exists, since the abolition by the Code of all 
 forms of action. Almost all, however, of the rules of evidence 
 applicable to those causes of action which formerly fell under 
 the head of trespass on the case, are still applicable to the same 
 causes of action when brought into a Court of Justice. 
 
 In this action, if there are several plaintifis, they must prove 
 a joint cause of action, such as damage to their joint property, 
 and the like. (2 Greenl. on Ev. \ 227.) If their interests are 
 several, but the damage is joint, that is sufficient to maintain a 
 joint action. (2 8aund. 115; 2 Wilson, 114.) 
 
 If the action is founded in tort, it is not necessary to prove 
 all the defendants guilty; for, as torts are several in their 
 nature, the jury or the Justice may find some guilty and others 
 not. {Lansing vs. Montgomery, 2 Johns. 382.) 
 
 The particular day on which the injury is alleged to have 
 been committed, is not material to be proved; (2 Greenl. on Ev. 
 § 229; 16 Massachusetts Rep. 472;) nor is it necessary to prove 
 both malice and negligence on the part of the defendant in 
 doing the act complained of, even though both have been 
 averred. The action may be maintained on proof of negligence 
 only. {Panton vs. Holland, 17 Johns. 92.) 
 
 The defendant may give in evidence, under a general denial, 
 any matters which go to defeat the plaintifi''s right to recover, 
 as a release, satisfaction, or former recovery; (3 Burrow, 1353;) 
 and he may show that the plaintiff's negligence contributed to 
 produce the injury complained of. (21 Wend. 188, 615; Brown 
 vs. Maxwell, 6 Hill, 592.) The statute of limitations must, 
 however as we have seen already, be specially pleaded. [Ante, 
 p. 136.) 
 
 (13.) Trover. 
 
 This action is in substance an action to recover the value of 
 personal chattels wrongfully converted by another to his own 
 use. To entitle the plaintiff to recover, two points are essential 
 to be proved: 1. Property in the plaintiff, (1 Gaines, 14; 12 
 Johns. 403; 14 id. 352; Tuthill vs. Wheeler, 6 Barb. 362,) 
 and a right of possession at the time of conversion; and, 2. A 
 conversion of the thing by the defendant to his own use. 
 Whether the defendant originally came to the possession of the 
 thing rightfully or wrongfully, is not material. (2 Greenl. on 
 Ev. \ 636.) The plaintiff should also be prepared to prove the 
 
TROVER. 437 
 
 value of the goods at the time and place of the conversion; 
 though this is not essential to the maintenance of the action. 
 (2 Greenl. on Ev. § 636. But see Ryan vs. Doyle, 40 How. 215.) 
 
 The property in the plaintiff may be either general or special. 
 {Hotchkiss vs. McViclcar, 12 Johns. 403; 2 8aund. 47 a.) 
 Where he has a special property, he may maintain his action 
 against even the general owner, if he wrongfully deprives him 
 of the possession; but, in such case, the plaintiff is entitled to 
 recover only the value of his special interest. (7 Oow. 670; 
 /Spoor vs. Holland, 8 TFend. 445; 2 Taun. 268.) Special prop- 
 erty, in a strict sense, consists in the lawful custody of goods, 
 with a right to detain them against the general owner. (2 
 Greenl. on Ev. § 637.) As against a stranger, a carrier or bailee 
 has a sufficient property to enable him to maintain this action. 
 (12 Johns. 453; Faulkner vs. Brovm, 13 Wend. 63.) 
 
 Where the plaintiff claims title to goods under a sale, and a 
 question is made as to the time when the property passed, it is 
 material for him to prove that everything the seller had to do 
 was already done, and that nothing remained to be done on his 
 own part, but to take away the specific goods. [Earnewell <& 
 Cresswell, 360.) If he claims title to the property as a pur- 
 chaser under an execution, he must prove the judgment as well 
 as the execution; {Yates ys. /St. John, 12 Wend. 74;) and the 
 articles must have been sold specifically and separately. [Sheldon 
 vs. Soper, 14 Johns. 352.) 
 
 The plaintiff must also show a right in himself to the present 
 possession of the goods. If he has only a special property, 
 there must ordinarily be evidence of actual possession ; (4 East, 
 211; Hotchkiss vs. McVickar, 12 Johns. 403;) but the general 
 property has possession annexed to it by construction of law. 
 (2 Saund. 47 a.) If the general owner has parted with the 
 right of possession, as, for instance, to a lessee, he cannot main- 
 tain an action of trover for a conversion by a third person during 
 the existence of the lease. (7 Term Rep. 9.) But if the general 
 owner delivers goods to his agent to keep for him, and they are 
 taken out of the possession of the agent by third persons, the 
 general owner, having the general property, which draws after 
 it the possession, may maintain tresftass or trover for the goods. 
 {Thorp vs. Burling, 11 Johns. 285.) So, in an action brought 
 for conversion by plaintiff, a mechanic, seeking to avail himself 
 
438 NEW YORK JUSTICE. 
 
 of the benefit of the exemption act, against defendant for levy- 
 ing on and selling under execution one of the plaintiff's neces- 
 sary implements of trade, the burden lies on him of proving 
 that the value of all his tools, including the one in question, 
 does not exceed the amount specified in the exemption act. The 
 same principle applies if plaintiff claims exemption as head of a 
 family for which he provides. {Hill & Denio, Supp. 384.) 
 
 The plaintiff must in the next place show, that there has been 
 a conversion of the goods by the defendant to his own use. 
 {8torm vs. Livingston, 6 Johns. 44.) To constitute a conversion, 
 it is not necessary to show a manual taking of the thing in 
 question, nor that the defendant has applied it to his own use; 
 but the assuming a right to dispose of it, or the exercisiag 
 dominion over it, to the exclusion of the plaintiff's right, is a 
 conversion. (7 id. 254; 10 id. 172; Reynolds vs. Shuler, 5 
 Cow. 323.) Every unlawful taking is, of itself, a conver- 
 sion; {Farrington vs. Payne, 15 Johns. 431;) and so is the 
 abuse of a possession originally lawful, or the breach of a trust 
 under which the property was placed in the defendant's hands. 
 It is not necessary, to support the action, that the defendant's 
 possession should originally have been illegal. {Mun-ay vs. 
 Burling, 10 id. 172.) It is sufficient for the plaintiff to show 
 that the defendant has taken the property into his own hands, 
 or disposed of it to others, or exercised some dominion over it, 
 without the right to do so. {Cobb vs. Dows, 9 Barb. 230.) 
 
 Where the circumstances do not, of themselves, amount to an 
 actual conversion, it is incumbent on the plaintiff to give evi- 
 dence of a demand and refusal at some time prior to the com- 
 mencement of the action, (6 Johns. 44,) the time not being 
 material; and also to show that the defendant had it in his 
 power to give up the goods. If he has put it out of his power 
 to deliver the goods, a demand before suit is unnecessary. 
 (1 Cow. lb; Everitt vs. Coffin, 6 Wend. 603.) If there has 
 been no actual conversion, no deniaud and refusal can lay the 
 foundation for an action, unless the party has the property in his 
 possession, so that he can comply with the demand. (6 Barb. 
 436; Hall vs. Robinson, 2 Corns. 293.) But a demand and 
 refusal are only evidence of a prior conversion, not in itself 
 conclusive, but liable to be explained and rebutted by evidence 
 to the contrary, (2 Saund. 47 e.) or by sho-wing that a compli 
 
DAMAGES. 439 
 
 ance with the demand was impossible. {Hill vs. Oovell, 1 Corns. 
 522.) If the original taking was tortious, the plaintiiF need 
 not give evidence of a demand and refusal. (6 Johns. 44, 
 supra.) 
 
 The defendant, in reply to the evidence of the plaintiff, may- 
 show that the title to the goods was in himself, either abso- 
 lutely, as general owner or joint owner with the plaintiff, or 
 specially, as bailee or by M'ay of lien; (2 Greenl. on Ev. § 648; 
 Everett vs. Coffin, 6 Wend. 603;) or he may show a paramount 
 title in a stranger, (11 id. 54; SchermerJiom vs. Van Valken- 
 hurgli, 11 Johns. 529,) with which he is connected by some title 
 or interest in himself, {id.) Any lien, however, which a de- 
 fendant may claim upon the property, for services rendered, 
 will be considered as waived, if, at the time a demand is made, 
 he places his refusal to deliver up the property upon some 
 other ground. (2 Johns. Cases, 411; Everett vs. Coffin, 6 Wend. 
 603.) The plaintiff may avoid evidence of the defendant's lien, 
 by showing that at the time the demand was made, he offered 
 to discharge the defendant's claim, and made a formal tendei 
 of satisfaction, {id.) 
 
 CHAPTER XIV. 
 
 OF DAMAGES. 
 
 The general rule of law is, that whoever does an injury to 
 another, is liable in damages to the extent of that injury; and 
 it matters not whether the injury is to the property, or the per- 
 son, or the rights, or the reputation of another. This compen- 
 sation is generally awarded according to certain rules of law, 
 which neither the Court nor the jury are at liberty to disre- 
 gard, but which will equally control the conduct of both. 
 {Sedgwick on Damages, 30.) 
 
 In cases growing out of the non-performance of contracts, or 
 the infringement of rights, or the non-performance of duties 
 created or imposed by law, in which there is no element of 
 
440 NEW YORK JUSTICE. 
 
 fraud, willful negligence or malice, the compensation recovered 
 in damages consists generally of the direct pecuniary loss suf- 
 fered; and, in mere money demands, this includes interest for 
 the detention of the amount claimed. 
 
 We propose to consider first, some of the various grades of 
 damages, and then to speak of the rules of damages applicable 
 to particular actions. 
 
 1. Liquidated Damages. 
 
 Parties who enter into an agreement, may, for the purpose 
 of avoiding any question as to the amount of damages which 
 the party who violates the contract shall pay, agree upon a 
 definite sum, to be paid as liquidated or stipulated damages. 
 Such sum will, ^prima facie, be treated as damages, and not as 
 a penalty. (12 Barb. 366; Hosmer vs. Ti'ue, 19 Barb. 106.) 
 
 The distinction between what is merely & penalty, and what 
 is liquidated damages, has given rise to many and somewhat 
 conflicting decisions. A penalty in a bond is only a security 
 for the sum actually due; and in a contract, for the damages 
 actually sustained. Whether a sum agreed upon by the parties 
 to a contract as the measure of damages for its breach, shall be 
 considered as liquidated damages, or only as a penalty, depends 
 upon the intent of the parties, and the peculiar circumstances 
 of the subject matter of the contract. If the damages must 
 necessarily be wholly uncertain, and incapable of estimation, 
 the party failing to perform will be held to pay the stipulated 
 sum as liquidated damages. Accordingly, where the plaintifi" 
 gave $3,000 for the patronage and good-will of a newspaper 
 establishment, and $500 for the type and printing apparatus, 
 and the defendant covenanted that he would not publish, nor 
 aid or assist in publishing, a rival paper, and fixed the measure 
 of damages at $3,000, and did subsequently aid and assist in 
 the publication of such paper, it was held that the plaintifi" was 
 entitled to recover the whole sum of $3,000, as liquidated dam- 
 ages. (17 Wend. 447; Bagley vs. JPeddie, 16 JVew York B. 
 469.) 
 
 It seems to be settled, that if the word penalty or penal is 
 used, the agreement cannot be construed as one for liquidated 
 damages; but where both penalty and liquidated damages are 
 used, the construction must be govei'ued by the intent of the 
 
VIKDICTIVE DAMAGES. 441 
 
 parties. In most of the cases where the question of liquidated 
 damages has arisen, there was au absolute agreement to do or 
 not to do a particular act, followed by a stipulation in relation 
 to the amount of damages in case of a breach. Where, in con- 
 sideration of the conveyance to him of certain city lots for the 
 price of $21,000 only, the defendant covenanted that he would, 
 within a certain time, erect two brick houses thereon, or, in de- 
 fault thereof, ]Day to the vendor |4,000 on demand, the $4,000 
 were held to be liquidated damages; and mainly on the ground, 
 that the defendant had his election not to build, but iustead 
 thereof to pay the $4,000 as damages for the breach of his 
 agreement. (Pearson vs. Williams, 26 Wend. 630.) 
 
 Where a physician, on the sale of his business, gave his bond 
 conditioned that he would not practice within certain limits, 
 and that, in case he did, he would pay a certain sum per month, 
 that was held to be liquidated damages. (4 id. 468; Matt vs. 
 Mott, 11 Barb. 127.) So, also, where a physician sold out to 
 his partner, and bound himself in the sum of $500, liquidated 
 damages, not to practice medicine in a certain village for five 
 years. (11 Barb. 127, supra.) An agreement for stipulated 
 damages necessarily implies that they are to be received as a 
 full satisfaction and compensation for a breach of the agree- 
 ment. [Shiell vs. McNitt, 9 Paige, 101.) A sum specifically 
 named in an agreement as liquidated damages, must neverthe- 
 less be construed as a penalty, where it appears upon the face 
 of the instrument that such sum will necessarily be an inade- 
 quate compensation for the breach of some of the provisions, 
 and more than enough for the breach of others. (Lampman vs. 
 Cochran, 16 New TorlcE. 275; 5 Sandf. 640.) 
 
 2. Vindictive Damages. 
 
 Vindictive damages, or smart money, as it is frequently 
 termed, may be given in actions for wrongs, and the jury may 
 take into consideration the evil example of the defendant's con- 
 duct, and increase the damages. (3 Johns. 56; Sedg, on Dam. 
 chap. 17, and cases cited.) 
 
 In an action for beating a horse to death, the jury may give 
 damages beyond the value of the horse, there being proof of 
 great and wanton cruelty; [Wort vs. Jenkins, 14 Johns. 352;) 
 and a jury may give smart money, though the defendant has 
 
442 NEW YORK JUSTICE. 
 
 been convicted and fined for the same transaction. {Cook vs. 
 Ellis, 6 Hill, 466.) 
 
 In an action by a parent for an injury to his child, by which 
 he lost his services, the jury can give damages only for the loss 
 of service; (24 Wend. 429; Pach vs. Mayor of JV. Y. 3 Corns. 
 489;) and this though the action be for an aggravated assault 
 upon a daughter. {Whitney/ vs. Hitchcock, 4 Denio, 461.) 
 
 A lunatic, though responsible for an injury inflicted by him, 
 is not liable in vindictive damages. {Krom vs. Schoonmaker, 3 
 Barb. 647.) 
 
 3. General and Consequential Damages. 
 
 General damages are such as necessarily result from the in- 
 jury complained of; and they may be recovered without any 
 averment of special damages in the complaint. Such damages, 
 however, as are the natural but not the necessary result of the 
 injury are special, and must be stated in the complaint. (12 
 Wend. 64; 13 id. 390; Vanderlice vs. Newton, 4 Qoms. 130.) 
 So, also, where the damages sustained are not implied by law 
 from the breach of the contract, the particular damage must, in 
 general, be stated, or it cannot be recovered. {Bogert vs. Brok- 
 halter, 2 Barh. 525.) 
 
 In all cases where one person has received personal injury 
 and mutilation by tne careless or negligent act of another, the 
 bodily pain and suffering are part and parcel of the actual in- 
 jury, for which the injured party is as much entitled to compen- 
 sation in damages, as he is for the loss of time or the outlay of 
 money. It is not necessary for the injured person to wait until 
 all the consequences of the injury have become fully developed. 
 He is entitled to recover for both past <ind future pain of body, 
 as well as for past and future deprivation of health, or of any of 
 his bodily powers. But all these subjects for damages must be 
 the legal, direct and necessary results of the injury; and those 
 which at the time of the trial are prospective, must not be con- 
 jectural. {Curtis vs. Roch. cC 8. B. B. Co., 20 Barb. 282; S. 
 C. 18 W. Y. 534.) It is decided that a dealer in drugs and medi- 
 cines who carelessly labels a deadly jsoison as a harmless medi- 
 cine, and sends it so labelled into the market, is liable to all 
 persons who, without fault on their part, are injured by using 
 it as such medicine, in consequence of the false label. And this 
 
 & 
 
GENERAL AND CONSEQUENTIAL DAMAGES. 443 
 
 liability arises, not out of any contract or direct privity between 
 the dealer and the person injured, but out of the duty -which 
 the law imposes upon him to avoid acts in their nature danger- 
 ous to the lives of others. {Thomas vs. Winchester, 2 Seld. 
 397.) Damages for bodily pain and suflering, arising from 
 physical injury, and connected with actual loss of time and 
 money, are not exemplary or punitory in their character in any 
 strict or proper sense of those terms. [Morse vs. Auburn <& S' 
 R. R. Co. 10 Barb. 621.) 
 
 Where, in an action for a wrong, excessive damages have 
 been given, the Court may, instead of setting aside the verdict, 
 give the plaintiff the option of reducing his verdict to a reason- 
 able sum. {Diblin vs. Murphy, 3 Sandf. 19; id. 734.) 
 
 Where exemplary or vindictive damages are not recoverable, 
 the principle upon which damages are to be given for wrong- 
 fully taking or detaining personal property, whether by force, by 
 fraud, or by process of law, is, that the owner to Avhom compen- 
 sation is due, must be fully indemnified, and that the wrong- 
 doer must not be permitted to derive any benefit or advantage 
 whatever from his wrongful act. {Suijdam vs. Jenkins, 3 
 Sandf. 614.) 
 
 Where, in a contract by one party to pay for certain 
 machinery to be made by the other party, the former refuses to 
 pay, whereby the latter is disabled from performing, the dama- 
 ges recoverable by the latter are only his actual expenditures 
 and losses. {See Shannon vs. Comstock, 21 Wend. 457, and 
 Bement vs. Smith, 15 Wend. 493.) In case of failure to com- 
 plete machinery of a mill by the time set in the contract, the 
 injured party may recover the fair ordinary earnings of the mill 
 during the period of delay, deducting the expenses of running 
 the mill meantime. {Davis vs. Talcott, 14 Barb. 611.) Con- 
 tingent profits, which might have been realized from the fulfil- 
 ment of a contract, are not recoverable as damages for its 
 breach. (17 Wend. 71; 21 id. 322; 3 Barb. 424; Giles vs. 
 G'Toole, 4 id. 261.) It is only uncertain and contingent profits, 
 however, which the law excludes; not such as being the imme- 
 diate and necessary result of the breach of contract may be 
 fairly supposed to have entered into the contemplation of the 
 parties when they made it, and are capable of being definitely 
 
444 NEW YORK JUSTICE. 
 
 ascertained by reference to established market prices. {Griffin 
 vs. Oolver, 16 New York It. 489.) 
 
 In actions for wrongs, the value of property wrongfully taken, 
 is, in estimating damages, not to be determined always by its 
 market price. In some cases, as of family pictures, plate, and 
 the like, its value to the owner, by reason of personal or family 
 considerations, ought to be considered by the jury, exercising 
 both a sound discretion and a reasonable sympathy with the 
 feelings of the owner, (3 Sandf. 614, supra.) 
 
 In an action for the recovery of damages for injuries to the 
 person, the jury must be satisfied from the evidence, not only 
 that the defendant was guilty of negligence, but that the plain- 
 tiff was free from fault. (Collins vs. A. & S. R. R. Co. 12 
 Bari. 492.) 
 
 4. Damages for Breach of Contract Generally. 
 
 Where a contract to perform work and labor is abandoned 
 by the parties, and entirely departed from in the doing of the 
 work, the party doing it is entitled to recover according to the 
 actual value of the work; as, where a carpenter agrees to build 
 a house according to a certain plan, and for a specific sum, and 
 the plan is abandoned, so that it is impossible to trace the con- 
 tract in the work done. {Hollinsead vs. Mactier, 13 Wend. 
 276.) But where there is, by consent, a deviation from the 
 plan, on a contract to perform the woi'k at estimated prices, the 
 estimates are the rule of payment, so far as the special contract 
 can be traced, and, for the extra labor, the party is entitled to what 
 it is worth. {Dubois vs. The Del. & Hud. Oanal Co. 4 id. 285.) 
 
 Where one employed another to raft logs to market at a 
 specified price, and put an end to the contract before any work 
 was done, the measure of damages, in an action by the latter, 
 was held to be the profit he could have made by the fulfilment 
 of the contract, and the immediate loss he sustained in making 
 preparation. {Durlcee vs. Mott, 8 Barh. 423.) 
 
 Where, by the terms of a contract for work and labor, the full 
 price is not to be paid until the work is completed, and a com- 
 plete performance becomes impossible by the act of the law, a 
 contractor may recover for the work actually done, at the full 
 prices agreed on; but, where the completion of a job is arrested 
 by the act or omission of the party for whom the work is done. 
 
DAMAGES FOR BREACH OF CONTRACT GENERALLY. 445 
 
 the contractor has an election to treat the contract as rescinded, 
 and recover the value of his labor, or he may sue upon the 
 agreement, and recover for the work completed, at the stipulated 
 price, and for the loss in profits, or otherwise, sustained by the 
 interruption. {Jones vs. Ji(dd, 4 Corns. 411.) 
 
 If parties deviate from the terms of a special contract to per- 
 form work and labor, the contract price will, generally, in an 
 action for the work done, be, so far as applicable, the rule of 
 damages; but where the contract is terminated by the employer, 
 against the will of the contractor, the latter is not confined to 
 the contract price of the work done, but may bring his action 
 for a breach of the agreement, and recover as damages the pro- 
 fits he would have made, if allowed to complete the work; or 
 he may bi"iug his action for work and labor generally, and 
 recover what the work done is actually worth. But if the con- 
 tractor elects to consider the contract as rescinded, and brings 
 his action for work and labor generally, he cannot recover for 
 profits upon the unexecuted part of the work; and, in such case, 
 the rule of damages is the actual value of what has been done 
 under the contract. {Clark vs. Mayor of N. Y. ^ Corns. 338.) 
 
 If one who hires another, declines his services, it is the duty 
 of the latter to seek employment, and he can recover only his 
 actual loss. Thus, if A engages to furnish B's canal-boat with 
 cargo, and fails to do so, B must take what is ofiered by others, 
 and can recover only for the deficiency in quantity and price. 
 {Shannon vs. ComstocJc, 21 Wend. 457.) 
 
 Where personal services are contracted for, and the party 
 hired is dismissed without cause, he is prima facie entitled to 
 the contract compensation for the whole term, upon proof of 
 willingness and ofier to perform; but it seems that, if he has 
 worked for others during the time, his earnings should be 
 deducted, and that, if he is ofiered similar employment in the 
 same region, during the contract time, he is bound to accept it. 
 {Costigan vs. Mohaxoh & H. R. R. Co. 2 Den. 609.) Where a 
 party under contract to perform labor has refused to perform, 
 the measure of damages is the diflerencc between the wages 
 agreed to be paid to him, and the price the plaintifl" was obliged 
 to pay for labor to supply his place. {Peters vs. WJiitney, 23 
 Barb. 24.) 
 
 Where a party, who is entitled to the performance of a con- 
 
446 NEW YORK JUSTICE. 
 
 tract for the delivery of certain articles, can himself, on the 
 failure of the other party, procure them within a reasonable time, 
 he iiS entitled only to a compensation for the additional expense 
 and price, and for the injury resulting from the necessary delay 
 in procuring them; for, if he can protect himself from a loss, bv 
 reasonable exertions or common prudence, and fails to do so, he 
 will not be permitted to throw the loss, which has arisen from 
 such neglect, upon the other contracting party. (Taylor vs. 
 Read, 4 Paige, 561.) 
 
 Where property is sold by one person for another, and there 
 is no proof of the price obtained, the measure of damages is the 
 highest market price, for which according to the evidence, the 
 property could have been sold. {QlarJc vs. Miller, 4 Wend. 628.) 
 
 If one who has contracted for board, leaves without just cause, 
 the other party will not be entitled to recover the stipulated 
 price as damages, but only the actual damages sustained by the 
 breach of the contract. {Wilson vs. Martin, 1 Den. 602; 
 Spencer vs. Halstead, id. 606; 8. C. id. 610.) 
 
 A recent statute of this State contains a provision in the fol- 
 lowing terms: 
 
 That any endorser or other surety, and any assignee, executoi, 
 administrator, or other trustee, shall be entitled to, and allowed, 
 to recover from his principal or cestui que trust, all necessary and 
 reasonable costs and expenses paid or incurred by him in good 
 faith as surety or trustee in the prosecution or defence in good 
 faith of any action by or against any assignee, executor, admin- 
 istrator, or other trustee as such. {See Code, § 1916.) 
 
 5. Damages on a Breach of Wakranty. 
 
 The measure of damages on a breach of the warranty of the 
 title to a chattel, is as a general rule, the price paid, with 
 interest, together with the costs adjudged against tlie vendee in 
 a suit against him by the true owner, but not the vendee's 
 expenses in defending that suit. {Armstrong vs. Percy, 5 
 Wend. 505.) 
 
 In an action for a breach of the warranty of the quality of an 
 article sold, where there is no fraud, the measure of damages 
 is the difference between the value of the article sold, as it was, 
 and what its value would have been at the time of the sale, if it 
 had been such as it was warranted to be; {Voorhees vs. Earl, 
 
DAMAGES FOR NOT DELIVERING GOODS SOLD. 447 
 
 2 Hill, 288;) or, ou a Avarraiity of soundness, the difference 
 between the value of the thing, as it was in fact, and what it 
 would have been worth if it had been sound. {Cary vs. Gru- 
 man, 4 id. 625.) The price agreed upon is, however, strong 
 evidence of the actual value, and should never be departed 
 from, unless upon clear proof, (id.) 
 
 In an action for a breach of Avarranty of soundess on the 
 sale of a horse, the proper measure of damages is the difference 
 between the value of the horse at the time of the sale, consider- 
 ing him sound, and his value with the defect complained of. 
 And, where the Court at the trial charged the jury, that if 
 there was a breach of the warranty, the plaintiff was entitled 
 to recover the difference between the price he paid for the 
 horse, and the amount he realized on a resale thereof, it was 
 held erroneous. [Comstock vs. JSuichins, 10 Barb. 211.) 
 
 6. Damages for not Delivering Goods Sold. 
 
 Where a contract is made for the sale and delivery of goods, 
 and the price or consideration is paid at the time of making 
 the contract, or at any time before that fixed for the delivery, 
 and the vendor fails to deliver, the vendee is entitled to recovei 
 as damages, the highest price of the goods at any time between 
 the day when they should have been delivered and the day of 
 trial. (3 Coiv. 82; Clark vs. Pinney, 7 id. 681.) This rule, 
 however, is applicable only when the vendee brings his action 
 immediately nitev the breach. If he delays, he is entitled only 
 to the value of the goods at the time of the commencement 
 of the suit, (id.) 
 
 But where, on a sale of goods, the contract price is not to be 
 paid at the time of maldng the contract, but is to be paid upon 
 the delivery of the goods, the measure of damages for the non- 
 delivery of the goods, is their value at the day appointed for 
 the delivery, less the contract price; (7 id. 681; 9 Wend, ]29; 
 24. id. 322; Beals ys. Terry, 2 8and. 127;) and this, without 
 reference to the price at which the vendee may have agreed to 
 sell the goods to others in the meantime. (Davis vs. Shields, 
 24 Wend. 322.) 
 
 The measure of damages for the non-performance of a con- 
 tract to deliver an article of merchandise at a fixed jDlace and 
 on a specified day, is the difference with interest between the 
 
448 NEW YORK JUSTICE. 
 
 market value of an article contracted for on the day when it 
 should have been delivered and the price which, by agreement, 
 was to have been paid for it. {Dana vs. Fiedler, 2 Kern. 41, 
 aff'g 1 E. D. Smith, 463.) The " market value" which this 
 rule fixes as the test, requires the investigation of the actual 
 condition of the market, and does not warrant the considera- 
 tion of the conjectural consequences of a state of things which 
 did not exist, e. g., a probable fall in the price of the article 
 in question, which would have resulted had the defendant deli- 
 vered the quantity specified in the contract to the plaintiff, and 
 had the plaintiff offered it for sale in the market. The value 
 in the market on the day forms the readiest and most direct 
 method of ascertaining the measure of this indemnity in both 
 cases; and, accordingly, where a market value for the article 
 exists, the law has adopted that standard. (2 Kern. 41; 1 Seld. 
 537; Billings vs. Vanderbeck, 23 Barb. 546; Hill <& Denio, 
 Supp. 9.) Evidence of the value of the goods at neighboring 
 places, or at distant places, in connection with proof of the 
 expense of transportation to them, may be received if there is 
 no ascertainable value at the place of delivery; but only in 
 such case. (22 Barb. 154; STFencZ. 485; Diefendorf ys. Gage, 
 7 Barb. 18.) Evidence of the market value at other places is 
 inadmissible, where a market value at the place of delivery is 
 clearly proved; but evidence of value at a market three miles 
 from the place of delivery has been held to be good. (8 Wend. 
 485; 7 Barb. 18, supra.) 
 
 7. Damages against Common Carriers and Factors. 
 The measure of damages for the non-delivery of goods pm-- 
 suant to a contract of transportation, is the value of the goods 
 at the place of destination at the time when they should have 
 been delivered. (8 Johns. 213; 14 id. 270; Amory vs. Mc- 
 Gregor, 15 id. 24.) This is the measure of damages against 
 common carriers. {Smith vs. Griffith, 3 Hill, 333.) Interest 
 is not recoverable as a matter of law. It is, however, in the 
 discretion of the jury to give or withhold it, according to cir- 
 cumstances; but generally, it ought not to be allowed, unless 
 there has been fraud, or gross misconduct. (15 Johns. 24; 
 Richmond vs. Bronson, 5 Den. 55.) Where the goods are only 
 delayed and are offered to the owner after the time at which, 
 
DAMAGES AGAINST COMMON CARRIERS AND FACTORS. 449 
 
 by the contract, the carrier was bound to deliver, the owner is 
 not entitled to refuse them and sue for their full value; he can 
 only recover an indemnity for his actual loss; {8covill vs. Orif- 
 fith, 2 Kern. 509;) which includes, however, a loss by fall in 
 the market between the time when the property should have 
 been delivered by the carrier, and the time when it actually 
 was. {Kent vs. Hudson Riv. R. R. Co. 22 Barb. 278; hvi see 
 19 id. 36.) 
 
 Where goods are consigned to a factor for sale, with specific 
 instructions as to the price, he has no right to sell below the 
 price named, to cover his advances, without calling on his prin- 
 cipal for repayment. But, where he sells below the price 
 named in the instructions, the measure of damages, in an action 
 brought by the principal on account of the wrongful sale, is 
 only the amount of injury actually sustained. It is, therefore, 
 competent for the factor, in such a case, to show, in reduction 
 of the damages, that the goods, at the time of the sale, and 
 down to the time of the trial, were worth no more than the 
 price at which they were sold. If the factor sells below his 
 instructions, although at the then market value, he takes the 
 peril of a rise in the value of the goods at any time before the 
 action is brought, and perhaps down to the time of trial. 
 Where the consignment is of articles which have no market 
 value, such as paintings, statues, or vases, the principal may 
 insist upon the prices named in the instructions, without regard 
 to the market. {Blot vs. Boiceau, 3 Corns. 78.) And where a 
 principal consigns property to his factor with instructions to 
 sell it upon its amval, the latter is bound to do so, and to sell 
 for the price it will then command; and if he does not, he will 
 become liable for the damage his principal may sustain in case 
 of a fall in the market. {Evans vs. Root, 3 8 eld. 186.) 
 
 29 
 
450 NEW YOEK JUSTICE. 
 
 CHAPTER Xy. 
 
 OF JUDGMENTS, DOCKETS, AND TRANSCRIPTS. 
 
 1. Judgments Generally. 
 
 Judgments are of four sorts: 
 
 1. Where the facts are confessed by the parties, and the law 
 determined by the Court; as in case of judgment upon de- 
 murrer; 
 
 2. Where the law is admitted by the parties, and the facts 
 are disputed; as in case of judgment upon a verdict; 
 
 3. Where both the facts and the law arising thereon are ad- 
 mitted by the defendant; which is the case of judgments by 
 confession or default; 
 
 4. Where the plaintiff is convinced that facts, or law, or both, 
 are insufficient to support his action, and therefore abandons or 
 withdraws his prosecution; which is the case in judgments upon 
 nonsuits. 
 
 The judgment, though pi'onounced or awarded by the judges, 
 is not their determination or sentence, but the determination 
 and sentence of the law. It is the conclusion that natm-ally 
 follows from the premises of law and fact. It is the remedy 
 prescribed by law for the redress of injuries, and the suit or 
 action is the vehicle or means of administerinor it. 
 
 Judgments are either interlocutory or final. Interlocutory 
 judgments are such as are given in the middle of a cause upon 
 some plea, proceeding, or default, which is only intermediate, 
 and does not finally determine or complete the suit. Final 
 judgments are such as at once put an end to the action, by de- 
 claring that the plaintiff has either entitled himself, or has not, 
 to recover the remedy he sues for. (^Jacob's Law Dictionary, 
 Jvdgment) 
 
 The Code, section 1200, defines a judgment to be the determ- 
 ination of the rights of the parties in the action. 
 
judgment by confession. 451 
 
 2. Judgment by Confession. 
 
 A Justice of the Peace may enter a judgment, by confession 
 of the defendant, in any case whei'e the debt or damages con- 
 fessed do not exceed five hundred dollars, with such stay of 
 execution as may be agreed on by the parties interested in such 
 judgment. {Code, \ 3010.) 
 
 No confession can be taken, or judgment rendered thereon, 
 unless the following requisites be complied with: 
 
 1. The defendant must personally appear before the Justice; 
 
 2. The confession must be in writing, signed by the defendant, 
 and filed with the Justice; 
 
 3. If the judgment be confessed for a sum exceeding fifty 
 dollars, the confession must be accompanied by the affidavit of 
 the defendant and plaintiff, stating that such defendant is 
 honestly and justly indebted to the plaintiff in the sum named 
 in such affidavit, over and above all just demands which he has 
 against him, and that such confession is not made or taken with 
 a Wew to defraud any creditor, {id. § 3011.) 
 
 Every judgment confessed without a compliance with the 
 above provisions, is void as against all persons, except a pur- 
 chaser in good faith of any goods or chattels, lands or tenements, 
 under such judgment, and except the defendant making such 
 confession, {id. § 3012.) 
 
 A judgment cannot legally be entered on confession, unless 
 the defendant is brought in by summons, or voluntarily appears 
 in Court and confesses judgment; and verbal authority given to 
 the Justice at a casual meeting in the street is not sufficient to 
 enter judgment. {Tenny vs. Filer, 8 Wend. 569.) A Justice 
 cannot enter judgment against a party on his written request, 
 without process, or further proof, and where the party does not 
 appear in Court in person, even where the Justice has personal 
 knowledge that such writing is in the hand-vsrriting of the party. 
 {Martin vs. Moss, 6 Johns. 126.) Nor can a Justice in any case 
 take a judgment by confession from a party, unless on his ap- 
 pearance in Court, either in person or by attorney, even though 
 the party authorizes the Justice to enter judgment against him 
 by a writing under seal, and his signature is proved before the 
 Justice by the subscribing witness. {Bromaghim vs. Thorp, 15 
 Johns. 476.) 
 
452 NEW YORK JUSTICE. 
 
 Where a cause in a Justice's Court, having been adjourned, 
 became discontinued by the non-appearance of the plaintiff at 
 the adjourned day, and, more than a month afterwards, a person 
 who had been authorized by the defendant to appear for him at 
 the adjourned day and confess judgment, came before the Jus- 
 tice, and, without the knowledge of the defendant, confessed a 
 judgment in favor of the plaintiff, as of the day to which the 
 cause was adjourned, it was held that the judgment was void, 
 and that the defendant might avail himself of the irregularity, 
 in an action brought upon it. {Hubbard vs. Spencer^ 15 Johns. 
 244.) 
 
 The parties to a demand exceeding the jurisdiction of the 
 Justice, may divide it into several demands, so as to bring them 
 within the jurisdiction of the Justice, and judgment may be 
 confessed for each. {Cornell vs. Cook^ 7 Cow. 310.) 
 
 § 46. Confession of judgment, and affidavit. 
 
 In Justice's Court. 
 John Doe, '^ 
 against \ Confession of judgment for $40. 
 
 Richard Roe. J 
 
 In the presence of Allen Thomas, Justice of the Peace, I do 
 Hereby confess judgment in favor of John Doe, for forty dollars 
 on a demand, arising on \state the nature and particulars of the 
 demand] and consent that the said Justice enter the same against 
 me accordingly. Dated the day of , 1853. 
 
 RiCHAKD Roe. 
 
 "Where the confession is for a sum exceeding fifty dollars, the 
 following affidavit must be made, and annexed to the confession, 
 and filed with the Justice : {Stone vs. Williams, 40 Barh. 322.) 
 
 County, ss: We, John Doe and Richard Roc, the pai-- 
 ties named in the foregoing [or, annexed] confession of judg- 
 ment, being duly sworn, severally say, that the said Richard 
 Roe is justly indebted to the said John Doe, in the sum of 
 dollars, upon the demand named in said confession, over and 
 above all just demands which the said Richard Roe has against 
 the said John Doe; and that the said confession is not made or 
 taken with a view to defraud any creditor. 
 
 Sworn to this day of , 18 , before me, 
 
 Allen Thomas, Justice of the Peace. 
 John Doe, 
 Richard Roe. 
 
judgment after a trial. 453 
 
 8. Judgment of Nonsuit. 
 
 It is provided by statute that judgment of nonsuit, with costs, 
 must be rendered against a plaintiff prosecuting an action before 
 a Justice of the Peace, in the following cases : 
 
 1. If he discontinues or withdraws his action : 
 
 2. If he fails to appear within one hour after the summons is 
 returnable ; or, within one hour after the time to which the trial 
 has been adjourned. 
 
 3. If he is nonsuited upon the trial. {Code, § 3013.) 
 
 4. JuDG.MENT After a Trial. 
 
 Judgment for the defendant, with costs, must be rendered 
 ■whenever a trial has been had, and it be found by verdict, or by 
 the decision of the Justice, that the plaintiff has no cause of 
 action against the defendant, except as is otherwise specially pre- 
 scribed by law. (See Code, § 3014.) 
 
 If, upon the trial of the cause, or upon an ex pa/rte hearing, in 
 those cases where it may be had on the defendant's failing to 
 appear, a sum, in debt or damages, is found in favor of the 
 plaintiff, judgment must be rendered against the defendant for 
 such debt or damages, and the costs. 
 
 If process has issued against two or more persons jointly 
 indebted, and has been personally served upon either of the 
 defendants, the defendant who has been served with process must 
 answer to the plaintiff ; and the judgment in such case, if 
 rendered in favor of the plaintiff, must be against all the defend- 
 ants, in the same manner as if all liad been served with process ; 
 but execution can issue only in the manner hereinafter directed. 
 The execution issues against the joint property of all the defend- 
 -ants named in the action and the individual property of the 
 defendants who have been served. (Seejjost, chap. 17.) 
 
 Such judgment is conclusive evidence of tlie liability of the 
 defendant who was personally served with process in the suit, or 
 who appeared therein ; but against every other defendant, it is 
 evidence only of the extent of the plaintiff's demand, after the 
 liability of such defendant shall have been established by other 
 evidence, {id. § 123 ; MoBoel vs. Cook, 2 Corns. 113.) 
 
 A judgment obtained before any Justice, in any suit com- 
 
454 NEW YORK JUSTICE. 
 
 menced by attachment, when the defendant is not personally 
 served with the attachment or summons, and does not appear, 
 is only presumptive evidence of indebtedness, in any suit that 
 may be brought thereon, and may be repelled by the defendant. 
 (See Code, § 2918.) 
 
 "When a balance is found in favor of a party, either by the 
 verdict of a jury, or upon a hearing before the Justice, exceed- 
 ing the sum for which the Justice is authorized to give judgment, 
 such party may remit and release the excess, and may take judg- 
 ment for the residue. {j,d. § 3016 ; Qlark vs. Denure, 3 Den. 
 319.) 
 
 In cases where a plaintiff is nonsuited, or discontinues or 
 withdraws his action, and where judgment is confessed, and in 
 all cases where a verdict is rendered, or the defendant is in cus- 
 tody at the time of hearing the cause, the Justice must forth- 
 with render judgment, and enter the same in his docket. In all 
 other cases, he must render judgment, and enter the same in his 
 docket, within four days after the cause has been submitted to 
 him for his final decision. {Code, § 3015; 51 Bard. 532.) 
 
 If the Justice, when the cause is tried before him, does not 
 enter judgment in his docket within four days after the cause 
 is finally submitted to him, his power is gone, and the cause is 
 discontinued; and a judgment rendered by him after the four 
 days will be reversed for error. (19 Wend. 371; young vs. 
 Rummell, 5 Hill, 60; 8. O. 7 id. 503.) But, where a Justice 
 decided a cause, and made a memorandum of the judgment upon 
 the papers in the cause, within four days after its final submission 
 to him, it was held that the judgment was regular, although no 
 entry of it in his docket was made until after the expiration of 
 four days. (44 N. Y. 376 ; 2 Cow. 134. But see 51 Barb. 532 ) 
 
 Though a suit be tried on its merits, and submitted to the 
 decision of a Justice, yet if he omits to render judgment, the 
 proceeding will form no bar in a second action for the same 
 cause. (7 Hill, 503, supra.) 
 
 On receiving the verdict of a jury, it is the duty of a Justice 
 forthwith to render judgment, and enter the same in his docket, 
 and, as a part of the act of rendering judgment, he must tax 
 and enter the prevailing party's costs; and, where a Justice 
 omitted to enter the costs for eight days, the judgment was re 
 versed. {Sibley vs. Howard, 3 Den. 72.) 
 
TRANSCRIPT OF JUDGMENT. 455 
 
 A Justice must entei- judgment upon the verdict of a jury 
 immediately upon its being rendered, and, if he omits to do so 
 until the next daj^, no judgment can be given by him. {Stb- 
 ley vs. Howard, 3 Den. 72.) But where the Justice, after the 
 jury had pronounced their verdict, rendered judgment imme- 
 diately, and noted it in his minutes of the trial, but omitted 
 to enter it upon his docket until two or three days after, the 
 omission was not considered cause for reversing the judgment. 
 {Hall vs. Tuttle, 6 Hill, 38.) And where a cause was tried be- 
 fore a Justice and a jury, on the llth of March, and the Justice 
 returned that wheu the jury had agreed upon their verdict they 
 returned into Court and delivered the same to the Justice; 
 whereupon the Justice rendered a judgment in favor of the 
 plaintiff for the amount of the verdict, on the 12th of March, it 
 was held that it might fairly be inferred that the judgment was 
 given on receiving the verdict, and that though the trial was 
 commenced on the llth it was to be presumed that the verdict 
 was not rendered until the 12th. {Beattie vs. Qua, 15 Barb. 132.) 
 After the Justice has regularly entered his judgment, he has 
 no authority to alter it, not even to correct an error of calculation 
 in computing the amount of items which he intends to allow. 
 {People vs. Delaware, 18 Wend. 558. But see 57 Barb. 17.) 
 
 A judgment by default caunot be taken, but if the defendant 
 fails to appear and answer, the plaintiff must prove his demand, 
 as if the defendant had appeared and denied it. {Ovdner vs. 
 Dixon, 10 Johns. 106; Code, §2891.) 
 
 5. Transcript of Judgment. 
 A Justice of the Peace, on the demand of a party in whose 
 fa-\ or he shall have rendered a judgment, must give a transcript 
 thereof, which may be filed aud 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 must be noted 
 thereori, and entered in the docket; and, from that time, the 
 judgment will be a judgment of the County Court. A certified 
 transcript of such judgment may be filed and docketed in the 
 clerk's office of any other county, and with the like effect, in 
 every respect, as in the county where the judgment was ren- 
 dered; except that it will be a lien only from the time of filing 
 and docketing the transcript. But no such judgment for a less 
 
456 NEW TOEK JUSTICE. 
 
 sum than twenty-five dollars, exclusive of costs, can be a lien 
 upon or enforced against real property. {Code, § 3017.) 
 
 This provision supersedes former provisions on the same sub- 
 ject. (2 R. 8. 247, 248, §§ 127 to 129; Laws of 1845, chap. 
 242, §§ 1, 2.) The substance of the former provisions vras, 
 that when the transcript of the Justice's judgment was filed, 
 and the judgment entered and docketed in the county clerk's 
 office, the judgment should then "be a lien on the real estate 
 of the defendant within the county, in the same manner and 
 with the like eflFect as if such judgment had been rendered in 
 the Court of Common Pleas." There was no provision as to 
 the time during which the judgment thus docketed should con- 
 tinue to be a lien on the real estate of the defendant, as against 
 purchasers in good faith, and as against subsequent incum- 
 brances. And in the case of Young vs. Remer, (4 Barb. 442,) 
 which arose under these former provisions, it was held that the 
 statute, (2 R. 8. 359, §§ 3, 4,) making judgments a lien on such 
 real estate, as against such jjurchasers and incumbrances, for 
 ten years from the time of docketing them, was limited to 
 judgments rendered in Courts of Record; that such lien of 
 Justices' judgments so docketed was I'egulated by the former 
 provision of law, (2 R. 8. 396, § 18, subd. 2,) that "all actions 
 upon judgments rendered in any Court not being a Court of 
 Eecord," should be '•' commenced within six years next after 
 the cause of such action accx'ued, and not after;" that it was 
 not the intention of the Legislature to jDut judgments rendered 
 in courts of record, and those rendered by a Justice of the 
 Peace, where a transcript was filed and the judgment docketed 
 in the county clerk's office, upon the same footing, as to the 
 time they should remain such lien; and that such lien of a Jus- 
 tice's judgment, so docketed, ceased with the right of the plain- 
 tifi" to maintain a suit upon it, that is, in six years. 
 
 The Code, in its provision, before quoted, as to filing and 
 docketing transcripts, makes no direct provision, any more than 
 the former statutes did, as to the duration of the lien of a Jus 
 tice's judgment docketed in the coimtj^ clerk's office. What, 
 then, is the duration of such lien? The Code provides, (§§ 84, 
 79,, 90,) that an action upon a judgment of any Court of any 
 State within the United States may be commenced within Ucenty 
 years after the cause of action shall have accrued. The 
 
TRANSCRIPT OF JUDGMENT. 457 
 
 limitation of an action on a Justice's judgment is, therefore, 
 changed from six years to twenty years. (See First Report of 
 Commissioners on Practice and Pleading, pages 96 to 99.) If, 
 therefore, according to the case of Young vs. Eemer, before 
 cited, the lien on real estate, of a Justice's judgment docketed 
 in the county clerk's office, endures as long as the right to 
 maintain a suit upon the judgment endures, then, as that right 
 is extended by the Code to twenty years, it would seem that 
 the lien now exists for twenty years. But that would present 
 the incongruity of a judgment rendered in a Court of Record 
 existing as a lien on real estate, as against purchasers and sub- 
 sequent incumbi-ances, for only ten years, and of a Justice's 
 judgment, when docketed in the county clerk's office, existing 
 as such lien for twenty years. It is to be noticed, however, 
 that the section of the Code before cited (§ 63,) says that, from 
 the time of the entry in the docket in the office of a county clerk, 
 of the transcript of a Justice's judgment, such judgment shall 
 be a judgment of the County Court. This language would seeru 
 to have a different meaning and intent from the lansruage of the 
 former law on the subject, which was merely that the judgment, 
 when docketed, should be a lien on real estate in the same man- 
 ner and with the like effect as if it had been rendered in the 
 County Court. 
 
 It is also to be remarked in this connection, that the Code, 
 when first enacted, in 1848, contained (§ 56) a provision for the 
 filing and docketing of a transcript in the county clerk's office, 
 and then went on to say, that " from that time the judgment 
 shall have the same effect as a lien, and be enforced in the same 
 manner, as a judgment of a County Court;" thus using very 
 much the same language as the Revised Statutes on the same 
 subject. But in the Code as re-enacted in 1849 (§ 63,) the lan- 
 guage was changed to what it is now: " shall he a judgment of 
 the County Court." If, according to the present Code, the judg- 
 ment now, after being docketed, is a judgment of the County 
 Court, it would seem that it must in all respects, and aS to the 
 time of its enduring as a lien, as well as to its manner of opera- 
 tion and effect as a lien while so enduring, be a judgment of a 
 County Court, as much as if rendered in that Court. If so, 
 then its lien on real estate, as against purchasers and subsequent 
 incumbrances, ceases when the lien of a judgment rendered in 
 
458 NEW YORK JUSTICE. 
 
 a County Court ceases, that is, from and after ten years from 
 the time of doclseting in the county clerk's office. {Code, 
 § 1251.) 
 
 Under the provisions of the Revised Statutes relative to the 
 lien of a judgment of a Justice docketed by a county clerk, and 
 to the limitation of actions ou Justices' judgments, it has been 
 decided that filing a transcript of such judgment and docketing 
 it, rendered it a lien on real estate coextensive in time with » 
 judgment of the Common Pleas; that is, for ten years. {Wal- 
 terinire vs. Westover, 4 Kern. 17.) 
 
 In the city and county of New York, a judgment for twenty- 
 five dollars or over, exclusive of costs, the transcript whereof is 
 docketed in the office of the clerk of that county, has the same 
 effect as a lien, and is enforced in the same manner as, and is 
 deemed, a judgment of the Court of Common Pleas for the city 
 and county of New York. {Code, § 3220.) 
 
 A Justice's transcript must correspond with the judgment, aa 
 respects the names and the number of the plaintiffs and defend- 
 ants. {SiinpJcins vs. Paige, 1 Code Hep. 107.) 
 
 In an action of ejectment to recover land, the title to which 
 is claimed under an execution issued on a Justice's judgment, a 
 transcript of which has been filed in the county clerk's office, a 
 certified copy from such office of such transcript is prima facie 
 evidence of the rendition of such judgment. (9 Cow. 182, 233; 
 Tvttle vs. Jackson, 6 Wend, 213.) And it is not necessary that 
 the transcript should contain a copy of all the proceedings in 
 the action as entered in the Justice's docket; it is sufficient for 
 it to show the rendition of the judgment by the Justice, the 
 parties, the date, and the amount, {id. 213, 666; Dickinson 
 vs. Smith, 25 Barb. 102.) 
 
 A Justice may make and certify a transcript of a judgment 
 after the expiration of his term of office. {Maynard vs. Thomp- 
 son, 8 Wend. 393 ; Code, § 3023.) 
 
 If the action, in which the judgment is rendered, is one of 
 the actions specified in subdivision first or second of section 2895 
 of this act, or if an order of arrest was granted, and was executed, 
 in a case specified in subdivision third of that section, and, in 
 either case, if the defendant is a male person, the Justice must 
 insert, in each transcript given by him, as prescribed in the last 
 
THK justice's DOCKET BOOK AND PAPEES. 45i> 
 
 section, the words "defendant liable to execution against his 
 person ;" and a like note must also be made in the docket of the 
 judgment, made by the county clerk. {Gods, § 3018.) 
 
 If a Justice refuses to give a transcript, he may be compelled 
 to do so by process in the nature of a mcmdamus. {People vs. 
 Lynde, 8 Cow. 133.) 
 
 Upon the filing and docketing of the judgment in the county 
 clerk's office, the power and authority of the Justice in respect to 
 such judgment cease, and he cannot issue an execution upon it. 
 {Code, § 3024.) 
 
 [For form of Transcript of Judgment, see McOall's Clerk's 
 Assistant, p. 342.] 
 
 6. Revival of Judgment 
 
 By the Code, section 1983, the writ of scire facias by which a 
 Justice's judgment was formerly revived, has been abolished, and 
 such judgment can now be revived only by an action to be 
 brought within the time and subject to the regulations provided 
 by law. (See ante, pp. 137, 139.) 
 
 A judgment, after it has been fully paid and satisfied, cannot 
 be kept on foot to cover new demands of the plaintiff. {Troup 
 vs. Wood, 4 Johns. Ch. R. 228.) Part payment discharges its 
 lien to that extent, and no agreement between the parties can 
 restore that lien, as against third persons. (5 Cowen, 671 ; 
 De la Vergne vs. Evertson, 1 Paige, 181.) 
 
 7. The Justice's Docket Book and Papeks. 
 A Justice of the Peace must keep a docket book, in which he 
 must enter : 
 
 1. The title of every action or special proceeding commenced 
 before him. 
 
 2. The time when the summons, or the mandate for the com- 
 mencement of the special proceeding, was issued, with a state- 
 ment of the nature of the mandate, and a memorandum of each 
 order of arrest, warrant of attachment, or requisition to replevy, 
 granted by him. 
 
 3. The time when the parties appeared before him, either with- 
 
460 NEW YORK JUSTICE. 
 
 out process, or upon the return of the summons, or of the man- 
 date for the commencement of the special proceeding. 
 
 i. A concise statement of the substance of each oral pleading, 
 or a memorandum of the filing of each written pleading. 
 
 5. Each adjoiirnment ; stating upon whose application, aud to 
 what time and place, it was made. 
 
 6. The issuing of a venire ; stating upon whose application it 
 was issued, and the time and place of the return thei-eof. 
 
 7. The time when a trial was had ; and, if it was by a jury, 
 the names of all the persons returned as having been notified to 
 attend as jurors ; stating who did not attend, who attended, and 
 who were sworn. 
 
 8. The name of each witness sworn upon the trial ; stating at 
 whose request he was sworn, each objection made to the compe- 
 tency of a witness, and the decision thereupon. 
 
 9. The verdict of the jury, and the time of receiving it ; or, 
 if the jury disagreed and were discharged, a statement of that 
 fact. 
 
 10. A concise statement of the substance of each order, made 
 by him in the course of the action or special proceeding. 
 
 11. The judgment or final order ; and the time of enter- 
 ing it. 
 
 12. The execution ; the time of issuing it ; the kind of execu 
 tion ; the name of the officer to whom it was delivered ; and 
 each renewal with the date thereof. 
 
 13. The return of each execution ; the time of the return ; 
 and a statement of unj money paid to the justice thereupon, and 
 when and by whom it was paid. 
 
 14. Each transcript of the judgment, given by him to be filed 
 in the county clerk's office, and the time when it was given. 
 
 15. The appeal, if any ; and the time of service of the notice 
 of appeal. {Code, § 3140.) 
 
 § 47. Entry in Justice^ s Docket. 
 In Justice's Court. 
 
 Slocum Howland, ) 1853, Jan'y 10, Summons issued, return- 
 against > able the 20th inst. at 1 o'clock P. M., at my 
 
 John James. ) office. 
 
 January 12. Siimmons returned personally served, by Stephen 
 Austin, constable, on the 10th inst. Fees 25 cts. 
 
THE justice's DOCKET AND PAPERS. 461 
 
 January 20. The plaintiff appeared in person, and the de- 
 fendant by James R. Cox, his attorney, who produced a written 
 authority. Plaintiff complained on a promissory note executed 
 by the defendant to him, and dated July 4, 1852, for $50, pay- 
 able three months from date with interest, and also for one 
 barrel of flour and ten bushels of wheat sold to the defendant, 
 and claimed damages to the amount of sixty-five dollars. 
 The defendant answered, admitting the execution of the note, 
 and denying the delivery of the flour and wheat, and claimed a 
 set-off of $25, for money lent to the plaintiff, and also for work 
 and labor performed for the plaintiff. On motion of the plain- 
 tiff the action was adjourned to Jan'y 26th inst., at 2 P. M., at 
 my office. A venire was issued at the defendant's request, re- 
 turnable at the same time and place. 
 
 Jan'y 26. The parties appeared at 2 P. M., and proceeded 
 to the trial of the cause. The following jurors were retui-ned 
 as summoned upon the venire by Stephen Austin, constable. 
 [Insert their names.] The following jurors who were returned 
 as summoned did not appear: [Insert their names.] The follow- 
 ing jurors appeared: [Insert their names.] The following jurors 
 were sworn to try the action: [Inse7-t their names.] John 
 Smith and James Brown were sworn as witnesses at the request 
 of the plaintiff, and William B. Wood and Benjamin Ashby, at 
 the request of the defendant. John Doe was offered as a wit- 
 ness on the part of the plaintiff, and objected to by the defend 
 ant as a person for whose immediate benefit the action was 
 prosecuted; objection overruled. After hearing the testimony, 
 the jury retired under charge of Stephen Austin, a constable, 
 duly sworn for that purpose, and afterwards returned into 
 Court, and the plaintiff having answered to his name when 
 called, the jury found a verdict for the plaintiff for $25 damages, 
 which was received January 26th, 1853. Whereupon I imme- 
 diately, and on the 26th of January, 1853, rendered judgment 
 for the plaintiff for $25 damages, and $2.62 1 costs, in all $27.62 1. 
 
 Jan'y 26. Execution issued to Stephen Austin, constable. 
 
 March 28. Execution returned satisfied. 
 
 In giving a certified copy of his docket, the Justice must cer- 
 tify the copy as follows: 
 County, 
 
 Town of " '®® 
 
 I certify that the foregoing is a copy of the entries in my 
 docket in the action in which such entries are entitled, that I 
 have compared said copy with such original entries, and that 
 the same is a correct transcript therefrom and of the whole of 
 such original. G H, Justice of the Peace. 
 
462 NEW YORK JUSTICE. 
 
 Each of the entries, specified in the last section, must be made 
 imder the title of the action or special proceeding to which it 
 relates ; and, in addition thereto, the Justice may enter in like 
 manner any other proceeding, had before him in the action or 
 special proceeding, which he thinks proper to enter. A docket- 
 book, kept by a Justice, must be kept open, during the hours 
 when a sheriff's office is required by law to be kept open, for 
 search and examination by any person, upon his reasonable 
 request and to a reasonable extent, {id. § 3141.) 
 
 A Justice of the Peace must furnish, upon request and pay- 
 ment of his fees, to any person interested in a judgment or order 
 entered by him, a transcript of the judgment or order, together 
 with a copy of all the entries in his docket-book, relating to the 
 cause ; a copy of his minutes of the evidence in the cause, or the 
 substance of the testimony, if he has not taken minutes ; and a 
 copy of any paper on file in the cause ; or such portions thereof 
 as are required, {id. § 3149.) 
 
 If the term of office of a Justice of the Peace is about to 
 expire, or he is about to remove from the town or city, before 
 judgment is rendered in an action, or a final order is made in 
 a special proceeding, pending before him, he must previ- 
 ously make a written order, reciting the fact, and directing 
 the action or special proceeding to be continued before another 
 Justice of the same town or city, named in the order, (w^. 
 § 3150.) 
 
 The docket of the Justice, or the transcript from the docket, 
 of the proceedings in a suit in which the Justice acquired juris 
 diction of the cause and of the person, is conclusive evidence of 
 the facts therein stated, and cannot, in a suit upon a judgment 
 rendered by the Justice, be contradicted by parol evidence. 
 (Hard vs. Shipman, 6 Barb. 621.) It is only evidence, however, 
 of the facts which the Justice is required by the statute to enter 
 in his docket; and, as to those facts, it is only evidence as be- 
 tween the parties to the action before him. {Reynolds vs. 
 Brown, 15 id. 25.) And the certificate must show on its face 
 that the Justice had jurisdiction of the person of the party, as 
 well as of the subject-matter of the suit; {Benn vs. Borst, 5 
 Wend. 292;) and if it does, the judgment cannot be impeached 
 
THE justice's DOCKET AND PAPERS. 463 
 
 collaterally. {Wesson vs. Chamherlin, 3 Corns. 331.) In an 
 action for selling property by virtue of an execution on a Jus- 
 tice's judgment, such a certificate is evidence, as well for the 
 Justice as for the plaintiff in the execution; and the certificate 
 may be granted after the expiration of the Justice's term of 
 ofiice. {Maynard vs. Thompson, 8 Wend. 393.) 
 
 Parol evidence is inadmissible to contradict the certificate of 
 the Justice as to proceedings before him. {McLean vs. Hugarin, 
 13 Johns. 184.) Nor is the evidence of the Justice admissible 
 to explain his docket, by showing that a judgment of nonsuit 
 entered by him should have been a judgment for the defendant 
 upon the merits. {Brintnall vs. Foster, 7 Wend. 103.) Nor 
 can an ambiguity as to the nature of the pleadings be explained 
 by the testimonj^ of the Justice, if the pleadings were in writing, 
 and are not produced or accounted for. (13 Johns. 184, 
 sujpra.) 
 
 To prove the judgment of a Justice, in an action before him- 
 self, the mere production of the original docket containing the 
 proper entries, is enough per se; the certificate is necessary 
 only when a transcript is relied on. {Smith vs. Frost, 5 Hill, 
 431.) 
 
 The proceedings in any cause, had before a Justice, may also 
 be proved by the oath of the Justice. In case of his death or 
 absence, they may be proved by producing the original minutes 
 of such proceedings, entered in a book kept by such Justice, 
 accompanied by proof of his hand-writing; or they may be 
 proved by producing copies of such minutes, sworn to by a 
 competent witness as having been compared by him with the 
 original entries, with proof that such entries were in the hand- 
 writing of the Justice. 
 
 The Justicfe before whom a suit was commenced may, on the 
 production of the written pleadings put in before him in such 
 suit, prove their identity, without producing his docket or a 
 transcript of it. {Brotherton vs. Wright, 15 Wend. 237.) But, 
 under the provision of the statute above cited, that the proceed- 
 ings in any cause, had before a Justice, may be proved by the 
 •oath of the Justice, no more is meant than that the docket may 
 be proved by the Justice, by the production of the docket veri- 
 fied by the oath of the Justice, and not that the Justice may 
 ^ive parol evidence of the contents of the docket. {Booner vs. 
 
464 NEW YORK JUSTICE. 
 
 Zaine, 10 id. 526.) nor can he, if examined in person on the 
 trial, prove a cojyy of his docket, making oath that it is a 
 true copy. In such case the original docket must be produced. 
 A sworn copy can only be given in evidence when the Justice 
 is dead or absent from the trial. {Pratt vs. Peclcham, 25 Barb. 
 195.) 
 
 Every Justice must carefully file and preserve all affidavits 
 and papers delivered to him to be filed in any cause. {Code, 
 § 3143.) 
 
 Every Justice must keep an alphabetical index of all judg- 
 ments entered in his docket-book, in the course of any judicial 
 proceedings had before him. In such index must be inserted 
 the names of the parties to each judgment, and the page of his 
 docket-book where such judgment is entered. {j.d. § 3142.) 
 
 In case any Justice removes out of the town in which he was 
 elected, before or after his term of office expires, he must 
 deposit with the town clerk of such town, all the books and 
 papers in the custody of such Justice, relating to any cause 
 or matter which shall have been heard by him, or relating to 
 any proceeding or cause which shall have been commenced 
 before him. {id. § 3144.) His neglect to do so will not, how- 
 ever, operate to the prejudice of a party, or prevent the docket 
 from being received in evidence. {Garshore vs. Huych. 6 Barb. 
 583.) 
 
 Whenever any Justice is removed from office by the Supreme 
 Court, {ante, p. 11,) he must, within ten days after receiving 
 notice of such removal, and upon the demand of the town clerk, 
 deliver to such clerk all the books and papers in the custody of 
 such Justice, relating to any cause or matter which shall have 
 been heard by him, or relating to any proceedipg or cause, which 
 shall have been commenced before him. {Code, § 3144.) 
 
 In every book of minutes delivered by any Justice to the town 
 clerk, pursuant to the foregoing provisions, in which he has kept 
 the docket of any judgment, he must enter a certificate, to be 
 subscribed by him, stating that the judgments entered in such 
 book were duly rendered as therein stated, and that the amounts 
 appearing by such book to be due on such judgments, respec- 
 tively, have not been paid to his knowledge, {id. § 3145.) 
 
 In case any Justice dies, or his office in any way becomes 
 vacant, and any books or papers belonging to such Justice in his 
 
COSTS. 465 
 
 official capacity, come to the hands of any person, the town clerk 
 may demand and receive such books and papers from the person 
 having the same in his possession, (id. 3146.) If any books 
 and papers are withheld by any person, be may be compelled to 
 deliver them. {U. § 3147.) 
 
 The entries contained in the book of minutes kept by any 
 Justice, and by him delivered to the clerk, are, in all cases, pre- 
 sumptive evidence of the facts stated in such entries, but may 
 be repelled by contrary proof. If the docket of a Justice has 
 been lost or destroyed, or cannot be produced, after reasonable 
 efforts to obtain the same, other proof of the fact of a judgment 
 having been rendered may be given, and may be repelled as other 
 facts, {id. § 3155.) 
 
 CHAPTER XVI. 
 
 OF COSTS AND FEES IE CIYIL PEOCEEDINGS. 
 1. Costs. 
 
 "Whenevee a judgment is rendered by a Justice against any 
 party, it must be with the costs of the suit, except when the suit 
 is discontinued by the absence of the Justice ; or the Justice is 
 disquahfied to hear the cause ; or the action is discontinued 
 because defendant is an infant for whom a guardian ad litem had 
 not been appointed ; or in an action to recover chattels the plain- 
 tiff recover only a part thereof. But the whole amount of all 
 the items of such costs, except charges for the attendance of wit- 
 nesses, cannot, in any case, exceed five dollars, besides witnesses' 
 fees and expenses of commission to take testimony, unless the 
 party recovei's damages to the amount of fifty dollars or more ; 
 or one or more chattels the value of which with the damages 
 amount to fifty dollars. But if the damages recovered exceed 
 fifty dollars, costs not to exceed ten dollars. {Code, § 3075, 3076.) 
 In all actions where a debt or damages are recovered costs are given 
 of course to the prevailing party. But costs incurred on the part 
 of the losing party cannot be included in the judgment (13 Johns. 
 350, 460 ; 14 id. 369 ; Dudley vs. Staples 15 id. 195), and if the 
 
466 NEW YORK JUSTICE. 
 
 costs of an adjournment on motion of the defendant be included 
 in the plaintiif's judgment, it will be error. [Denmson vs. 
 Collins, 1 Cow. 111.) 
 
 The costs of a venire always abide the event of the suit, which- 
 ever party may call for the venire, and should be included in 
 the judgment. {Rickey vs. Bowne, 18 Johns. 131.) 
 
 If Judgment be rendered by any Justice, for a greater amount 
 of costs than is allowed by law, or for any item of costs or fees, 
 improperly, and the same be collected, the person paying the 
 same may, notwithstanding such judgment, recover of the party 
 who shall have received such costs or fees, the amount thereof, 
 with interest. {Fuller vs. Wilcox, 19 Wend. 351.) And may 
 recover the same of the Justice. {Code, § 3081.) 
 
 Where any action is brought in the name of another, by an 
 assignee of any right of action, or by any person beneficially 
 interested in the recovery in such action, such assignee or person 
 is liable for costs in the same cases and to the same extent in 
 which a plaintiff would be liable, {id. § 3247.) 
 
 In proceedings by attachment to enforce or protect the civil 
 rights and remedies of parties, or for the non-payment of any 
 sum of money, costs must be awarded, to be paid by the offend 
 ing party. 
 
 "What are called double and treble costs are allowed by statute 
 in some cases. 
 
 In the following actions, if judgment be rendered for the 
 defendant, upon verdict, demurrer, nonsuit, nan pros., discon- 
 tinuance of the plaintiff, or otherwise, in any action, certiorari, 
 writ of error, or other proceeding, such defendant is entitled 
 to recover the amount of his taxed costs, and one-half thereof 
 in addition: 
 
 1. In actions against public officers, appointed under the 
 authority of this State, or elected by the people, or against any 
 person specially appointed, according to law, to execute the 
 duties of such public officer, for or concerning any act done by 
 such officer or person by virtue of his office, or for or concern- 
 ing the omission by such officer or person, to do any act which 
 it was his official duty to perform; 
 
 2. In actions against any other person, for doing any act by 
 
COSTS. 467 
 
 the commandment of such oiBcers or persons, or in their aid or 
 assistance, touching the duties of such office or appointment; 
 
 3. In actions against any person, for taking any distress, 
 making any sale, or doing any other act, by authority of any 
 iitatute of this State. {Code, § 3258.) 
 
 It is also provided, that whenever any officer of the militia, 
 or any person acting under his command, shall be prosecuted 
 for any act done by him as such, the defendant shall, in case the 
 plaintiff shall be non-prosed, or nonsuited, or have a verdict or 
 judgment against him, recover treble costs. (1 id,. 324, \ 6.) 
 
 Whenever, by the provisions of any statute, a plaintiff is enti- 
 tled to recover double or treble the damages, assessed by a 
 jury, if such damage so doubled or trebled, as the case may be, 
 entitle him to recover costs, he can recover single costs only in 
 such suit, except in cases otherwise specially provided for by 
 law. {Code, % 3257.) 
 
 When double or treble costs are awarded to any defendant, 
 they belong to him, and the officers who may have rendered 
 any services in the action to the defendant, and the witnesses 
 and jurors in such action are entitled to receive and retain only 
 the single costs allowed by law for their services respectively. 
 {id. § 3259.) • 
 
 It has been held that treble costs mean the common costs, 
 and one-half of those, and then one half of the latter, or 
 seventy-five per cent, added to the common costs. {Patchin 
 vs. Parkhurst, 9 Wend. 443.) While, on the other hand, it 
 has been recently held, that treble ccJsts mean the costs actually 
 trebled. {WalJcer vs. Bumham, 7 How. 55.) 
 
 There have been various and conflicting opinions as to whe- 
 ther double and treble costs are abolished by the Code; but 
 the question has been settled by the Court of Appeals in Bar- 
 tie vs. Oilman, (18 JSF. Y. 260,) which decides that the provi- 
 sion of giving double costs in certain cases is not repealed by the 
 Code. Code now gives double costs. (§ 3258.) 
 
 It is provided by statute, {Laws of 1851, cha;p. 180, § 36,) 
 that when a suit or proceeding shall be commenced in any 
 Court, by any person, against any officer of the militia of this 
 State, for any act done by such officer in his official capacity, 
 or against any person acting under authority or order of any 
 such officer, or by virtue of any warrant issued by him pursuant 
 
468 NEW YORK JUSTICE. 
 
 to law, or against any collector or receiver of taxes, the defend- 
 ant may require the plaintiff in such suit to file security for the 
 payment of the costs that may be incurred by the defendant in 
 such suit or proceeding, pursuant to title two, chapter ten, part 
 three of the Revised Statutes, and all the provisions of said 
 title are applied to any such suit or proceeding. This provi- 
 sion is supposed to be applicable to Justices' Courts. The pro- 
 visions of the Eevised Statutes, so referred to, in regard to 
 giving the security, are these: The Court in which the action 
 is pending, upon due proof by affidavit of the facts entitling 
 the defendant to the security, may make an order that the 
 plaintiff file such security, and that all proceedings on the part 
 of the plaintiff be stayed, until such security be filed and the 
 sureties justify, if excepted to. (2 R. 8. 620, § 3.) Such secur- 
 ity must be given in the form of a bond, in a penalty of at least 
 two hundred and fifty dollars, with one or more sufficient sure- 
 ties, to the defendant, conditioned to pay, on demand all costs 
 that may be awarded to the defendant in such suit. {id. \ 4.) 
 It must be filed with the Justice, and notice thereof given to 
 the defendant or his attorney. Within twenty days after the 
 service of such notice, the defendant may except to the suf- 
 ficiency of the sureties, by giving notice of such exception to 
 the plaintiff or his attorney, {id. ^ 5.) Within twenty days 
 after such notice of exception, the sureties must justify, by an 
 affidavit, that they are worth double the penalty of such bond, 
 over and above all debts; of which affidavit a copy must be 
 served on the defendant, or his attorney. Such justification will 
 operate to discharge the order to stay proceedings, {id. § 6.) 
 
 2. Fees. 
 To the Justice. 
 
 The act fixing the fees of Justices of the Peace in civil and 
 criminal cases, passed May 6, 1880 {Code, § 3322), provides as 
 follows : 
 
 Justices of the Peace in the State shall hereafter be allowed 
 and receive the fees hereinafter stated, for the following services 
 in civil cases : 
 
 For a summons, twenty-five cents ; 
 
 For order of arrest, or attachment, or transcript of judgment, 
 twenty-five cents; 
 
FEES. 469 
 
 For adjournment, except on motion of the Justice, twenty-five 
 cents ; 
 
 Eor each subpoena, including all the names inserted therein, 
 twenty-five cents; 
 
 For administering an oath, ten cents ; 
 
 For filing every paper necessary to be filed, five cents ; 
 
 For swearing a jury, twenty-five cents ; 
 
 For swearing a constable to attend a jury, ten cents ; 
 
 For trial of an issue of fact, in case of appearance and answer, 
 seventy five cents ; no appearance by defendant, twenty-five 
 cents ; 
 
 For entering judgment, twenty-five cents ; 
 
 For taking affidavit, ten cents ; 
 
 For drawing any bond, twenty-five cents ; 
 
 For receiving and entering verdict of jury, twenty-five cents ; 
 
 For venire, twenty-five cents ; 
 
 For drawing affidavits, applications and notices, where required 
 by law, five cents per folio ; 
 
 For execution, twenty-five cents ; 
 
 For renewal of same, twenty-five cents ; 
 
 For making a return to an appeal, two dollars ; 
 
 For a warrant in any case where a fee therefor is not expressly 
 prescribed by law, twenty-five cents ; for the apprehension of a 
 person charged with being the father of a bastard, fifty cents ; 
 
 For indorsing any such warrant, issued from another coimty, 
 twenty-five cents ; 
 
 For a precept or other mandate whereby any special proceed- 
 ings are commenced, twenty-five cents : 
 
 For drawing, signing and filing a record of conviction for con- 
 tempts and other special cases, fifty cents. 
 
 For an execution upon any such conviction, twenty-five cents ; 
 
 For a warrant of commitment, for any cause, twenty-five cents ; 
 
 For a precept to notify a jury, fifty cents ; 
 
 For impaneling and swearing such jury, twenty-five cents ; 
 
 For hearing the matter concerning which a jury is summoned, 
 fifty cents ; 
 
 For receiving and entering their verdict, twenty -five cents ; 
 
 For a view of premises alleged to be deserted, fifty cents ; 
 
 For hearing an application for a commission to examine wit- 
 nesses, fifty cent ; 
 
470 NEW YOEK JUSTICE. 
 
 For every order for such commission, and attending, settling 
 and certifying interrogations, fifty cents ; 
 
 For taking depositions of witnesses, upon an order or commis- 
 sion issued by some Court in this or a foreign State or Territory, 
 ten cents per folio ; and for making the necessary return and cer- 
 tificates thereto, fifty cents ; 
 
 For a requisition in an action for a chattel, twenty-five cents ; 
 
 Taking the acknowledgment of a power of attorney, twenty- 
 five cents ; 
 
 For hearing an application to discharge a defendant from arrest, 
 or to vacate or modify a warrant of attachment or increase the 
 plaintiff's security thereupon, fifty cents ; 
 
 Foi the trial of a demurrer, twenty-five cents ; 
 
 For a copy of any paper for which a fee is not expressly pre- 
 scribed by law, six cents for each folio ; 
 
 For an order directing an action or a special proceeding to be 
 continued before another Justice, twenty-five cents ; 
 
 For services when associated with another Justice, in any case 
 where a fee therefor is not expressly prescribed by law for each 
 day actually spent, two dollars ; 
 
 For a warrant of attachment to arrest a delinquent juror or 
 witness, twenty-five cents ; 
 
 For drawing, copying and certifying a bond, an undertaking,, 
 a recognizance, or other written security, and filing the same with 
 the county clerk, or other officer with whom it must be filed, 
 twenty-five cents. 
 
 To Witnesses. 
 
 For attending before a Justice of the Peace, in a Justice's 
 Court, or before a commissioner appointed by a Justice of the 
 Peace, or before a Justice of the Peace taking depositions to be 
 used in Court in other States, twenty-five cents for each day's 
 actual attendance, (^c?. § 3327.) 
 
 To Constables. 
 
 For serving a summons, twenty-five cents ; 
 
 For serving a summons and executing an order of ai-rest, one 
 dollar ; 
 
 For serving a summons and levying an attachment, one dollar ; 
 
 For serving siimmons and affidavit and executing a requisition,, 
 in an action for a chattel, one dollar ; 
 
FEES. 471 
 
 For serving an execution, five cents for every dollar collected 
 to the amount of fifty dollars, and two and a half cents for every 
 dollar collected over fifty dollars ; 
 
 For every mile, going and returning, when serving a summons, 
 or other mandate, except a venire, ten cents ; to be computed 
 from the place of abode of the person served, or where he shall 
 be found, to the place where the precept is returnable ; 
 
 For notifying a plaintiff of the service of order of arrest, t\veuty- 
 five cents; and for going to the plaintiff's residence, or where 
 such notice was served, and. returning, ten cents for every mile. 
 
 Notifying a jury, seventy-five cents ; 
 
 For subpoenaing witnesses, not exceeding four, twenty-five cents ; 
 
 For taking charge of a jury, fifty cents ; 
 
 For serving an order directing an action or special proceeding 
 to be continued before another justice, and for attending fifty 
 cents, and fifty cents in addition if he attends with a person in 
 his custody. 
 
 In special proceedings. — For serving a precept, twenty-five 
 cents; for serving a warrant, fifty cents ; for arresting and com- 
 mitting any person, pursuant to process, one dollar ; for travel 
 fees, ten cents per mile, going and returning ; subpoenaing each 
 witness, not exceeding four, twenty-five cents. {j,d. % 3323.) 
 
 To Jurors. 
 For attending to serve as such, although not sworn, ten cents 
 each ; 
 For attending and trying a cause, twenty-five cents each. (id. 
 
 §3326.) 
 
 To Commissioners. 
 
 To one or more commissioners, for taking and returning testi- 
 mony, under a commission issued by a Justice of the Peace, one 
 dollar ; 
 
 For every subpoena or oath, six cents ; serving each subpoena, 
 twenty-five cents ; witness fees each days' attendance, twenty-five 
 cents ; postage, one dollar, ijd. § 3325.) 
 
 To any person rendering the service. 
 For serving a subpoena, twenty-five cents for each witness 
 served ; but no allowance can be made in any judgment for service 
 upon more than four witnesses in any cause. {Id., §§ 2970, 3323.) 
 
472 NEW YORK JUSTICE. 
 
 In respect to the city of Albany a special tarifE of fees is estab- 
 lished by statute. {Laws of 1856, cha^. 184.) 
 
 The legal fees paid for the depositions of witnesses necessarily 
 used on the trial of an action, or on the assessment of damages, 
 are allowable as costs. {Code, § 3325.) 
 
 No judicial officer is allowed to demand or receive any fees or 
 other compensation, for giving his advice in any matter or thing 
 pending before such officer, or which he has reason to believe 
 will be brought before him for decision, or for drafting or pre- 
 paring any papers or other proceedings relating to any such mat- 
 ter or thing, except in those cases where fees are expressly given 
 by law to such officer, for services performed by him. {id. § 51.) 
 
 No officer, or other person to whom any fees or compeusation 
 are allowed by law for any service, can lawfully take or receive 
 any other or greater fee or reward for such service, than such as 
 is allowed by law. {id. % 3280.) 
 
 A constable or other ministerial officer, the fees for whose 
 official services are prescribed by law, cannot maintain an action 
 on a promise of extra compensation for extra services, although 
 services beyond what could legally be required are rendered by 
 the officer. {Hatch vs. Mann. 15 Wend. 44.) No fee or com- 
 pensation allowed by law, can be demanded or received by any 
 officer or person, for any service, unless such service was actually 
 rendered by him, except in the case of charges for prospective 
 costs allowed by law. But this does not prevent any officer from 
 demanding any fee allowed for any service, of which he is 
 entitled by law to require the payment, previous to rendering 
 such service. {Code, § 3281.) A violation of either of the pro- 
 visions of the statute just cited is a misdemeanor and the person 
 guilty thereof is liable to the party aggrieved for treble the dam- 
 ages sustained by him. {id. % 3282.) 
 
ISSUING EXECUTIONS. 473 
 
 CHAPTER XVII. 
 
 OF EXECUTIONS. 
 
 After judgment has been rendered in favor of the party pre 
 vailing in an action, the next step in the progress of a suit is the 
 issuing of an execution. 
 
 An execution, in the usual legal sense of the word, is a judi- 
 cial writ, grounded on the judgment of the Court from which it 
 issues; and is supposed to be granted by the Court, at the 
 request of the party at whose suit it is issued, to give him 
 satisfaction on the judgment which he has obtained. {Jacob's 
 Law Dictionary, Execution.') 
 
 1. Issuing Executions. 
 An execiition may be issued on a judgment rendered in a 
 Justice's Court, at any time withiu iive years after the rendi- 
 tion thereof, and must be returnable sixty days from the date 
 of the same. {Code, \% 3024 and 5.) If returnable in less, it 
 is void, and will not protect an officer who acts iinder it. (5 
 Wend. 276; Farr vs. Smith, 9 id. 338.) It is no objection, 
 however, to an execution that it is made returnable within sixty 
 days from date, as this phi-aseology allows the officer full sixty 
 days for the return. {Price vs. Ships, 16 Barb. 585.) 
 
 All the provisions of the Eevised Statutes, (2 R. S. 249, §§ 
 132 to 136,) as to the time when execution may be issued, the 
 oath necessary to obtain it in certain cases, and the time when 
 it is returnable, have been superseded bv the Code. (3 Lans. 315.) 
 An execution, issued upon a judgment for a sum of money, 
 must specify, in the body thereof, the sum recovered, and the 
 sum actually due upon the judgment at the date of the execution ; 
 and, except in a case where special provision is otherwise made 
 by law, it must, substantially, require the constable to satisfy the 
 judgment, together with his fees, out of the personal property of 
 the judgment debtor within the county, not exempt from levy 
 and sale by virtue of an execution ; a,nd to bring the money 
 before the Justice, by the return day of the execution, to be 
 
474 NEW YORK JUSTICE. 
 
 rendered by the Justice to the party who recovered the judgment. 
 If the judgment was recovered against a male person, in either 
 of the actions specified in subdivision first or second of section 
 2895 of this act ; or if an order of arrest was granted, and was 
 executed, in a case specified in subdivision third of that section, 
 the execution must also command the constable, if sufiicient per- 
 sonal property cannot be found to satisfy the judgment, to arrest 
 the judgment debtor, and to convey him to the jail of the county, 
 there to remain until he pays the judgment, or is discharged 
 according to law. If the judgment was rendered in an action to 
 recover a penalty or forfeiture given by a statute of the State, 
 the Justice must indorse upon the execution a reference to the 
 statute, as prescribed in section 1897 of this act, with respect to 
 a copy of the summons. {Code, § 3026.) 
 
 For want of sufficient personal property, whereon to levy, the 
 constable must, if the execution requires it, arrest the judgment 
 debtor and convey him to the jail of the county. The keeper of 
 the jail must thereupon keep the judgment debtor ia custody, in 
 all respects as if the execution was issued out of the Supreme 
 Court, until the judgment and the fees of the constable are paid ; 
 or until the judgment debtor is thence discharged, in due course 
 of law, except that if the execution has an indorsement, showing 
 that the judgment was rendered in an action for a penalty or 
 forfeiture given by a statute of the State, the sherifE shall not 
 admit the judgment debtor to the liberties of the jail. (id. 
 § 3032.) 
 
 No female can be arrested or imprisoned upon any execution 
 issued from a Justice's Court. {Code, § 553.) 
 
 Every judgment bears interest from the time of perfecting the 
 same, {Code, § 1211,) and may be collected from the time of 
 recovering the same until such amount be paid. 
 
 Every execution issued by a Justice must be dated on the day 
 when it is actually issued. It must be signed by him, and may be 
 under seal or without seal. It must be entirely filled up, and must 
 have no blank either in the date or otherwise, at the time of its 
 delivery to an officer to be executed ; and if issued and delivered 
 to an officer to be executed, contrary to this provision, it is entirely 
 void. {id. § 3135. ) A Justice has no right to give a constable 
 a general authority to fill up or alter any process, and any altera- 
 tion or filling up, unless iu the presence and by the direction 
 
ISSUING EXECUTIONS. 475 
 
 of the Justice, renders the process void. (10 Johns. 405; Peo- 
 pie vs. Smith, 20 id. 63.) 
 
 [For form oi Execution, see McCall's Cleek's Assistant, p. 343.] 
 
 A Justice has no power to amend an execution after it has 
 been executed. {Too/ vs. Bentley, 5 Wend. 276.) 
 
 When a judgment is recovered against the board of supervi- 
 sors, or the county superintendents of the poor, of any county, 
 or against any town, or the supervisor, or the overseers of the 
 poor thereof, no execution can be awarded or issued upon such 
 judgment, unless the same has been rendered for the costs of a 
 suit commenced by any of the said officers in their individual 
 names; in which cases, such costs must be collected of the plain- 
 tiffs individually, and the amount thereof must be allowed to 
 them in their account of official expenditures, by the board au- 
 thorized to audit such accounts, if such suit appears to have 
 been necessarily commenced in good faith. {Code, § 1931.) 
 Under this provision it has been held that town and county 
 officers are not liable individually for the costs of a judg- 
 ment rendered against them in suits commenced by them, 
 although their individual names appear on the record, provided 
 it also ajDpears that they sued in their representative character 
 for the benefit of their constituents, and not for their own ben- 
 efit. And such exemption applies as well to suits for penalties, 
 as to other matters, where it is the duty of the officers to sue. 
 {Avery vs. Slack, 19 Wend. 50.) 
 
 In suits by and against loan-officers, commissioners of loans, 
 town superintendents of common schools, commissioners of high- 
 ways, trustees of school districts, and trustees of gospel and 
 school lots, the debt, damages, or costs recovered against them, 
 must be recovered in the same manner as against individuals; 
 and the amount so collected must be allowed to them in their 
 official accounts. 
 
 When a judgment is obtained against joint debtors, {Ante, p. 
 453,) upon process which was not served upon all the defend- 
 ants, execution may be issued in form against all; but the Justice 
 must endorse thereon the names of such of the defendants, who 
 did not appear in the suit, as were not served with process of 
 
476 NEW YORK JUSTICE, 
 
 summons or attachment. {Code, § 1934.) The endorsement may 
 be made in this form : 
 
 James Brown, one of the defendants within named, was not 
 served with process, and did not appear in the suit. 
 
 G H, Justice. 
 
 Such execution must not be served upon the persons of the 
 defendants whose names are so endorsed thereon; nor can it be 
 levied on the sole property of any such defendant; but it may 
 be collected of the personal property of any such defendant, 
 owned by him as a partner with the defendants appearing or 
 served with process, or with any of them. {id. § 1935.) 
 
 Where any county is divided, any judgment recovered pre- 
 vious to such division, or, after such division, upon any proceed- 
 ings instituted previous thereto, before any Justice of the Peace, 
 may be collected by execution to be issued to a constable of the 
 county where such judgment is rendered, who must execute the 
 same in the same manner as if such division had not been made. 
 (id. 556, § 35.) 
 
 When any recovery is had Ijefore a Justice of the Peace for a 
 penalty or forfeiture incurred by violating any provision of the 
 title of the Revised Statutes relating to fisheries, execution must 
 issue thereon immediately, and the Justice must endorse upon 
 such execution the cause for which such judgment was rendered; 
 and, in case no goods or chattels can be found to satisfy the 
 execution, the constable having the same must commit such 
 defendant to the jail of the county, and must deliver to the 
 keeper thereof a certified coj)y of the execution and endorse- 
 ment ; by virtue of which such keeper must detain such defend- 
 ant for a period not exceeding sixty days, without allowing him 
 the benefit of the liberties of such jail. {Code, % 3032.) 
 
 If an execution is returned by the constable unsatisfied, in 
 Avhole or in part, a further execution, for the amount remaining 
 due, may be issued. {Code, § 3027.) 
 
 An action can be maintained against a party who wrongfully 
 and wilfully sues out an execution on a judgment which he 
 knows to be paid and satisfied, whereby the property of the 
 defendant is taken and sold; and, to support the action, it is 
 not necessary to allege or prove actual malice. {Brown vs. 
 Feeler, 7 Wend. 301.) 
 
renewing executions. 477 
 
 2. Renewing Executions 
 
 If any execution be not satisfied, it may, from time to time, be 
 renewed by the Justice issuing the same, by an endorsement 
 thereon to that effect, signed by him, and dated when the same 
 is made. If any part of such execution has been satisfied, the 
 endorsement of renewal must express the sum due on the execu- 
 tion. The same statute provides, that every such endorsement 
 shall be deemed to renew the execution in full force, in all 
 respects, for sixty days from the date thereof. {Code, § 3027.) 
 
 Before renewing an execution, the Justice should be certain 
 that the execution has not been satisfied. For this purpose, he 
 may require the return of the constable as to that fact, or he 
 may require him to answer under oath; for, if the Justice issues 
 a second execution, or renews the first, when the judgment has 
 been satisfied, he is a trespasser, and will not be excused on the 
 ground of the false representation of the plaintiff that the first 
 was lost. (6 Wend. 367; Ostrander vs. Walker, 2 Hill, 329.) 
 Unless the Justice signs the endorsement of renewal, the con- 
 stable who executes the process will be a trespasser. (Barhydt 
 vs. Van Valk, 12 Weyid. 145.) 
 
 § 48. Renewal of Execution. 
 
 The within execution is hereby renewed, [If necessary, add: 
 for the sum of dollars, with interest from this date.] 
 
 Dated the day of 18 . 
 
 G H, Justice. 
 
 An execution may be renewed by a Justice while it remains 
 unsatisfied, even though sufficient property to satisfy it has 
 been levied on and is held under the levj'', where there is not 
 time enough remaining to adveilise and sell during the life of 
 the execution. (^People vs. Hopson, 1 Den. 574.) And, where 
 the property cannot be sold for want of bidders, the execution 
 may be renewed on the last day it has to run, so as to retain its 
 lien. {Chapman vs. Fuller, 7 Barb. 70.) 
 
 An execution may be renewed without a return of nulla bona 
 endorsed, and the endorsement by the Justice of "execution 
 renewed," and signed by him, is a renewal, and is evidence that 
 the officer had satisfied him that there were no goods on which 
 
478 NEW YOEK JUSTICE. 
 
 he could levy. {Wichham vs. Miller^ 12 Johns. 320.) So, 
 also, it may be renewed, after it has run out, and from time to 
 time, so long as the plaintiff chooses. {Visger vs. Ward, 1 
 Wend. 551.) 
 
 The provision of the statute requiring the renewal of the exe- 
 cution to express the sum due thereon, is merely directory, and, 
 although something has been paid on the first execution, the 
 omission to express the amount due, will not render the plain- 
 tiff liable as a wrong-doer, if there be no attempt to collect 
 more than is due. {Ostrander vs. Walker, 2 Hill, 329.) 
 
 Any Justice, before whom any judgment shall have been 
 entered, and whose term of ofiice shall have expired, may issue 
 or renew executions on any such judgment, after the expiration 
 of his said office, at any time within five years from the time said 
 judgment shall have been rendered, subject, however, in other 
 respects, to the provisions as to issuing executions on Justices' 
 judgments. 
 
 3. Executions on Judgments Docketed in County Coubt. 
 
 The provisions of the Code, authorizing a transcript of a 
 judgment rendered by a Justice, to be filed in the county clerk's 
 office, have been cited. If the judgment be docketed with the 
 county clerk, the execution may be issued to the sheriff of the 
 county, and will have the same effect, and must be executed in 
 the same manner as other executions and judgments of the County 
 Court, except that the judgment will be a lien on real property, 
 only from the time of filing and docketing the transcript, and not 
 then, if the judgment be for a less sum than twenty-five dollars, 
 exclusive of costs. {Code, § 3043.) 
 
 Under the Justices' act, prior to the Eevised Statutes, it was 
 held, that the county clerk was authorized to renew an execution 
 issued by him, or to issue a further execution. (Jackson vs. 
 Paige, 4 Wend. 586.) A sale made under an execution issued by 
 a county clerk on a transcript of a Justice's judgment, has been 
 held good, although made after the return day. {Jackson vs. 
 Browner, 7 Wend. 388.) 
 
 It does not fall within the scope of this work to consider, at 
 length, the various topics connected with the issuing of an exe- 
 cution on a Justice's judgment docketed in the county clerk's 
 
EXECUTIONS IN COUNTY COURT. 479 
 
 office — the duty of the clerk in issuing the execution — the con- 
 trol of the County Court over it — its form — the duty of the 
 sheriiF in executing it — his liability — his fees — the proceedings 
 to compel a return — the sale and redemption of real estate 
 under it — the exemption under it, including the homestead 
 exemption — and the mode of discharging the judgment from 
 the docket. It will be sufficient to refer to various statutory 
 provisions, without citing them, bearing upon these various 
 points: 
 
 As to issuing executions by the county clerk, Code, § 1367. 
 
 As to their form, id. § 1366. 
 
 As to the sheriff's fees, id. § 3307. 
 
 As to enforcing a return, 2 R. S. 254, § 168. 
 
 As to the sale and redemption of real estate, id. §§ 1430-1478. 
 
 As to the exemption of burying grounds, id. § 1395. 
 
 As to the homestead exemption, id. §§ 1397, 404. 
 
 The docket of a judgment must be canceled and discharged by 
 the clerk, in whose office the judgment-roll is filed, upon filing 
 with him a satisfaction-piece, describing the judgment, and 
 executed either by the party in whose favor tiie judgment was 
 obtained, or his assignee, or attorney ; and the satisfaction-piece 
 or power of attorney must be acknowledged, before the clerk, or 
 his deputy, and certified by him thereupon ; or it must be 
 acknowledged or proved, and certified, in like manner, as a deed 
 to be recorded in the county where it is filed. (See Code, § 1260.) 
 
 4. Levy and Sale. 
 
 On receiving an execution, it is the duty of the constable to 
 endorse thereon the year, month, day, and hour of the day, when 
 he received it, and then to levy upon any property of the defend- 
 ant Hable to be taken. 
 
 To constitute a levy, the property must be taken into the 
 actual or constructive possession of the constable. For the 
 purpose of taking actual possession of goods, they should be 
 within his view, and subject to his disposition and control. 
 {Price vs. Shijyps, 16 Barb. 585.) It is not necessary that he 
 should remove them, or leave an assistant in possession of 
 them, {Barker vs. Benninger, 14 New York R. 270,) they may 
 be left with the defendant at the risk of the plaintiff, or of the 
 
480 NEW YORK JUSTICE. 
 
 officer, or security for their delivery at some future day may be 
 taken. (IG Johns. 288; 3 Wend. 446; 11 id. 548; 14 id. 123; 
 19 id. 495; Van Wych vs. Fine^ 2 Hill, 666.) An actual touch- 
 ing of the goods is not necessarj^ but merely such a course of 
 action as, in effect, is calculated to reduce them to the dominion 
 of the law. They are then considered as in the custodj' of the 
 law. The great point is, that the debtor and the officer should 
 understand that a levy has been made, and that it should be 
 made in an open and public manner. Where the sheriff, in 
 view of certain goods of the judgment debtor, and in the pres- 
 ence and with the knowledge of the judgment debtor, and of a 
 third person in whose jiossession the goods were, touched a part 
 of them, saying that he levied, and made a memorandum at the 
 time on the execution, and afterwards told the attorney of the 
 execution creditor that he had levied on double enough to pay 
 the judgment; these facts were held sufficient to constitute a 
 valid levy. Taking an inventory, though desirable, is not abso- 
 lutely necessary. (Watts vs. Cleveland, 3 E. B. Smith, 553.) 
 The seizure of the property works, however, no change of in- 
 terest, beyond vesting a special property in the officer. The 
 general property still remains in the debtor, and he is not abso- 
 lutely divested of it until a sale. {Oreen vs. BurJce, 23 Wend. 
 490.) 
 
 The constable must make an actual levy on the goods. 
 Merely seizing a few articles outside of a store, or warehouse, 
 and proclaiming a levy on the goods locked up in the store, 
 and not within view, is not a levy; but the constable should 
 break open the store, actually take the goods, and make an 
 inventory of them. {Haggerty vs. Wilder, 16 Johns. 287.) 
 
 An officer may break open a warehouse, store, or barn, not 
 annexed to a dwelling-house, to make a levy, (id.) But he 
 cannot break open a dwelling-house. If he even lifts the latch 
 and opens the outer door, against the owner's known will, 
 though in his absence, and enters and levies upon goods, it is 
 a forcible and unlawful breaking and entering, and even a 
 stranger, by the owner's directions, may dispossess him, and 
 expel him from the house. (1 Hill, 336; Curtis vs. Hubbard, 
 4 id. 437.) 
 
 Where an officer, at the time of levying upon property, did 
 not see the property, nor know where it was, but sat on hia 
 
LEVY AND SALE. 481 
 
 horse in the road, while the defendant in the execution named 
 over to him what property he had, and the officer made a mem- 
 orandum of it on a piece of paper, it was held that the levy, 
 although sufficient as against the judgment debtor, was not an 
 actual levy, so as to affect persons acquiring a title subsequently 
 derived from the judgment debtor. {Dresser vs. Amsworth, 
 9 Barb. 619.) 
 
 A constable, after taking goods and chattels into his custody 
 by virtue of an execution, must endorse thereon the time of 
 levying the same. {Code, § 3029,) 
 
 [For forms of indorsements on Execution, see McCall's 
 Cleek's Assistant, p. 344.] 
 
 [For form of Endorsement of Levy endorsed on Execution, 
 see McCall's Cleek's Assistant, p. 344.] 
 
 A constable, after making a levy under an execution, may 
 deliver the goods to a third person, on his giving a receipt to 
 return them, or pay the amount of the execution; and, in such 
 case, the officer cannot afterwards take other goods of the 
 defendant on the same execution, if the goods he first took 
 were enough to satisfy it. (12 Johns. 207; Burrall vs. Acker, 
 23 Wend. 606.) 
 
 [For form of Receipt of Goods taken on Attachment or Exe- 
 cution, see McCall's Constable's Gxude, p. 171.] 
 
 A constable cannot levy upon or sell any property, or im- 
 prison a defendant upon any execution, after the time limited 
 therein for its return, unless such execution has been renewed. 
 Nor can any constable do any act under a renewed execution, 
 after the expiration of the time or times for which the same may 
 have been renewed. {Code, 3040.) 
 
 Any constable to whom any execution has been issued and 
 delivered, and whose term of office expires before the time 
 within which the collection or return of such execution is re- 
 quired by law, must and may proceed in all matters relative to 
 
482 NEW YOEK JUSTICE. 
 
 said execution, in the same manner as if the term of office of 
 such constable had not expired, {id. § 3042.) 
 
 Such constable and his bail are liable for any neglect of duty, 
 and for moneys collected upon such execution, in the same man- 
 ner and to the same extent as if the term of office of such con- 
 stable had not expired, {id.) 
 
 It was formerly held, that a levy extinguished or satisfied the 
 judgment in all cases, but such is not now the law. In the case 
 of Greene vs. Burke, (23 Wend. 490,) Mr. Justice Cowen re- 
 viewed the former decisions as to what constitutes a levy, and 
 its effect as to the officer, the parties, and third persons, and 
 held that a levy is not an absolute extinguishment, though it 
 may operate as an extinguishment; that it must be fairly tried, 
 but that if it fails, in whole or in part, without any fault of the 
 plaintiff, he may go to his farther execution; and that the plain- 
 tiff may, by tampering with the levy himself, lose his debt, as, 
 if he should release from a levy property sufficient to pay his 
 debt. In a more recent case, The People vs. Hopson, (1 Den. 
 574,) Chief Justice Bronson holds the following language: 
 " Until an execution has been satisfied, it may be renewed by 
 the Justice. It is said that the levy upon sufficient personal 
 property to pay the debt was a satisfaction of the judgment; 
 and consequently that the renewal was void. We have repeats 
 edly held that such a levy does not always satisfy the judgment. 
 And if the broad ground has not yet been taken, it is time it 
 should be asserted, that a mere levy upon sufficient personal prop- 
 erty, without any thing more, never amounts to a satisfaction of 
 the judgment. So long as the property remains in legal custody, 
 the other remedies of the creditor will be suspended. But, 
 without something more than a mere levy, the judgment is not 
 extinguished. There is no foundation in reason for a different 
 rule. The mere levy neither gives any thing to the creditor, 
 nor takes any thing from the debtor. It often happens that 
 the levy is overreached by some other lien, is abandoned for 
 the benefit of the debtor, or defeated by his misconduct. In 
 Buch cases, there is no color for saying that the judgment is 
 gone; and yet they are included in the notion that a levy satis- 
 fies the debt. The true rule I take to be this: the judgment is 
 satisfied when the execution has been so used as to change the 
 title, or in some other way deprive the debtor of his propeity. 
 
LEVY AND SALE. 48i{ 
 
 This includes the case of a levy and a sale; and also the case 
 of a loss or destruction of the goods after they have been taken 
 out of the debtor's possession by virtue of the process. When 
 the property is loss to the debtor in consequence of the legal 
 measures which the creditor has pursued, the debt is gone, al- 
 though the creditor may not have been paid. He must take his 
 remedy against the officer, if he has been in fault; and, if there 
 be no such remedy, the creditor must bear the loss. But, until 
 the debt is paid, or the debtor has lost his property in conse- 
 quence of the levy, the judgment remains in force." In a still 
 later case. Peck vs. Tiffany, {Corns. 451,) decided by the Court 
 of Appeals, it was held, that where a sheriff levies an execution 
 upon sufficient property to satisfy it, and, through his negli- 
 gence or misconduct, the property is lost, destroyed, or dis- 
 posed of, so that the defendant is deprived of the benefit thereof, 
 it is a satisfaction of the debt, and the plaintiff must seek his 
 satisfaction against the officer; but that, when the debtor has 
 neither paid the debt nor been deprived of his property, a levy 
 is not a satisfaction. 
 
 A constable's levy under an execution enures also as a levy 
 upon other executions which afterwards come to his hands; and 
 the rule is the same, although, at the time the junior execution 
 is received, the senior one has become dormant by reason of in- 
 structions for delay, {id.) 
 
 A levy under an execution remains good against the debtor, 
 although the process may become dormant as to junior execu- 
 tions; and the officer has, by virtue of such levy, the custody 
 and control of the property, {id.) 
 
 If a constable levy on an execution, and make the amount by 
 a sale, and a third person, as owner of the goods, recover against 
 him an equal sum, the judgment is wholly unsatisfied, and may 
 be enforced by issuing a new execution. (19 Wend. 80; JSfew- 
 land vs. Baker, 21 id. 264.) So, too, if the defendant defeats 
 the effect of a levy and sale, by suing the plaintiff as a tres- 
 passer, and recovering the value of the property, the judgment 
 revives. {Piper vs. Elwood, 4 Den. 165.) 
 
 A constable should not levy upon more goods and chattels than 
 are neceseary to satisfy the execution; and while he may take 
 what will be ample to satisfy the execution, he would not be 
 justified in taking an um'easonable amount, or in selecting par- 
 
484 NEW YORK JUSTICE. 
 
 ticular articles, to annoy the defendant, or to put him to unneces- 
 sary inconvenience. An action may be maintained against an 
 officer for an excessive levy wantonly made. {Derell vs. Odell, 
 3 Hill, 215.) But a levy of execution upon sufficient personal 
 property is not per se a satisfaction of the judgment. And, 
 although a constable holding an execution issued upon a Justi- 
 ce's judgment has levied upon sufficient property to satisfy it, 
 he may levy upon other property at a subsequent time, and sell 
 it, without making himself liable as a trespasser. {^Denvrey vs. 
 Pox, 22 Barb. 522.) 
 
 On seizing goods by virtue of an execution, the officer acquires 
 a special property, that entitles him to maintain an action for a 
 subsequent wrongful conversion of them. (3 Hill, 215, supra.) 
 
 A constable, after taking goods and chattels into his custody 
 by virtue of an execution, and after endorsing thereon the time 
 of levying the same, must immediately give public notice, by 
 advertisement, signed by himself, and put up at three public 
 places in the city or town where such goods and chattels are 
 taken, of the time and place, within such city or town, when and 
 where they will be exposed to sale. Such notice must describe 
 the goods and chattels taken, and must be put up at least 
 six days before the time appointed for tlie sale. {Code, 
 % 8029.) 
 
 The term goods and chattels means personal and movable goods, 
 such as may be taken into custody, and not such as are immova- 
 ble and partake of the freehold. 
 
 ■[For form of Oontable's Advertisement of Sale, see McCaix's 
 Constable's Guide, p. 186.] 
 
 A constable may sell everything which is raised annually by 
 labor and cultivation, as corn or wheat growing; (WTiijpple vs. 
 Foote, 2 Johns. 418;) and, though grass, fruit and trees grow- 
 ing, are, in general, parcel of the realty, {Bank of Lansing- 
 burgh vs. Orary, 1 Bai-b. 542,) yet, w^here growing grass is 
 owned by one who does not also own the land, it is personal 
 property, and may be taken on execution. (Smith vs. Jenks, 
 1 Ben. 580.) Any property which a tenant has a right to 
 remove from the premises may be levied on. {Stewart vs. 
 Doughty, 9 Johns. 168.) 
 
LEVY AND SALE. 485 
 
 Such articles as are properly fixtures, and form a part 
 of the realty, cannot be taken on execution; but when they 
 have been severed, they become personal property, and may 
 be taken. {Morgan vs. Varick, 8 Wend. 587.) But if sepa- 
 rated for presei-vation, and to be returned to the same place 
 in their season,^ as hop-poles, they still remain real estate, and 
 cannot be levied on. {Bishop ys. Bishop, 1 Kern. 133.) A 
 stove not affixed, and communicating with a chimney by its pipe, 
 which is attached only by temporary fastenings, is not a fixture, 
 though the house has no fire-place. {Freeland vs. Southworth, 
 24 id. 191.) A bark-mill, a cider-mill and press, and machinery 
 not permanently attached to the freehold, may be levied on. 
 (20 id. 636; 6 Johns. 5; Holmes vs. Tremper, 20 id. 29.) 
 
 Where a farm is let for agricultural purposes, there being no 
 stipulation or custom to the contrary, the manure made on the 
 farm belongs to it, and not to the tenant; and that whether it be 
 in heaps or in the barn-yard. (15 Wend. 169; Goodrich vs. 
 Jones, 2 Hill, 142.) Fences are a part of the freehold, and the 
 accidental or temporary detachment of the rails, without any 
 intent of the owner to divert them from their use as a part of 
 the fence, does not change their nature; and neither fences nor 
 rails can be taken on an execution against the tenant, {id.) 
 Growing trees, when sold by a valid sale in writing by the owner 
 of the fee in the land, are severed from the land, in contempla- 
 tion of law, and even before an actual severance, become per- 
 sonal chattels. {Warner vs. Leland, 12 Barb. 613.) 
 
 Upon execution against the property of a defendant, a con- 
 stable must levy upon any current gold or silver coin belonging 
 to such defendant, and must pay and return the same as so much 
 money collected, without exposing the same for sale at auction. 
 ( Code, section 1410.) And, upon such execution, he may levy 
 upon and sell any bills or other evidences of debt, issued by 
 any moneyed corporation, or by the government of the United 
 States, and circulated as money, which belong to the defendant 
 in such execution, {id. § 1411.) A promissory note cannot be 
 levied upon, {Ingalls vs. Lord, 1 Core. 240,) or bank shares or 
 shares in a public library. {Denton vs. Livingston, 9 Johns. 97.) 
 
 When goods or chattels are pledged for the payment of 
 money, or the performance of any contract or agreement, the 
 right and interest in such goods, of the person making such 
 
486 NEW YORK JUSTICE. 
 
 pledge, maybe sold on execution against him, and the purchaser 
 will acquire all the right and interest of the defendant, and will" 
 be entitled to the possession of such goods and chattels, on com- 
 plying with the terms and conditions of the pledge. {Code, | 
 1412.) 
 
 The right and interest of a pledgor cannot be sold on execu- 
 tion, unless the goods be present, and within view of those 
 attending the sale. Where the right and interest of a pledgee 
 are levied on, the officer maj'^ take actual possession of the goods, 
 and hold them until he sells; but, after the sale, the pledgee 
 is entitled to the possession of the goods, until the purchaser 
 redeems them. (23 Wend. 653; 6 Hill, 484; Stiefvs. Hart, 1 
 Corns. 20.) 
 
 The interest of a mortgagor of personal property, who has a 
 right to redeem, and a right to the possession of the mortgaged 
 property for a definite period, may be sold upon execution. 
 {id. 295; 8 We7id. 339; Hull vs. Carnley, 1 JTern. 501.) And 
 personal property mortgaged, may, after forfeiture, be levied 
 upon by virtue of an execution against the mortgagee, although 
 it remains in the hands of the mortgagor. {Ferguson vs. Lee, 
 9 Wend. 258.) Where personal property, consisting of several 
 articles, is sold subject to a chattel mortgage, the whole ought 
 to be sold in one parcel. {Tift vs. Barton, 4 Den. 171.) 
 
 When an execution on a judgment against joint debtors has 
 endorsed upoii it the names of some defendants as not having 
 appeared in the suit and not having been served with process, 
 the constable must be careful not to serve such execution upon 
 the persons of those defendants, and not to levy it upon the 
 sole property of any of them; but it may be collected of the 
 personal property of any one of them, owned by him as a part- 
 ner with those who appeared or were served with process, or 
 with any of them. {Code, % 1984.) 
 
 No execution issued upon a judgment obtained before a Jus- 
 tige in any suit commenced by attachment, when the defendant 
 is not personally served with the summons, and does not appear, 
 can be served upon any other property than such as was seized 
 under the attachment, {jid. § 2918.) 
 
 When personal property is levied upon, but not removed from 
 the debtor's possession, the officer may advertise it to be sold 
 
LEVY AND SALE. 487 
 
 and sell it on the premises of the debtor, taking care to do no 
 unnecessary damage, and third persons may rightfully attend 
 the sale as bidders. [Peo^ple vs. Hopson, 1 Den. 574.) 
 
 Whenever any execution is issued against the property of any 
 person, his goods and chattels, situated within the jurisdiction 
 of the officer to whom such execution is delivered, will be bound 
 only from the time of the delivery of the same to be executed. 
 {Code, % 1405.) 
 
 Any execution or attachment issued out of a Justice's Court, 
 if actually levied, has preference over any other execution issued 
 out of any Court, whether a Court of Record or not, which has 
 not been previously levied, {id. § 1408.) 
 
 The title of any purchaser in good faith of any goods or chat- 
 tels, acquired prior to the actual levy of any execution, without 
 notice of such execution being issued, will not be divested by 
 the fact that such execution was delivered to an officer to be 
 executed before such purchase was made. {id. % 1409.) 
 
 A constable is sometimes unable to satisfy himself whether the 
 title to the property is iu the defendant or in some other person; 
 and he must be careful not to levy ujjou or sell the property of 
 any person other than the defendant, for, by so doing, he will 
 render himself lial)le as a trespasser. 
 
 In a case where the goods taken by a constable are claimed 
 to belong to some other person than the debtor, or where the 
 constable has reasonable grounds of doubt on the question of 
 property, he is bound, if no indemnity is tendered him by the 
 plaintiff, to call a jux-y to try the title to the property. If they 
 find it not to be the defendant's in the execution, he is justified 
 in returning the execution nulla bona, unless an indemnity is 
 tendered to him. If an indemnity is tendered, he is bound to 
 proceed, notwithstanding the finding of the jury. But a plain- 
 tiff is never bound to tender an indemnity, until a jury have 
 passed on the question of property. An officer acts at his peril 
 in making a return of nulla bona under any other circumstances; 
 and the declaration of the plaintiff or his attorney, that he will 
 sell, although the jury may find that the property did not 
 belong to the defendant, does not dispense with calling a jury. 
 (8 Johns. 188: 10 id. 98; 8 Cow. 65; Piatt vs. Sherry, 7 Wend. 
 236.) If the plaintiff in the execution offers in writing, or in 
 some satisfactory manner, to indemnify the officer, he is boimd 
 
488 NEW YORK JUSTICE. 
 
 to proceed and sell, and cannot excuse himself by taking the 
 inquisition of a jury. (Van Clef vs. Fleet, 15 Johns. 147.) 
 
 § 49. Bond to indemnify Constable. 
 
 Know all men by these presents: That we, A B and E F, of 
 the town of , in the county of , are held and firmly 
 
 bound unto H C, in the sum of \the penalty to be here inserted 
 must be large enovgh to be abundant security to the officer, viho 
 cannot recover on the bond more than the amount of the penalty^ 
 dollars, to be paid to the said H C, or to his certain 
 attorney, executors, administrators, or assigns; to which pay- 
 ment, well and truly to be made, we bind ourselves, our and 
 each of our heirs, executors and administrators, jointly and 
 severally, firmly by these presents. Sealed with our seals, and 
 dated the day of , 18 . 
 
 Whereas, the said H C, as a constable of the county of , 
 
 by virtue of a certain execution issued by G H, Esq., one of the 
 Justices of the Peace of said county, against C D, in favor of 
 the said A B, for dollars damages, and dollars costs, 
 
 has seized [or, is about to seize] one lumber wagon, and one set 
 of double harness, now or lately in possession of the said C D, 
 with intent to sell the same, in order to satisfy the said execu- 
 tion: Now, therefore, the condition of this obligation is such, 
 that if the above bounden A B shall, at all times, and forever 
 hereafter, keep the said H C harmless and indemnified, of, from 
 and against all damages, costs, charges, trouble and expense, of 
 what nature soever, which he may be put to, sustain, or sufier, 
 by reason of such levy and sale, or either, then this obligation 
 to be void; else, of force. 
 
 Sealed and delivered ? A B [l. s. 
 
 in presence of ^ E F [l. s. 
 
 At the time and place appointed in the advertisement of sale, 
 if the goods and chattels be present, and be pointed out to the 
 inspection and examination of the bidders, the constable must 
 expose them to sale at vendue to the highest bidder. The 
 property must be pointed out to the bidders, and be spe- 
 cially designated. It must not be left to any futiire act to 
 ascertain what property is sold. Accordingly, where a con- 
 stable levied upon thirteen sheep generally, and, on the day 
 of sale, the sheep of the defendant in the execution, numbering 
 twenty-one or twenty-two, being present, the constable offered 
 for sale thirteen of the sheep, without designating which, and 
 on being asked by a bidder which sheep he sold, replied, the 
 
LEVY AND SALE. 
 
 489 
 
 best, the fattest, it was held, that the constable had no right to 
 sell in such a manner as to authorize the purchaser to select out 
 thirteen sheep from the flock, and that the purchaser acquired 
 no title to the sheep thus selected by him. {Wamng vs. Loomis, 
 4 Barb. 484.) If only a part of the property sold is present at 
 the sale, and open to the inspection of bidders, the sale as to 
 that part of it is good, but void as to that which is not present. 
 {^Linnerdoll vs. Doe, 14 Johns. 222.) The proper course is, to 
 sell so much of the property taken as will satisfy the execution, 
 and it must be sold separately when it can be reasonably and 
 conveniently so sold. (8 id.' 333; Sheldon vs. Soper, 14 id. 
 352.) Moreover, the statute requires, that it shall be ofiered 
 for sale in such lots and parcels as shall be calculated to bring 
 the highest price. ( Code, § 1428.) 
 
 Every bidding at an auction is nothins: more than an offer on 
 one side, which is not binding on either side till it is assented 
 to; and the bidder may retract his bid at any time before the 
 property is knocked down. (3 Term Hep. 148.) But, where 
 the goods are knocked down by the ofBcer, the bidder is liable 
 to pay for them; or, if he refuses to take the goods, they may 
 be re-sold, and an action may be maintained against the bidder 
 for any loss on their re-sale. (4 Espinasse, 253.) 
 
 If no bidders attend the sale, the constable should postpone 
 it, and give notice to the plaintifli' to attend; and, if he do not, 
 the constable will be excused in returning that the property re- 
 mains on hand for want of buyers. He will also be excused in 
 making such a return, if he cannot sell the property except at a 
 great sacrifice. But, even after having made such return, he 
 must proceed to sell the first opportunity. {McDonald vs. 
 Neilson, 1 Oow. 139.) 
 
 The adjournment of a sale, even after it has commenced, to a 
 different time and place, is a matter of discretion with the con- 
 stable; and, where the sale is so adjournedfor sufficient reason, 
 and without fraud or abuse, it is good. {Tinkone vs. Purdy, 
 5 Johns. 345.) It is provided, however, by statute, that no 
 constable shall ask or receive any money or valuable thing from 
 a defendant, or any other person, as a consideration, reward, or 
 inducement, for omitting to arrest any defendant, or to carry 
 him before any Justice: or for delaying to take any party to 
 prison; or for postponing the sale of any propert}^ under any 
 
490 NE\\ YORK JUSTICE. 
 
 execution; or for omitting or delaying tlie execution of any 
 duty pertaining to his office. {Code, seoticm 3136.) Every 
 constable offending against this provision is guilty of a misde- 
 meanor, and, on conviction, is subject to fine or imprisonment, 
 or both, in the discretion of the Court; and every such convic- 
 tion operates as a forfeiture of the office of the constable so con- 
 victed, (id. \ 3138.) 
 
 Where, on the sale of goods or chattels on execution, a single 
 bid amounts to fifty dollars or more, then, unless the buyer on 
 the spot accepts and receives at least part of the goods, or un- 
 less the buyer at the time pays at least a part of the purchase 
 money, the constable must take from the buyer a note or mem- 
 orandum of his purchase in writing, subscribed by him. This 
 is required in order to make the sale valid under the Statute of 
 Frauds. {See ante, jpp. 48, 99.) 
 
 § 50. Memorandum of Sale of Goods or Chattels. 
 
 [n Justice's Court, 
 John Doe ") 
 against [ Before James Smith, Esq., Justice. 
 Richard Eoe. J 
 
 January 15th, 1853. Thomas Brown bought of William Wil- 
 son, constable, at auction, on an execution issued in this cause, 
 One horse, $55. 
 
 Thomas Beown. 
 
 No constable or other officer, can, directly or indirectly, pur- 
 chase any goods or chattels at any sale made by him upon exe- 
 cution; but every such purchase shall be absolutely void. {id. 
 3030.) 
 
 A constable is protected in the execution of process, if it 
 appears regular on its face. If it shows on its face, that the 
 Court has jurisdiction of the subject matter, and nothing appeai-s 
 on it to apprise the officer that the Court has not jurisdiction 
 also of the person of the party to be affected by the process, he 
 will be protected in executing it, even though it is issued by a 
 Justice's Court which has not in fact jurisdiction in the case. 
 (5 Wend. 170; Van Etten vs. Hurst, 6 Hill, 311.) But, if he 
 is sued for taking property under legal process, he must, in 
 order to justify himself, show that he was an officer, and had 
 lawful authority to take the property. {Copley vs. Rose, 2 
 Ooms. 115.) 
 
i'roperty exempt from execution. 491 
 
 5. Property Exempt from Execution. 
 
 The following property, when owned by any pei'son being a 
 householder, is exempt from levy and sale under any execution, 
 and such articles thereof as are movable, continue so exempt, 
 while the family of such person, or any of them, may be remov- 
 ing from one place of residence to another: 1. All spinning 
 wheels, weaving looms and stoves, put up or kept for use by 
 the family; 2. The family Bible, family pictures and school 
 books, used by or in the family of such person, and books, not 
 exceeding fifty dollars in value, which are kept and used as 
 part of the family library; 3. A seat or pew occupied by such 
 person, or his family, in any house or place of public worship; 
 4. All sheep, to the number of ten, with their fleeces, and the 
 yarn or cloth manufactured from the same; one cow, two swine, 
 and the necessary food for them ; all necessary meat, fish, 
 flour, and vegetables, actually provided for family use, and 
 necessary fuel for the use of the family for sixty days; 5. All 
 necessary wearing apparel, beds, bedsteads and bedding, for 
 such person and his family; arms and accoutrements, required 
 by law to be kept by such pei-son; necessary cooking utensils; 
 one table; six chairs; six knives and forks; six plates; six tea 
 cups and saucers; one sugar dish; one milk pot; one tea pot 
 and six spoons; one crane and its appendages; one pair of and- 
 irons, and a shovel and tongs; 6. The tools and implements of 
 any mechanic, necessary to the carrying on of his trade, not ex- 
 ceeding twenty-five dollars in value. Also one sewing machine, 
 with the appurtenances ; coal scuttle, shovel, pair of tongs, one 
 lamp and one candlestick. {Code, § 1390.) 
 
 The fleeces, or the yarn or cloth manufactured from the 
 fleeces of ten sheep, are exempted from execution while in the 
 hands of a householder, whether he be or not be the owner of 
 sheep. (11 Wend. 44 ; Bracket vs. Watkins, 21 id. 68.) 
 
 Potatoes planted for family use, though not dug, are exempt, 
 if within the quantity necessary for the family ; and all neces- 
 sary vegetables are exempt, in any stage of the process of 
 obtaining them for the family use, whether by planting them 
 or in any other way. {Carpenter vs. Ilerrington, 25 Wend. 
 370.) 
 
 The cow of a householder is exempt, though the head of the 
 
492 NEW YORK JUSTICE. 
 
 family leave the State, leaving his family living together; and 
 it is also exempt when the family is moving from one house to 
 another. The consent of the wife that the officer may levy 
 upon property exempt from execution will not bind the hus- 
 band. {Woodward vs. Murray, 18 Johns. 400.) 
 
 Necessary wearing apparel is not exempted in all cases, but 
 only when it is owned by the householder, or head of the fam- 
 ily; but the exemption extends to apparel furnished by him 
 for the use of others living with him. [Bowne vs. Witt, 19 
 Wend. 475.) 
 
 The party claiming an exemption for his cooking utensils 
 must show, affirmatively and certainly, that the cooking uten- 
 sils taken in execution were in fact necessary, and not merely 
 that they might be useful in cooking. (14 Johns. 434; Wilson 
 vs. mits, 1 Ben. 462.) 
 
 The surgical instruments of a physician have been held 
 exempt as his "tools;" and his wagon used in his business, if 
 he is a householder; (1 Qoms. 129; Van Buren vs. Loper, 29 
 Barb. 388;) and the professional books necessary to a profes- 
 sional man who supports a family, for the practice of his pro- 
 fession, have also been held exempt as a part of his "family 
 library." {Robinson's Case, 3 Abbott's Pr. R. 466.) 
 
 It is further provided as folkiws : 
 
 In addition to the articles as above specified, there shall be 
 exempted from such levy and sale necessary household furniture 
 and working tools and team, professional instruments, furniture 
 and library owned by any person being a householder, or having 
 a family for which he provides, to the value of not exceeding 
 two hundred and fifty dollars ; provided that such exemption 
 shall not extend to any execution issiied on a demand recovered 
 wholly upon one or more demands, either for work performed 
 in the family as a domestic, or for the purchase-money of one or 
 more articles except as prescribed in Code, §§ 1390, 1391, for the 
 purchase-money of such furniture, or tools, or team, or articles 
 now enumerated by law. It has been held that this statute 
 does not afEect executions for debts contracted before its passage. 
 (1 Ben. 128 ; 3 id. 54, 594 ; 1 Corns. 129 ; hut see Morse vs. 
 Goold, 1 Kern. 281.) 
 
 Under this statute it has been held that whether a given 
 
PROPERTY EXEMPT FROM EXECUTION. 493 
 
 article is necessary household furniture, is a question of fact for 
 a jury, and not one of law, and that the party who claims the 
 exemption must show that the article was necessary, and not 
 merely that it was convenient. (1 Den. 462, supra.) It has 
 also been held, that a team is two or more horses or oxen har- 
 nessed together; {Davis vs. Prosser, 32 Barb. 290;) that har- 
 ness may, therefore be regarded as exempt, but that a wagon, 
 a cart, or a sleigh cannot be regarded as part of a team, and 
 are not exempt; (Morse vs. Keyes^ 6 How. 18; hut see Davis 
 vs. Prosser, 32 Barb. 290;) and that necessary food for a team 
 is not exempt. (Rue vs. Alter, 5 Den. 119.) To entitle a per- 
 son to have his team exempted from levy and sale, he need not 
 have the sole right of property therein. If he is only a part- 
 owner, in common with another, he is within the meaning and 
 object of the statute as much as if he owned the team alone. 
 {Raddiffe vs. Wood, 25 Barb. 52.) 
 
 It has been a controverted point, and is not yet settled by 
 the highest authority, as to the effect to be given to the proviso 
 in the additional exemption act of 1842, above cited: "pro- 
 vided that such exemption shall not extend to any execution 
 issued on a demand for the purchase money of such furniture, 
 or tools, or team, or articles now enumerated by law.'' In the 
 case of Mathewson vs. Weller, (3 Den. 52,) a pair of horses, the 
 necessary team of a householder, and of less value than $150, 
 had been taken on an execution for the purchase money of a 
 stove sold to their owner. Although in that ca.se it appeared 
 that the stove was sold prior to the passage of the act of 1842, 
 and the Court held that, therefore, that act, not being retro- 
 spective, had no application to the case, and that the property 
 was lawfully taken; yet the Court, while saying that it was 
 unnecessary to examine the question as to the proper construc- 
 tion of the proviso in the act of 1842, went on to say, that no 
 exemption, whether claimed under the Revised Statutes, or under 
 the law of 1842, could be set up against an execution on a judg- 
 ment rendered for the purchase money of any property made 
 exempt by any law, though the particular property in respect 
 to which the exemptiom might be claimed was paid for. But 
 the question has recently arisen again, in the case of Cole vs. 
 Stevens, (9 Barb. 676; 6 How. 424.) There, necessary beds 
 and bedding, one table, and six chairs, exempt under the 
 
494 NEW YOEK JUSTICE. 
 
 Revised Statutes, the property of a householder, were taken 
 ou an execution for the purchase money of a stove, which was 
 also exempt under the Revised Statutes, being the only one in 
 use in the family. The Court held, that the beds, bedding, 
 table, and chairs were unlawfully taken; that the proper con- 
 struction of the proviso in the act of 1842 is, that the addi- 
 tional exemption allowed by that act does not extend to execu- 
 tions issued to collect the purchase money of any exempt 
 property whatever; and that where the exemption claimed is 
 given by the Revised Statutes, the act of 1842 has no eflfect 
 upon it. Even under this decision, the team in Mathewson vs. 
 Weller would not have been exempt on the execution on the 
 stove, and the decision in the latter case, so far as it conflicts 
 with the decision in Cole vs. Stevens, must be regarded as being 
 a mere dictum, and as having been overruled. 
 
 But in Craft vs. Curtiss (25 How. 163) it was held that prop- 
 erty exempt by law of 1842 is liable for the purchase-money of 
 other exempt property. (See, also, Snyder vs. Davis, 1 Sun, 
 550.) 
 
 The exemption of property from execution is a personal 
 privilege of which the owner alone can take advantage ; and his 
 bailee cannot maintain an action on that ground for property 
 taken in execution against the owner. (1 Cow. 114 ; JEarl vs. 
 Camp, 16 Wend. 563.) 
 
 6. Imprisonment on Execution. 
 
 For want of goods and chattels whereon to levy, the consta- 
 ble must, in the cases authorized by law, if the execution 
 requires it, take the body of the person against whom the execu- 
 tion has issued, and convey him to the common jail of the city 
 or county, the keeper whereof is required to keep such person 
 in safe custody in jail, imtil the debt, or damages and costs, shall 
 be paid, or he be thence discharged by due course of law. {Code, 
 § 3032.) 
 
 It is the duty of a constable to whom an execution is delivered, 
 to search, in all cases, for property, before he takes the body of 
 the defendant. If, without searching or inquiring for property, 
 he, immediately on receiving the execution, arrests the defend- 
 ant, he does it at his peril ; and if it be shown that the defend- 
 ant had property in his open and visible possession, which was 
 
IMPRISONMENT ON EXECUTION. 495 
 
 subject to the execution, and might, with reasonable diligence, 
 have been found by the officer, the officer is liable to an action 
 for the arrest. A constable has, in all cases, a reasonable time 
 to search for property, before he is bound to arrest the defendant 
 in an execution; and, if he acts in good faith, he will incur no 
 responsibility in omitting to take the body until such search can 
 be made. If the defendant declares he has no property, the arrest 
 may be made immediately. {Hollister vs. Johnson, 4 Wend. 
 639.) 
 
 If the person so committed to jail has a family in this State, 
 for which he provides, and is not a freeholder, he must be dis- 
 charged after he has remained in prison thirty days; and, if he 
 has no family, and is not a freeholder, he must be discharged 
 after remaining in prison sixty days. {Code, section- 3033.) 
 And a defendant in a judgment rendered before a Justice, is 
 entitled to his discharge after an imprisonment of thirty days, 
 if he has a family, and is not a freeholder, although a transcript 
 of the judgment has been filed in the county clerk's office, and 
 the execution whereon he is imprisoned is issued by the county 
 clerk. {Brooks vs. French, 5 Wend. 568.) 
 
 Before such prisoner can be discharged, he must make and 
 deliver to the sheriff or jailer, an affidavit, taken before a Justice 
 of the Peace, or some other officer authorized to take affidavits 
 stating the facts which, according to the preceding provisions, 
 entitle him to such discliarge. [Code, § 3034.) 
 
 The sheriff or jailer, upon the receipt of such affidavit, must 
 forthwith discharge the prisoner from his custody, and must file 
 the affidavit in the office of the clerk of the county, whose duty 
 it is to file the same without fee or reward, {id.) If the 
 sheriff or jailer, upon the receipt of such affidavit, refuses to 
 discharge such prisoner, he forfeits twenty-five dollars for 
 each day he detains such prisoner, to be recovered, with costsj 
 by the party aggrieved, to his own use, in addition to any dam- 
 ages he may recover for the false imprisonment, {id. § 3035.) If 
 the sheriff or jailer is prosecuted by reason of any such discharge, 
 he may plead the general issue, and give in evidence such 
 affidavit, or a copy thereof, duly certified by the clerk of the 
 county, under the seal of the County Court, in his full justifica- 
 tion and defence, {id. § 3036.) 
 
496 NEW YORK JUSTICE. 
 
 Notwithstanding the discharge of the defendant under the 
 foregoing provisions, the judgment on which the execution was 
 issued, remains good against the property of the defendant, and 
 a new execution may be issued thereon against his property, in 
 like manner as if he had not been imprisoned, {id. section 3037.) 
 
 For various provisions on the subject of arrest in civil process, 
 see ante, chapter 7. 
 
 7. Return of Execution, 
 The constable must return the execution, and pay the debt 
 or damages and costs levied, to the Justice who issued the 
 same, returning the overplus, if any, to the person against 
 whom the execution issued, (id. § 3031.) 
 
 [For forms oi Return of Execution, see McCall's Constable's 
 Guide, p. 189.J 
 
 If a constable neglects to return an execution within five days 
 after the return day thereof, the party in whose favor the same 
 was issued may maintain an action of debt against such constable, 
 and is entitled to recover therein the amount of the execution, 
 with interest from the time of the rendition of the judgment 
 upon which the same was issued ; or if it was for the delivery 
 of the possession of a chattel the value of the chattel as speci- 
 fied in the judgment, {id. § 3039.) 
 
 Under the security given by a constable when he enters on 
 the duties of his office, the responsibility of his sureties is 
 co-extensive with his own, and they are liable whenever he 
 is liable, to a party in whose favor an execution has been 
 delivered to him. Such sureties are, therefore, liable for the 
 neglect of the constable to return an execution, even though it 
 does not appear that any money has come to his hands under it. 
 {Sloan vs. Case, 10 Wend. 370.) 
 
 Every officer to whom any process is delivered must execute 
 the same according to the command thereof, and must make due 
 return of his proceedings thereon, which return must be signed 
 by him. For any violation of this provision such officer ig liable 
 to an action at the suit of any party aggrieved, for the damages 
 sustained by him, in addition to any other fine, punishment 
 or proceeding which may be authorized by law. {Code, § 102.) 
 
APPEALS. 497 
 
 Where the process is an execution, the damages sustamed 
 are presumptively the full amount of the execution, but the 
 oflBcer may mitigate the amount by showing that the whole 
 sum could not have been collected by due diligence on his part. 
 But it is no answer to such an action to show, that the defend- 
 ant in the execution still has abundant property, out of which 
 the judgment may be collected. (6 Hill, 550; 3 Den. 327; 4 
 Sandf. 67; Ledyard vs. Jones, 3 Seld. 550.) 
 
 If moneys are collected by a constable upon an execution, 
 and not paid over by him according to law, an action of assump- 
 sit may be maintained by the party entitled to such money, in 
 his own name, upon the instrument of secui'ity given by such 
 constable and his sureties, on his entering upon the duties of his 
 office ; and, in such suit, the amount so collected, with interest 
 from the time of collection, can be recovered. Execution can 
 be immediately issued upon the judgment in such suit. {Code, 
 § 3041.) 
 
 If any money is collected for any party by a Justice of the 
 Peace, in his official capacity, and he neglects or refuses, within 
 a reasonable time after demand, to pay over the same, such neglect 
 or refusal is a misdemeanor, and, on conviction thereof, such 
 Justice forfeits his office, {id. § 3153.) 
 
 CHAPTER XVIII. 
 
 OF APPEALS. 
 
 Tbdb Code repeals all former statutes providing for the review 
 of judgments in civil cases rendered by Courts of Justices of the 
 Peace, and provides that the only mode of reviewing such judg- 
 ments shall be an appeal; which lies to the County Court of 
 the county where the judgment was rendered. {Code, § 3045.) 
 
 But when a judgment shall have been rendered by the gen- 
 eral term of the Marine Court of the city of New York, or by a 
 Justice of a District Court of that city, the appeal shall be to 
 the Court of Common Pleas for the city and county of ISTew 
 32 
 
498 NEW YORK JUSTICE. 
 
 York. (<7odZe, § 3191.) The appeal from the general term of the 
 Marine Court, shall be taken within twenty days after service of 
 notice of judgment of such general term. {id. § 3193.) 
 
 The Superior Court of the city of Buffalo has, however, by 
 a late act, exclusive jurisdiction in cases of appeal from a judg- 
 ment rendered by any Justice of the Peace of the city of Buffalo. 
 {id. % 3045.) 
 
 Any party aggrieved may appeal in the cases prescribed in 
 the Code. (§ 3045.) The party appealing is known as the 
 appellant, and the adverse party as the respondent. But the 
 title of the action must not be changed in consequence of the 
 appeal. 
 
 On such appeal, when the amount of the claim or claims for 
 which judgment was demanded by either party in his pleadings 
 in the court below shall exceed fifty dollars, or when in an action 
 to recover the possession of personal property, the value of the 
 property, as assessed, and the damage recovered shall exceed fifty 
 dollars, exclusive of costs, the appellant may, in his notice of 
 appeal, demand a new trial in the appellate court, and thereupon 
 he is entitled thereto whether the defendant was present at the 
 trial or not. {id. § 3068.) 
 
 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 in cases where the amount, for which 
 judgment is demanded by either party in his pleadings, exceeds 
 fifty dollars, or where, in an action to recover the possession of 
 personal property, the value of the property, as assessed, and the 
 damages recovered shall exceed fifty dollars, exclusive of costs, 
 and the appellant has not demanded a new trial, in such case 
 a new trial shall not be had in the appellate Court, but the 
 appeal shall be heard and determined in the same manner as if 
 such amount or said value and damages were fifty dollars or 
 under : Provided, however, that in the city and county of New 
 York, appeals from the Marine and District Courts shall be taken 
 and heard, and returns made in the same manner as heretofore. 
 (M?. § 3062.) 
 
APPEAL, WHEN AND HOW TAKEN. 499 
 
 Any judicial proceeding which if conducted to a termination 
 will result in a judgment, is an action; a proceeding in a Jus- 
 tice's Court under a mechanics' lien law, is an action, and under 
 the Code, an appeal lies from the judgment of the Justice to 
 the County Court. {People ex rel. Bendon vs. The Qo. Jvdge 
 Bens. Co. 13 Hoxo. 398.) 
 
 1. Appeal, When and How Taken. 
 
 The appellant must, within twenty days after judgment, serve 
 a notice of appeal, stating the grounds upon which the appeal 
 is founded. If the judgment is rendered upon process not per- 
 sonally served, and the defendant did not appear, he has twenty 
 days, after personal notice of the judgment, to serve the notice 
 of appeal. {Code, ^ 3046.) The notice may be signed by the 
 party, his agent, or attorney; but the appellant must point out 
 specifically, on Avhat point or ground he alleges the judgment to 
 be erroneous. {Williams vs. Cunningham, 2 Sand. 632.) If 
 this is not done the County Court must affirm the judgment. 
 The County Court is confined in hearing the appeal to the 
 grounds which are stated in the notice. And a specification 
 tliat "the judgment is clearly against the law and the evidence 
 of the case," is not a sufficient statement of any ground of appeal, 
 and does not entitle the appellant to urge objections to the 
 judgment. {Derby vs. Hannin, 5 Abb. 150; 8. C. 15 How. 32.) 
 But the Court may give leave to amend the notice. {Irwin vs. 
 Muir, 13 How. 409.) If the amount of the plaintiff's claim 
 litigated in the Justice's Court was more than fifty dollars, the 
 appellant having a right to a new trial, the notice is sufficient. 
 {Fowler vs. Westervelt, 40 Barb. 374.) 
 
 A statement that the judgment should have been for a less 
 amount of damages against the defendant is sufficient to carry 
 costs if the appellant recover a more favorable judgment. 
 {Loomis vs. Higbie, 29 How. 232.) 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 resi- 
 dence, with some person of suitable age and discretion; or, in 
 <;ase the respondent is not a resident of such county, or cannot 
 after due diligence be found therein, in the same manner, on the 
 attorney or agent, if any, who is a resident of such county, who 
 
500 NEW YORK JUSTICE. 
 
 appeared for the respondent on the trial; and if neither the 
 respondent nor such agent or attorney can be found in the 
 county, the notice may be served on the respondent by leaving 
 it with the clerk of the Appellate Court; and the appellant 
 must, at the time of the service of the notice of appeal on the 
 Justice, or on his clerk as herein provided, except in New York 
 city, pay to him the costs of the action included in the judgment, 
 together with two dollars costs of the return, which may be 
 included in the judgment for costs on reversal. In all cases 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 Common Pleas for the city and county of 
 New York, the appellant shall, at the time of the service of the 
 notice of appeal jjay to the clerk of the Marine Court, or to the 
 Justice or clerk of the District Court, two dollars, as costs of 
 the return to such Court of Common Pleas, which costs, so paid, 
 shall be included in the judgment for costs, in case the judgment 
 of the court below shall be reversed; and the appellant shall 
 also execute, on the appeal, a written undertaking on his part, 
 with one or more sufficient sureties, to the effect that the appel- 
 lant will pay all costs, disbursements and extra costs, awarded 
 against him in the court below, if such judgment shall be 
 affirmed by the Appellate Court, on such appeal, together with 
 all costs and damages which may be awarded against him 
 thereon; such sureties to justify in double the amount specified 
 in the 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 Common Pleas, or the appel- 
 lant may deposit, with the clerk of the Court of Common Pleas, 
 the costs, disbursements, and extra costs, included in the judg- 
 ment in the court below, and the sum of fifteen dollars, to meet 
 any costs that may be awarded against him in such appeal, and 
 such appeal from the general term of the Marine Courb and the 
 District Court shall be ineffectual, unless, within the time speci- 
 fied for bringing the appeal, the appellant execute such under- 
 taking or make such deposit; the imdertaking, when executed 
 and approved, to be filed with the clerk of the Court of Com- 
 mon Pleas, the amount so deposited shall be repaid by said 
 clerk, to the appellant, if he succeed on the appeal; and in case 
 the judgment be affirmed, the said clerk shall, after execution 
 
APPEAL, WHEN AND HO"W TAKEN. 501 
 
 is issued, pay over the amount so deposited, to the respondent, 
 which shall be credited on the execution issued on the judgment 
 of affirmance, to the extent thereof, and the balance, if any, on 
 the execution issued on the judgment appealed from. {Code, 
 % 3192.) The notice must be served within the twenty days, 
 both on the Justice and the respondent ; otherwise, there is no 
 Appeal. And a verbal notice is insufficient ; it must be in writ- 
 ing. "Where there is a failure to serve the notice within the 
 time prescribed, there can be no amendment allowed. The 
 Court has no authority to allow an appeal to be brought after the 
 expiration of the time limited by statute. (5 How. 114, 361; 
 7 id. 108 ; 11 id. 193; 46 Barb. 615.) 
 
 §51. Notice of Appeal. 
 
 Cayuga County, 
 In Justice's Court. 
 
 ^™® . ^ ! Before Horace T. Cook, Esquire, Justice ot 
 
 Charies Wilson ) ^^^ ^^'"^^^ "^ *^® ^^*^ °^ Auburn. 
 
 Judgment rendered for plaintiff, March 1st, 1843, for $30 
 -damages, and $2.50 costs; in all $32.50. 
 
 To James Brown, plaintiff in the above action, and to Horace 
 T. Cook, Esquire, a Justice of the Peace of the city of Auburn: 
 Take notice, that I appeal from the judgment in the above 
 action, to the County Court of Cayuga County, and that the fol- 
 lowing are the grounds upon which the appeal is founded: 
 
 1. The plaintiff having proved by Charles Tuttle, a witness 
 sworn on his part, that he had seen a letter purporting to have 
 been written by the defendant, but did not know that the letter 
 was written by him, and that, on comparing the signature to the 
 note sued on and the signature to the letter, he believed they 
 were in the same hand- writing, although he had never seen the 
 defendant write, and no other proof having been given by the 
 plaintiff of the execution of said note, the Justice erred in deny- 
 ing the motion for a nonsuit. 
 
 2. The Justice erred in excluding the testimony' of Charles 
 Avery, by whom the defendant offered to prove that he had 
 frequently seen the defendant write, and was familiar with his 
 hand-writing, and that the signature to the said note was not in 
 the hand- writing of the defendant. 
 
 3. The Justice erred in admitting the testimony of Charles 
 Tuttle to prove the signature of the said note, the said Tuttle 
 having testified that he had never seen the defendant write, and 
 did not know that a lr>Hor purporting to be his was written by 
 
502 NEW YORK JUSTICE. 
 
 him, but that the signatures to the note and letter, were, as he 
 believed, in the same hand-writing. 
 
 4. The Justice erred in charging the Jury that the plaintiff 
 had proved the execution of the said note. 
 
 5. The jury erred in finding a verdict for the plaintiff. 
 
 6. The judgment should have been for less amount of dam- 
 ages against the defendant. 
 
 Dated March 2d, 1853. 
 
 Charles Wilson, Defendant. 
 
 2. Stat op Execution. 
 
 If the appellant desires a stay of execution of the judgment, 
 he must give security, which security must be a written under- 
 taking, executed by one or more sufficient sureties, approved 
 by the County Judge, or by the Court below, to the effect, that 
 if judgment be rendered against the appellant, and execution 
 thereon be returned unsatisfied in whole or in pai-t, the sureties 
 will pay the amount unsatisfied. {Gode, section, 3050.) If the 
 appeal is not followed up by the giving of the undertaking, it 
 will not operate as a stay of any further proceedings which the 
 successful party may elect to pursue, in order to enforce the 
 collection of the judgment. (Conway vs. Hitchins, 9 Barb. 
 378.) 
 
 § 52. Undertaking. 
 Cayuga County, 
 In Justice's Court. 
 
 James Brown ) ^^^^^ Horace T. Cook, Esquire, a Justice 
 
 against > ^^ ^^^ p^^^^ ^^ ^^^ ^j, ^^ Auburn. 
 
 Charles Wilson, J •' 
 
 Charles Wilson, the above named defendant, having appealed 
 to the County Court of Cayuga county, from a judgment ren- 
 dered against him on the first day of March, 1853, by Horace 
 T. Cook, Esquire, a Justice of the Peace of the county of Ca- 
 yuga, for $32.50 damages and costs, in favor of the above named 
 plaintiff, James Brown: Now, therefore, for the purpose of 
 staying the execution of the said judgment, we, James C. Derby 
 and Henry Underwood, as sureties, undertake, jointly and sev- 
 erally, that if judgment be rendered against the said Charles 
 Wilson, appellant, and execution thereon be returned unsatis- 
 fied in whole or in part, we will pay the amount unsatisfied. 
 Witness our hands this 2d day of March, 1853. 
 
 James C. Deeby, 
 Heney Underwood. 
 
BET DEN TO APPEAL. 50; 
 
 This undertaking, before it can be of any avail, must be ap- 
 proved by the County Judge, or by the Court below. The 
 approval should be endorsed on the undertaking, and may be 
 in the following form: 
 
 I approve of the within undertaking, and of the sufficiency 
 of the sureties therein. Dated March 2d, 1853. 
 
 Horace T. Cook, Justice of the Peace. 
 
 The delivery of the undertaking to the Court below will stay 
 the issuing of the execution; or if it have been issued, the ser 
 vice of a copy of the undertaking, certified by the Court below, 
 upon the officer holding the execution, will stay further pro- 
 ceedings thereon. {Code, § 3051.) 
 
 Where, by reason of the death of a Justice of the Peace, oi 
 his removal from the county, or any other cause, the under 
 taking on the appeal cannot be delivered to him, it must be 
 filed with the clerk of the appellate Court, and notice thereof 
 given to the respondent, or his attorney or agent, as provided in 
 section three thousand and forty-eight. It will, thereupon, have 
 the same effect as if delivered to the Justice, {[d., § 3052.) 
 
 3. Retuen to Appeal. 
 The Court below must thereupon, after ten days, and witliin 
 thirty days after the service of the notice of appeal, make a re- 
 turn to the appellate Court, of the testimony, proceedings and 
 judgment, and file the same in the appellate Court, and ma)- be 
 compelled to do so by attachment. But no Justice of the Peace 
 is bound to make a return, unless liis fee of two dollars for 
 making his return is paid on service of the notice of appeal; 
 provided, however, that in cases where the amount for which 
 judgment is 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 judg- 
 ment shall exceed fifty dollars, the testimony need not be re- 
 turned ; (except when the appellant has not demanded a new 
 trial ; ) 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 
 
504 NEW YORK JUSTICE. 
 
 parties, and in all cases the notice of appeal shall be annexed to 
 the return. {Code, % 3053.) 
 
 When a Justice of the Peace, by whom a judgment appealed 
 from was rendered, has gone out of office before a return is 
 ordered, he must, nevertheless, make a return in the same 
 manner, and with the like eSect, as if he were still in office, {id. 
 § 3054.) If he has removed to another county within the State, 
 the appellate Court may compel him to make the return, as if he 
 were still within the county where the judgment was rendered. 
 {id. % 3055.) 
 
 If the return is defective, the appellate Court may direct a 
 further or amended return, as often as may be necessary, and 
 may compel a compliance with its order, by attachment, and the 
 Court is always deemed open for these purposes. {j,d. % 3055.) 
 
 § 53. Justices Return. 
 
 To the County Court of Cayuga County: 
 
 In pursuance of the notice of appeal hereto annexed, which 
 was served on me on the second day of March, 1853, and in 
 obedience to the requirements of section three hundred and sixty 
 of the Code, I, Horace T. Cook, a Justice of the Peace of the 
 city of Auburn in said county, hereby certify and return to the 
 said Court, that, on the 20th day of February, 1853, I issued a 
 summons in an action in which James Brown was plaintiff, 
 and Charles Wilson defendant, returnable on the 28th day of 
 February last, at two o'clock P. M. at my office in the said citj- 
 of Auburn. The summons was returned personally served on 
 the 21st day of February last, by Stephen Austin, constable, 
 as appears by his return duly endorsed thereon. On the said 
 28th day of February, at the time and place above mentioned, 
 the parties appeared, the plaintiff in ]Derson, and the defendant 
 by his attorney, James R. Cox, and joined issue. The plaintiff 
 complained on a promissory note executed bj' the defendant 
 on the first day of January, 1853, for $30, payable to James 
 Smith or bearer in thirty days from date. The defendant 
 answered the complaint by denying the execution of the note. 
 Issue being thus joined, the cause was adjourned, by consent 
 of the parties, to the first day of March instant, at two o'clock 
 P. M. at my office. 
 
 At the time and place last mentioned the parties appeared in 
 person, and, at the request of the defendant, I issued a venire 
 returnable forthwith, and the constable to whom the venire was 
 delivered, returned the same, with the list of jurors who had 
 
PEOCEEDINGS IN APPELLATE COURT. 505 
 
 been summoned thereto annexed. All the jurors so summoned 
 appeared, and the following were duly drawn and sworn as 
 jurors to try the action. \Here insert the jurors' names.] 
 
 On the trial, the plaintiff called Charles Tuttle as a witness, 
 who, being duly sworn, testified, that he had never seen the 
 defendant write, that he had seen a letter which purported to 
 have been written by the defendant, but did not know that it 
 was written by him, except from information, and that, on 
 comparing the signature to the note produced, which was the 
 note sued on, with the signature to the letter, he believed they 
 were in the same hand-writing. The plaintiff here rested, and 
 the defendant moved for a nonsuit, on the ground that the exe- 
 cution of the note had not been proved. I denied the motion. 
 
 The defendant then called Charles Avery as a witness, and 
 offered to prove by him, that he had frequently seen the 
 defendant write, and was familiar with his hand-writing, and 
 that the signature to the note was not in the hand-writing of 
 the defendant. I excluded the testimony offered to be given 
 by this witness. 
 
 No other testimony was given on the trial, and I then charged 
 the jury that the execution of the note was suiEciently proved. 
 The cause was then submitted to the jury, who retired under 
 the charge of a constable duly sworn, and, after deliberating 
 upon their verdict, i-eturned, and, being called by me, severally 
 answered to their names, and the plaintiff being then called, 
 and answering, the jury delivered their verdict in open Court, in 
 favor of the plaintiff, for thirty dollars damages, and I entered 
 it in my docket on the fii'st day of March, 1853, and imme- 
 diately, and on the same day, rendered a judgment for the 
 plaintiff against the defendant, for $30.00 damages and $2.50 
 costs. 
 
 I also certify, that when the notice of appeal before referred 
 to was served upon me, the above costs, included in the said 
 judgment, namely, $2.50, and two dollars costs of this return, 
 were paid to me by the said defendant. 
 
 Dated Auburn, March 15th, 1853. 
 
 Horace T, Cook, Justice. 
 
 4. Proceedings in Appellate Court. 
 
 When a pai'ty gives in good faith notice of appeal from a 
 judgment, and omits, through mistake, to do any other act 
 necessary to perfect the appeal or to stay proceedings, the 
 appellate Court may permit an amendment on such terms as 
 ipay be just. {Code, §§ 30i9, and 1303.) 
 
506 NEW YOEK JUSTICE. 
 
 If a Justice of the Peace, whose judgment is appealed from, 
 dies, becomes insane, or removes from the State, the ajjpellate 
 Court may examine witnesses, on oath, to the facts and circum- 
 stances of the trial or judgment, and determine the appeal, as 
 if the facts had been returned by the Justice. {Code, § 3056, ~) 
 
 If a return be made, and the appeal is from a judgment 
 Avhere a new trial may not be had, 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.' But the 
 respondent may, within twenty days, serve on the appellant a 
 stipulation that the judgment appealed from may be reversed, 
 with five dollars costs and disbursements of the appeal. In such 
 case, no further steps to be taken, except to enter judgment in 
 pursuance of the stipulation. 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 County 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 entei 
 the cause on the calendar according to the date of the return. 
 And this provision applies as well to appeals heretofore taken 
 and now pending, as those hereafter to be brought, {id. § 3062.) 
 The judgment will be reversed by default, if the respondent 
 does not appear to argue the appeal. {Wliitney vs. Bayard, 
 2 8andf. 634.) 
 
 The apjieal must be heard on the original papers; and no 
 copy thereof need be furnished for the use of the Court. {Code, 
 jj 3063.) And the Court can only look to the return of the Jus- 
 tice for the facts of the case. {De Courcy vs. Spalding, 3 Code 
 Bep. 16.) 
 
 Upon the hearing of the appeal, the appellate Coiu't must 
 give judgment according to the justice of the case, without 
 regard to technical errors and defects which do not aifect 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. {Code, 
 § 3063.) If the appeal is founded on an error in fact in the pro- 
 ceedings, not affecting the merits of the action, and not within the 
 knowledge of the Justice, the Court may determine the alleged 
 
PEOCEEDINGS IN APPELLATE COURT. 507 
 
 error iu fact on affidavits, and may in his discretion inquire into 
 and determine the same upon examination of the Avitnesses. If 
 the defendant failed to appear before the Justice, and it is shown 
 by the affidavits served by the appellant, or otherwise, that mani- 
 fest injustice has been done, and the defendant 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 
 shall be ordered before a Justice, 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, (id. §§ 3064, 3065.) 
 
 Upon an appeal when new trial is not had, the award of costs 
 is regulated as follows : 
 
 1. If the appeal is dismissed, because neither party brings it to 
 a hearing, as prescribed in this article, costs shall not be awarded 
 to either party. 
 
 2. If the judgment is reversed for an error in fact, not affect- 
 ing the merits ; or if a new trial is directed before the same or 
 another Justice, as prescribed in this article, the costs of the 
 appeal are in the discretion of the appellate Court. 
 
 3. If the judgment is affirmed, costs must be awarded to the 
 respondent. 
 
 4. If the judgment is reversed, costs must be awarded to the 
 appellant. 
 
 5. If the judgment is affirmed only in part, the costs, or such a 
 part thereof, as to the appellate Court seems just, not exceeding 
 ten dollars, besides disbursements, may be awarded to either 
 party, {id. § 3066.) 
 
 Upon an appeal when a new trial is not had, costs when 
 awarded must be as follows, besides disbursements : 
 
 To the appellant upon reversal, thirty dollars. 
 
 To the respondent upon affirmance, twenty-five dollars {id. 
 § 3067.) 
 
 Although the appellate Court will not reverse the judgment 
 below, if the evidence merely preponderates against it, yet a 
 material defect of proof is fatal. (5 Bari. 283 ; 2 Sandf. 222 ; 
 Adsit vs. Wilson, 7 How. 64.) So, too, a Justice's judgment 
 
508 NEW YORK JUSTICE. 
 
 will be reversed, where t.lie return of the Justice does not contain 
 any legal evidence to support it. {id. 113.) 
 
 Appeal for a New Trial in the Appellate Court. 
 
 Where an issue of fact or an issue of law was joined before the 
 Justice, and the sum, for which judgment was demanded by 
 either party in his pleading, exceeds fifty dollars ; or where, in 
 an action to recover a chattel, the value of the property, as fixed, 
 together with the damages recovered, if any, exceeds fifty dollars, 
 the appellant may in his notice of appeal demand a new trial in 
 the appellate Court ; and thereupon he is entitled thereto, whether 
 the defendant was or was not present at the trial. {Code, § 3068.) 
 
 To render such an appeal effectual, the appellant must, at the 
 time of the service of the notice of appeal upon the Justice, give 
 the undertaking required, by this title, to stay the execution of 
 the judgment, {id. § 3069.) 
 
 Upon an appeal, provided for a new trial, from a judgment for 
 a sum of money only, the respondent may, within fifteen days 
 after service of the notice of appeal upon him, and before the 
 return is filed, serve upon the appellant, or his attorney, a written 
 offer, to allow judgment to be rendered in the appellate Court, in 
 favor of either party, for a specified sum. If the offer is not 
 accepted, it cannot be proved upon the trial. If the appellant, 
 within five days after service of the offer, serves upon the 
 respondent, or his attorney, written notice that he accepts the 
 offer, he must file it, with an affidavit of service of the notice of 
 acceptance, with the clerk of the appellate Court, who thereupon 
 must enter judgment accordingly. In such a case, the appellant 
 is entitled to recover his costs in the Court below, and his dis- 
 bursements upon the appeal, including the costs and fee, if any, 
 paid to the Justice upon taking the appeal ; but neither party is 
 entitled to costs upon the appeal. If an offer is not made, and 
 the verdict, report, or decision, upon the appeal, is more favora- 
 ble to the appellant, by the sum of ten dollars, than the verdict 
 or decision in the court below ; or if an offer is made and not 
 accepted, and the verdict, report, or decision, upon the appeal, is 
 more favorable to the appellant by the sum of ten dollars than 
 the amount of the offer, the appellant is entitled to recover costs 
 upon the appeal ; otherwise the respondent is entitled to recover 
 costs, {id, § 3070.) 
 
PEOCEEDINGS IN APPELLATE COURT. 509 
 
 Upon an appeal, provided for a new trial, after the expiration 
 of ten days from the time of filing the Justice's return, the action 
 is deemed an action at issue in the appellate Court ; and all the 
 proceedings therein, including the entry, enforcement, and review 
 of the judgment, are the same as if the action had been com- 
 menced in the appellate Court, except as otherwise specially pre- 
 scribed in chapter XIX of the Code. {id. § 3071.) 
 
 Either party may, at any time after the action is deemed at 
 issue in the appellate Court, and before the trial, serve upon the 
 adverse party a written offer to allow judgment to be taken 
 against him, for a sum, or property, or to the effect therein speci- 
 fied, with or without costs. If there are two or more defendants, 
 and the action can be severed, a like offer may be made by one 
 or more defendants, against whom a separate judgment may be 
 taken ; and, if it is accepted, the action becomes severed, and may 
 proceed against the other defendants, as if it had been originally 
 commenced against them only. If the party receiving the offer, 
 within ten days thereafter, serves upon the adverse party notice 
 that he accepts it, he may file it, with proof of acceptance ; and 
 thereupon the clerk must enter judgment accordingly. If the 
 offer is not thus accepted, it cannot be proved upon the trial ; and 
 if the party to whom it was made fails to obtain a more favorable 
 judgment, he cannot recover costs from the time of the offer, but 
 must pay costs from that time. {id. § 3072.) 
 
 Upon an appeal, provided for in this article, costs, when 
 awarded, must be as "follows, besides disbursements : 
 
 For all proceedings oefore notice of trial, fifteen dollars. 
 
 For all subsequent proceedings before trial, ten dollars. 
 
 For the trial of an issue of law, fifteen dollars. 
 
 For the trial of an issue of fact, twenty dollars. 
 
 For the argument of a motion for a new trial on a case, fifteen 
 dollars. 
 
 For each term, not more than five, at which the appeal is regu- 
 larly on the calendar, excluding the term, at which it is tried, or 
 otherwise finally disposed of, ten dollars, {id. § 3073.) 
 
 If the judgment below, or any part thereof, is paid or collected 
 and the judgment is afterwards reversed, the appellate Court 
 must order the amount paid or 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 
 
i510 NEW YOHK JUSTICE. 
 
 previous notice of six days, and if the order is made before 
 judgment entered, the amount may be included in the judgment. 
 {id. § 3058.) 
 
 If, upon an appeal, a recovery is had by one party, and costs 
 are awarded to the other, the appellate Court must set-ofE the 
 one against the other, and render judgment for the balance. 
 {id. § 3059.) 
 
 If the appeal be dismissed for want of prosecution, as provided 
 by section three thousand and sixty-six, 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 an 
 error of fact in the proceedings not affecting the merits, costs 
 shall be in the discretion of the Court. 
 
 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. 
 
 Where the plaintiff recovered judgment for one hundred and 
 forty dollars, the defendant appealed and claimed that judgment 
 should have been in his favor. On a new trial in the County 
 Court, plaintiff recovered sixty-eight dollars and fifty-nine cents : 
 held that the plaintiff was entitled to costs of appeal ( Wynkoop 
 vs. Holbert, 25 Sow. 158), and when the plaintiff recovered judg- 
 ment for one hundred and fifty-nine dollars and fifty cents, 
 defendant appealed and stated that judgment, at most, should 
 have been only five dollars ; the plaintiff did not offer to allow 
 the judgment to be corrected, and, on a new trial in the County 
 Court, recovered judgment for one hundred and thirty dollars : 
 held that defendant was entitled to costs. {Fox vs. Nellis, 25 
 How. 144:.) 
 
 The costs to the appellant, on a new trial, do not depend solely 
 on the fact that he has recovered a more favorable judgment, but 
 on tlie fact whether his notice of appeal was sufficient. {Forsyth 
 vs. Ferguson, 2Y How. 67.) 
 
 Where the jurisdiction of a Justice, in an action, depends upon 
 the voluntary appearance of a party, such party may assail or 
 defend against a judgment rendered against him by showing that 
 he did not appear, as where the record upon appeal from Justices' 
 Court showed no legal service of the summons ; that defendant 
 
PROCEEDIN^GS IN APPELLATE COURT. 511 
 
 did not appear, but that one C appeared for him, without show- 
 ing aify authority in the latter. Held, that the record failed to 
 show jurisdiction, and the judgment could not be sustained. 
 {Sperry vs. Reynolds, 65 JSf. Y. 179.) 
 
 The payment of the Justice, for making his return on appeal 
 from a judgment of a court of a Justice of the Peace, is juris- 
 dictional, and the appeal is not perfect Avithout it. Section 1303 
 of the Code has no application to such appeals. (Eldridge vs. 
 UnderUll, 17 Hun, 241.) 
 
 In determining the amount claimed, the interest accrued at the 
 time of commencing the action must be included. {Mitchell vs. 
 Pile, id. 142.) 
 
 To render an appeal to the County Court from a judgment of 
 a Justices' Court effectual, the respondent's costs, included therein, 
 must be paid and the Justices' fees must be paid or relinquished 
 by him, within twenty days from the rendition of the judgment, 
 and if they are not so paid, the appeal wiU be dismissed. {Thomas 
 vs. Thomas, 18 Hun, 481.) 
 
 A notice of appeal by a plaintiff from a judgment of a Justices' 
 Court, in favor of the defendant, stating that the judgment was 
 rendered upon an issue of fact ; that the claim in litigation was 
 for more than fifty dollars, and that the judgment was rendered 
 contrary to the evidence on the trial, sufficiently states the grounds 
 of the appeal. {Andrews vs. Long, 19 Hun, 303.) 
 
 Where a notice of appeal from the judgment of a Justices' 
 Court was signed " John Andrews, plaintiff 's attorney," and there 
 was nothing in the case showing his authority to appear for the 
 appellant, h^ld, that it was insufficient. (•?'«!.) 
 
 A party in an action in a Justice's Court cannot entitle himself 
 to new trial in tlie County Court by a mere demand for over 
 fifty dollars in his pleading ; it must be apparent that his demand 
 has some basis, in fact or law, for its support. {Harvey vs. Van 
 ByTce, 66 How. Pr. 396 ; see, also, Dennison vs. Trimmer, 27 
 Hun, 393 ; Matteson vs. Hall, 64 How. Pr. 515.) 
 
 The Court may allow a new undertaking to be given to "ure a 
 defect. {Ross vs. Markham, 5 Qiv. Pro. R. 81.") 
 
512 NEW YORK JUSTICE. 
 
 Section 3016 does not authorize the remitting of any portion 
 of the judgment (after such judgment has been entered) to pre- 
 vent an appeal. {Allen vs. Swan, 32 Hun, 368.) 
 
 The indorsement on the summons in an action for a penalty 
 must be definite and certain. {Hitch/num, as Com/miasion&r, V8. 
 Baxter, 34 Eim, 271.) 
 
PART II. 
 
 OF THE CKIMINAL JUEISDICTION OF JUSTICES OF 
 THE PEACE. 
 
 33 
 
PART II. 
 
 OF THE CRIMINAL JURISDICTION OF JUSTICES OF THE PEACE. 
 
 CHAPTER I. 
 
 OF CEIMES m GENERAL. 
 
 Crime, in its more general meaning, signifies the violation of 
 law ; or as defined by the Penal Code, a crime is an act or omis- 
 sion forbidden by law, and punishable upon conviction by 1. 
 Death ; or 2. Imprisonment ; or 3. Fine ; or 4. Kemoval from 
 office ; or 5. Disqualification to hold any office of trust, honor or 
 profit under the statute ; or 6. Other penal discipline. {P. C, 
 § 3.) The term infamious crime is construed as including every 
 offense punishable with death, or by imprisonment in a State 
 prison, and no other. 
 
 Crimes, both by the common law and by statute, are divided 
 vnio felonies and m,isdemeanors. {Id., § 4.) 
 
 A felony is a crime which is or may be punishable either by 
 death, or by imprisonment in a State prison. {Id., § 5.) But the 
 term, felonious is synonymous with the word criminal, and the 
 term feloniously is synonymous in meaning with the word 
 criminally. 
 
 A misdemeanor is any crime other than a felony {id., § 6) ; 
 and the terms " felony " and " misdemeanor " are generally used 
 in contradistinction to each other. If the offense, therefore, is 
 not punishable in any event by imprisonment in the State prison, 
 or by death, it is a misdemeanor. {Ba/rh. Crim. Law, 20.) 
 
 Felonies. In order to determine whether any given offense be 
 a felony or not, we are only to inquire what grade of punishment 
 
61(5 NEW YORK JUSTICE. 
 
 is affixed to it. Such crimes as are punishable with death or 
 with imprisonment absolutely, as we have seen, are clearly felo- 
 nies. There are many cases in which the punishment, to a certain 
 extent, is confided to the discretion of the court pronouncing- 
 sentence ; but, inasmuch as in all these cases the ofEender is liable 
 to punishment by imprisonment in the State prison, the offense 
 is as distinctly a felony as though the court had no discretion, and 
 the punishment were imprisonment in the State prison only. 
 {People V. Van Steenburgh, 1 Park Cr., 39 ; People v. Borgea, 
 6 Abh. Pr., 132.) 
 
 Felonies are of two kinds : 1st. At common law ; and 2d. By 
 statute. 
 
 Felonies, in England, comprised originally every species of 
 crime which occasioned the forfeiture of lands and goods. At 
 common law, in addition to the crimes more strictly coming under 
 the head of treason, the chief, if not the only felonies, were 
 murder, manslaughter, arson, burglary, robbery, rape, sodomy, 
 mayhem and larceny. ( WTtar. Grim. Law, § 2.) With a few 
 exceptions, the statutes preserve the same classification as the 
 common law — the principal felonies being received as they 
 originally existed, and their number increased or diminished as 
 the exigencies of society prompted. 
 
 The capital crimes defined by our statute are treason against 
 the people of this State, and murder. (Penal Code, §§ 38 and 
 186.) Some of the other felonies defined and punishable by 
 statute are manslaughter, rape, maiming, kidnapping, seduction, 
 compelling a woman to marry, abduction for prostitution, decoy- 
 ing children, abandoning children, assaults with deadly weapons, 
 assaults to commit felonies, administering poisons, burglary, for- 
 gery, falsely personating another, cheats, robbery, embezzlement, 
 larceny, counterfeiting, having in possession counterfeit bills, 
 instruments or coins, perjury and subornation of perjury, bribery 
 and corrupting jurors and others, escaping from prisons and 
 assisting in escapes, duelling and challenges to fight, unlawful 
 marriages, incest, offenses against public decency and malicious 
 mischief. 
 
 An offense can never be made felony by the construction of 
 any doubtful and ambiguous words of a statute ; and a new 
 felony created by statute has all the incidents it would have at 
 common law. Therefore the procurers or abettors are principals 
 
PERSONS CAPABLE OP COMMITTING CRIME. 517 
 
 or accessories upon the same circumstances which would make 
 them so at common law, though the act be silent as to abettors or 
 accessories. {Barh. Grim. Law, 20.) 
 
 Misdemeanors comprise all offenses lower than felonies, which 
 may be the subject of indictment. They are divided into two 
 classes — first, such as are mala in se, or penal at common law ; 
 and secondly, such as are tnala prohibita, or penal by statute. 
 Whatever mischieviously affects the person or property of 
 another, or openly outrages decency, or disturbs public order, or 
 is injurious to public morals, or is a breach of official daty, when 
 done corruptly, is the subject of indictment. ( Whar. Grim. 
 Zaw, § 3.) 
 
 Misdemeanors which are mala prohibita, and which become 
 penal by statute, are of two sorts : First, those which consist in 
 the commission or omission of any act enjoined or forbidden by 
 statute, though by such statute such omission or commission is 
 not made the subject of indictment ; and secondly, those which 
 consist of the omission or commission of any act which by itself 
 is made specifically indictable. Wherever a statute creates an 
 •offense, and expressly provides a punishment, the statutory pro- 
 visions must be followed strictly and expressly, and where a 
 statute attaches a new penalty to that which was an offense at 
 common law, either the remedy by statute or that at common law 
 •can be pursued. If a statute specify a mode of proceeding 
 different from that by indictment, then, if the matter were already 
 an indictable offense at common law, and the statute introduced 
 merely a different mode of prosecution and punishment, the 
 Temed}^ is cumulative, and the prosecution has still the option of 
 proceeding by indictment at common law, or by the mode pointed 
 out by the statute. ( Whar. Grim. Law, § 10.) 
 
 Of Persons Capable of Committing Ceime. 
 The following persons are liable to punishment within the 
 State : 
 
 1. A person who commits within the State any crime, in whole 
 or in part ; 
 
 2. A person who commits without the State any offense which 
 if committed within the State would be larceny, under the laws 
 of the State, and is afterwards found with any of the property 
 stolen or feloniously appropriated, within this State ; 
 
518 NEW YORK JUSTICE. 
 
 3. A person who, being without the State, causes, procures, 
 aids or abets another to commit a crime within the State ; 
 
 4. A person who, being out of this State, abducts or kidnaps 
 by force or fraud any person contrary to the laws of the place 
 where such act is committed, and brings, sends or conveys such 
 person within the limits of this State, and is afterwards fouiid 
 therein ; 
 
 5. A person who, being out of this State and with intent to 
 cause within it a result contrary to the laws of this State, does an 
 act which in its natural and usual course results in an act or effect 
 contrary to its laws. {P. C, § 16.) 
 
 A person is presumed to be responsible for his acts. The 
 burden of proving that he is irresponsible is upon the accused 
 person, except as otherwise prescribed by the Penal Code. {Id.y 
 
 § 17.) 
 
 A child under the age of seven years is not capable of com- 
 mitting crime. {Id., § 18.) 
 
 A child of the age of seven years, and under the age of twelve 
 years, is presumed to be incapable of crime, but the presumption 
 may be removed by proof that he had sufficient capacity to 
 understand the act or neglect charged against him, and to know 
 its wrongfulness. {Id., § 19.) 
 
 An act done by a person who is an idiot, imbecile, lunatic 
 or insane, is not a crime. A person cannot be tried, seatenced to 
 any punishment or punished for a crime while he is in a state of 
 idiocy, imbecility, lunacy or insanity, so as to be incapable of 
 understanding the proceeding or making his defense. {Id., § 20.) 
 
 A person is not excused from criminal liability as an idiot, 
 imbecile, lunatic, or insane person, except upon proof that, at the 
 time of committing the alleged criminal act, he was laboring 
 under such a defect of reason as either, 
 
 1. Not to know the nature and quality of the act he was 
 doing ; or, 
 
 2. Kot to know the act was wrong. {Id., 21 ; see, also. Blacks. 
 Comrn.., 22, 24.) 
 
 Insanity. The grounds of exemption fi'om punishment on 
 account of insanity are usually considered under three heads : 
 1. Idiocy ; 2. Adventitious insanity ; 3. Voluntary or acquired 
 insanity. 
 
 1. An idiot is a fool, or madman, from his birth ; one who 
 never has any rational or lucid intervals. A man who is deaf and 
 
PEBSOWS CAPABLE OF COMMITTING CRIME. 519 
 
 dumb from his birlli is by presumption of law an idiot. But in 
 late years so mucb attention has been paid to the instruction of 
 the deaf and dumb, that many of them are as capable of judging 
 between right and wrong as most of those who are not deaf and 
 dumb ; hence if it can be shown that he has the use of his under- 
 standing, he may be tried, and sufEer judgment and execution. 
 (1 Huss. on Or., 1 ; Barh. Crim. Law, 264.) 
 
 2. Adventitious itisanity proceeds from various causes, and is 
 of several kinds and degrees. It may be partial, as monomania, 
 or total, or pernianent, or temporary. 
 
 3. Voluntary or acquired insanity consists in a temporary 
 frenzy or deprivation of reason, produced by drunkenness or by 
 the indulgence of violent passions. 
 
 "When the deprivation of understanding and memory is total, 
 fixed and permanent, it excuses all acts. When the insanity is 
 temporary, and the crime is committed during the frenzy and 
 connected with it, he is entitled to the same indulgence as one 
 whose disorder is fixed and permanent. {Barh. Grim. Law, 264 ; 
 People V. Sprague, 2 Parle. Or., 43.) 
 
 Drunkenness brought on by wrongful indulgence, no matter 
 how great the deprivation of reason, will not exempt from 
 punishment {People v. Willey, 2 Park. Or., 19; Coke Litt, 
 247) ; but when intoxication ceases, if insanity follows as a con- 
 sequence of the vice, he is, in the eye of criminal justice, no 
 longer amenable for his act. {Id., 268 ; People v. Robinson, 2 
 Park. Or., 235 ; Eeal v. People, 42 JV. Y., 270.) 
 
 Another species of exemption from punishment is ignorance 
 or mistake. And this ignorance or mistake must be with refer- 
 ence to a question of fact and not of law ; for ignorance of the 
 law will not excuse any person of capacity enough to be respon- 
 sible for his criminal acts, for all are presumed to know the law. 
 But if a man intending to kill a thief or housebreaker in his own 
 house, by mistake kills one of his own family, this is no criminal 
 action. (4 Blacks. Comm., 27.) 
 
 The next species of exemption that we notice arises from com- 
 pulsion and inevitable necessity. The obligation of civil subjec- 
 tion is where the inferior is constrained by the superior to act 
 contrary to what his own reason and inclination would suggest ; 
 as when a legislator establishes iniquity by a law, and commands 
 the subject to do an act contrary to religion and sound morality. 
 
520 NEW YOEK JUSTICE. 
 
 (4 Blacks. Comm., 28.) But this civil subjection does not extend 
 to a servant or child, as neither of them would be exempt under 
 the pretense of an order from their master or parent. 
 
 In some cases the command or authority of the husband excuses 
 the wife ; as, if a woman commit theft, burglary or other civil 
 offense against the laws of society, by the coercion of her hus- 
 band. (4 Blacks. Uomm., 28.) But it is not a defense to a married 
 woman, charged with crime, that the alleged criminal act was 
 committed by her in the presence of her husband. (P. C, § 24.) 
 But if she commit a crime of her own voluntary act, or by the 
 command of her husband in his absence, she is punishable as 
 much as if she were sole. ( Whar. Crim. Law, § 7.) 
 
 If the wife live apart from her husband she may be indicted 
 alone and punished {Oom. v. Lewis, 1 Met, 151) ; so she may be 
 indicted with her husband and punished for keeping a house of 
 ill-fame {State v. Bents, 11 Mo., 27) ; and she may be indicted 
 for keeping a gaming house. {R. v. Dixon, 10 Mod., 335.) 
 And she will be punished if she commit an act highly heinous by 
 the compulsion of her husband, as for murder (4 Blacks. 
 Comm., 29), manslaughter {Hale^s P 0., 47), and treason and 
 robbery {Arch. Cr. PL, 16). 
 
 CHAPTER II. 
 
 OF THE CEIMIlSrAL JURISDICTIOlSr OF JUSTICES OF 
 THE PEACE G-ENfiRALLY. 
 
 It was mentioned in the commencement of this work {ante, p. 
 1), that the jurisdiction of Justices of the Peace in this State is 
 two-fold, civil and criminal, and that, in the larger towns and 
 cities, their authority is divided, the civil jurisdiction being exer- 
 cised by Justices of the Peace, and the criminal jurisdiction by 
 Police Justices. The jurisdiction of the Police Justices in the 
 several cities and villages so nearly resemble that of the Justices 
 of the Peace when acting with reference to criminal proceedings, 
 that it will not be necessary for us to refer to the general statutes 
 
GENERAL POWERS. 521 
 
 Tinder which the several Police Justices are elected or appointed, 
 but we will proceed at once to the consideration of ofEenses 
 cognizable by Justices of the Peace generally. 
 
 1. General Powers. 
 
 Originally, Justices, as we have seen [ante, p. ]), were Con- 
 servators of the Peace, and they were called Guardians, Wardens, 
 or Keepers of the Peace. The statute of 34 Edward III, chapter 
 1, gave these Conservators the power of trying felonies, and they 
 then acquired the more dignified and honorable appellation of 
 Justices. (1 Blacks. Coynm., 351.) 
 
 The laws of New York confer upon Justices of the Peace both 
 civil and criminal jurisdiction. They must reside in the town for 
 which they were chosen, and a removal therefrom forfeits their 
 office. (1 R. jS., 102, § 12 ; Gurnsey v. Lovell, 9 Wend., 319, 
 322.) Their civil jurisdiction is limited, with certain exceptions, 
 to the town for which they were chosen, but their criminal juris- 
 diction is co-extensive with the ])oundaries of the counties in 
 which they reside. {Id.) But a Justice, although possessing 
 unlimited criminal jurisdiction in his own county, cannot exercise 
 that jurisdiction without the bounds of his county. His warrant 
 even is of no effect in a foreign county, unless it be properly 
 indorsed (6'. 0. P., § 156) ; and it is presumed that no Justice 
 has the right to migrate from his own to a foreign county, and 
 there receive complaints and issue warrants for the apprehension 
 of criminal offenders. This point, however, is perhaps not to be 
 regarded as settled, for it has been remarked by an able writer on 
 criminal jurisdiction that, so far as the nature of the offense is 
 concerned, the jurisdiction of a Justice, for the purpose of 
 receiving complaints and issuing warrants to apprehend offenders, 
 is without limit. {Barb. Grim. Law, 485.) But within his own 
 county it is his right, both at common law (4 Blacks. Gomm., 
 290), and by statute (C. P., §§ 147 and 156), to issue his warrant 
 for the arrest of any offender. And if the offense was committed 
 in his own county, and the criminal has escaped, it is nevertheless 
 the right and duty of the Justice to issue process for his arrest. 
 {G. P., Title III.) 
 
 In England, if a criminal escaping from the county in which 
 his offense was committed, come into another county, a warrant 
 for his arrest may be issued in the county where he may be 
 
522 NEW TOEK JUSTICE. 
 
 found. {G kitty's Grim. Law, 34 ; 1 Hale's P. G., 580.) In 
 our own State this last point has not been so strongly asserted. 
 It was remarked by Mr. Justice Bronson in The People v. Cassels 
 (5 Hill, 169), that possibly a Justice might issue process when 
 the oft'euder was in his county, although the crime was committed 
 elsewhere ; but the Court said they were inclined to a different 
 opinion, and that it was not then necessary to settle the question. 
 
 In the Supreme Court of the United States, in the case of 
 Holmes v. Jennison (14 Peters, 540), the question whether a 
 State can deliver up an individual found within its territory to a 
 foreign government to be there tried for offenses alleged to have 
 been committed against the latter, received a most searehing' and 
 deliberate investigation, and a majority of the Court decided 
 adversely to the exercise of such "a power. In that case the 
 prisoner was the subject of a foreign power, and had fled into the 
 State of Vermont from Canada, where he had been indicted for 
 murder. He was arrested by a warrant issued by the Governor 
 of Vermont. A habeas corpus, to inquire into the cause of his 
 detention was issued, upon the return of which the Supreme 
 Court of Vermont decided that the warrant was a good and suffi- 
 cient cause in law for the detention and imprisonment of the 
 prisoner. A writ of error was taken to the Supreme Court of 
 the United States, which was dismissed in consequence of an 
 equal division of the judges. The prisoner sued out another 
 writ of habeas corpus, returnable before the Supreme Court of 
 Vermont, upon which he was discharged. The judges of that 
 Court were satisfied, after an examin ation of the opinions of the 
 Justices of the Federal Court, that the power claimed to deliver 
 up the prisoner did not exist. (14 Peters, 598, note ; 1 Brookenb., 
 493.) A similar decision was arrived at in Pennsylvania. (10 
 Sergeant (& Raxole, 125.) These decisions indicate the duty of a 
 magistrate when a complaint is made before him against a subject 
 of a foreign C(vintry for an offense against the laws of that 
 country. He has no power to entertain the complaint, except in 
 a case where such power may be specially conferred upon him by 
 law in regard to fugitives from justice from a country between 
 which and the United States a treaty of extradition exists. 
 There is at present no such case. 
 
 The Constitution of the United States provides, that a person 
 charged in any State with treason, felony or other crime, who 
 
GENERAL POWEKS. 523 
 
 shall flee from justice, and be found in anotlier State, shall, on 
 demand of the executive authority of the State from which he 
 fled, be delivered up, to be removed to the State having jurisdic- 
 tion of the crime. {Constitution TJ. /S., Art. IV, § 2.) In the 
 thirty-third section of the act of Congress, entitled " An act to 
 establish the Judicial Courts of the United States," it is pro- 
 vided, that for any crime or offense against the United States the 
 offender may, by any Justice or judge of the United States, or by 
 any Justice of the Peace, or other magistrate, of any of the 
 United States where he may be found, agreeably to the usual 
 process against offenders in such State, and at the expense ot the 
 United States be arrested, and imprisoned or bailed, as the case 
 )nay bs, for trial before such Court of the United States as, by 
 that act, has cognizance of the offense. (1 U. S. Reviled Statutes, 
 § 1014.) Under this act it has been decided that a State magis- 
 trate may commit, for further examination, an offender charged 
 with a crime against the United States. {& parte Smith, 5 
 Covj., 273.) A statute has been passed in this State which 
 authorizes Justices of the Peace to issue process for the appre- 
 hension of a person charged in any State or territory of the 
 United States with treason, felony or other crime, who shall flee 
 from justice and be found within this State. {Laws of 1839, 
 chap. 350, § 1.) This power of Justices of the Peace to arrest 
 fugitives from jtistice will be considered more fully and particu- 
 larly hereafter. 
 
 All Justices of the Peace, unless restricted by special statute, 
 have power to issue process for the apprehension of persons 
 charged with any offense (6'. P., §§ 147 and 150) ; and all that 
 seems necessary to confer jurisdiction is, that an offense should be 
 committed in the county where the Justice resides, and a com- 
 plaint against the offender be preferred. (2 R. S., 706, §§ 2, 5.) 
 
 Besides this general authority to arrest offenders, with which 
 Justices of the Peace are invested, there are other powers con- 
 ferred upon them, relating to criminal matters, which it is proper 
 briefly to enumerate. They are Conservators of the Peace, and, 
 by virtue of their authority as such, they may appi-ehend or 
 cause to be apprehended, without issuing written process, any 
 person threatening to kill or beat another, or to commit any offense 
 against his person or property. (2 R. S., 705, § 8 ; 1 Hale's P. 
 C, 86. j When any violation of the act relating to the disturb- 
 
624 KEW YOKK JUSTICE. 
 
 ance of religious meetings (1 R. S., 675), or of the act concern- 
 ing tlie observance of Sunday {id., 676), takes place in the presence 
 of a Justice of the Peace, he must cause the offender to be 
 brought before him, and must proceed summarily to inquire into 
 the facts, and the conviction of the offender by the Justice is 
 final and conclusive. (Td., 677.) It is not necessary, to give 
 jurisdiction to a Justice in whose presence a violation of the last 
 named act has occurred, that a process should be actually issued. 
 {Foster v. S7nith, 10 Wend., 377; Post, part 111, chap. VII.) 
 A single magistrate may exercise his jurisdiction upon Sunday, 
 when it is necessary in criminal cases, to preserve the peace or to 
 arrest, commit or discharge offenders. {Civil C, § 6.) 
 
 It is provided by statute, that indictments for murder may be 
 found at any time after the death of the person killed, and that, 
 in all other cases, indictments shall be found and filed in the 
 proper Court, within five years after the commission of the 
 offense ( Grim. P., % 142) ; but that the time during which 
 the defendant shall not have been an inhabitant of, or usually 
 resident within this State, shall not constitute any part of the 
 said limitation of five j'ears. {Id., 143.) This provision determ- 
 ines the limit, in point of time, of a Justice's jurisdiction in 
 receiving a complaint and issuing a warrant for any offense which 
 is indictable, and also in holding a Court of Special Sessions for 
 the trial of an offender. {Barb. Crim. Law, 490.) There are, 
 however, various special provisions in regard to the time within 
 which a prosecution must be instituted, an indictment found or a 
 conviction had in particular cases, which will be noticed in their 
 proper places. As regards the mode of computing the time 
 limited by any statute, it is provided that whenever the term 
 " year " or " years " is used in any statute, the year intended shall 
 be taken to consist of 365 days ; and the added day of a leap year 
 and the day immediately preceding, if they shall occur in any 
 period so to be computed, shall be reckoned together as one day. 
 <1 R. 8., 606, § 3.) " Month " or " months," when used in any 
 statute, means a calendar and not a lunar month, unless otherwise 
 expressed. {Id., § 4.) When, in a statute, the time is to be 
 computed from an act done, the day on which the act was done 
 must be excluded in the computation. (2 Cow., 518, 605 ; 6 id., 
 €59 ; Cwnell v. MouUon, 3 Den., 12.) 
 
contempts of couet. 525 
 
 2. Affeats and Riots. 
 Justices of the Peace also possess great powers for the purpose 
 of quelling affrays and riots. By the common law, every private 
 person may lawfully endeavor, of his own authority, and without 
 any sanction or warrant of a magistrate, to suppress a riot by 
 every means in his power. {^Rex v. Pinney, 5 Carrington db 
 Payne, 261.) Justices of the Peace are bound to do all that in 
 them lies for the suppression of a riot, and they have authority 
 to command the assistance of all persons whomsoever above the 
 age of fifteen years, excepting clergymen, women and persons 
 disabled by infirmity. {Jiex v. Kennett, id., 282.) And it is not 
 left to the choice or will of the bystanders to attend or not to the 
 call of the magistrate, as tBey think proper ; but every man is 
 bound, when called upon, under pain of fine and imprisonment, 
 to yield a ready and implicit obedience to the call of the magis- 
 trate, and to do his utmost in assisting him to suppress any 
 tumultuous assemblage. {Id., 261, 282.) In the case of a riot, 
 especially, a Justice possesses almost unlimited powers to secure 
 the arrest of the rioters. He may command their arrest orally, 
 and the person thus commanded may pursue and arrest the 
 rioters, even out of the presence of the Justice. (2 Hales P. 
 C, 114.) And generally, in cases of felony, breaches of the 
 peace and afErays of every kind, when a Justice is present, he 
 may in his own person apprehend the offenders, or by word of 
 mouth command anyone to arrest them ; and such command, 
 though unwritten, is good as a warrant. {Id., 86 ; Philips v. 
 Trull, 11 Johns., 486; Crim. P., § 182.) 
 
 3. Contempts of Court. 
 
 In the following cases, and in no others, a Justice of the 
 Peace, for the preservation of the dignity of his Court, and for 
 the safe exercise of his powers, is authorized by statute to punish, 
 as for a criminal contempt, persons guilty of the following acts : 
 {Code, §2870.) 
 
 1. Disorderly, contemptuous or insolent behavior towards such 
 Justice, while engaged in the trial of a cause, or in the rendering 
 of any judgment, or in any judicial proceedings, which shall tend 
 to interrupt such proceedings, or to impair the respect due to his 
 authority ; 
 
626 NEW YORK. JUSTICE. 
 
 2. Any breach of the peace, noise or other disturbance, tending 
 to interrupt the official proceedings of the Justice ; 
 
 3. Resistance, wilfully offered by any person, in the presence 
 of a Justice, to the execution of any lawful order or process 
 made or issued by him. 
 
 The powers of a Justice are ample to repress and punish all 
 disorderly behavior by which the progress of proceedings before 
 him may be impeded, whether the offender be a party, his counsel 
 or a bystander ; and self-respect, as weU as a due regard for the 
 administration of justice, imperiously demand that those powers 
 should be used, and order be enforced with a firm and steady 
 hand. Justices may at all times rely upon the countenance and 
 favor of superior tribunals, in the due command and vigorous 
 enforcement of good order while conducting their proceedings ; 
 and, as all necessary powers have been conferred upon them for 
 this purpose, they should know and feel that they alone are justly 
 responsible for its observance. {Onderdonh v. Banlett, 3 Hill, 
 323.) 
 
 Punishment for a contempt may be by fine, not exceeding 
 twenty-five dollars, or by imprisonment in the county jail not 
 exceeding five days, or both, in the discretion of the Justice. 
 But no person shall remain in prison more than ten days for the 
 non-payment of such fine. {Code, § 2871.) 
 
 No person can be punished for a contempt before a Justice 
 until an opportunity has been given him to be heard in his 
 defense ; and, for that purpose, a Justice must issue a warrant to 
 bring the offender before him. {Id., § 2872.) 
 
 Where a person used abusive and reproachful words to a Jus- 
 tice relative to his judicial conduct, though not while lie was acting 
 as a Justice, and the Justice, after the person had left his office, 
 issued a warrant commanding him to be taken and committed to 
 jail, until he should find sureties for his appearance at the next 
 general Sessions, and for his good behavior in the meantime, and 
 the party was arrested, but immediately discharged, it was held 
 that the Justice had power to require the offender to find surety 
 for the peace and for his good behavior, and, in default thereof, 
 to commit him, and that that part of the warrant requiring him 
 to be committed to jail in the meantime not having been executed 
 might be rejected, and the warrant be good as to the residue. 
 {Richmond v. Dayton, 10 Johns., 393.) 
 
CONTEMPTS OF COURT. 527 
 
 If the offender be actually present, the Justice must issue a 
 warrant and he should arraign the person, and state to him par- 
 ticularly the character of the offense with which he is charged ; 
 and, if no satisfactory defense is made, the Justice may impose a 
 fine, or make out a warrant for the commitment of the person to 
 jail, or both. Care should be taken to afford him an opportunity 
 to be heard in his defense, as the language of the statute to that 
 effect is imperative. 
 
 Mr. Justice Cowen says that as this power is necessarily an 
 arbitrary one, the Justice should proceed with great caution and 
 prudence. He sliould bear in mind that he is not engaged in 
 vindicating his own character or reputation, so much as in pro- 
 moting the respect due to the proper administration of the laws, 
 and to the Court of which lie is an officer. This consideration 
 alone should induce him to receive as satisfactory any reasonable 
 apology for the offender's conduct ; but if he refuse to render 
 such an apology, the Justice should not hesitate to inflict upon 
 him such punishment as he may deem commensurate to the 
 offense committed. (2 Cow. Treatise, 368.) 
 
 Neither the legality or justice of any mandate, judgment, decree 
 or final order of a commitment for a contempt, made by a Justice 
 according to law, can be inquired into upon the return to a writ 
 of habeas carpus, if the contempt be properly charged in the 
 commitment. {Civil Code, § 2034.) 
 
 § 54. Warrant of Arrest fm' Contempt. 
 County of 
 
 In the name of the People of the State of New York : 
 To any peace officer in this State (or in the County of ) : 
 
 Whereas, on [state the day], during the trial of a cause between 
 John Doe, plaintiff, and Richard Hoe, defendant [or whatever the 
 proceeding may have heen\ before me, J. H. B., a Justice of the 
 Peace in and for the said county, at my office in [name of town 
 or city] in said county, W. V. was guilty of contempt towards 
 me, the said Justice, while thus engaged in the trial of said 
 cause [or other proceeding], by speaking to, of and concerning 
 me, as such Justice, and in my presence and hearing, these disor- 
 derly, contemptuous and insolent words [here insert the words 
 verbatim, or state the conterrupt exactly] : You are therefore com- 
 manded to arrest the said W. V. and bring him before me at my 
 office in said city [or town], to answer for the said contempt, and 
 to be farther dealt with according to law. 
 
 Given under my hand. [Date.] 
 
 J. H. B., Justice of the Peace. 
 
528 NEW YORK .TUSTICE. 
 
 If the offender, upon being brought before the Justice, and 
 having the charge distinctly stated to him, does not make a satis- 
 factory explanation, the Justine may convict him of the contempt. 
 
 Upon convicting any person of a contempt, the Justice must 
 make up a record of such conviction, stating therein the particular 
 circumstances of the offense, and the judgment rendered thereon, 
 which must be subscribed by him and filed in the office of the 
 county clerk within ten days after its date. {Code, § 2873.) The 
 record will necessarily be varied to suit the circumstances of the 
 case and the character of the contempt. 
 
 § 55. Record of Conviction. 
 County, ss. : 
 
 Be it remembered that on {state the day], during the trial of a 
 cause between John Doe, plaintiff, and Richard Roe, defendant 
 {or whatever the proceeding may ha/ve been], before me, J. H. B., 
 a Justice of the Peace in and for the said county, at my office in 
 {na7ne of tovm or city], said county, W. Y. was guilty of con- 
 tempt towards me, the said Justice, while thus engaged in the 
 trial of said cause {or other proceeding], by speaking to, of and 
 concerning me, as siich Justice, and in my presence and hearing, 
 these disorderly, contemptuous and insolent words {here insert 
 the words veriaiifn, or state the contempt precisely] : and the said 
 W. V. having been brought before me to answer for the said 
 contempt, and having had an opportunity to be heard in his 
 defense, and not having made any sufficient defense against a 
 conviction for said contempt, I do hereby convict the said W. Y. 
 of the said contempt, and do adjudge that he pay a fine of {not 
 exceeding twenty-five dollars], and also that he be imprisoned in 
 the county jail for {not exceeding five days]. 
 
 Witness my hand this {date]. 
 
 J. H. B., Justice of the Peace. 
 
 This record must be filed within ten days after its date, in the 
 county clerk's office. {Id., § 2873.) 
 
 The Justice must then make out a warrant of commitment, 
 which must set forth the particular circumstances of the offense, 
 or it will be void. {Id., § 2874.) If only a fine is imposed, and 
 that is paid, no warrant of commitment is necessary ; but if the 
 fine is not paid, or if imprisonment is imposed as a part of the 
 punishment, the warrant will be necessary. 
 
CONTEMPTS OF COURT. 529 
 
 § 56. Wwrrant of Commilmient for Contempt. 
 County, 88. : 
 In the name of the People of the State of New York : 
 To any peace officer in this State [or in the county of Albany] 
 and to the keeper of the county jail of said county, greeting : 
 "Whereas, W. Y. has this day been convicted by and before me, 
 J. H. E., a Justice of the Peace in and for the said county, of a 
 contempt committed by him, the said W. V., on [state the da/y'], 
 during the ti-ial of a cause between John Doe, plaintiff, and 
 Richard JRoe, defendant [or whatever the proceeding may ha/oe 
 been], before me, at my office in [name of town or city], in said 
 county ; which contempt consisted in [here transcribe the con- 
 tempt as set out in the record of conviction], and the said W. V. 
 naving been brought before me to answer for the said contempt, 
 and having had an opportunity to be heard in his defense, and 
 not having made any sufficient defense against a conviction for 
 said contempt, and I having convicted the said W. V. of the said 
 contempt, and having theVeupon adjudged that he pay a fine of 
 [as in th-e record of conviction], and also that he be imprisoned 
 in the county jail for [as in the record of convicti'on] ; and 
 whereas the said W. Y., altliough he has been duly hotitied of 
 the said conviction and judgment, has not paid the said fine : 
 These are, therefore, in the name of the People of the State of 
 New York, to command you, the said constable, to take, convey 
 and deliver into the custody of the said keeper of the said county 
 jail, the body of the said W. Y., and you, the said keeper, are 
 hereby required to receive the said W. Y. into your custody in 
 the said jail, and him there safely keep during the said term of 
 [not exceeding five] days, and further, until he shall pay the said 
 fine or be duly discharged according to law. The said W". Y. is, 
 however, not to remain imprisoned for the non-payment of said 
 fine more than ten days. Given under my hand and seal this 
 [date]. J. H. B., Justice of the Peace. 
 
 The prisoner cannot be confined in jail more than ten days for 
 the non-payment of the fine. {Code, § 2871.) 
 
 The foregoing provisions in regard to the punishment of crim- 
 inal contempts by Justices of the Peace do not apply to the 
 Marine Court in the city of New York. That Court has the 
 same power to punish criminal contempts that Courts of Pecord 
 have. {Civil Pro., §§ 210 and 214.) 
 
 4. Dying Dbolaeations. 
 It not unfrequently occurs that a Justice of the Peace is called 
 to take from a wounded person who is dying from his wounds, a 
 
530 NEW YORK JUSTICE, 
 
 Btatement of the facts and circumstances relating to the injuries 
 he has received, and his declarations as to the person or persons 
 by whom the wounds were inflicted. These statements and 
 declarations are admissible in evidence in cases of homicide, upon 
 the principle that they are statements and declarations made in 
 extremis, when the party is at the point of death, when every 
 hope for this world is gone, when every motive to falsehood is 
 silenced, and when the mind is induced, by the most powerful 
 considerations, to speak the truth. A situation so solemn and so 
 awful is considered by the law as creating an obligation equal to 
 that which is imposed by a positive oath administered in a Court 
 of Justice. (1 LeacKs C. C, 500 ; Russell on Crimes, 753.) 
 
 These declarations are not required by any statute to be reduced 
 to writing, but it is better that they should be, and be signed by 
 the person making them ; but it is no objection to the admission 
 of a parol declaration, that the deceased made a subsequent one 
 to a magistrate, which was taken in writing, and is not produced. 
 {Id., 763.) It is essentially necessary, however, to the admissi- 
 bility of these declarations, that the person making them should 
 at the time be conscious of approaching death. (1 I/eacKs G. C, 
 500.) It therefore is the duty of a Justice to impress the declar- 
 ant with a sense of his situation, the certainty of his speedy 
 dissolution, and the obligation resting upon him to speak the 
 truth, uninfluenced by any passion or desire for revenge. 
 
 It is permitted to a prisoner, in his defense, to show the state 
 of mind and behavior of the deceased at the time of making his 
 declaration. (1 Phillips^ Ev., 989.) The Justice should pay the 
 strictest attention to the statements made, and to the manner of 
 making them, and it should be his endeavor to elicit the whole 
 truth, and to prevent, if possible, the concealment of any circum- 
 stances affecting the transaction. It is not necessary that the 
 examination should be conducted after the manner of interrogat- 
 ing a witness, though a departure from this mode may affect the 
 value and credibility of the declarations (2 Russell on Crimes, 
 764) ; nor is it any objection to their admissibility that they were 
 made in answer to leading questions, and obtained by earnest and 
 pressing solicitations. (1 Greenl. on Ev., §§ 159, 161.) 
 
seaech waebants. 531 
 
 5. Seaech "Waeeants. 
 
 As the discovery of stolen goods frequently leads to the detec- 
 tion and punishment of the offender, it is not improper to consider 
 in tliis place the authority and duty of Justices of the Peace in 
 regard to search warrants. By the Code of Criminal Procedure 
 (§§ 192 to 798) it is made lawful for any magistrate, upon com- 
 plaint or oath being made that any personal property has been 
 stolen or embezzled, and that the complainant suspects that such 
 property is concealed in any particular house or place, to issue a 
 warrant to search for such property. Such warrant must be 
 directed to any peace officer of the county, and command him to 
 search in the day time the place where such property is suspected 
 to be concealed (which place must be particularly designated and 
 the property be particularly described in the warrant), and to 
 bring the property before the magistrate issuing the warrant. 
 {Id., § 796 ; People v. Eolcomh, 3 Park. Or., 656.) If there be 
 positive proof that any property stolen or embezzled is con- 
 cealed in any particular house or place, the warrant may author- 
 ize the searching of such house or place in the night time. 
 {Id., § 801.) Every such warrant must be executed by a peace 
 officer and not by a private citizen. {Id., § 798.) 
 
 The fourth amendment to the Constitution of the United States 
 provides, that the rights of the people to be secure in their per- 
 sons, houses, papers and effects, against unreasonable searches and 
 seizures, ought not to be violated, and that no warrants can issue 
 but upon probable cause, supported by oath or affirmation, and 
 particularly describing the place to be searched, and the persons 
 or things to be seized. {Grim. Pro., §§ 793, 794; Fourth 
 Amendt. to Constitution U. S.) This provision relates solelj' to 
 criminal process, and has nothing to do with arrests in civil suits. 
 ( WalA-er v. Cruikshimk, 2 Eill, 296.) 
 
 The first proceeding on the part of the Justice to whom appli- 
 cation for a search warrant is made, is to require a complaint upon 
 oath, to the effect that certain personal property (which must be 
 particularly described) has been stolen or embezzled, and that the 
 complainant suspects that such property is concealed in a particular 
 house or place. Then, if the Justice is satisfied that there is 
 reasonable ground for such a suspicion, he must issue the warrant. 
 Eut he cannot issue a general warrant to search in all suspected 
 
632 NEW YORK JUSTICE. 
 
 places. {Dunlap^s Justice, 368 ; People v. Holcomh, 3 Parle. 
 Cr., 656.) Such a warrant is bad, both by the common law and 
 by statute. (1 Chitty's Grim. Law, 65 ; Crim. Pro., § 796.) 
 The warrant must specify, with great particularity, both the 
 property stolen and the place where it is suspected to be con- 
 cealed, (/c?.) It must also, as a general rule, direct that the 
 search be made in the day time. (/<?.) It is only when the proof 
 is positive that the property is concealed in a particular place, 
 that the magistrate is justified in authorizing a search in the night 
 time ; and then only for the reason, as has been quaintly remarked, 
 lest the offenders and the goods also be gone before morning. 
 {Dunlap's Justice, 368.) The warrant must be entirely filled up 
 before it is issued, and must have no blank either in the date or 
 otherwise, and must be signed by the Justice ; and need not be 
 sealed. {Grim. Pro., % 797 ; People v. Holcomh, 3 Park. Cr.^ 
 656 ; Smith v. Randall, 3 Hill, 495.) 
 
 § 57. Complaint or Information to obtain a Search Warrant. 
 
 County, ss. : 
 A. B., of said county, being duly sworn, says that certain per- 
 sonal property of the said A. B. [or, of one C. D.], to wit : 
 [describe the property] of the value of dollars or upwards, 
 
 was stolen and feloniously taken from his dwelling-house in the 
 town of , in said county, on the day of , 
 
 instant [or, last past] ; * and that this deponent suspects that R. 
 D. has stolen and taken the same as aforesaid ; and that the said 
 property, or a part thereof, is now concealed in the dwelling- 
 house of the said R. D., in the said county ; wherefore process is 
 applied for to search the same. 
 
 A. B. 
 Sworn to this day of , ) 
 
 18 , before me, | 
 
 J. H. B., Justice of the Peace. 
 
 § 58. Search Warrant. 
 County of : 
 
 In the name of the People of the State of JSew York: 
 To any peace officer in the county of : 
 
 Proof by affidavit having been this day made before me by 
 [nam.hig every person whose affidavit has been taken'], that [stati^ig 
 the particulars of the application ; or, if the affidavits be not 
 positive, " that there is probable cause for believing," stating the 
 ground of the application in the same manner]. 
 
SEARCH WAERANTS. 533 
 
 You are therefore commanded, in the day time [or, at any time 
 of the day or night], to make immediate search on the person of 
 C D. [or, in the building situated, desa^ibing it particularly], for 
 the following property [describing it ivith reasonable partioio- 
 larity], and if you find the same or any part thereof to bring it 
 forthwith before me, at 
 
 Dated at the town of , this 18th day of October, 1882. 
 
 E. F., 
 Justice of the Peace of the town of 
 
 The officer receiving the warrant must strictly pursue its direc- 
 tions, and he will be protected only in seizing the property 
 specified. Therefore, in a case where a warrant was granted 
 authorizing sugar to be taken, and the oflicer took not only the 
 sugar but teas and nails also, he was found guilty of trespass with 
 regard to the property not specified. {Price v. Messenger, 3 
 Espinasse, 9G.) 
 
 "With respect to the mode of executing the waiTant, if the outer 
 door of the building be shut, and, upon demand, be not opened, 
 it maybe broken open {Crim. Pro., §799; 1 Chitty's Crim. 
 Law, 66 ; Bell v. Olapp, 10 Johns. 263) ; and so may boxes, after 
 the keys have been demanded; and though the goods be not 
 found the officer will be justified. (1 Ghitty^s Crim. Law, 66 ; 
 Cooper V. Booth, 3 Espinasse, 185 ; 2 Bosanquet da Puller, 160.) 
 The officer should take care that his character and name are 
 inown and understood. No precise form of words is necessary. 
 It is sufficient that a party has notice that the officer comes, not 
 as a trespasser, but claiming to act under a proper authority. 
 {Foster's C. C, 137.) 
 
 If the warrant has been legally and regularly issued and 
 properly executed, it is a protection to those who execute it, 
 against an action of trespass. {Beatty v. Perhins, 6 Wend., 383.) 
 The statute does not authorize a Justice to incorporate in a search 
 warrant an order for rhe arrest of the person in whose custody 
 the goods may be found. A search warrant, under the hand and 
 seal of a Justice, reciting information on oath that certain goods 
 described tlierein Lave been stolen by A and B, and are concealed 
 in the house of C, and commanding the officer to whom it is 
 directed to enter the said house in the day time, and search for 
 the articles stolen, and to bring them with C, or the person in 
 whose custody they shall be found, before the .Justice, is legal 
 and valid. {Belt v. Clapp, 10 Johns., 263.) 
 
634 NEW YORK JUSTICE. 
 
 If J on the return of the warrant before the Justice, it appears 
 that the goods were not stolen, they are to be restored. (1 ChiWy's 
 Grim. Law, 67; 2 Holers P. 0., 151.) If they were stolen they 
 are to be delivered to the owner, on proof of his title, and upon 
 the payment of the reasonable and necessary expenses incurred 
 in their preservation. {Grim. Pro., §§ 804, 687.) The party 
 who had the custody of the goods is to be discharged if they were 
 not stolen. If they were stolen, not by him, but by another per- 
 son, who sold and delivered them to him, and it appears that he 
 was ignorant of the mode in which they were procured, he may- 
 be discharged, but ought to be bound over to give evidence as a 
 witness against the person who sold them. If it appears that he 
 knew the goods were stolen, then he should be committed as for 
 a felony, if the taking of the goods originally was felonious ; for, 
 as has been well observed, there is a probable cause of suspicion 
 that he was at least an accessory after the fact. (2 Hal^s P. (7., 
 151 ; Chitty's Crim. Law, 67 ; Dunlap's Justice, 371 ; Barb. 
 Grim. Law, 502.) If the original offense was a misdemeanor, 
 the party should be bound over to answer the charge, or be 
 bailed, as the case may require. If the original offense was 
 punishable by a summary conviction, the party should be pro- 
 ceeded against summarily. {Jd^ 
 
 6. Seaeching Peisoneks. 
 Any magistrate who shall commit to prison any person charged 
 with any offense, or by whom any vagrant or disorderly person 
 shall be committed, may cause such person to be searched, for the 
 purpose of discovering any property he may have ; and if any 
 property be found, the same may be taken and applied to the sup- 
 port of such person while in confinement. (2 R. S., 745, § 29.) 
 
 7. Stolen Pkopeett. 
 
 If stolen property comes into the custody of any Justice of the 
 Peace, it must, upon satisfactory proof of the title of any owner 
 thereof, be delivered to him on his paying the reasonable and. 
 necessary expenses incurred in the preservation of such property, 
 to be certified by such Justice. {Grim. Pro., % 687.) 
 
 When property alleged to have been stolen comes into the 
 custody of any constable, marshal, sheriff or other person author- 
 ized to perform the duties of any such olBce, he must hold the 
 
STOLEN PKOPEKTT. 535 
 
 same subject to the order of the magistrate who shall take the 
 examination of the person accused of stealing it. The magistrate 
 may order it to be delivered to the person offering satisfactory 
 proof of title to the property, on the payment of the reasonable 
 and necessary expenses incurred in itb> preservation, to be certified 
 by the magistrate. {Id., §§ 685, 6S6.) 
 
 If property stolen shall not have been delivered to the owner 
 thereof, the Court before which a conviction shall be had for the 
 stealing of such property, may, upon proof of its ownership by 
 any person, order it to be restored to him. {Id., § 688.) If 
 stolen property is not claimed by its owner before the expiration 
 of six months from the time any person shall have been convicted 
 of stealing it, the magistrate, sheri£F, constable or other officer or 
 person having the same in his custody must deliver it to the 
 county superintendents of the poor, on being paid the reasonable 
 and necessary expenses incurred in its preservation, to be appro- 
 priated to the use of the poor of the county or city. {Id., § 689.) 
 
636 NEW YOEK JUSTICE. 
 
 CHAPTER III. 
 
 ON PEOCESS FOE THE AEEEST OF OFFENDEES. 
 
 In issuing process for the arrest of offenders, as well as in per- 
 forming various other duties devolving upon him, a Justice of the 
 Peace is said to act ministerialh/ ; and it is when acting minis- 
 terially that the greatest caution and prudence are requisite. For 
 errors committed in his judicial capacity no action will lie against 
 him (3 Caines, 170 ; 10 Wend., 102 ; 11 id., 545 ; Davis v. Rose, 
 6 Lans., 206 ; 1 Den., 537) ; but if he errs while acting minis- 
 terially he is responsible to the party injured. (2 Johns. Cases, 
 49 ; 3 id., 84 ; Roch. White Lead Co. v. City of Rochester, 3 
 Corns. 464.) And corrupt motives need not be charged against 
 him, in order to make him Hable {Houghton v Sviartwout, 1 Den., 
 589) ; but, when they are charged, the question whether they 
 existed or not should be submitted to the jury. {People r, 
 Whaley, 6 Cow., 661.) When a Justice acts partially or oppres- 
 sively, from malicious and corrupt motives, he is liable to indict- 
 ment. {People v. Coon, 15 Wend., 277.) If a Justice issues a 
 warrant against the putative father of a bastard child, on the 
 application of any other person than the overseers of the poor, 
 he issues it without authority, and, acting ministerially, is liable 
 to the party arrested, notwithstanding a subsequent assent by the 
 overseers to the proceedings. ( Wallsfworth v. McCullough, 10 
 Johns., 93 ; Sprague v. Eccleston, 1 Lans., 74.) 
 
 The rule as to the liability of a Justice is, that when he has no 
 jurisdiction whatever and undertakes to act, his acts are coram 
 nan judioe and void, equally as if he were not a Justice. If he 
 has jurisdiction, then his erroneous acts are not void, but voidable 
 only by a direct proceeding to correct them. In the former case 
 he is personally liable ; in the latter not. (17 id., 146 ; 19 id., 
 39 ; 3 Cow., 209 ; Ilorton v. Auchmoody, 7 Wend., 200.) A 
 record of conviction, however, cannot be questioned or traversed 
 in a collateral action {Mather v. Hood, 8 Johns., 51) ; and if it 
 appears that the Justice had jurisdiction, and proceeded regularly. 
 
THE COMPLAINT OR INFORMATION. 537 
 
 it is conclusive, and a biir to any suit against him for anything 
 adjudged by him and within his jurisdiction. {Bigelow v. 
 Stearns, 19 Johns., 41.) But if the record is interposed as a 
 defense, it is competent to show that the magistrate had not juris- 
 diction of the person against whom the conviction is sought to 
 operate. {Bigelow v. Stearns, 19 Johns., 41.) 
 
 I. The Complaint oe Information. 
 
 It is provided by statute that Justices of the Peace shall have 
 power to issue process for the apprehension of persons charged 
 with any ofiEense ( Criin. Pro., § 147) ; and it is a familiar principle 
 of law, that where a statute gives a Justice jurisdiction of an 
 offense, it impliedly gives him authority and power to apprehend 
 any person charged with the commission of such offense. (1 
 Chitty's Crim. Law, 34 ; 2 Bing., 63 ; 10 Modern Rep., 248.) 
 
 The first step to be taken, in order to procure the arrest of an 
 offender, is to prefer an information before a Justice. This 
 information may be preferred' against any one ; for all persons are 
 equally liable to arrest in criminal cases. (4 Blacks. Comm,., 
 290 ; Dunlap's Justice, 25.) Even the exemption in favor of 
 females does not extend to arrest for criminal offenses {Civ. Pro., 
 § 2894; 1 Chitty's Crim. Law, 12) ; nor do the various statutory 
 exemptions in favor of witnesses {Civ. Pro., § 860), voters at 
 elections {Laws of 1842, chap. 130), and officers and members of 
 the Legislature. (1 P. S., 154, § 6.) 
 
 It is said by Blackstone, and repeated by other writers npon 
 criminal law, that no man is to be arrested unless charged with 
 such a crime as will at least justify holding him to bail when 
 taken. (4 Blacks. Comm., 289 ; 1 Dunl. Justice, 25 ; Barb. 
 Crim. Law, 530.) The statute and the common law authorize 
 the arrest and holding to bail for the commission of almost every 
 supposable offense, and it is presumed that but few cases can 
 arise in which a magistrate, in arresting an offender, would over- 
 step the bounds of his authority, because of the offense not being 
 such a one as would justify the holding to bail. 
 
 As private persons wlio are present when a felony is committed 
 are bound to arrest the felon (4 Blacks. Comm., 293 ; 1 Chitty-s 
 Crim. Law, 17 ; Philips v. Trull, 11 Johns., 486), so it is the 
 common duty and right of everj^ citizen to prefer an accusation 
 against a party whom he suspects to be guilty. (1 Chitty^s Crim. 
 
538 NEW YORK JUSTICE. 
 
 Law, 2.) And not only is a citizen entitled to prefer an accusa- 
 tion against a party suspected of a crime, but he is bound, by the 
 strongest obligations both of reason and of law, to exert the 
 power with which he is invested. (1 Chiity's Crvm. Law, 3.) 
 The citizen, if an injury is inflicted upon him, may forgive it, 
 and thus perform an act of good nature and humanity, but con- 
 trary to the good of the public. He may dispense with satisfac- 
 tion for his private injuries, but he cannot remove the necessity 
 of public example. (4 Blacks. Comm., 364.) The object of 
 criminal proceedings is not vengeance for the past, but safety for 
 the future, and to the furtherance of this design every man is 
 bound to contribute. (1 Ghitty's Crim. Law, 3.) Nor need a 
 complainant fear to communicate his suspicions to a magistrate, 
 for the law ensures to him all due protection in the discharge of 
 his duty. {Id., 10.) This point has been frequently adjudicated, 
 and it may now be regarded as settled, that a complainant is not 
 liable in an action for damages at the suit of the party complained 
 of or indicted, unless his proceedings were both actuated by 
 malice and destitute of probable cause. {Id. ; 9 East, 361 ; 1 
 Camp., 199; McCormick v. Sisson, 1 Cow., 715; 1 Wend., 140; 
 2 Den., 617 ; 3 Washington's 0. C. R., 31 ; 1 Am. Leading 
 Cases, 211.) But if the complainant makes the law an instru- 
 ment of persecution, and a mere engine of oppression, he becomes 
 liable to the party injured, in an action on the case for malicious 
 prosecution. {Id. ; 1 Chiity's Crim. Law, 10 ; Secor v. Bab- 
 cock, 2 Johns., 203 ; Morris v. Scott, 21 Wend., 281.) 
 
 The complainant then appearing before the magistrate, his 
 examination and that of the witnesses whom he may produce, is 
 to be taken on oath. {Crim. Pro., % 148.) And as it is upon 
 the information and the testimony adduced in its support that the 
 warrant for the apprehension of the offender is predicated, it 
 becomes the duty of the magistrate to consider carefully all the 
 circumstances sworn to, and the behavior of the witnesses upon 
 the examination, and to scrutinize the motives which the prose- 
 cutor by his conduct evinces. (1 Chitty's Crim. Law, 34.) It 
 should be his object to ascertain as well that a felony or other 
 crime has been committed, as also the cause and probability for 
 suspecting the party against whom the warrant is prayed. (4 
 Blacks. Comm., 290.) 
 
 There has been some difference of opinion as to whether a 
 
THE COMPLAINT OR INFOKMATION. 
 
 person who is disqualified from being a witness in a civil action, 
 can prefer a complaint before a magistrate, upon which he can 
 legally issue a warrant, ^r. Chitty observes, that those persons 
 are disqualified from becoming prosecutors who, either from 
 religious scruples or infidelity, which renders them incapable of 
 taking an oath, or from infamy, which presumes them to be 
 unworthy of credit, are disqualified' from being witnesses. (1 
 CMtty's Grim. Zaio, 2.) In New York the Constitution provides 
 that no person shall be rendered incompetent to be a witness on 
 account of his opinions on matters of religious belief {Constitu- 
 tion of 1846, Art. J., § 3) ; so that Mr. Chitty's first objection is 
 obviated. In respect to the second objection, it is apprehended 
 that no decision can be found which authorizes a Justice to refuse 
 to hear a complaint, because the person preferring it has himself 
 transgressed the law ; and it has never been decided that the 
 statutes of New York, disqualifying as witnesses persons con- 
 victed of felony, apply to oaths on applications for such warrants. 
 (But see Civ. Pro., § 832.) In the language of Ch. J. Holt, 
 before whom the reading of an afiidavit was objected to, for the 
 reason that the person making it had stood in the pillory : " Must 
 he, therefore, suffer all injuries and have no way to help him- 
 self?" {Davis (& Carter's case, 2 Salkeld, 461.) 
 
 Infants also may be sworn (10 Massachusetts Rep., 225), it 
 being necessary for the magistrate, however, to be satisfied that 
 the child has proper sense of the nature of an oath and of the 
 consequences of falsehood. (1 Russell on Crimes, 165.) But if 
 the prosecutor or witness is non compos mentis, or deranged, he 
 is incompetent. {Livingston v. Kiersted, 10 Johns., 362.) 
 
 As acts done by a person in a state of insanity cannot be pun- 
 ished as offenses, the Justice, if a complaint is made against one 
 whom he knows to be insane, instead of issuing his warrant against 
 him as an offender, should see that proper steps are taken under 
 the statute to secure him. {Post, part 111., chap. XVII.) 
 
 The oath to the complainant and witnesses may be as follows : 
 
 § 59. Oath of Complainant, or of Witness on Complaint. 
 
 You do swear in the presence of Almighty God, that you will 
 true answers make to such questions as shall be put to you, touch- 
 ing this complaint against C. D. 
 
 The statute requires that the statements of the complainant 
 
640 NEW YORK JUSTICE. 
 
 aud his witnesses should be reduced to writing, and subscribed by 
 the parties making thena, {Crim. Fro., 148 ; 3 Burn^s Justice, 
 42Y ; 1 Chitty's Grim. Law, 34 ; Payne t. Barnes, 5 Ba/rh., 
 465.) A Justice obtains a great advantage by reducing the 
 examination to writing, for, if prosecuted, he can show an exam- 
 ination on oath, and, if that confers jurisdiction, and authorizes 
 the issuing of the warrant, trespass will not lie. (Lowther v. 
 Earl of Radnor, 8 East, 113.) 
 
 The depositions must set forth the facts stated by the prose- 
 cutor and his witnesses, tending to establish the commission of 
 the crime and the guilt of the defendant, and be kept by the 
 magistrate. {Crim. Fro., %% 149, 205 ; Feople v. Fratt, 13 Hwn, 
 664.) If the complaint is for a felonious taking of property, the 
 value of the property and the place where the ofEense was com- 
 mitted, should be set out. {Howell v. Feople, 2 Hill, 281 ; 4 
 Johns., 292.) 
 
 The following forms will answer for the complaint, care being 
 taken to charge in them, accurately and positively, the ofEense 
 committed : 
 
 § 60. Information for Assault. 
 County, ss. : 
 
 A. B., of said county, being duly sworn, says, that on the 
 day of 5 18 , one C. D. did, with intent to kill, -violently 
 
 assault him, the said A. B., at the town of , in said 
 
 county, with a loaded fire-arm [set forth sjpecifio acts as directed 
 in Penal Code, §§ 217, 218 a«,J219]. 
 
 Sworn, &c. [as in § 57]. A. B. 
 
 § 61. Information for Grand or Petit La/rceny. 
 County, ss. : 
 
 A. B., of said county, being duly sworn, says that certain per- 
 sonal property of the said A. B. [or, as the case may he], to wit : 
 [describe property'] of the value of dollars or upwards, was 
 
 stolen and feloniously taken from his dwelling-house in the town 
 of , in said countv, on the day of , 18 
 
 [set forth as stated in Penal Code, §§ 530, 531] ; and that this 
 deponent suspects that C. D. has stolen and taken the same, as 
 aforesaid. 
 
 Sworn, &c. [as in § 57]. A. B. 
 
THE COMPLAINT OR INFORMATION. 541 
 
 § 62. Information for Murder. 
 County, ss. : 
 
 A. B., of said county, being duly sworn, says,* that on the 
 day of , instant \ot, last past], at the town of , in 
 
 said county, one M. P. was killed and murdered, from a deliberate 
 and premeditated design to effect his death ; and that this 
 deponent has just cause to suspect, and does suspect, that the said 
 murder was committed by E. D. [or, by a man] [describe his ;per- 
 son'], but whose name is unknown to this deponent. 
 
 Sworn, &e. [as in § 57]. A. B. 
 
 § 63. Information for Murder by Poisoning. 
 County, ss. : 
 
 A. 13., of said county, being duly sworn, says,* that on the 
 day of , instant [or, last past], at the town of , in 
 
 said county, one M. P. died ; and that this deponent has just 
 cause to suspect, and does suspect, that on the day of , 
 
 aforesaid, one R. D. did, administer to the said M. P. a certain 
 deadly poison, called arsenic, with a deliberate and premeditated 
 design to effect his death, by reason whereof the said M. P. 
 languished a short time and then died. 
 
 Sworn, &c. [as in § 57]. A. B. 
 
 § 6i. Information for Murder by Stabbing. 
 County, ss, : 
 
 A. B., of said county, being duly sworn, says,* that on the 
 day of , instant [or, last past], at the town of , in 
 
 said county, one R. D. did, in the presence of this deponent and 
 other witnesses, with a deliberate and premeditated design to 
 effect his death, stab one M. P. with a butcher's knife and give 
 him several mortal wounds, of which the said M. P. died imme- 
 diately [or, languished a short time and then died]. 
 
 Sworn, &c. [as in § 57]. A. B, 
 
 § 65. Information for Murder by Shooting. 
 County, ss, : 
 
 A. B., of said county, being duly sworn, says,* that on the 
 day of , instant [or, last past], at the town of , in 
 
 said county, one R. D. did, with a deliberate and premeditated 
 design to effect his death, fire and discharge a gun [or, pistol], 
 loaded with powder and ball, at one M. P., and give him one [or, 
 several] mortal wound [or, wounds], of which the said M. P., 
 &c. [as in § 64 fc the end]. 
 
 Sworn, &c. [as in § 57J. A. B. 
 
642 NEW YORK JUSTICE. 
 
 § 66. Information for Murder hy Cuttmg Throat. 
 County, S8. : 
 
 A. B., of said county, being duly sworn, says,* that on the 
 day of , instant \or, last past], at the town of , in 
 
 said county, one E. D., from a deliberate and premeditated design 
 to effect his death, with a bowie knife, made an assault upon and 
 did strike and cut the throat of M. P. therewith, and did give 
 him one mortal wound thereon, of which the said M. P., &c. [as 
 in § 64 to the end]. 
 
 Sworn, &c. [as in § 57]. A. B. 
 
 § 67. Information against Accessory after the tact. 
 County, ss. : 
 
 A. B., of said county, &c. [as im, either of the preceding com- 
 'plaints for murder, to the end, and then add] : And that after- 
 wards, to wit, on the day of , instant [or, last past], 
 at the town of , in said county, one R. S., well knowing 
 the said E. D. to have done and committed the said felony and 
 murder, did feloniously and wilfully conceal [or, aid, comfort and 
 assist] the said E. D., with the intent and in order that the said 
 E. D. might avoid or escape from arrest [or, trial, or, conviction 
 and punisliment] for the said felony and murder. 
 
 Sworn, &c. [as in § 57]. A. B. 
 
 § 68. Information for Arson, in the First Degree.} 
 County, ss. : 
 
 A. B , of said county, being duly sworn, says,* that on the 
 day of , instant [or, last past], in the night time, at the 
 
 town of , in said county, one E. D. did wilfully, 
 
 maliciously and feloniously set fire to and burn the dwelling- 
 house of one M. P., situate in said town ; there being at the same 
 time some human being, to wit [mention who], in the said dwel- 
 ling house. 
 
 Sworn, &c. [as in § 57]. 
 
 69. Information for Arson in the Second Degree. 
 County, ss. : 
 A. B., of said county, being duly sworn, says,* that on the 
 day of , instant, &c. [as in § 68, to the end, substituting 
 
 " in the day time "for " in the night time ; " or, say, at the town 
 of , in said county, in the night time, one E. D. did 
 
 unlawfully, wilfully, maliciously and feloniously set fire to and 
 burn the warehouse of one M. P., situate in said town ; which 
 said warehouse was adjoining to [or, within the curtilage of] the 
 
THE COMPLAINT OR INFORMATIOK. 543 
 
 inhabited dwelling-house of the said M. P., whereby the said 
 dwelhng-house was endangered]. 
 Sworn, &c. [as in § 57]. 
 
 § 70. InfoTTnation for Arson, m the Third Degree. 
 County, ss. : 
 A. B., of said county, being duly sworn, says,* that on the 
 day of instant, at the town of , in said county, in 
 
 the daytime, one E. D. did wilfully, maliciously and feloniously, 
 set fire to and burn the warehouse of C. D., which was at the 
 time insured against loss or damage by fire, with intent to preju- 
 dice the insurer thereof. 
 Sworn, &c. [as in § 57]. 
 
 § 71. Information for Setting Fire to a Crop of Grain Growing. 
 County, ss. : 
 
 A. B., of said county, being duly sworn, says,* that on the 
 day of instant [or, last past], at the town of , in said 
 
 county, one R. D. did unlawfully, wilfully, maliciously and felo- 
 niously, set fire to and burn a certain crop of barley then growing 
 in the field of the said A. B., situate in said town. 
 
 Sworn, &c. [as in § 57]. 
 
 § 72. Information for Manslaughter, in Killing Another with 
 
 an Axe. 
 County, ss. ; 
 
 A. B., of said county, being duly sworn, says,* that on the 
 day of instant [or, last past], at the town of , in said 
 
 county, one E. D. did deliberately and with premeditated design 
 strike one M. P. with an axe, then in the hands of the said P. D., 
 and thereby gave him, the said M. P., one mortal wound, whereof 
 the said M. P. died immediately [or, languished a short time and 
 then died]. 
 
 Sworn, &c. [as in § 57]. 
 
 § 73. Information for Manslaughter, in Killing an Unhorn, 
 Child, hy Kicking its Mother. 
 
 County, ss. : 
 
 A. B., of said county, being duly sworn, says,* that on the 
 day of instant [or, last past], at the town of , in said 
 
 county, one R. D. did, from a deliberate and premeditated design, 
 kill an unborn quick child, of which one E. P. was then and there 
 pregnant, by kicking the said E. P., with intent to kill her, the 
 said E. P., or the said unborn quick child. 
 
 Sworn, &c. [as in § 57]. 
 
544 NEW YOllK JUSTICE. 
 
 § 74. Information for Manslaughter, in Killing am Unborn 
 Child, hg Administering Drugs, c&c, to its Mother. 
 
 County, 88. : 
 
 A. B., of said county, being duly sworn, says,* that on the 
 day of instant [or, last past], at the town of , in said 
 
 county, one R. D. did, wilfully and feloniously, administer to 
 one E. P., who was then and there pregnant with a quick child, 
 a certain medicine, drug, or substance, called " savin " [or, use or 
 employ a certain instrument called a " forceps "], with a deliber- 
 ated and premeditated design thereby to destroy such unborn 
 quick child ; whereof the said unborn quick child died immedi 
 ately [or, languished a short time and then died]. 
 
 Sworn, &c. [as in § 57]. 
 
 § 75. Information for Rape. 
 
 County, ss. : 
 
 A. B., of said county, being duly sworn, says,* that on the 
 day of instant [or, last past], at the town of , in said 
 
 county, one R. D. did violently and feloniously make an assault 
 upon the body of the said A. B. [or, of one E. P.], and her, the 
 said A. B. [or, E. P.], against her will and without her consent, 
 did then and there ravish and carnally know. 
 
 Sworn, &c. [as in § 57]. 
 
 § 76. Inform.ation for Rape, on Female Under Ten Years. 
 County, ss. : 
 
 A. B., of said count}', being duly sworn, says,* that on the 
 day of instant [or, last past], at the town of , , in said 
 
 coianty, one R. D. did feloniously make an assault on C. P., a 
 female child under the age of ten years, and her, the said C. P. 
 then and there wickedly, unlawfully and feloniously, did car- 
 nally know. 
 
 Sworn, &c. [as in § 57J. 
 
 § 77. Information for am, Assault, with Intent to Commit 
 
 a Rape. 
 County, ss. : 
 
 A. B., of said county, being duly sworn, says,* that on the 
 day of instant [or, last past], at the town of , in said 
 
 county, one R. D. did feloniously make an assault on one E. P., 
 with intent her, the said E. P., against her will and consent, then 
 and there feloniously to ravish and carnally know. 
 
 Sworn, &c. [as in § 57]. 
 
THE COMPLAINT OR INFOHMATION. 545 
 
 § 78. InformationJ'or the Forcible Abduction of a Womari, with 
 Intent to Compel her to Marry, or Prostitute Herself. 
 
 County, ss. : 
 
 A. B., of said county, being duly sworn, says,* that on the 
 day of , instant \or, last past], at the town of , in 
 
 the said county, one R. I), did make an assault upon her the said 
 A. B. \or, one E. P.], and did then and there unlawfully, feloni- 
 ously and against her will, take her, the said A. B. [or, take the 
 said E. P.], with the intent to compel her by force [or, menaces, 
 or, duress], to marry him, the said R. D. \or, one L. M. ; or, with 
 the intent that she should be defiled]. 
 
 Sworn, &c. \_as in % 57]. 
 
 § 79. Information for taking Female under Sixteen Yea/rs of 
 Age from her Parent or Guardian. 
 
 County, ss. : 
 
 A. B., of said county, being duly sworn, says,* that on the 
 day of , instant [or, last past], at the town of , in 
 
 said county, one R. D. did unlawfully and feloniously take away 
 one M. B., a female infant under the age of sixteen years, from 
 the said A. B., her father [or, guardian, duly appointed and hav- 
 ing the legal charge of her person], without his consent, for the 
 purpose of prostitution [or, sexual intercourse, or, marriage]. 
 
 Sworn, &c. [as in § 57]. 
 
 § 80. Information for Mayhem or Maiming. 
 County, ss. : 
 
 A. B., of said county, being duly sworn, says,* that on the 
 day of , instant [or, last past], at the town of , in 
 
 said county, one R. D., from premeditated design, and by lying 
 in wait for the purpose, did wilfully and feloniously assault the 
 said A. B., and did then and there put out one of the said A. B.'s 
 eyes [or, one R. D. did unlawfully, violently, maliciously and 
 feloniously, assault the said A. B. with intent to kill [or rob] 
 him, and did then and there slit the nose of the said A. B.] 
 
 Sworn, &c. [as in § 57]. 
 
 § 81. Information for Child Stealing or Kidnapping. 
 
 County, ss. : 
 A. B., of said county, being duly sworn, says,* that on the 
 day of , instant [or, last past], at the town of , in 
 
 said county, one R. D. did wilfully, maliciously and forcibly [or, 
 fraudulently, if no force was used], take [or, lead], and carry 
 away [or, decoy, or, entice away], one R. B., the child of the said 
 
 35 
 
646 NEW YORK JUSTICE. 
 
 A. B., and under the age of twelve years, with, intent to detain 
 and conceal the said child from the said A. B. 
 Sworn, &c. [as in § 57]. 
 
 § 82. Information for Abandoning Child. 
 
 County, ss. : 
 
 A. B., of said county, being duly sworn, says,* that on the 
 day of , instant [or, last past], at the town of , in 
 
 said county, one E. D. did feloniously expose and leave a certain 
 chilu, named E. D., under the age of years, of which child 
 
 said R. D. was the father [or, which child had been confided to 
 the care of the said R. D., with intent wholly to abandon said 
 child.] 
 
 Sworn, &c. [as in § 57]. 
 
 § 83. Information for Shooting at, or Attempting to Shoot at, 
 with Intent to Kill, Rob or Maim. 
 
 County, ss. : 
 
 A. B., of said county, being duly sworn, says,* that on the 
 day of , instant [or, last past], at the town of , in 
 
 said county, one R. D. did wilfully shoot at him, the said A. B., 
 with a certain gun, loaded with gunpowder and lead, with intent 
 to kill him, the said A. B. [or, did feloniously present and level at 
 the said A. B., a pistol, loaded with gunpowder and lead, and 
 attempt, by drawing the trigger thereof, to discharge the same at 
 the said A. B., with intent to kill [or, rob, or, maim] him, the 
 said A. B.] 
 
 Sworn, &c. [as in § 57]. 
 
 § 84. Information for Assault with Deadly Weapon, with 
 Intent to KiU. 
 County, ss. : 
 
 A. B., of said county, being duly sworn, says,* that on the 
 day of , instant [or, last past], at the town of , in 
 
 said county, one R. D. did feloniously, with and by means of a 
 certain deadly weapon, to wit, an axe, then in his hands, make an 
 assault upon the said A. B., and him, the said A. B., did then 
 and there, with the said deadly weapon, beat and ill-treat, with 
 intent to Ifill him, the said A. B. [or, did, with and by means of 
 his hands, feet and fists, and by such force as was likely to 
 produce death, feloniously assault and beat the said A. B., with 
 intent, &c., as above']. 
 
 Sworn, &c. [as in § 57]. 
 
THE COMPLAINT OE INFOKMATION. 547 
 
 § 85. Information for Poisoning Food. 
 County, ss. ; 
 
 A. B., of said county, being duly sworn, says,* that on the 
 ■day of instant [or, last past], at the town of , in said 
 
 county, one R. D., with intent to injure and kill one M. B. and 
 divers other persons, did maliciously and wilfully mingle a certain 
 poison called arsenic, with certain food [or, drink, w, medicine], 
 in order that the same might be taken by the said M. B. and 
 other persons. 
 
 Sworn, &c. \_as in § 57]. 
 
 § 86. Information for Poisoning Well. 
 Count}', ss. : 
 
 A. B., of said county, being duly sworn, says,* that on the 
 day of instant \or, last past], at the town of , in said 
 
 county, one E. D., with intent to injure and kill one M. B., and 
 one or more of the members of his family, and divers other per-- 
 sons, did maliciously and wilfully mingle a certain poison, called 
 arsenic, with the waters of the well belonging to the said M. B., 
 and situate neai" his dwelling-house, to which the said M. B. and 
 the members of his family, and divers other persons of the said 
 town, were used to resort for the purpose of obtaining water for 
 drinking and culinary purposes, in order that the said poison, so 
 mingled with the waters aforesaid, might be taken by the said 
 M. B. and one or more of the members of his family, and divers 
 other persons. 
 
 Sworn, &c. \_as in § 57]. 
 
 § 87. Information for Assault, with Intent to Poi, or Commit 
 
 Burglary. 
 County, ss. : 
 
 A. B., of said county, being duly sworn, says,* that on the 
 day of instant [or, last past], at the town of , in said 
 
 county, one B. D. did feloniously make an assault upon the said 
 A. B., with intent to commit robbery upon the said A. B., by 
 feloniously taking the money of the said A. B. from his person, 
 by violence thereto, and against his will \or, with intent to commit 
 burglary in the dwelling-house of the said A. B., situate in the 
 town of ]. 
 
 Sworn, &c. [as in § 57]. 
 
 § 88. Informal/ion for Bwrgla/ry. 
 County, ss. : 
 A. B., of said county, being duly sworn, says,* that on the 
 day of instant \or, last past], at the town of , in said 
 
 county, one R. D. did feloniously and burglariously break and 
 
548 NEW TOEK JUSTICE. 
 
 enter the dwelling-house of the said A. B., situate in the said 
 town, by picking the lock of the outer door thereof [or, by 
 breaking the fastening of one of the window shutters thereof, 
 or, by unlocking the outer door thereof by means of false keys], 
 with intent to steal, take and carry away, from said dwelling- 
 house, divers goods and chattels therein belonging to the said 
 A. B., the wife and family of the said A . B. being at the time in 
 said dwelling-house [or, with intent to rob the said A. B. of his 
 goods and chattels, in his presence and against his will, by force 
 and violence to his person, he, the said E. D., being at the time 
 armed with a dangerous weapon, to wit, with a pistol], and the 
 said A. B. and his family being in the said dwelling-house. 
 Sworn, &c. [as in § 57]. 
 
 § 89. Information for Felony and Burglary in Shop. 
 County, ss. : 
 A. B., of said county, being duly sworn, says,* that on the 
 day of instant [or, last past], at the town of , in said 
 
 county, one R. D. did feloniously and burglariously break and 
 enter the shop of the said A. B. by [describe the manner], being 
 ■vithin the curtilage of the dwelling-house of the said A. B., there 
 situate, but not forming part thereof [as in § 88 to the end, omit- 
 ting the allegation in regard to the family being present]. 
 Sworn, &c. [as in § 57]. 
 
 § 90. Information for Burglary in Entering Store. 
 
 County, ss. : 
 
 A. B., of said county, being duly sworn, says,* that on the 
 day of instant [or, last past], at the town of , in said 
 
 county, one E.. D. did feloniously and burglariously break and 
 enter the store of the said A. B., there situate, by [desci'ibe the 
 manner] in which goods and merchandise were then kept for 
 sale, with intent feloniously to steal, take and carry away the 
 goods and chattels of the said A. B. therein, to wit, the goods 
 and merchandise aforesaid, or some part or portion thereof. 
 
 Sworn, &c. [as in § 57]. 
 
 § 91. Information for Burglary, by Const/ructive Breaking. 
 County, ss. : 
 
 A. B., of said county, being duly sworn, says,* that on the 
 day of instant [or, last past], at the town of , in said 
 
 county, one E. D. did feloniously and burglariously break and 
 enter the dwelling-house of the said A. B., situate in said town, 
 by knocking at the outer door thereof and demanding to speak 
 
TUB COMPLAINT OR INFOEMATION. 649 
 
 ■"dtli the said A. U., and upon the said A. B. opening the door 
 for that pui-pose, rushing and entering into the said dwelling- 
 house, with intent to rob the said A. B. of his goods and chattels, 
 in his presence and against his will, by force and violence to his 
 person, the said A. B. and his family being at the time in said 
 awelli ng-hou se. 
 
 Sworn, &c. [as in § 57]. 
 
 § 92. Information for F&rgery. 
 
 County, ss. : 
 
 A. B., of said county, being duly sworn, says,* that on the 
 day of instant [or, last past], at the town of , in said 
 
 county, one B,. D did falsely and feloniously forge and counter- 
 feit [or, alter] a certain paper writing, being, or purporting to 
 be, a will [or, deed], by which a right or interest in real or per- 
 sonal property was, or purported to be, transferred with intent to 
 defraud the said A. B. [or, a certain paper writing, purporting 
 to be a certificate of the acknowledgment of the execution of a 
 certain deed or conveyance from the said A. B. to S. T. of cer- 
 tain lands situate in said county, before one G. H., a Justice of 
 the Peace ; which said deed or conveyance was of a nature, or 
 proper, to be recorded according to law, with intent to defraud 
 the said A. B. ; or, did falsely and feloniously make, forge and 
 counterfeit, a certain promissory note, purporting to be the promis- 
 sory note of the said A. B., for the payment of dollars, 
 to C. D., thirty days after date, with intent to defraud the 
 said A. B.]. 
 
 Sworn, &c. [as in § 57]. 
 
 § 93. Information for Passing, or Offering to Pass, 
 Counterfeit Bank Notes. 
 County, ss. : 
 
 A. B., of said county, being duly sworn, says,* that on the 
 day of instant [or, last past], at the town of , in said 
 
 county, one K. D. did feloniously sell and exchange [or, offer to 
 sell and exchange], to and with the said A. B., for a valuable con- 
 sideration, to wit, the sum of ten dollars in silver coin [or, goods 
 and merchandise of the value of ton dollars], two forged and 
 counterfeit negotiable notes, commonly called bank notes, pur- 
 porting to be the promissory notes of, and to have been issued 
 by, the Bank, for the payment of the sum of five dollars 
 
 each ; he, the said R. D., well knowing the said bank notes to be 
 forged and counterfeited, and with the intent to deceive and 
 defraud the said A. B. 
 
 Sworn, &c. [as in § 57]. 
 
550 NEW YORK JUSTICE. 
 
 § 94. Information for Altering or Cownterfeiting Bank Notes. 
 
 County, ss. : 
 
 A. B., of said county, being duly sworn, says,* that on the 
 day of instant [or, last past], at the town of , in said 
 
 county, one E.. D. did feloniously counterfeit [or, counterfeit and 
 alter] a certain bank or promissory note, purporting to be the 
 promissory note of, and to be issued by, the Bank, for the 
 
 payment of the sum of ten dollars [if the charge is for altering a 
 note, insert here : in such a manner as to make the same resem- 
 ble and purport to be a bank or pomissory note for the payment 
 of the sum of one hundred dollars], with intent to defraud the 
 said bank, or some person or persons, or body politic or corpo- 
 rate, to this deponent unknown. 
 
 Sworn, &c. [as in § 57]. 
 
 § 95. Information for Obtaining Property hy a False ToTceUy 
 or hy Falsely Personating Another. 
 
 County, ss. : 
 
 A. B., of said county, being duly sworn, says,* that on the 
 day of instant [or, last past], at the town of , in said 
 
 county, one E. D. did designedly, falsely and feloniously, by 
 color of a certain false token or writing [or, counterfeit letter], 
 obtain from the said A. B. certain goods and chattels of the value 
 of dollars, to wit [describe the propertyl ; or, did falsely and 
 
 feloniously personate and represent himself to be one C. D., and 
 did then and there, and in such assumed name and character, 
 obtain a certain horse of the value of dollars, intended to 
 
 be delivered to the said C. D. 
 
 Sworn, &c. [as in § 57]. 
 
 § 96. Information for Obtaining Money, or Property, by 
 FaUe Pretences. 
 
 County, ss. : 
 A. B., of said county, being duly sworn, says,* that on the 
 day of instant [or, last past], at the town of , in said 
 
 county, one E. D. did designed!}- and feloniously, and by the 
 false pretence that he, the said E. D., was sent and authorized by 
 one C. D. [or, tliat he owned a farm containing one hundred 
 acres, or thereabouts, situate in the town of , in said county, 
 
 free of all incumbrances ; or, that he was worth dollars, 
 
 after the payment of all his debts and liabilities ; or, that he 
 owned and was possessed of personal property to the value 
 of dollars, and -was not a householder, or man of family, 
 
 whereby the same would be exempt from execution against him ; 
 or, that he was entirely free and clear from all debts and liabili- 
 
THE COMPLAINT OK INFORMATION. 551 
 
 ties, of every name and description], demand and receive {or, 
 obtain on credit] from the said A. B. a large sum of money, to 
 v?it, the sum of dollars [or, goods and merchandise of the 
 
 value of dollars], with the intent to cheat and defraud 
 
 the said A. B. 
 
 Sworn, &c. [as in § 57]. 
 
 § 97. Information for Rdbhery. 
 County, ss. : 
 A. B., of said county, being duly sworn, says,* that on the 
 day of instant [or, last past], at the town of , in said 
 
 county, one R. D. did violentlj' and feloniously and with force 
 make an assault upon him, the said A. B., and, by putting him, 
 the said A. B., in bodily fear and danger of his life, did then and 
 there steal, take and carry away, &c. [describe property taken']. 
 
 § 98. Information for Embezzlement. 
 County, ss. : 
 
 A. B., of said county, being duly sworn, says,* that on the 
 day of instant [or, last past], at the town of , in said 
 
 county, one E. D., being a servant [or, clerk] of the said A. B., 
 and not being an apprentice, nor within the age of eighteen years, 
 did feloniously embezzle and convert to his own use, without 
 the consent of the said A. B. [describe property], belonging 
 to the said A. B. 
 
 Sworn, &c. [as in § 57]. 
 
 § 99. Information for Receiving Stolen Goods. 
 County, ss. : 
 
 A. B., of said county, being duly sworn, says,* that on the 
 day of instant [or, last past], at the town of , in said 
 
 county, one K. D. did feloniously receive or buy of one O. P. cer- 
 tain goods and chattels, to wit [describe the property], he, the 
 said K. D., well knowing the said goods and chattels to have 
 been feloniously stolen and taken from him, the A. B. 
 
 Sworn, &c. [as in § 57]. 
 
 § 100. Information for Perjury. 
 County, ss. : 
 A. B., of said county, being duly sworn, says,* that in a certain 
 action at law, tried on the day of instant [or, last 
 
 past], at the town of , in said county, before H. R. F., Esq., 
 
 one of the Justices of the Peace of the said county, in which the 
 said A. B. was plaintiff, and one C. D. defendant, the said Justice 
 having jurisdiction over the said action, and full power and 
 
552 NEW YORK JUSTICE, 
 
 authority to try the same, and to administer oaths to all witnesses 
 sworn upon such trial, one R. D. was produced as a witness on 
 the part of C. D., the defendant aforesaid, and was duly sworn to 
 speak the truth, &c. [follow the Icmguaye of the oath adminis- 
 tered], and that the said R. D., being interrogated as such witness, 
 whether the said A. B. was at the dwelling-house of the said 
 C. D. on the day of > 18 , which inquiry was 
 
 material and pertinent to the issue joined in the action aforesaid, 
 did then and there, to wit, at the time and place aforesaid, falsely, 
 wilfully, knowingly and corruptly, depose and swear that the said 
 A. B. was at the dweUing-house of the said C. D. on the day 
 
 of ) 18 , whereas in truth and in fact the said A. B. was 
 
 not at the dwelling-house of the said C. 1). on the said day 
 
 of ) 18 , whereby the said R, D. did then and there, 
 
 to wit, at the time and place aforesaid, knowingly, wilfully and 
 corruptly, swear falsely and commit wilful and corrupt perjury. 
 Sworn, &c. [as in § 57], 
 
 § 101. Information for Bigamy. 
 County, ss, : 
 A. B., of said county, being duly sworn, says,* that on the 
 day of instant [or, last past], at the town of , in said 
 
 county, one R. D., having a wife, to wit, M. D., then living, did 
 wilfully and feloniously marry and- take to wife one E. B., the said 
 R. D. well knowing that his said former wife, M. D., was then 
 living and in full life. 
 Sworn, &c. [as in § 57]. 
 
 § 102. Information for Marryim,g the Wife of Another. 
 County, ss. : 
 A. B , of said county, being duly sworn, says,* that on the 
 day of instant [or, last past], at the town of , in said 
 
 county, one R. D. did knowingly, unlawfully and feloniously, 
 marry and take to wife one M. R.', she being then married and 
 the wife of R. R. 
 
 Sworn, &c. [as in § 57], 
 
 § 103. Information for Malicious Mischief. 
 County, ss, : 
 A. B., of said county, being duly sworn, says,* that on the 
 day of instant [or, last past], at the town of , in said 
 
 county, one R. D. did wilfully and maliciously administer to a 
 certain horse, the property of the said A. B., a certain deadly 
 poison, called arsenic, by mixing the same with the food of the 
 said horse. 
 
 Sworn, &c. [as in § 57]. 
 
THE COMPLAINT OR INFORMATION. 553 
 
 § 104. Informatiori for Malicious Tresj)ass, or for 
 Girdling Trees. 
 County, ss. : 
 A. B., of said county, being duly sworn, says,* that on the 
 day of instant [or, last past], at the town of , in said 
 
 county, one E.. D. did wilfully, maliciously and unlawfully, cut 
 down and destroy [or, wilfully and maliciously girdle] certain 
 glowing trees, situate on the land of the said A. B., in said town. 
 Sworn, &c. \_as in § 57]. 
 
 § 105. Informatioti for Procuring Abortion. 
 County, ss. : 
 
 A. B., of said county, being duly sworn, says,* that on the 
 day of instant \or, last past], at the town of , in said 
 
 county, one R. D. did wilfully and unlawfully administer a certain 
 drug called " savin " [or, did use and employ a certain instrument 
 called a " forceps "] on the body of E. M., she being then preg- 
 nant, with intent thereby to procure the miscarriage of the 
 said E. M. 
 
 Sworn, &c. [as in § 57]. 
 
 § 106. Information for Making an Affray. 
 County, ss. : 
 A. B., of said county, being duly sworn, says,* that on the 
 day of instant [or, last past], at the town of , in said 
 
 county, one R. D. did, in a tumultuous manner, make an affray, 
 wherein one E. B. was assaulted, beat and abused by the said 
 R. D., wilfully without any just and reasonable cause. 
 Sworn, &c. [as in § 57]. 
 
 § 107. Information for Cruelty to Animals. 
 County, ss. : 
 A. B., of said county, being duly sworn, says,* that on the 
 day of instant [or, last past], at the town of , in said 
 
 county, one R. D. did cruelly and maliciously kill [or, unjustifia- 
 bly maim ; or. beat and torture] a certain bay gelding horse 
 belonging to him, the said R. D. [or, to one 0. D.]. 
 Sworn, &c. [as in § 57]. 
 
 § J 08. Information for a Rout or a Riot. 
 County, ss. : 
 A. B., of said county, being duly sworn, says,* that on the 
 day of instant [or, last past], at the town of , in said 
 
 county, R. D., D. D., A. D., tfec, &c., did unlawfully, tumultu- 
 
554 NEW TOKK JtlSTIOE. 
 
 onsly and riotously, assemble together, to the manifest terror and 
 disturbance of the citizens then and there being, with an intent 
 mntually to assist each other against all who should oppose them 
 in the execution of a certain enterprise, to wit, the assault and 
 beating of one T. M., with force and violence, and against the 
 peace; and being so assembled together, with divers persons 
 unknown, they did, afterwards, to wit, on the day and at the 
 place aforesaid, proceed in a noisy, riotous and tumultuous man- 
 ner, towards the house of the said T. M., in order to assault and 
 beat him, the said T. M. [if the assault was co?nmitted, add: 
 and did then and there violently and maliciously assault and beat 
 the said T. M.]. 
 ' Sworn, &c. [as in § 57]. 
 
 § 109. Information for Selling Unwholesome Food. 
 
 County, ss. : 
 
 A. B., of said county, being duly sworn, says,* that on the 
 day of instant [or, last past], at the town of . > i" said 
 
 county, one R. D. did knowingly, unlawfully and wickedly, sell 
 to one M. B. a quarter of lamb, which had become tainted and 
 unwholesome, witJi the intent that the same might be used as 
 food, &c. 
 
 Sworn, &c. [as in % 57]. 
 
 § 110. Information for Disturbing a Religious Meeting. 
 
 County, ss. : 
 
 A. B., of said county, being duly sworn, says,* that on the 
 day of instant [or, last past], at the town of , in said 
 
 county, one E. D. did wilfully and unlawfully disturb, interrupt 
 and disquiet, an assemblage of people, collected for the purpose 
 of religious worship, by loud and profane discourse [or, by rude 
 and riotous noises ; or, by rude and indecent behavior]. 
 
 Sworn, &c. [as in % 57]. 
 
 The Justice, after the information is drawn up, should read it 
 to the complainant, or he should read it himself. If the Justice 
 reads it to him, it is proper to note that fact at the foot of the 
 paper. Then it is to be signed by the complainant, and the justice 
 should add the jurat in the usual manner. 
 
 It may appear, after the complaint is made and the witnesses 
 are examined, that there is no direct and positive proof that the 
 person complained of committed the offence, though its com- 
 mission be fully proved. It must, at all events, be clearly 
 proved that an offence has been committed, before suspicion can 
 
THE COMPLAINT OR INFORMATION. J>.~;0 
 
 justly attach to any person. ( Wilson v. Eohinson, 6 Row.^ 
 110; hut see CampTyell v. Ewalt, 7 id., 399.) The statute makes 
 it the duty of the Justice (or other magistrate), if it appears that 
 an offence has been committed, to issue his warrant to arrest the 
 party accused. {Crim. Pro., § 150.) It may happen, however, 
 that the testimony does not bring home the offence directly to 
 any person, but merely raises a suspicion that a particular indi- 
 vidual committed it. Such cases are not rare, and it then becomes 
 the duty of the magistrate to judge of the reasonableness of the 
 suspicions. He ought not, as has been before observed, to grant 
 any warrant groundlessly, or without such probable cause as 
 would induce a discreet and impartial man to suspect the party to 
 be guilty. (1 Chitty's Grim. Law, 34.) But the examination of 
 the prosecutor may disclose such seemingly just and reasonable 
 grounds, that the magistrate may well make the suspicions his 
 own. It becomes important, therefore, to state what the prin- 
 cipal grounds or causes of suspicion are, which will justify the 
 arrest of a supposed offender, even if it should ultimately appear 
 that he was innocent. The following causes, it seems to be 
 admitted, will justify such arrest : {Dunlaps Justice, 25.) 
 
 1. The common fame of the country. But it seems that it 
 ought to appear by the evidence, in an action brought for such 
 an arrest, that such fame had some probable foundation. 
 
 2. The living a vagrant and disorderly life, without any visible 
 naeans of support. 
 
 3. The being in company, at the time of the offence, with one 
 known to be an offender ; or, the keeping company generally, at 
 other times, with persons of scandalous reputation. 
 
 4. The being found in such circumstances as induce a strong 
 presumption of guilt ; such as, coming out of a house wherein 
 murder has been committed, with a bloody knife in one's hand ; 
 or, being found in possession of any part of goods stolen, without 
 being able to account honestly for them. 
 
 5. The behaving in such a manner as betrays a consciousness 
 of guilt ; as, where a man, being charged with a treason or felony, 
 says nothing in reply, but seems, by his silence, to own himself 
 guilty ; or, whei'e a man accused of any such crime, upon hearing 
 that a warrant is taken out against him, absconds. 
 
 But generally none of the causes of siispicion above enumer- 
 ated will justify an arrest, where in truth no crime has been 
 
556 NEW YOUK JUSTICE. 
 
 committed. (JJunlap's Justice, 25.) It has been held, however, 
 that a complaint alleging a criminal ofEence on information and 
 belief, without stating any facts, will give a Justice jurisdiction 
 to issue a warrant of arrest, although he grossly errs in exercising 
 that jurisdiction. (Campbell v. Ewalt, 7 How., 399.) 
 
 2. The "Waeeant. 
 
 The statute authorizing the issuing of a warrant for the arrest 
 of a person accused of crime, is in these words : " If the magis- 
 trate is satisfied, from the examination, that crime complained of 
 has been committed, and that there is reasonable ground to believe 
 that the defendant has committed it, he shall issue a proper war- 
 rant, under his hand, reciting the accusation, and commanding 
 the officer, to whom it shall be directed, forthwith to take the 
 person accused, and to bring him before such magistrate to be 
 dealt with according to law." {Grim. Pro., § 150 ; Wilson v. 
 Bolmson, 6 How. Pr. P., 110.) 
 
 The name of the county in which the Justice resides should be 
 set forth, either in the body or in the margin of the warrant. (1 
 Chiity's Criin. Law, 39.) The warrant must be issued in the 
 name of the people. (Grim. Pro., § 151.) It is said that it 
 ought to set forth the year and the day on which it is made. (1 
 Ghitty^s Grim. Law, 38.) It will be sufficient, however, if the 
 ■warrant is dated at the end, and a reference made in the body of 
 it, showing that the complaint was made on the day of its date. 
 It must be signed by the Justice, or, as the statute expresses it, 
 " signed by a magistrate." It need not generally be sealed, but 
 certain warrants should always have tlie seal or they will be void. 
 {People V. Holcomb, 3 Park. Cr., 656.) It must recite the accu- 
 sation, the statute expressly requiring it ; and, in order that the 
 party arrested may know the nature of the offense with which he 
 is charged, and be able to provide the proper sureties [GMity^s 
 Crim. Law, 41), it should state the offense with convenient cer- 
 tainty, but it need not contain the facts upon which the charge 
 made is predicated. (1 IJill, 378 ; Payne v. Barnes, 5 Barb., 
 465.) There is another reason why the warrant should recite the 
 accusation. The statute, as we shall see hereafter, authorizes the 
 arrest of an offender in another county than that in which 
 the warrant was issued, and further authorizes the Justice in such 
 foreign county, who may have indorsed the warrant, to bail the 
 
THE WARRANT. 
 
 667 
 
 offender, if the offense be not punishable with death or imprison- 
 ment in a State prison. {Crim. Pro., § 159.) It therefore 
 becomes important to express clearly in the warrant the nature of 
 the offense, in order that the Justice before whom the person 
 arrested shall be brought, may at once ascertain whether lie has 
 power to bail him. The name of the person accused must also 
 appear, for he is the person whom the officer is directed " to 
 take ; " and a blank must not be left for his name to be filled in 
 afterwards. (1 Ghitty's Crim. Law, 39.) If the command to 
 the ofiicer be to arrest all persons suspected of the offense, the 
 warrant will be void for uncertainty {Id. ; 1 Hale's P. C, 580 ; 
 4 Blaclcs. Comm., 291) ; and it seems that false imprisonment 
 will lie against a Justice for issuing such a warrant. (3 Burn^s 
 Justice, 428.) If the name of the offender be unknown, the 
 warrant may be issued against him by the best description the 
 nature of the case will permit. (1 Ghitty's Crim. Law, 40.) If 
 the name in the warrant is not the right one, or is fictitious, the 
 arrest will be justified if it can be shown that the party arrested 
 was known as well by one name as by the other (8 JEast, 328 ; 6 
 Cow.., 456 ; 7 id., 332 ; 1 Wend., 126 ; Holly v. Mix, 3 id., 350) ; 
 otherwise if it cannot be so shown. (4 id., 555; Gurnsey v. 
 Lovell, 9 id., 319 ; Miller v. Foley, 28 Barb., 630.) And finally 
 the warrant must direct the officer to bring the person accused 
 before the magistrate issuing it, or, in case of his absence or 
 inability to act, before the nearest or most accessible magistrate 
 in the county. {Crim. Pro., § 151.) 
 
 The following are the provisions of the Code of Criminal 
 Procedure, with reference to the information and the warrant : 
 
 § 145. Information Defined. 
 The information is the allegation made to a magistrate that a 
 person has been guilty of some designated crime. 
 
 § 146. Magistrate Defined. 
 A magistrate is an officer having power to issue a warrant for 
 the arrest of a person charged with a crime. 
 
 § 147. Who are Magistrates ? 
 The following persons are magistrates : 
 
 1. The Judges of the Supreme Court. 
 
 2. The Judges of any city court. 
 
658 NEW YORK JUSTICE. 
 
 3. The County Judges and Special County Judges. 
 
 4. The city Judge of tlie city of New York and the Judge of 
 the Court of General Sessions in the city and county of New York. 
 
 6. The Justices of the Peace. 
 
 6. The Police and other special Justices appointed or elected 
 in a city, village or town. 
 
 7. The Mayors and Eecorders of cities. 
 
 § 148. Examination of the Prosecutor, 
 When an information is laid before a magistrate of the com- 
 mission of a crime, he must examine on oath the informant or 
 prosecutor and any witnesses he may produce, and take their 
 depositions in writing, and cause them to be subscribed by the 
 parties making them. 
 
 § 149. Depositions, what to contain. 
 The deposition must set forth the facts stated by the prosecutor 
 and his witnesses, tending to establish the commission of the 
 crime and the guilt of the defendant. 
 
 § 150. When Warrant of Arrest May he Issued. 
 If the magistrate be satisfied therefrom that the crime com- 
 plained of has been committed, and that there is reasonable 
 ground to believe that the defendant -has committed it, he must 
 issue a warrant of arrest. 
 
 § 152. Description of Defendant and the Offense. 
 The warrant must specify the name of the defendant, or if it 
 be unknown to the magistrate the defendant may be designated 
 therein by any name. It must also state an offense in respect to 
 which the magistrate has authority to issue the warrant, and the 
 time of issuing it, and the citj', town or village where it is issued, 
 and be signed by the magistrate with his name of office. 
 
 § 153. Warrant how Directed and Executed. 
 The warrant must be directed to and executed by a peace 
 officer. 
 
 § 154. Who a/re Peace Officers. 
 A peace officer is a sheiiff of a county or his under-sheriff or 
 deputy, or a constable, marshal, police constable or policeman of 
 a city, town or village. 
 
THE WARRANT. 559 
 
 § 155. Warrant Issued "by Certain Judges. 
 If the warrant be issued by a judge of the Supreme Court, or 
 of the Superior Court or Court of Common Pleas, Eecorder, City 
 Judge or Judge of a Court of General Sessions in the city and 
 county of New York, or by a county Judge, or by a J udge of 
 the City Court, it may be directed generally to any peace officer 
 in the State, and may be executed by any of those officers to 
 whom it may be delivered. 
 
 § 156. Warrant hy Other Magistrates. 
 If it be issued by any other magistrate, it may be directed 
 generally to any peace officer in the county in which it is issued, 
 and may be executed in that county ; or if the defendant be in 
 another county, it may be executed therein, upon the written 
 direction of a magistrate of such other county, indorsed upon the 
 warrant, signed by him with his name of office, and dated at 
 the city, town or village where it is made, to the following effect : 
 This warrant may be executed in the county of Monroe (or as the 
 case may be). 
 
 § 157. Indorsement in Another County, How and When Made. 
 The indorsement mentioned in the last section cannot, however, 
 be made, unless upon the oath of a credible witness, in writing, 
 indorsed on or annexed to the warrant, proving the handwriting 
 of the magistrate by whom it was issued. Upon this proof, the 
 magistrate indorsing the warrant is exempted from liability to a 
 ■civil or criminal action, though it afterward appear that the war- 
 rant was illegally or improperly issued. 
 
 § 158. Arrest for Felony, 
 If the crime charged in the warrant be a felony the officer 
 making the arrest must take the defendant before the magistrate 
 who issued the warrant, or some other magistrate in the same 
 county, as provided in section 164. 
 
 § 159. A rrest for Misdemeanor. 
 
 If the crime charged in the warrant be a misdemeanor, and the 
 
 .defendant be arrested in another county, the officer must, upon 
 
 being required by the defendant, take him before a magistrate in 
 
 that county, who must admit the defendant to bail, for his appear- 
 
560 NKW YORK JUSTICE. 
 
 ance before the magistrate named in the warrant, and take bail 
 from him accordingly. 
 
 § 160. Proceedings on Taking Bail. 
 On taking bail, the magistrate must certify that fact on the 
 warrant, and deliver the warrant and undertaking of bail to 
 the officer having charge of the defendant. The officer must 
 then discharge the defendant from arrest, and, without delay, 
 deliver the warrant and undertaking to the magistrate, before 
 whom the defendant is required to appear. 
 
 § 161. Proceedings where hail is not given. 
 
 If on the admission of the defendant to bail, as provided in 
 
 section 159, bail be not forthwith given, the officer must take the 
 
 defendant before the magistrate who issued the warrant, or some 
 
 other magistrate in the same county, as provided in section 164. 
 
 § 162. Prisoner Carried from County to Covm,ty. 
 An officer who has arrested a defendant on a criminal charge, 
 in any county, may carry such prisoner through such parts of any 
 county or counties as shall be in the ordinary route of travel from 
 the place where the prisoner shall have been arrested, to the place 
 where he is to be conveyed and delivered, under the process by 
 which tJie arrest shall have been made ; and such conveyance 
 shall not be deemed an escape. 
 
 § 163. Power and Privilege of Officer. 
 While passing through such other county or counties, the 
 officers having the prisoner in their charge shall not be liable to 
 arrest on civil process ; and they shall have the like power to 
 require any citizen to aid in securing such prisoner, and to retake 
 him if he escapes, as if they were in their own county ; and a 
 refusal or neglect to render such aid shall be an offense, in the 
 same manner as if they were officers of the county where such 
 aid shall be required. 
 
 § 164. When Magistrate issuing the Warrant is Unable to Act. 
 When, by the preceding sections of this chapter, the defendant 
 is required to be taken before the magistrate who issued the war- 
 rant, he may, if that magistrate be absent or unable to act, be 
 talcen before the nearest or most accessible magistrate in the same 
 
THE WARRANT. 661 
 
 county. The officer must at the same time deliver to the magis- 
 trate the warrant, with his return indorsed and subscribed by him. 
 
 § 165. Defendant in all Cases to he taken Before a Magistrate 
 
 without Delay. 
 The defendant must in all cases be taken before the magistrate 
 without unnecessary delay, and he may give bail at any hour of 
 the day or night. In each of the cities of JSTew York or Brook- 
 lyn a police justice, to be designated from time to time by the 
 mayors of those cities, respectively, must be in attendance at the 
 police head-quarters of the city from four o'clock in the afternoon 
 of each day to ten o'clock the next morning, to take bail in 
 proper cases, if bail be offered. 
 
 § 166. Magistrate other than the one Who issued Warrant. 
 If the defendant be taken before a magistrate other than the 
 one who issued the warrant, the depositions on which the warrant 
 was granted must be sent to that magistrate, or if they cannot be 
 procured the prosecutor and his witnesses must be sumruoned, to 
 give their testimony anew. 
 
 § 151. Form of Warrant. 
 
 A warrant of arrest is an order in writing in the name of the 
 people, signed by a magistrate, commanding the arrest of the 
 defendant, and may be substantially in the following form : 
 " County of Albany [or, as the case may he'] : 
 
 " In the name of the people of the State of ISTew York : 
 To any peace officer in this State [or, in the county of Albany ; 
 
 or, as the case may he, as provided in §§ 155 and 156J : 
 
 " Information upon oath having been this day laid before me, 
 tliat the crime of* [designating , it\ has been committed, and 
 accusing C. D. thereof ; 
 
 " You are therefore commanded forthwith to arrest the above 
 named 0. D. and bring him before me, at [naming the place], or 
 in case of my absence or inability to act, before the nearest or 
 most accessible magistrate in this county. 
 
 " Dated at the city of Albany [or, as the case may he], this 
 day of , 18 . 
 
 " E. F., Justice of the Peace, 
 
 " [or, as the case may he.] " 
 
562 NEW YORK JUSTICE. 
 
 CHAPTER lY. 
 
 ON THE EXECUTION OF THE WAEEANT. 
 
 1. Serving the Wakeant. 
 
 The warrant is to be directed to any peace officer in this State 
 or in the county. {Grim. Pro., % 151.) If directed to all con- 
 stables generally, any constable may execute it at any place within 
 the jurisdiction of the Justice. {People v. Garey, 6 Cow., 647.) 
 
 The iirst duty of the constable is to see that the process is 
 regular on its face ; and hence it becomes important for him to 
 know what constitutes a regular process. A process may be said 
 to be regular on its face, when it contains no intimation that 
 there was a defect of jurisdiction in the Court out of which it 
 issued, either as to the subject-matter or the person of the 
 defendant, and when the subject-matter is apparently within the 
 jurisdiction of the Court. (5 Wend., 170; Dominick v. Eaeker, 
 3 Barb., 19.) If any such defects appear by the process it is no 
 protection to the officer. {Id., 12 Johns., 2,b^ ; Cable y. Cooper, 
 15 id., 152.) If no such defects appear, the process is regular on 
 its face and will protect the officer. (10 id., 138 ; 5 Wend., 231, 
 240; 6 id., 367; 13 id., 379; 24 id., 485; 5 Hill, 440; Sheldon 
 V. Van BusTcirTc, 2 Corns., 473.) If the subject-matter be within 
 the jurisdiction of the Court, but there is a want of jurisdiction as 
 to the person or place, yet unless the want of jurisdiction appear 
 by the process, the officer who executes it is no trespasser. 
 (5 Wend., 170; Dominick v. Eaaker, 3 Barb., 18.) 
 
 (1.) Arrest. 
 
 The process, then, being regular on its face, the officer should, 
 as soon as he conveniently can, proceed with secresy to arrest the 
 party. (1 Chitty's Grim. Law, 47.) The defendant must be 
 informed by the officer that he acts under the authority of the 
 warrant, and he must also show the warrant if required. {Grim. 
 Pro., § 173.) No manual touching of the body, or actual force, 
 
SEUYING THE WAEEANT. 633 
 
 is necessaiy to constitute an arrest and impiisonment. It is 
 sufficient, if tlie party be witliin the power of the officer and sub- 
 mits to the arrest. (1 Wend., 215.) After the party is arrested, 
 the officer, if required, is bound to inform him of the substance 
 of the warrant or process. {Bellows v. Shannon, 2 Sill, 86.) 
 
 The constable should carefully observe the command of the 
 warrant with respect to the person to be arrested. If he take a 
 different person from the one named, he will be a trespasser. 
 (1 Chitty's Ci im. Law, 50.) If he arrest a person of a different 
 name from that in the warrant, he will not be protected, unless, 
 as we have seen, the person arrested be the one intended, and 
 be known as well under one name as the other. (8 East, 328 ; 
 6 Cow., 456 ; 7 id., 332 ; 1 Wend., 126 ; Guernsey v. LovelC, 
 9 id., 319.) 
 
 The exigency of the process must be obeyed, and the person 
 accused must be taken forthwith. The process itself, however, 
 continues in force during the term of office of the magistrate 
 who granted it (1 Chitty's Orim. Law, 50), and is not vitiated 
 by any delay necessarily arising from the concealment or absence 
 of the party accused. 
 
 In making the arrest, the constable, or person executing the 
 process, has ample authority, both at common law {Id., 49) and 
 by statute {Crim. Pro., § 169), to command all necessary assist- 
 ance ; and every person wilfully and unlawfully disobeying any 
 such command is guilty of a misdemeanor. {Id. ; Penal Code, 
 § 121.) In illustration of the power of those who are thus com- 
 manded to assist an officer in the execution of process, the 
 following case may be valuable. A sheriff, having a warrant to 
 apprehend several persons, who had riotously assembled together 
 and committed an assault, came to the house where they were 
 assembled, and being resisted and unable to make the arrest, com- 
 manded A., and certain others of the bystanders, to guard the 
 house in which the persons were assembled, and prevent their 
 escape, while he went to the next town, about four miles distant, 
 to get a sufficient force to execute the warrant. Under these 
 circumstances it was held that A. and the others were bound to 
 assist the slieriff, on his order or summons, in preserving the 
 peace and apprehending the offenders ; and that the sheriff was 
 to be deemed constructively present, so as to justify A. and the 
 others in arresting the offenders during his temporary absence 
 
'564 NEW YORK JUSTICE. 
 
 for the purpose of procuring further assistance. {Coyle v. 
 Hurtin, 10 Johns., 85.) 
 
 If the accused be already in prison on a civil charge, the proper 
 course seems to be for the officer to leave the warrant with the 
 jailor, who, on the termination of the civil imprisonment, must 
 send for a constable to take the party before the Justice ; and 
 then the same proceedings are to be had as in other criminal 
 cases. If the party is already in jail on a criminal charge, and 
 fully conimitted for trial, the Justice is to hear the complaint, 
 and, if it is sustained, send a warrant of detainer to the jailor. 
 Such seems to be the English practice. (1 Chitkj's Grim. 
 Law, 48, 49.) 
 
 Under certain circumstances the constable may break open 
 windows and doors, in order to make an arrest under a magis- 
 trate's warrant. {Id., 54 ; Grim. Pro., § 175 ; Foster's C. C, 
 196, 320.) But, before proceeding to that extremity, there 
 should be a notification of the officer's authority and business, 
 and a demand to enter and a refusal. {Id., 320 ; 1 Russell on 
 Grimes, 627.) In case of a felony actually committed, it seems 
 that the officer may not only break open the doors, but may kiU 
 the felon, if he cannot otherwise be taken. (4 Blacks. Comm., 
 292 ; 1 Chitty's Grim. Law, 54.) And, if the accused leave his 
 own dwelling, and fly to the house of a third person for refuge, 
 the doors of the latter may be broken open. {Id., 57.) The 
 rule that every man's house is his castle does not apply in crim- 
 inal cases. {Foster's 0. G., 320.) And it may be regarded as 
 settled that where a minister of justice comes armed with pro- 
 cess, founded on a breach of the peace, he may break open 
 doors. {Id., 135, 320.) Where there is an affray in a house, in 
 the view or hearing of the constable, and manslaughter or 
 bloodshed is likely to ensue, he may break open doors to keep 
 the peace. (2 Hale's P. C, 95 ; 1 Hawkin's P. G., 137.) So, 
 where A. let a house, except one room, which he reserved for 
 himself and occupied separately, and, the outer door of the 
 house being open, a constable broke open the door of the inner 
 room occupied by A., in order to arrest him, it was held, that 
 trespass by A. would not lie against the constable. ( Williams 
 V. Spencer, 5 Johns., 352.) "Where an affray occurs in a house 
 in the view or hearing of a constable, or where those who have 
 been engaged in an affray in his presence fly to a house and are 
 
SERVING THE WAKRANT. 565 
 
 immediately pursued by him, and he is not suffered to enter, he 
 may break open the doors in order to suppress the affray in the 
 first case, or to apprehend the persons committing the affray in 
 either case ; and, if any officer enter into a house to serve any 
 process, civil or criminal, and the doors are locked upon him 
 while he is in the house, he may break them open in order to 
 regain his liberty. {Dunlap's Justice, 30.) 
 
 If the crime charged be a felony the arrest may be made on 
 any day, and at any time of the day or night. If it be a misde- 
 meanor the arrest cannot be made on Sunday or at night, unless by 
 direction of the magistrate indorsed upon the warrant. {Grim. 
 Pro., § 170.) 
 
 (2.) Escape. 
 
 It is remarked by Mr. Chitty that if a constable, having 
 arrested a party under a warrant, suffer him to go at large upon 
 his promise to come again and find sureties, it is doubtful 
 whether he can afterwards be arrested upon the same process, 
 though, it should seem that as the public are interested in the 
 offender's being brought to justice there can be no well founded 
 objections to such second arrest. (1 Chitty's Grim. Law, 59.) 
 And it is certain that if the escape be made without the concur- 
 rence of the officer the defendant may be taken as often as he 
 flies, upon fresh suit, although he were out of view or had reached 
 another county or district. {Id^ It is also certain that if, after 
 a departure by permission of the constable, the party return into 
 his custody, he may lawfully detain him in pursuance of his 
 original warrant. [Id.^ In l^ew York it has been decided that 
 after an escape from an arrest under criminal process the officer 
 is bound to retake the prisoner, whetlier the escape be voluntary 
 or otherwise, and that the distinction between mesne and final 
 process does not apply to criminal proceedings. {ClarJc v. Cleve- 
 land, 6 Hill, 34ri.) Under this decision it becomes the duty of 
 the constable to retake the prisoner whenever and however he 
 may escape. But if the prisoner be set at liberty on a void recog- 
 nizance, he cannot be again taken on the same warrant. {Doyle 
 V. Russell, 3 Barb., 300.) 
 
 It seems that if the constable has apprehended the offender, 
 with or without warrant, for a felony or a dangerous wound 
 given, or to prevent tlie commission of a felony, if the party fly 
 to avoid the arrest, or break away after it has been effected, and 
 
NEW TOEK JUSTICE. 
 
 the officer pursuing him happens to wound or kill him in endeavor- 
 ing to prevent such escape, if the escape could not otherwise have 
 been prevented, the officer will be protected. {P- C, § 204 ; 
 Foster's C. 6'., 271 ; Barb. Grim. Law, 539.) And if the person 
 so pursued turn upon the officer pursuing him and kill him, it 
 will be murder. {Foster's C. C, 272.) In cases where resistance 
 is made, the officer having authority to arrest or imprison may- 
 repel force by force, and if death ensues in the struggle he will 
 be justified. {Id., 271.) But if the party flies from an arrest 
 for an offense less than a felony, it seems that the officer is not 
 justified in pursuing and killing him. {Id.) 
 
 If the prisoner escape and be retaken the officer may take him 
 before the Justice of the county where he was first arrested ; for 
 he is supposed in law to be always in custody by force; of the first 
 arrest. {Barb. Grim. Law, 540.) If he escapes or files before 
 the arrest into any other county, the duty of the constable is the 
 same as though he were in another county when the warrant was 
 issued ; a contingency which we will now proceed to consider. 
 
 (3.) Indorsing the Warrant. 
 
 This is familiarly termed " Backing the Warrant." The statute 
 provides, that warrants issued by Justices of the Peace cannot be 
 executed out of the county within which they are officers, unless 
 indorsed in the following manner : If the person against whom 
 any warrant granted by any such Justice, shall escape or be in 
 any other county out of the jurisdiction of such Justice, it shall 
 be the duty of any Justice of the Peace within the county where 
 such offender shall be, or shall be suspected to be, upon proof of 
 the handwriting of the magistrate issuing the warrant, to indorse 
 his name upon the same ; and thereupon the person bringing the 
 warrant or any other officer to whom it may have been directed, 
 may arrest the offender in the county where the warrant was 
 indorsed, {Grim. Pro., § 156.) 
 
 It will be seen that the statute only requires an indorsement of 
 the name of the magistrate upon the warrant ; and that indorse- 
 ment is only to be made upon proof of the handwriting of the 
 magistrate issuing it, it is not necessary for the sake of prevent- 
 ing questions and mistakes that the Justice should indorse upon 
 the back of the warrant a brief statement, showing that tlie hand- 
 
BRINGING FP THE PRISONER. 567 
 
 writing of the magistrate issuing it has been proven to him oa 
 oath, but only indorse as follows {Grim. Pro., § 156) : 
 
 §114. Form of Backing or Indorsing a Warrant. 
 County, ss. : 
 This warrant may be executed in the county of Monroe [w, 
 as the case m,ay le\ E. W. B., Justice of the Peace. 
 
 The statute further provides, that no magistrate shall be liable 
 to any indictment, action of trespass or other action, for having 
 indorsed any warrant pursuant to the provisions of the section 
 above cited, although it shall afterwards appear that such warrant 
 was illegally or improperly issued. {Id., § 157.) 
 
 2. Eeinging up the Peisonee. 
 
 We have seen that the warrant, as a general rule, commands 
 the officer to whom it is addressed to take the person accused 
 before the magistrate issuing it {id., 151), subject, however, to 
 the exception before remarked upon {ante, p. 557), in regard to 
 warrants for offenses triable by Courts of Special Sessions. But 
 there is a provision of the statute that in certain cases the person 
 accused may be brought before a different Justice from the one 
 named in the warrant. The language of the statute is : " If the 
 crime charged in the warrant be a misdemeanor, and the defend- 
 ant be arrested in another county, the officer must, upon being 
 required by the defendant, take him before a magistrate, who 
 must admit the defendant to bail." {Grim. Pro., 159.) The 
 magistrate before whom the prisoner is brought, if the offense is 
 not punishable with death, or by imprisonment in a State prison, 
 may take from him bail, with sufficient sureties tor iiis appearance 
 before the magistrate named in the warrant. {Id^ If the magis- 
 trate let the prisoner to bail he is to certify the fact upon the 
 warrant and then deliver it, together with tlie undertaking of 
 bail, to the officer having charge of the prisoner, who must 
 deliver the same, without unnecessary delay, to the magistrate 
 before whom the prisoner shall have been required to appear. 
 {Id., % 190.) 
 
 If such magistrate refuse to let to bail the person arrested, or 
 if bail is not given, the officer making the arrest must carry the 
 prisoner to the county where the warrant was originally issued, 
 and before some magistrate thereof, that is, before the magis- 
 
508 NEW TORK JUSTICE. 
 
 trate issuing the warrant, or if he be absent, or his office be 
 vacant, before the most accessible magistrate of the same county. 
 {Id., § 164.) And the same course must be pursued if the ofEense 
 charged in the warrant be punishable with death, or by imprison- 
 ment in a State prison, and therefore not bailable out of the 
 coimty where the warrant was issued. If, therefore, an officer 
 arrest in a foreign county a prisoner who is charged with the 
 commission of a felony, and take him before the Justice who 
 indorsed the warrant and he lets him to bail and releases him 
 from custody, such release is equivalent to a voluntary escape and 
 the prisoner may be retaken under the warrant. {Clark v. Cleve- 
 land, 6 Hill, 344.) 
 
 When an officer has arrested any prisoner on a criminal charge 
 in any county he may carry him through such parts of any other 
 county or counties as shall be in the ordinary route of travel from 
 the place where he was arrested to the place whei-e he is to be 
 conveyed and delivered, under the process by which the arrest 
 was made, and such conveyance will not be deemed an escape. 
 {Grim. Pro., 162.) While passing through such other county or 
 counties the officer having such prisoner in charge is not liable 
 to firrest on civil process, and has the like power to require any 
 citizen to aid in securing such prisoner, and to retake him if he 
 escape, that he has in his own county. A refusal or neglect to 
 render such aid is as much an offense as if the officer were an 
 officer of the county where the aid is required. {Id., § 163.) The 
 prisoner, also, while being conveyed through such county or 
 counties, is not liable to arrest on any civil process {Oivil Code, 
 § 119) ; and if he is arrested all persons concerned in the same, 
 with knowledge of the previous arrest, are answerable as for an 
 unlawful arrest. {love v. Humphrey, 9 Wend., 204.) 
 
 When the officer has arrested the prisoner he is, as soon as 
 possible, to bring him before the proper Justice, and if he is 
 guilty of unnecessary delay it is a breach of duty. (1 Chitty's 
 Crim. Law, 59.) He may, however, detain a prisoner twelve 
 hours to find a Justice to try the cause. {Arnold v. Steeves, 10 
 Wend., 514.) 
 
 When the accused is brought before the proper Justice the 
 warrant, by virtue of which the arrest shall have been made, is to 
 be delivered to the Justice, with a proper return indorsed thereon, 
 by the officer making the arrest. {Crlm. Pro., § 164.) If the 
 
BKINGING UP THE PRISONER. 569 
 
 prisoner is arrested in a foreign county and not held to bail, 
 he officer must return the warrant to a Justice in the county 
 ■where it was issued. If he is held to bail in such foreign 
 county, the warrant, certified by the Justice holding him to bail, 
 and the undertaking are to be delivered to the magistrate before 
 whom the prisoner shall have been required to appear. {Id., 160.) 
 The officer, it is said, may keep the warrant for his own justifica- 
 tion, and need only return to the Justice what he has done in 
 pursuance of its commands. (1 Chitty's Grim. Law, 60.) This 
 remark, however, does not apply when the statute prescribes a 
 particular person to whom the warrant must be returned. 
 
 A magistrate has no authority to order a person accused of a 
 criminal offense to be committed until a subsequent day for 
 examination without the accused being first brought before him. 
 And when a Justice late on Saturday night issued a warrant with 
 an indorsement directing that the accused should be committed 
 until Monday for examination, and the constable arrested the 
 accused the same evening and committed him to jail without 
 £rst bringing him before the Justice, it was held that the Justice 
 had exceeded his authority, and that he together with the con- 
 stable and his assistants was liable in trespass. {Pratt v. Mill, 
 16 Barb., 303.) 
 
 The prisoner having been taken by the officer before the proper 
 Justice, the next step is the examination of the complainant and 
 of the witnesses produced in support of the charge. 
 
670 NEW YORK JUSTICE. 
 
 CHAPTER V. 
 
 OF THE EXAMINATIOlsr OF PEKSONS AEEESTED. 
 
 It must be borne in mind that an examination, by a Justice, of 
 a charge made against a prisoner, is preliminary to a trial and i8 
 not the trial itself. No matter how clearly the commission of the 
 offense may be proved, no matter how great the magnitude of 
 the crime, the prisoner is still entitled to a trial by his peers. The 
 grade of punishment attached to the crime disclosed by the exam- 
 ination determines the duty of the Justice as regards the final 
 disposition of the prisoner — whether he shall be committed, 
 bailed or tried. But until this question of the final disposition 
 of the prisoner arises, the proceedings upon the preliminary 
 examination, and the duties of the Justice in conducting it, are 
 the same in all cases. 
 
 The examination we shall now consider is supposed to take 
 place in a case where a crime is charged not bailable by a Justice 
 of the Peace. This supposition is made for the reason that it 
 permits the proceedings subsequent to the examination to be con- 
 sidered in what appears to be their natural order, namely, com- 
 mitment, bail and trial. The same preliminary examination, 
 however, as has been before remarked, will answer for either of 
 the three modes in which the prisoner may be disposed of ; its 
 office being to disclose the magnitude of the offense, and thus 
 determine the duty of the Justice. 
 
 The statute provides that the magistrate before whom any per- 
 son arrested upon a warrant shall be brought, shall inform him of 
 tlie charge against him, and of his right to the aid of counsel in 
 every stage of the proceedings, and before any further proceed- 
 ings are had. {Crim. Pro., § 188.) He must also allow the 
 defendant a reasonable time to send for counsel, and adjourn the 
 examination for that purpose ; and must, upon the request of 
 the defendant, require a peace officer to take a message to such 
 counsel in the town or city as tlie defendant may name. The 
 
EXAMINATION OF PERSONS ARRESTED. 571 
 
 officer must, without delay and without fee, perform that duty. 
 {Id., 189.) 
 
 The statute reqiiires, also, that the examination of the com- 
 plainant, and of the witnesses produced in support of the prose- 
 cution, shall be taken as soon as may be. This is not interpreted, 
 however, so as to preclude the magistrate from temporarily com- 
 mitting the prisoner, if such a step is demanded by the circum- 
 stances of the case. If, when the prisoner is brought before the 
 Justice he finds that it is necessary to inquire further into the 
 case before he discharges or finally commits hira, he may, from 
 time to time, by a written commitment, remand him into custody. 
 {Hx parte Smith, 5 Cow., 273 ; 1 Ghittrfs Grim. Law, 73.) It 
 need not state the crime of which the party is accused. It is said 
 to be tlae usual practice to commit from three days to three days by 
 a written mittinnis. The time for which a prisoner should be 
 detained for further examination is a matter resting in a measure 
 in the discretion of the Justice, and he should be careful not to 
 act unreasonably. If he commits for an unreasonable length of 
 time trespass will lie against him, even though he acts without any 
 improjjer motive. {Barh. Crim. Law, 554.) He should be 
 governed bv the probability of obtaining further evidence, and 
 take into consideration the time which must necessarily elapse 
 before the attendance of the witnesses can be procured. The 
 prisoner, while awaiting such further examination, must be com- 
 mitted or discharged from custody, upon his giving bail to appear 
 during the examination, or upon the deposit of money as pro- 
 vided in the Code, to make sure of his appearance at the time to 
 which the examination is adjourned. {Criin. Pro., § 192.) 
 
 The following form may be used when the prisoner is com- 
 mitted for further examination, and indorsed on the warrant of 
 arrest : 
 
 § 115. Warrant of Gommitment for Further Examination. 
 
 '' The within named A. B. having been brought before me 
 under this warrant, is committed for examination to the sheriff of 
 
 the county of " [or, in the city and, county of New Yorh, 
 
 " to the keeper of the city prison of the city of New York.]" 
 {Id., 193.) 
 
 The prisoner, on being brought up for further examination, 
 sliould have read over to him all the examinations and depositions 
 
572 TSTEW YORK JUSTICE. 
 
 taken on the former examination, and then the additional evidence 
 should be taken. [Barb. Crim. Law, 556.) 
 
 The Justice lias also authority given him by statute to bring 
 before him all persons who appear, either from the statement 
 made by the complainant, or from the magistrate's ovm knowl- 
 edge, to be material and necessary witnesses for the prosecution 
 or the defense ; and for this purpose he may issue his subpcena 
 requiring such persons to appear before him and give evidence. 
 {Crim. Pro., §§ 608, 194.) 
 
 1. ExAMI^fATION OP THE COMPLAINANT AND HIS WITNESSES. 
 
 If there be no necessity for committing the prisoner to await 
 a further examination, and all the material witnesses be present, 
 the Justice must proceed to take tlie examination on oath of the 
 complainant and his witnesses, in the presence of the prisoner. 
 {Id., 195.) The form of the oath lias already been given. 
 {Ante, p. 539.) Tiie answers of the complainant and of all the 
 witnesses must be on oath, but instead of taking the examination 
 first and then swearing the parties to the truth of the statement, 
 they should be first sworn and then examined. {People v. 
 Restell, 3 Hill, 300.) Before reducing the examination of the 
 witnesses to writing, it is advisable for the Justice to hear their 
 narrative in the common way of relating events (1 Ghitty's 
 Crim,. Law, 77), and afterwards to take their depositions as nearly 
 as possible in their own language. {S ILill, 300.) The witnesses 
 must be sworn, for if they are not, the magistrate will be liable to 
 an action for committing the prisoner, if he is ultimately 
 acquitted. (1 Chittifs Crim. Law, 78.) The statute impera- 
 tively requires that the testimony of the witnesses shall be in 
 writing, and be signed by them. {Crim. Pro., § 204.) 
 
 At the examination the magistrate must, in the first place, read 
 to the defendant the depositions of the witnesses examined on 
 the taking of the information, and if the defendant requests it 
 or elects to have the examination, must summon for cross-exam- 
 ination the witnesses so examined, if they be in the county. He 
 must also issue subpoenas for additional witnesses required by the 
 prosecutor or the defendant. {Crim,. Pro., 191.) 
 
 The witnesses must be examined in the presence of the defend- 
 ant, and may be cross-examined in his behalf. (Id., § 195.) 
 
EXAMINATION OF PRISONER AND HIS WITNESSES. 573 
 
 At common law the prisoner had the right to cross-examine 
 the witnesses, either himself or by his counsel (1 Ch.itty's Grim. 
 Law, 79), and their answers should be carefully written down by 
 the magistrate. (3 Hill, 300.) 
 
 The testimony of accomplices should not be refused by a Jus- 
 tice, as it may afford the best proof of the guilt of the accused 
 that can be obtained ; and if the accomplice die before trial, his 
 testimony thus taken bj' the magistrate can be given in evidence 
 on the trial against the prisoner. (3 id., 296 ; 1 CKitty's Crim. 
 Law^ 60.'J.) A Justice ought not to obtain a disclosure from an 
 accomplice by promising or holding out the hope of a pardon. 
 
 2. Examination of the Peisonee and his Witnesses. 
 The Code of Criminal Procedure provides as follows : 
 
 § 196. Defendant to ie Informed of his Right to Make a 
 Statement. 
 When the examination of the witnesses on the part of the people 
 is closed the magistrate must inform the defendant that it is his 
 right to make a statement in relation to the charge against him 
 (stating to him the nature thereof) ; that the statement is designed 
 to enable him, if he see fit, to answer the charge and explain the 
 facts alleged against him ; that he is at liberty to waive making a 
 statement, and that his waiver cannot be used against him on 
 the trial. 
 
 § 197. Waiver of his Right and its Effect. 
 
 If the defendant waive his right to make a statement the 
 magistrate must make a note thereof, immediately following the 
 depositions of the witnesses against the defendant. 
 
 § 198. Statement, How Taken. 
 
 If the defendant choose to make a statement the magistrate 
 must proceed to take it in writing, without oath, and must put 
 to the defendant the following questions only : 
 
 What is your name and age ? 
 
 Where were you born 1 
 
 Where do you reside, and how long have you resided there ? 
 
 What is your business or profession ? 
 
 Give any explanation you may think proper of the circum- 
 stances api^earing in the testimony against you, and state any 
 facts which you think will tend to your exculpation. 
 
674 NEW YORK JUSTICE. 
 
 § 199. m. 
 
 The answer of the defendant to each of the questions must be 
 distinctly read to him as it is taken down. He may thereupon 
 correct or add to his answer ; and it must be corrected until it is 
 made conformable to what he declares to be the truth. 
 
 § 200. How Reduced to Writing and Authenticated. 
 
 The statement must be reduced to writing by the magis- 
 trate, or under his direction, and authenticated in the following 
 manner : 
 
 1. The authentication must set forth in detail that the defendant 
 was informed of his rights, as provided in section 196, and that 
 after being so informed he made the statement. 
 
 2. It must contain the questions piit to him, and his answers 
 thereto, as provided in sections 198 and 199. 
 
 3. It may be signed by the defendant, or he may refuse to sign 
 it ; but if he refuse to sign, his reason therefor must be stated as 
 he gives it. 
 
 4. It must be signed and certified by the magistrate. 
 
 § 201. After Statement of Waiver Defendants Wittiesses 
 to ie Exufnined. 
 
 After the waiver of the defendant to make a statement, or after 
 he has made it, his witness, if he produce any, must be sworn and 
 examined. 
 
 § 202. Witnesses to he Kept Afart. 
 
 The witnesses produced on the part either of the people or of 
 the defendant cannot be present at the examination of the defend- 
 ant ; and while a witness is under examination the magistrate 
 may exclude all witnesses who have not been examined. He may 
 ^Iso cause the witnesses to be kept separate and to be prevented 
 from conversing with each other until they are all examined. 
 
 § 203. Who may he Present at Examination. 
 The magistrate must also, upon the request of the defendant, 
 exclude from the examination every person, except the clerk of the 
 magistrate, the prosecutor and his counsel, the attorney general, 
 the district attorney of the county, the defendant and his counsel, 
 and the officer having the defendant in custody. 
 
EXAMINATION OF PRISONER AND HIS WITNESSES. 575 
 
 The Justice should be careful to use no improper influence to 
 extort a confession from the prisoner, for by so doing he may 
 defeat tlie very object of his endeavors. If threats or promises, 
 or any inducements, are used and a confession is thereby obtained 
 it cannot be received in evidence, because of the uncertainty and 
 doubt whether it was not made rather from a motive of fear or 
 interest than from a sense of guilt. (Id. / 4 Blacks. ComTn., 
 357 ; 2 HaWs P. C, 284.) It is at the option of the prisoner 
 either to disclose his defense, confess his guilt or remain silent. 
 He himself is made the judge of what it is best for him to do ; 
 and whatever he does, if to be used against him thereafter, must 
 be done voluntarily. {Id.) It is the duty also of the Justice to 
 prevent the complainant, and the officers who may have the 
 prisoner in charge, from making any attempts to obtain a confes- 
 sion from him. The officiousness and misplaced zeal oftentimes 
 manifested by prosecutors and inferior functionaries cannot be too 
 severely reprimanded. If, however, by means of a confession so 
 unduly obtained other facts are brought to light they may be 
 proved against the party tliough the confession itself is inadmis- 
 sible. (1 Chitty's Grim,. Law., 69 ; Davis' Justice, T2.) 
 
 The examination is not to be on oath {Crim. Pro., § 198), and 
 if so taken it may be rejected if offered against the prisoner on the 
 trial. The reason of this is that the examination must be entirely 
 voluntary, and therefore the prisoner must never be req^iired to 
 swear to it. {Pavis^ Justice, 74.) He should be allowed to speak 
 freely and voluntarily, and not be pressed to answer, or exam- 
 ined or questioned, like a common witness. An examination so 
 obtained has been rejected as inadmissible though nothing like a 
 threat or promise was used. {Barh. Crim. Law, 560.) 
 
 In a late case [People v. McMahon, 1.5 If. Y., 384) the prisoner 
 was arrested by a constable without warrant on suspicion of being 
 the murderer of his wife ; the constable took him before the coro- 
 ner who was holding an inquest on the body of the murdered 
 woman, and by whom he was sworn and examined as a witness. 
 It was held that his evidence given before the coroner was not 
 admissible on the trial of the accused for murder. The sworn 
 statements of a prisoner are admitted or excluded, not upon the 
 ground of immunity or privilege, nor upon consideration whether 
 the rule forbidding a committing magistrate to take the exainina- 
 tion under oath has been violated, but on consideration whether 
 
676 NEW YORK JUSTICE. 
 
 the circumstances of the prisoner, when examined, were such aa 
 to render his testimony reliable. 
 
 If the prisoner answers the interrogatoi'ies of the magistrate 
 his answers are to be reduced to writing, and then read over to 
 him, and he may correct or add to them. They are then to be 
 signed and certified by the magistrate. {Crim. Pro., § 200.) 
 The signature of the prisoner is not essentially necessary. 
 {Davis' Justice, 75.) If he refuses to sign the written examina- 
 tion his reason must be stated therefor, as he gives it. If more 
 than one person is accused, it is important that the examinations 
 should be separately made ; otherwise an opportunity will be 
 afforded, and jjrobably improved, to prevent any variation in the 
 different statements. (1 Chitty's Crim. Law, 88.) 
 
 After the examination of the prisoner is completed his witnesses, 
 if he have any, must be sworn and examined, and he may have 
 the assistance of counsel in such examination. {P. C, §§ 202 
 and 203.) 
 
 It is proper to state here that all the witnesses must be excluded 
 from the ofiice of the Justice during the examination of the 
 prisoner. The Justice has power, also, to exclude from the place 
 where such examination is had, while any one witness is being 
 examined, those witnesses whose examination has not yet been 
 had ; and he may cause the witnesses to be kept separate, and to 
 be prevented from conversing with each other until they shall all 
 have been examined. {Id.') 
 
 The evidence given by the several witnesses must be reduced 
 to writing by the justice, or under his direction, and be signed by 
 the witnesses respectively. {Id., § 204.) 
 
 The following forms will answer for the examination of the 
 prisoner, of the complainant, and of the witnesses for both 
 parties : 
 
 § 116. Prisoner's Statement. 
 County, ss. : 
 
 The voluntary statement of "W. V., taken before me, J. H. B.^ 
 a Justice of the Peace in and for the said county, on the 
 day of , 1884, the said W. V. being charged on oath before 
 
 me by D. A., witli [here set out the offense as in the complaint']. 
 The said W. V. liaving been arrested and brought before me to 
 answer said charge, and having, before the comrnencement of his 
 statement, been informed by me that it is his right to make a 
 statement in relation to the charge against him \statiny to him 
 
DISCHARGE OF PRISONEK. 577 
 
 tJie nature thereof], that the statement is designed to enable him, 
 if he see fit, to answer the charge and to explain the facts alleged 
 against him ; that he is at liberty to waive making a statement, 
 and that his waiver cannot be used against him on the trial. 
 And after so informing him I submitted to him the following 
 questions, to which he replied as follows : 
 
 What is your name and age ? Ans. . 
 
 Where were you born ? Ans. . 
 
 Where do you reside and how long have you resided there ? 
 Ans. . 
 
 What is your business or profession ? Ans. . 
 
 Give any explanation you may think proper of the circum- 
 stances appearing in the testimony against you, aud state any 
 facts which you think will tend to your exculpation ? Ans. 
 
 Taken before me on the day and year first above written. 
 
 J. H. B., Justice of the Peace. 
 
 The prisoner, or any other person who, during the pendency 
 of these proceedings, insults the magistrate, may be committed 
 for a contempt in the manner already pointed out. {Ante, p. 
 526.) 
 
 The examination being finished, the Justice should attach 
 together the complaint, process, depositions and statement in the 
 order in which they are taken, and safely retain them in his 
 keeping until they can be transmitted to the proper court at 
 which they are returnable, as hereinafter mentioned. {Dams' 
 Justice, 75.) While they remain in the Justice's keeping, he 
 should not permit them to be read by any person except a Judge 
 of a court having jurisdiction of the offense, the Attorney 
 General, the District- Attorney of the county and the defendant 
 and his counsel. {Grim. Pro., § 205.) 
 
 3. DiSCHAEGB OF THE PeISONER. 
 
 After hearing the proofs and the statement of the defendant, 
 if he have made one, if it appear either that a crime has not been 
 committed, or that there is no sufficient cause to believe the 
 defendant guilty thereof, the magistrate must order the defend- 
 ant to be discharged by an indorsement on the depositions and 
 statement signed by him to the following effect : There being 
 no sufficient cause to believe the within named A. B. guilty 
 of the offense within mentioned, I order him to be discharged. 
 {Id., 207.) 
 37 
 
578 NEW YORK JUSTICE. 
 
 A magistrate is clearly bound, in the exercise of a sound discre- 
 tion, not to commit any one unless a prima facie case is made 
 out against him by witnesses entitled to a reasonable degree 
 of credit. {Cox v. Coleridge, 1 Barn. & Cress., 50, 61.) 
 
 4. Rkoognizing the Complainant and his Witnesses. 
 
 If it shall appear that a crime has been committed, and that 
 there is sufficient cause to believe the defendant to be guilty 
 thereof, the magistrate must, by recognizance, bind the prose- 
 cutor, and all the material witnesses against the prisoner, to appear 
 and testify at the Court to which the depositions and statement 
 are to be sent, or that he will forfeit the sum of one hundred dol- 
 lars. {Grim. Pro., % 275 ; Feofle v. Mack, 1 Park. C. It., 567.) 
 
 "Whenever the magistrate is satisfied by proof on oath that there 
 is good reason to believe that any such witness is an accomplice 
 in the commission of the crime charged he may order the witness 
 to enter into a written undertaking, with such sureties and in 
 such sum as he deems sufficient, for his appearance at such Court. 
 {Crim. Pro., 216.) If any witness so required to enter into a 
 recognizance, either with or without sureties, refuses to comply 
 with such order, the magistrate must commit him to prison until 
 he compHes with the order or be legally discharged. {Id., § 218.) 
 
 A witness may be conditionally examined on behalf of the 
 people in the manner and with the effect provided in the Code 
 of Criminal Procedure (§ 219). 
 
 § 118. Warrant of Commitment of a Witness refusing to enter 
 
 into a Recognizance. 
 County of 
 
 In the name of the people of the State of New York. 
 To any peace officer in the county, and to the keeper of the com- 
 mon jail of the said county, greeting ; 
 
 Whereas, it appears by the examination of J. D., this day taken 
 before me, J. H. B., Esquire, a Justice of the Peace in and for 
 the said county, upon a charge made on oath by D. A. before me 
 against W. V., for \]iere state the offense charged^, that he, the 
 said J. D., is a material witness against the said W. V. in regard 
 to the said charge, and whereas the said J. D., on being required 
 by me to enter into a recognizance in the sum of dollars 
 
 to appear and testify at the next Court of [here insert the Court 
 and the time and place at which it is to he held'], on behalf of the 
 people against the said W. V., for the offense aforesaid, did refuse, 
 
KECOGNIZING COMPLAINANT AND HIS WITNESSES, 579 
 
 and still refuses, to enter into such recognizance : These are, 
 therefore, to command you, the said peace oiScer, forthwith to 
 convey and deliver into the custody of said keeper of the common 
 jail the said J. D. ; and you, the said keeper, are hereby required 
 to receive the said J. D. into your custody in the said jail, and 
 him there safely keep until he shall enter into such recognizance 
 as aforesaid, or be otherwise discharged according to law. 
 Given under my hand the day of , 1884. 
 
 J. H. B., Justice of the Peace. 
 
 The above form can be easily varied so as to suit 4he case of a 
 witness examined on the complaint, but failing to give sureties, 
 or the case of a person not examined on the complaint, but whom 
 it may be thought proper to bind over as a witness. 
 
 All the examinations and recognizances are to be certified by 
 the magistrate taking them, to the Court at which the witnesses 
 are bound to appear, on the first day of the sitting thereof. 
 {Orim. Fro., § 221.) 
 
 It is important for the Justice to know what the jurisdiction 
 of the several Criminal Courts is in order that he may take 
 the recognizances to appear at the proper Court, and also that 
 he may know where to transmit the recognizances and the 
 examinations. 
 
 The jurisdiction of Courts of Special Sessions extends only 
 to those crimes of lesser magnitude which are particularly enu- 
 merated in the statute and which will be considered hereafter, 
 {Post, part II, chap. VIJI.) 
 
 If the crime with which the prisoner is charged is found in 
 that enumeration, he must, as we shall presently see, if he refuses 
 to give bail, be tried by a Court of Special Sessions, and it then 
 becomes unnecessary to take the recognizances of the witnesses 
 or to send the examinations to the Court above. The statute 
 requires the examinations and undertakings to be sent to the next 
 Court of Oyer and Terminer, or Court of Sessions of the county, 
 or City Court having power to inquire into the offense by the 
 intervention of a grand jury. {Crim. Pro., % 221.) If the pris- 
 oner is to be tried by Special Sessions, at which the witnesses are 
 bound to appear, they must, therefore, be retained by the Justice. 
 
 Courts of Sessions have power to inquire, by the intervention 
 of a grand jury, of all crimes committed or triable in such 
 county, although they have power to hear, determine and punish, 
 
580 NEW YORK JUSTICE. 
 
 according to law, only such crimes and misdemeanors as are 
 not punishable with death, except such minor crimes as the 
 Special Sessions and Police Courts have exclusive jurisdiction of. 
 {Id., § 39.) 
 
 Courts of Oyer and Terminer have power to inquire, by the 
 intervention of a grand jury, of all crimes and misdemeanors com- 
 mitted or triable in such county, and to hear and determine all 
 such crimes and misdemeanors, except such as are triable exclu- 
 sively by Special Sessions or Police Courts. {Id., § 22.) 
 
 Courts of Sessions and Court? of Oyer and Terminer have each, 
 therefore, cognizance, so far as finding indictments is concerned, 
 of aU crimes and misdemeanors committed or triable within the 
 county in which they are held, and the Justice must take 
 the recognizances to appear at the next Court in which the pris- 
 oner may be indicted, whether it be a Court of Sessions or a 
 Court of Oyer and Terminer. 
 
 The recognizances or undertakings must be in writing and be 
 signed by the persons to be charged thereby. If a recognizance 
 contains, in addition to the condition required by statute that the 
 party bound will appear and testify at the next Court having 
 cognizance of the offense, &c., the words, " as well to the grand 
 jury as the petit jury, and not depart the said Court without 
 leave," it will not be vitiated by such addition. {People v. 
 Millis, 5 Bar-b., 511.) In a recognizance for the appearance of a 
 witness to testify on a criminal charge, there must be inserted an 
 acknowledgment of indebtedness to the people, and a statement 
 o± the offense charged, or no action can be maintained upon it. 
 {People V. Bundle, 6 Hill, 506.) 
 
 § 119. Recognizance hy Witness to give Evidence. 
 
 State of New York, \ 
 
 County. ) ■ ■ 
 
 I, J. D., of the town [or, city] of , in said county, do 
 
 acknowledge myself indebted to the people of the State of "l^ew 
 York in the sum of . dollars, to be well and truly paid if 
 
 default shall be made in the condition following :* 
 
 The condition of this recognizance is such that if the said J. D. 
 shall personally appear at the next Court of [here insert the Court 
 and the time and place of holding if], then and there to give evi- 
 dence on the part of the people against W. V., charged with 
 [here state the offense'], as well to the grand jury as to the petit 
 
EECOGNIZING COMPLAINANT AND HIS WITNESSES. 581. 
 
 jury, and shall not depart the said Coiirt without leave, then this 
 recognizance to be void, otherwise of force. 
 
 J. D. [l. 8.] 
 Taken, subscribed and acknowledged ) 
 before uie, this day of , 1884. j 
 
 J. H. B., Justice of the Peace. 
 
 § 120. Recognizance hy Witness with Sureties. 
 
 State of New York, ) 
 
 County. \ ^- '• 
 
 "We, J. D., N. P. and J. B., of the town of , in said 
 
 county, acknowledge ourselves to be severally indebted to the 
 people of the State of New York, that is to say, the said J. D., in 
 the sum of dollars, the said N. P. in the sum of dollars, 
 
 and the said J. B. in the sum of dollars, to be well and truly 
 
 paid if default shall be made in the condition following : f 
 
 {Follow % 119 from, the*] 
 
 {All the ohhgors must sign, seal and acknowledge the 
 recognizance.] 
 
 These recognizances, together with the examinations, must, as 
 has been before stated, be all certified by the Justice to the Court 
 at which the witnesses are bound to appear, on the first day of 
 the sitting thereof. If the Justice refuses to return them he may 
 be compelled to do so by a rule, of Court ; and, in case of his diso- 
 bedience to the rule, he may be proceeded against by attachment. 
 
 If the offense with which the prisoner is charged be bailable 
 by a Justice of the Peace, and the prisoner offer sufiicient bail, 
 such bail may be taken and the prisoner discharged. {Crim. 
 Pro., § 557.) If no bail be offered, or the offense be not bailable 
 by a Justice, the prisoner must be committed to prison, except in 
 cases in which a Court of Special Sessions is authorized to try 
 him. {Id., § 208.) 
 
 The different duties imposed upon Justices of the Peace by the 
 provisions of the section of the statute just cited will be the sub- 
 ject of consideration in the three succeeding chapters. 
 
582 NEW YORK JUSTICE. 
 
 CHAPTER YI. 
 
 OF COMMITMENTS. 
 
 The examination of all the parties being finished it becomes 
 the duty of the Justice to determine what disposition he shall 
 make of the prisoner. It will be seen by the section of. the 
 statute above quoted that the Justice is required to do one of 
 three things, either to commit to prison the party charged, or t» 
 bail him, or to try him. 
 
 i. Commitment, when to be Made. 
 
 The question now arises — when must the prisoner be commit- 
 ted to prison ? He must be so committed, either when he cannot 
 be tried by a Court of Special Sessions, or when no sufficient bail 
 is offered for him, or when the offense with which he is charged 
 is a felony which may be punished by imprisonment for a period 
 exceeding five years, for then he cannot be bailed by a Justice of 
 the Peace. {Grim. Pro., % 557.) 
 
 The offenses punishable with death, or by imprisonment for a 
 period exceeding five years, and which are, therefore, not bailable 
 by a Justice of the Peace, are enumerated and defined by the 
 statute as follows : 
 
 (1.) Crimes Punishable with Death. 
 
 Murder in first degree defined. The killing of a human being 
 unless it is excusable or justifiable, is murder in the first degree 
 when committed, either 
 
 Prom a deliberate and premeditated design to effect the death 
 of the person killed, or of another ; or, 
 
 By an act imminently dangerous to others, and evincing a 
 depraved mind, regardless of human life, although without a pre- 
 meditated design to effect the death of any individual ; or without 
 a design to effect death by a person engaged in the commission 
 of, or in an attempt to commit a felony, either upon or affecting 
 the person killed or otherwise ; or, 
 
CRIMES PUNISHABLE BY IMPRISONMENT. 583 
 
 When perpetrated in committing the crime of arson in the 
 first degree. {Penal Code, § 183.) 
 
 Treason. The following acts constitute treason against the 
 people of this State : 1. Levying wai- against the people of 
 the State, within this State. 2. A combination of two or more 
 persons by force to usurp the government of the State, or to over- 
 turn the same, shown by a forcible attempt made within the State 
 to accomplish that purpose. 3. Adhering to the enemies of the 
 State, while separately engaged in war witn a foreign enemy in a 
 case prescribed in the Constitution of the United States, and 
 giving to such enemies aid and comfort within the State or 
 elsewhere. {Penal Code, § 37.) 
 
 (2.) Crimes Punishable hy Imprisonment in a State Prison for 
 a period exceeding five years. 
 
 Abandonment of child under six years. A parent, or other 
 person having the care or custody, for nurture or education, of a 
 child under the age of six years, who deserts the child in any 
 place, with intent wholly to abandon it, is punishable by impris- 
 OHinent in a State prison for not more than seven years, or in a 
 county jail for not more than one year. {Penal Code, § 287.) 
 
 Administering Poison. An assault in first degree. 
 
 Accessories before the fad. Are principals and may be so 
 indicted. {Penal Code, § 29.) 
 
 Aiding prisoners to escape. A person who, with intent to effect 
 or facilitate the escape of a prisoner, whether the escape is effected 
 or attempted or not, enters a prison, or conveys to a prisoner any 
 information, or sends into a prison any disguise, instrument, 
 weapon, or other thing, is guilty of felony, if the prisoner is 
 held upon a cliarge, arrest, commitment, or conviction for a 
 felony; and of a misdemeanor, if the prisoner is held upon a 
 charge, arrest, commitment, or conviction for a misdemeanor. 
 {Penal Code, § 87.) 
 
 A person wlio aids or assists a prisoner in escaping, or attempt- 
 ing to escape, from the lawful custody of a sheriff, or other officer 
 or person, is guilty of a misdemeanor if the prisoner is held under 
 arrest, commitment, or conviction for a misdemeanor, or upon a 
 charge thereof ; and of a felony if the prisoner is held under an 
 arrest, commitment, or conviction for a felony, or upon a charge 
 thereof. {Penal Code, § 88.) 
 
584 NEW YORK JUSTICE. 
 
 Arson injh'st degree defined. A person who -wilfully burns, or 
 sets on fire, in tlie night-time, either, 
 
 1. A dwelling-house in which there is, at the time, a human 
 being; or, 
 
 2. A car, vessel, or other vehicle, or a structure or building 
 other than a dwelling-house, wherein, to the knowledge of the 
 offender, there is, at the time, a human being ; 
 
 Is guilty of arson in the first degree. {Penal Code, § 486.) 
 Arson in second degree. A person who, 
 
 1. Commits an act of burning in the day-time, which, if com. 
 mitted in the night-time, would be arson in the first degree ; or, 
 
 2. Wilfully burns, or sets on fire, in the night-time, a dwelling, 
 house wherein at the time there is no human being ; or, 
 
 3. Wilfully burns, or sets on fire, in the night-time, a building 
 not inhabited, but adjoining or within the curtilage of an inhab- 
 ited building, in which there is, at the time, a human being, so 
 that the inhabited building is endangered, even though it is not 
 in fact injured by the burning ; or, 
 
 4. Wilfully bums, or sets on fire, in the night-time, a car, vessel 
 or other vehicle, or a structure or building, ordinarily occupied 
 at night by a human being, although no person is within it at 
 the time ; 
 
 Is guilty of arson in the second degree. {Penal Code, § 487.) 
 Arson in third degree. A person who wilfully bums, or sets 
 on fire, either, 
 
 1. A vessel, car, or other vehicle, or a building, structure, or 
 other erection, which is at the time insured against loss or damage 
 by fire, with intent to prejudice the insurer thereof; or, 
 
 2. A vessel, car, or other vehicle, or a building, structure, or 
 other erection, under circumstances not amounting to arson in the 
 first or second degree. 
 
 Is guilty of arson in the third degree. {Penal Code, § 488.) 
 Arson, how punished. Arson is punishable as follows : 
 
 1. In the first degree, by imprisonment for not less than ten 
 years. 
 
 2. In the second degree, by imprisonment for not less than 
 seven nor more than fifteen years. 
 
 3. In the third degree, by imprisonment for not more than 
 seven years. {Penal Code, § 489.) 
 
 Assaidi in first degree defined. A person who, with an intent 
 
CRIMES PUNISHABLE BY IMPRISONMENT. 585 
 
 to kill a human being, or to commit a felony upon the person or 
 property of the one assaulted, or of another. 
 
 1. Assaults another with a loaded fire-arm, or any other deadly 
 weapon, or by any other means or force likely to produce death ; or, 
 
 2. Administers to, or causes to be administered to, or taken by 
 another, poison, or any other destructive or noxious thing so as 
 to endanger the life of such other. 
 
 Is guilty of assault in the first degree. (Penal Code, § 217.) 
 Assault in first degree, how punished. Assault in the first 
 
 degree is punishable by imprisonment for not less than five nor 
 
 more than ten years. {Penal Code, § 220.) 
 
 Attempts to commit crime. A person who unsuccessfully 
 
 attempts to commit a crime is indictable and punishable, unless 
 
 otherwise specially prescribed by statute, as follows : 
 
 1. If the crime attempted is punishable by the death of the 
 offender, or by imprisonment for life, the person convicted of 
 the attempt is punishable by imprisonment for not more than 
 ten years. 
 
 2. In any other case he is punishable by imprisonment for not 
 more than half of the longest term, or by a fine not more than 
 one-half of the largest sum, prescribed upon a conviction for the 
 commission of the ofEense attempted, or by both such fine and 
 imprisonment. {Penal Code, § 686.) 
 
 Bill, altering draft of. A person who fraudulently alters the 
 draft of any bill or resolution wliich has been presented to either 
 of the houses composing the legislature, to be passed or adopted 
 with intent to procure it to be passed or adopted by either house^ 
 or certified by the presiding ofiicer of either house, in language 
 different from that intended by such house, is guilty of felony. 
 {Penal Code, § 64.) 
 
 Bill, altering engrossed copy of. A person who fraudulently 
 alters the engrossed copy or enrollment of any bill which has 
 been passed by the legislature of this State, with intent to pro- 
 cure it to be approved by the governor or certified by the secretary 
 of state, or printed or published by the printer of the statutes in 
 language different from that in which it was passed by the legis- 
 lature, is guilty of felony. {Penal Code, § 65.) 
 
 Bribery of menibers of the legislature. A person who gives or 
 offers, or causes to be given or offered, a bribe, or any money, 
 property, or value of any kind, or any promise or agreement 
 
586 NEW TOKK JUSTICE. 
 
 therefor, to a member of the legislature, or attempts, directly or 
 indirectly, by menace, deceit, suppression of truth, or other cor- 
 rupt means, to influence a member to give or withhold his vote, 
 or to absent himself from the house of which he is a member, or 
 from any committee thereof, is punishable by imprisonment for 
 not more than ten years, or by a fine of not more than live thou- 
 sand dollars, or both. {Penal Code, § Q&.) 
 
 Receiving hribes hy members of legislature. A member of 
 either of the houses composing the legislature of this State, who 
 asks, receives, or agrees to receive, any bribe upon any under- 
 standing that his official vote, opinion, judgment or action shall 
 be influenced thereby, or shall be given in any particular manner 
 or upon any particular side of any question or matter upon which 
 he may be required to act in his official capacity, or who gives, or 
 offers or promises to give, any official vote in consideration that 
 another member of the legislature shall give any sucli vote, either 
 upon the same or another question, is punishable by impi-ison- 
 ment in State prison not exceeding ten years, or by fine not 
 exceeding five thousand dollars, or both. {Penal Code, § 67.) 
 
 Giving or offering hrihes. A person who gives or offers a bribe 
 to any executive officer of this State with intent to influence him 
 in respect to any act, decision, vote, opinion or other proceediag 
 as such officer, is punishable by imprisonment in a State prison 
 not exceeding ten years, or by fine not exceeding five thousand 
 dollars, or by both. {Penal Code, % 44.) 
 
 Asking or receiving bribes. An executive officer, or person 
 elected or appointed to an executive office, who asks, receives, or 
 agrees to receive, any bribe, upon an agreement or understanding 
 that his vote, opinion or action upon nny matter then pending, or 
 which may by law be brought before him in his official capacity, 
 shall be influenced thereby, is punishable by imprisonment in a 
 State prison not exceeding ten years, or by a fine not exceeding 
 five thousand dollars, or by both ; and in addition thereto forfeits 
 his office and is forever disqualified from holding any public office 
 under this State. {Penal Code, § 45.) 
 
 Bribery of a judicial officer. A person who gives or offers, or 
 causes to be given or offered, a bribe, or any money, property, 
 or value of any kind, or any promise or agreement therefor, to a 
 judicial officer, juror, referee, arbitrator, appraiser, or assessor, or 
 othei- person authorized by law to hear or determine any ques- 
 
CRIMES PTJSriSlIABLE BY IMPRISONMENT. 587 
 
 tion, matter, cause, proceeding, or controversy, with intent to 
 influence his action, vote, opinion, or decision thereupon, is 
 punishable by imprisonment for not more than ten years, or by 
 a fine of not more than five thousand dollars, or both. {Penal 
 Code, % 71.) 
 
 Officer accepting irihe. A judicial officer, a person who exe- 
 cutes any of the functions of a public office not designated in 
 titles six and seven of this Code, or a person employed by or 
 acting for the State, or for any public officer in the business of 
 the State, who asks, receives, or agrees to receive, a bribe, or any 
 money, property or value of any kind, or any promise or agree- 
 ment therefor, upon any agreement or understanding that his 
 vote, opinion, judgment, action, decision, or other official pro- 
 ceeding, shall be influenced thereby, or that he will do or omit 
 any act or proceeding, or in any way neglect or violate any official 
 duty, is punishable by imprisonment for not more than ten years, 
 or by fine of not more than five thousand dollars, or both. A 
 conviction also forfeits any office held by the offender, and forever 
 disqualifies him from holding any public office under the State. 
 {Penal Code, § 72.) 
 
 Juror, c&c, accepting bribes. A juror, referee, arbitrator or 
 assessor, or other person authorized by law to hear or determine 
 any question, matter, cause, controversy, or proceeding, who asks, 
 receives, or agrees to receive, any money, property or value of 
 any kind, or any promise or agreement therefor, upon any agree- 
 ment or understanding that his vote, opinion, action, judgment or 
 decision shall be influenced thereby, is punishable by imprison- 
 ment for not more than ten years, or by fine of not more than 
 five thousand dollars, or both. {Penal Code, § 74.) 
 
 Bribery, certain punishment for. A person who gives or offers, 
 or causes to be given or offered, a bribe, or any money, property, 
 or value of any kind, or any jJromise or agreement therefor, to a 
 person executing any of the functions of a public office, other 
 thaa one of the officers or persons designated in title six, title 
 seven and section seventy-one of title eight of this (Penal) Code, 
 with intent to influence him in respect to any act, decision, vote 
 or other proceeding, in tlie exercise of his powers oi' functions, is 
 punishable by imprisonment for not more than ten years, or by a 
 fine of not more than five thousand dollars, or both. {Penal 
 Code, S 78.) 
 
688 NEW YORK JUSTICE. 
 
 Bribery of witnesses. A person who is, or is about to be, a 
 witness upon a trial, hearing or other proceeding, before any 
 court or any officer authorized to hear evidence or take testi- 
 mony, who receives, or agrees, or offers to receive, a bribe, upon 
 any agreement or understanding that his testimony shall be 
 influenced thereby, or that he will absent himself from the trial, 
 hearing or other proceeding, is guilty of a felony. {Penal 
 Code, § 80.) 
 
 Bribing witnesses. A person who gives, or offers or promises to 
 give, to any witness or person about to be called as a witness, any 
 bribe, upon any understanding cr agreement that the testimony 
 of such witness shall be thereby influenced, or who attempts by 
 any other means fraudulently to induce any witness to give false 
 testimony or to withhold true testimony, is guilty of a felony. 
 {Penal Code, § 113.) 
 
 Burglary in first degree defined. A person who, with intent 
 to commit some crime therein, breaks and enters, in the night- 
 time, the dwelling-house of another, in which there is at the time 
 a human being, 
 
 1. Being armed with a dangerous weapon ; or, 
 
 2. Arming himself therein with such a weapon ; or, 
 
 3. Being assisted by a confederate actually present ; or, 
 
 4. Who, while engaged in the night-time in effecting such 
 entrance, or in committing any crime in such a building, or in 
 escaping therefrom assaults any person ; 
 
 Is guilty of burglary in the first degree. {Penal Code, § 496.) 
 Burglary in sec<md degree. A person who, with intent to 
 commit some crime therein, breaks and enters the dwelling-house 
 of another in which there is a human being, under circumstances 
 not amounting to burglary in the first degree, is guilty of 
 burglary in the second degree. {Penal Code, % 497.) 
 
 Burglary, how punished. Burglary is punishable by imprison- 
 ment in a State prison, as follows : 
 
 1 . Burglary in the first degree, for not less than ten years ; 
 
 2. Burglary in the second degree, for not more than ten nor 
 less than five years ; 
 
 3. Burglary in the third degree, for not more than five years, 
 nor less than one year. {Penal Code, § 507.) 
 
 Possessing burglar''s instruments, etc. A person who is foimd 
 having in his possession any pick-lock, false key, bit, nippers, or 
 
CRIMES PUNISHABLE BY IMPRISOWMENT. 589 
 
 other instrument adapted or commonly used for the commission 
 of burglary, or larceny, being in or about a building, or in the 
 night-time, or otherwise under circumstances evincing an intent 
 to use the same in the commission of a crime, is guilty of a mis- 
 demeanor, and if he has been previously convicted of any crime, 
 he is guilty of a felony. {Penal Code, § 508.) 
 
 Canals, wilful injuries to the. A person who, without authority 
 of law wilfully inflicts an injury upon any of the canals belonging 
 to this State, or disturbs or injures any of the boats, locks, bridges, 
 buildings, machinery or other works or erections coimected with 
 any such canal, and in which the people of this State have an 
 interest, is guilty of felony. {Penal Code, § 479.) 
 
 Corporations. See Stocks. 
 
 Conspiracies against peace, etc. If two or more persons, being 
 out of this State, conspire to commit any act against the peace of 
 this State, the commission or attempted commission of which, 
 within this State, would be treason against the State, they are 
 punishable by imprisonment in a State prison not exceeding ten 
 years. {Penal Code, § 169.) 
 
 Dueling defined and punished. A person who fights a duel or 
 engages in any combat with another, witli deadly weapons, by 
 previous agreement, or upon a previous quarrel, although no 
 death or wound ensues, is punishable by imprisonment for not 
 less than two years nor more than ten years. A person convicted 
 under this section is thereafter incapable of holding, or of being 
 elected or appointed to any office, or place of trust or emolument, 
 civil or mihtaiy, within the State. {Penal Code, § 234.) 
 
 Duels, challenger, abettor, etc., of. A person who challenges 
 another to fight a duel, or who sends a written or verbal message 
 purporting or intended to be a challenge to fight a duel, or an 
 invitation to a combat with deadly weapons, or who accepts such 
 a challenge or message, or who knowingly carries or delivers such 
 a challenge or message, or who is present at the time appointed 
 for such a duel or combat, or when such a duel or combat is 
 fought, either as second, aid or surgeon, or who advises or abets, 
 or gives any countenance or assistance to such a duel or combat 
 upon previous agreement, is punishable by imprisonment for not 
 more than seven years. {Penal Code, § 235.) 
 
 False evidence, offering of. A person who, upon any trial, 
 hearing, inquiry, investigation, or other proceeding authorized 
 
690 NEW YORK JUSTICE. 
 
 by law, offers or procures to be offered in evidence, as genuine a 
 book, paper, document, record, or other instrument in writing, 
 knowing the same to have been forged or fraudulently altered, is 
 guilty of felony. {Penal Qode, § 107.) 
 
 False evidence, preparing of. A person who fraudulently 
 makes or prepares any false record, instrument in writing, or 
 other matter or thing, with intent to produce it or allow it to be 
 produced in evidence, as genuine, upon any trial, hearing, investi- 
 gation, inquiry, or other proceeding, authorized by law, is guilty 
 of a felony. {Penal Code, § 109.) 
 
 Falsely certifying records, etc. An officer authorized by law to 
 record a conveyance of real property, or of any other instrument, 
 which by law may be recorded, who knowingly and falsely certi- 
 fies that such a conveyance or instrument has been recorded, is 
 guilty of a felony. {Penal Code, § 162.) 
 
 Falsifying tlie public accounts, by a public officer, is a felony. 
 {Penal Code, § 470.) 
 
 Falsely personating another. A person who falsely personates 
 another, and, in such assumed character, 
 
 1. Marries or pretends to marry, or to sustain the marriage 
 relation towards another, with or without the connivance of the 
 latter ; or, 
 
 2. Becomes bail or surety for a party in an action or special 
 proceeding, civil or criminal, before a court or officer authorized 
 to take such bail or surety ; or, 
 
 3. Confesses a judgment ; or, 
 
 4. Subscribes, verifies, publishes, acknowledges, or proves a 
 written instrument, which by law may be recorded, with intent 
 that the same may be delivered or used as true ; or, 
 
 5. Does any other act, in the course of any action or proceed- 
 ing, whereby, if it were done by the person falsely personated, 
 such person might in any event become liable to an action or 
 special proceeding, civil or criminal, or to pay a sum of money, 
 or to incur a charge, forfeiture, or penalty, or whereby any benefit 
 might accrue to the offender, or to another person ; 
 
 Is punishable by imprisonment in a State prison for not more 
 than ten years. {Penal Code, § 562.) 
 
 Obtaining negotiable evidence of debt by false pretences. If 
 the false token by which money or property is obtained in viola. 
 tion of sections five hundred and sixty-six and five hundred and 
 
CRIMES PUNISHABLE BY IMPEISONMENT. 591 
 
 sixty-seven, is a pi-omissory note or other negotiable evidence of 
 debt purporting to be issued by or under the authority of any 
 banking company or corporation not in existence, the person 
 guilty of such cheat is punishable by imprisonment in a State 
 prison not exceeding seven years, instead of by the punishment 
 prescribed by those sections. {Peiial Code, § 568.) 
 
 False or forged instruments offering to ie filed or recorded. 
 A person who knowingly procures or offers any false or forged 
 instrument to be filed, registered or recorded in any public office 
 within this State, which instrument, if genuine, might be filed, 
 or registered, or recorded under any law of this State or of the 
 United States, is guilty of felony. {Penal Code, § 95.) 
 
 Felonies, punishment of, when not fixed hy statute. A person 
 ■convicted of a crime declared to be a felony, for which no other 
 punishment is specially prescribed by this Code, or by any other 
 statutory provision in force at the time of the conviction and 
 sentence, is punishable by imprisonment for not more than seven 
 years, or by a fine of not more than one thousand dollars, or by 
 both. {Penal Code, § 14.) 
 
 Among the crimes denominated felonies are the rescue of a 
 prisoner held under a charge and conviction of felony {Id., § 82), 
 the aiding such a prisoner to escape from a prison {Id., § 87), or 
 from a sheriff or officer {Id., § 88), or the concealing of such 
 an escaped prisoner {Id., § 91), or the allowing by an officer of 
 such a prisoner to escape. {Id., § 89.) 
 
 A prisoner confined under a charge of felony escaping from an 
 oflicer {Id., § 85), or attempting to escape from a State prison, is 
 guilty of felony. {Id., § 86.) The abettor of an attempt at 
 ■suicide {Id., § 176), the seller of drugs, medicine or instruments 
 for the miscarriage of a woman {Id., § 297), the carrier of con- 
 cealed weapons {Id., § 410), is guilty of a felony. 
 
 It is a felony to place any explosives under, against or near any 
 building, car, vessel or structure, with intent to destroy the same 
 in such a way that human life or safety would be endangered 
 {Id., § 645), or to wilfully break, injure or destroy any house of 
 religious worship or the appurtenance thereof. {Id., § 650.) 
 
 Presenting false bills or claims to a public ofiicer with intent 
 to defraud is a felony. {Id., § 672.) 
 
 Forgery in first degree defined. A person is guilty of forgery 
 in the first degree who with intent to defraud forges. 
 
592 NEW YORK JUSTICE. 
 
 1. A will or codicil of real or personal property, or the attesta- 
 tion thereof, or a deed or other instrument, being, or purporting 
 to be, the act of another, by which any right or interest in prop- 
 erty is, or purports to be, transferred, conveyed, or in any way 
 charged or affected ; or, 
 
 2. A certificate of the acknowledgment or proof of a will, 
 codicil, deed, or other instrument, which by law may be recorded 
 or given in evidence when duly proved or acknowledged, made, 
 or purporting to have been made, by a court or officer duly 
 authorized to make such a certificate ; or, 
 
 3. A certificate, bond, paper writing, or other public security, 
 issued, or purporting to have been issued, by or under the author- 
 ity of this State, or of the United States, or of any other State or 
 territory of the United States, or of any foreign government, 
 country or State, or by any officer thereof in his official capacity, 
 by which the payment of money is promised absolutely, or upon 
 any contingency, or the receipt of any money or property is 
 acknowledged, or being, or purporting to be, evidence of any debt 
 or liability, either absolute or contingent, issued, or purporting to 
 have been issued, by lawful authority ; or, 
 
 4. An indorsement or other instrument transferring, or pur- 
 porting to transfer, the right or interest of any holder of such a 
 certificate, obligation, public security, evidence of debt or liability, 
 or of any person entitled to such right or interest ; or, 
 
 5. A certificate of stock, bond or other writing, bank note, bill 
 of exchange, draft, check, certificate of deposit, or other obliga- 
 tion or evidence of debt, issued, or purporting to be issued, by 
 any bank, banking association or body corporate existing uHder 
 the laws of this State, or of the United States, or of any other 
 State, government or country, declaring, or purporting to declare, 
 any right, title or interest of any person in any portion of the 
 capital stock, or property of such a body corporate, or promising, 
 or purporting to promise, or agree to the payment of money, or 
 the performance of any act, duty or obUgation ; or, 
 
 6. An indorsement or other writing transferring, or purporting 
 to transfer the right or interest of any holder of such a certificate, 
 bond, or writing obligatory, or of any person entitled to such 
 right or interest. {Penal Code, § 509.) 
 
 Forgery ; false certificate to certain instruments. An officer 
 autliorized to take the proof or acknowledgment of an instrument 
 
CRIMES PtJNISnABLE BY IMPRISONMENT. 593 
 
 which by law may be recorded, who ■willfully certifies falsely 
 that the execution of such an instrument was acknowledged by 
 any party thereto, or that the execution of auy such instrument 
 was proved, is guilty of forgery in the first degree. (Penal 
 Code, § 510.) 
 
 Forgery vn second degree. A person is guilty of forgery in the 
 second degree who, with intent to defraud, 
 
 1. Forges the great or privy seal of this State, the seal of any 
 court of record, or of any public office or officer authorized by 
 law, or of any body corporate created by or existing under the 
 laws of this State, or of the United States, or of any other State 
 or any territory of the United States, or of any other state govern- 
 ment or country, or any impression of such a seal; or any gold 
 or silver coin, whether of the United States or of any foreign 
 state, government or country ; or, 
 
 2. Forges a record of a will, conveyance, or instrument of any 
 kind, the record of which is by the law of this State made evi- 
 dence, or of any judgment, order, or decree of any court or officer, 
 or a certified or authenticated copy thereof ; or, 
 
 A judgment roll, judgment, order, or decree of any court or 
 officer, or an enrollment thereof, or a certified or authenticated 
 copy thereof, or any document or writing purporting to be such 
 judgment, order, decree, enrollment, or copy ; or. 
 
 An entry made in any book of record or accounts, kept by or 
 in the office of any officer of this State, or of any village, city, 
 town, or county of the State, by which any demand, claim, obli- 
 gation, or interest, in favor of or against the people of the State, 
 or any city, village, town or county, or any officer thereof, is or 
 purports ^ be created, increased, diminished, discharged, or in 
 any manner affected ; or an entry made in any book of records 
 or accounts kept by a corporation doing business within the State, 
 or in any account kept by such a corporation, whereby any 
 pecuniary obligation, claim, or credit is or purports to be created, 
 increased, diminished, discharged, or in any manner affected ; or. 
 
 An instrument, document, or writing, being or purporting to 
 be, a process or mandate issued by a competent court, magistrate, 
 or officer of the state, or the return of an officer, court or tribunal, 
 to such a process or mandate ; or a bond, recognizance, undertak- 
 ing, pleading, or proceeding, filed or entered in any court of the 
 state, or a certificate, order or allowance by a competent court, 
 38 
 
694 NEW TOEK JUSTICE. 
 
 or oflScer, or a license or authority granted pursuant to any statute 
 of the state, or a certificate, document, instrument or writing, 
 made evidence by any law or statute ; or, 
 
 An instrument or writing, being or purporting to be the act of 
 another, by which a pecuniary demand or obligation is or pur- 
 ports to be or to have been created, increased, discharged, or 
 diminished, or in any manner affected, or by which any rights or 
 property whatever are or purport to be or to have been created, 
 transferred, conveyed, discharged, increased, or diminished, or in 
 any manner affected, the punishment for forging, altering, or 
 counterfeiting which is not hereinbefore prescribed, by which 
 faJsc making, forging, altering, or counterfeiting, any person 
 may be bound, affected or in any way injured in his person or 
 property ; or, 
 
 3. Makes or engraves a plate in the form or similitude of a 
 promissory note, hill of exchange, bank note, draft, cheque, cer- 
 tificate of deposit, or other evidence of debt, issued by a banker, 
 or by any banking corporation or association, incorporated or 
 carrying on business under the laws of the state, or of the United 
 States, or of any other state or territory of the United States, or 
 of any foreign government, or country, without the authority of 
 such banker, or banking corporation or association ; or, 
 
 Without like authority, has in his possession or custody such a 
 plate, with intent to use, or permit the same to be used, for the 
 purpose of taking therefrom any impression to be uttered ; or, 
 
 Without like authority, has in his possession or custody any 
 impression taken from such a plate, with intent to have the same 
 filled up and completed for the purpose of being uttered ; or, 
 
 Makes or engraves, or causes to be made or engraved, upon any 
 plate, any figures or words, with intent that the same may be used 
 for the purpose of falsely altering any evidence of debt hereinbe- 
 fore mentioned. {Penal Code, § 511.) 
 
 Other cases of forgery in second degree. An instrument partly 
 written and partly printed, or wholly printed with a written 
 signature thereto, and any signature or writing purporting to be 
 a signature of, or intended to bind an individual, a partnership, a 
 corporation or association or an officer thereof, is a written instru- 
 ment or a writing, within the provisions of this chapter. {Penal 
 Code,%t,\Z.) 
 
 Uttering, etc., forged instruments, etc., is forgery. A person 
 
CRIMES PUJ^ISHABLE BY IMPRISOJSTMENT. 695 
 
 who, kno-wing tlie same to be forged or altered, and with intent 
 to defraud, utters, offers, disposes of or puts off as true, or has in 
 his possession, with intent so to utter, offer, dispose of, or put off, 
 either, 
 
 1. A forged seal or plate, or any impression of either ; or, 
 
 2. A forged coin ; or, 
 
 3. A forged will, deed, certificate, indorsement, record, instru- 
 ment or writing, or other thing, the false making, forging, or 
 altering of which is punishable as forgery ; 
 
 JLs guilty of forgery in the same degree as if he had forged the 
 same. {Penal Code, § 521.) 
 
 Forgery in first degree, how punished. Forgery in the first 
 degree is punishable by imprisonment for not less than ten years. 
 {Penal Code, § 523.) 
 
 Forgery in second degree. Forgery in the second degree is 
 punishable by imprisonment for not more than ten nor less than 
 ^ve years. {Penal Code, § 524.) 
 
 Heir, produotion of pretended. A person who fraudulently 
 produces an infant, falsely pretending it to have been born of a 
 parent wliose child is or would be entitled to inherit real prop- 
 erty, or to receive a share of personal property, with intent to 
 intercept the inheritance of such real property, or the distribution 
 of such personal property, or to defraud any person oat of the 
 same, or any interest therein ; or who, with intent fraudulently 
 to obtain any property, falsely represents himself or another to be 
 a person entitled to an interest or share in the estate of a deceased 
 person, either as executor, administrator, husband, wife, heir, 
 legatee, devisee, next of kin, or relative of such deceased person, 
 is punishable by imprisonment in a state prison for not more than 
 ten years. {Penal Code, § 151.) 
 
 Substituting one child for another. A person to whom a child 
 has been confided for nursing, education, or any other purpose, 
 who, with intent to deceive a parent, guardian or relative of the 
 child, substitutes or produces to such parent, guardian or relative, 
 another child or person, in place of the child so confided, is pun- 
 ishable by imprisonment in a state prison for not more than seven 
 years. {Penal Code, § 152.) 
 
 Incest. When persons, within the degrees of consanguinity, 
 within which marriages are declared by law to be incestuous and 
 void, intermarry or commit adultery or fornication with each 
 
596 NEW TORK JUSTICE. 
 
 other, each of them is punishable by imprisonment for not more 
 than ten years. {Penal Code, § 302.) 
 
 Onme against nature. A person who commits the detestable 
 and abominable crime against nature, with mankind or with a 
 beast, or attempts sexual intercourse with a dead body, is punish- 
 able by imprisonment for not less than five nor more than twenty 
 years. {Penal Gode, § 303.)^ 
 
 Kidnapping defined. A person who willfully, 
 
 1. Seizes, confines, inveigles or kidnaps another, with intent 
 to cause him, without authority of law, to be secretly confined 
 or imprisoned within this State, or to be sent out of the State, or 
 to be sold as a slave, or in any way held to service or kept or 
 detained against his will ; or, 
 
 2. Leads, takes, entices away, or detains a child under the age 
 of twelve years, with intent to keep or conceal it from its parent, 
 guardian, or other person having the lawful care or control 
 thereof, or to extort or obtain money or reward for the return or 
 disposition of the child, or with intent to steal any article about 
 or on the person of the child ; or, 
 
 3. Abducts, entices, or by force or fraud unlawfully takes, or 
 carries away another, at or from a place without the State, or pro- 
 cures, advises, aids or abets such an abduction, enticing, taking, 
 or carrying away, and afterwards sends, brings, has or keeps such 
 person, or causes him to be kept or secreted within this State, is 
 guilty of kidnapping, and is punishable by imprisonment for not 
 more than fifteen years. {Penal Code, § 211.) 
 
 Larceny defined. A person who, with the intent to deprive or 
 dtefraud the true owner of his property, or of the use and benefit 
 thereof, or to appropriate the same to the use of the taker, or of 
 any other person, either, 
 
 1. Takes from the possession of the true owner, or of any other 
 person ; or obtains from such possession by color or aid of fraud- 
 ulent or false representation or pretense, or of any false token or 
 writings ; or secretes, withholds, or appropriates to his own use, 
 or that of any person other than the true owner, any money, per- 
 sonal property, thing in action, evidence of debt or contract, or 
 article of value of any kind ; or, 
 
 2. Having in his possession, custody, or control, as a bailee, 
 servant, attorney, agent, clerk, trustee, or officer of any person, 
 association, or corporation, or as a public officer, or as a person 
 
CHIMES PUNISHABLE BY IMPRISONMENT 697 
 
 autliorized by agreement, or by competent authority, to hold or 
 take such possession, custody, or control, any money, property, 
 evidence of debt or contract, article of value of any nature, or 
 thing in action or possession, appropriates the same to his own 
 use, or that of any other person other than the true owner or 
 person entitled to the benefit thereof ; 
 
 Steals such property, and is guilty of larceny. {Penal Code, 
 §528.) _ _ 
 
 Obtaining money or property iy fraudulent draft. A person 
 "who willfully, with intent to defraud, by color or aid of a cheque 
 or draft, or order for the payment of money or the delivery of 
 property, when such person knows that the drawer or maker 
 thereof is not entitled to draw on the drawee for the sum specified 
 therein, or to order the payment of the amount, or delivery of 
 the property, although no express representation is made in refer- 
 ence thereto, obtains from another any money or property, is 
 guilty of stealing the same, and punishable accordingly. {Penal 
 Code, § 529.) 
 
 Grand larceny in first degree. A person is guilty of grand 
 larceny in the first degree, who steals, or unlawfully obtains or 
 appropriates, in any manner specified in this chapter, 
 
 1. Property of any value, by taking the same from the person 
 of another in the night-time ; or, 
 
 2. Property of the value of more than twenty-five dollars, by 
 taking the same in the night-time from any dwelling-house, 
 vessel, or railway car ; or, 
 
 3. Property of the value of more than five hundred dollars, in 
 any manner whatever. {Penal Code, § 530.) 
 
 Grand larceny in first degree, how punished. Grand larceny 
 in the first degree is punishable by imprisonment for not less than 
 five nor more than ten years. {Penal Code, § 533.) 
 
 Legislature, preventing the meeting or organization of eitfisr 
 house of. A person who willfully or by force or fraud prevents 
 the Legislature of this State, or either of the houses composing 
 it, or any of the members thereof, from meeting or organizing, is 
 punishable by imprisonment in a State prison not less than five 
 years nor more than ten years, or by a fine of not less than five 
 hundred dollars nor more than two thousand dollars, or by both. 
 {Penal Code, § 59.) 
 
 Legislature, compelling adjournment of. A person who will- 
 
59S NEW YORK JUSTICE. 
 
 fully and by force or fraud compels or attempts to compel the 
 legislature of this state, or either of the houses composing it, to 
 adjourn or disperse, is punishable by imprisonment in a state 
 prison not less than five nor more than ten years, or by fine of 
 not less than five hundred dollars, nor more than tv^o thousand 
 dollars, or by both. {Penal Code, § 61.) 
 
 Compelling eitlier house to perform or omit amy official act. 
 A person who willfully compels or attempts to compel either of 
 the houses composing the legislature of this state to pass, amend 
 or reject any bill, or resolution, or to grant or refuse any petition,. 
 or to perform or omit to perform any other official act, is punish- 
 able by imj)risonment in a state prison not less than five nor more 
 than ten years, or by a fine of not less than five hundred dollars, 
 nor more than two thousand dollars, or by both. {Penal 
 Code, § 63.) 
 
 Maiming defined; how punished. A person who willfully^ 
 with intent to commit a felony, or to injure, disfigure or disable, 
 inflicts upon the person of another an injury which, 
 
 1. Seriously disfigures his person by any mutilation thereof ; or, 
 
 2. Destroys or disables any member or organ of his body ; or, 
 
 3. Seriously diminishes his physical vigor by the injury of any 
 member or organ. 
 
 Is guilty of maiming, and is punishable by imprisonment for 
 not less than three, nor more than fifteen years. The infliction 
 of the injury is presumptive evidence of the intent. {Penal 
 Code, § 206.) 
 
 Maim/i/ng one^s self to escape performance of duty. A person 
 who, with design to disable himself from performing a legal 
 duty,, existing or anticipated, inflicts upon himself an injury 
 whereby he is so disabled, is guilty of a felony. (Penal Code, 
 §207.)_ 
 
 Maiming one^s self to obtain alms. A person who inflicts upon 
 himself an injury, such as if inflicted upon another would con- 
 stitute maiming, with intent to avail himself of such injury in 
 order to excite sympathy, or to obtain alms, or any charitable 
 relief, is guilty of a felony. {Penal Code, § 209.) 
 
 Manslaughter in thefi/rst degree. Homicide is manslaughter in 
 the first degree, when committed without a design to effect death, 
 either 
 
 1. By a person engaged in committing, or attempting to com- 
 
CRIMES PUNISHABLE BY IMPKISONMENT. 599 
 
 mit, a misdemeanor, affecting the person or property, either of 
 the person killed, or of another ; or, 
 
 2. In the heat of passion, but in a cruel and unusual manner 
 or by means of a dangerous weapon. {^Fenal Code, % 189.) 
 
 Killing m^horn quicTc child. The willful killing of an unborn 
 quick child, by an injury committed upon the person of the 
 mother of such child, is manslaughter in the first degree. {Penal 
 Code, § 190.) So, too, a person who in any way advises or assists 
 in the producing the miscarriage of a woman, unless the same is 
 necessary to preserve her life, in case of the death of the woman, 
 or of any child of which she is pregnant, is thereby produced, is 
 guilty of manslaughter in the first degree. {Id., § 191.) 
 
 A person who willfully advises, encourages or assists another 
 person in taking the latter's life, is guilty of manslaughter in the 
 first degree. {Id., § 175.) 
 
 Manslaughter in first degree, how punished. Manslaughter in 
 the first degree is punishable by imprisonment for not less than 
 five nor more than twenty years. {Penal Code, § 192.) 
 
 Manslaughter in second degree. Homicide is manslaughter in 
 the second degree, when committed without a design to effect 
 death, either 
 
 1. By a person committing or attempting to commit a trespass, 
 or other invasion of a private right, either of the person killed, 
 or of another, not amounting to a crime ; or, 
 
 2. In the heat of passion, but not by a deadly weapon or by 
 the use of means either cruel or unusual ; or, 
 
 3. By any act, procurement or culpable negligence of any per- 
 son, whicli, according to the pro^'isions of this chapter, does not 
 constitute the crime of murder in the first or second degree, nor 
 manslaughter in the first degree. {Penal Code, § 193.) 
 
 4. By a woman quick with child, who produces her own mis- 
 carriage, unless the same is necessary to preserve her own life, 
 provided the death of such child is thereby produced. {Id., § 194.) 
 
 5. When the death of a human being has been caused by an^' 
 act of negligence or misconduct in his business or employment, or 
 in the improper management of any machinery, animals or 
 property. {Id., % 195.) 
 
 6. Or by wilfully suffering a mischievous animal to go at large, 
 knowing its propensities. {Id., % 196.) 
 
 7. Or by overloading a passenger train. {Id., § 197.) 
 
600 NEW YORK JUSTICE. 
 
 8. Or by the improper management of a steamboat. {Id., § 198.) 
 
 9. Or by the improper management of a steam engine. {Id., 
 §199.) 
 
 10. Or by the improper keeping of gunpowder. {Id., § 201.) 
 
 11. Or by a physician, or person practicing as such, while in a 
 state of intoxication. {Id., § 200.) 
 
 Punishment of manslaughter in second degree. Manslaughter 
 in the second degree is punishable by imprisonment for not less 
 than one year, nor more than fifteen years, or by a fine of not 
 more than one thousand dollars, or by both. {Penal Code, § 202.) 
 
 Rape is punishable by imprisonment for not less than five nor 
 more than twenty years. {Penal Code, § 278.) 
 
 The following are punishable by imprisonment not exceeding 
 ten years : A person who in any manner sells or transfers for 
 any time, the services or labor of any person who has been forcibly 
 taken, inveigled, or kidnapped. {Id., § 214.) A person who 
 wrongfully claiming that he or another is entitled to the services of 
 another person, and attempts to remove with the other person 
 from the State. {Id., § 215.) A person who, by force, menace or 
 duress compels a woman against her will to marry. {Id., § 281.) 
 A person who wilfully mingles poison with any food, drink 
 or medicine intended for the nse of human beings, or shall poison 
 any spring, well or reservoir of water. {Id-, § 358.) A person 
 who takes away or attempts to take away from any fort, magazine, 
 etc., any arms or military stores belonging to the State. {Id., 
 § 484:.) An officer, agent or clerk of a corporation, or of persons 
 proposing to organize a corporation, or to increase its capital 
 stock, who knowingly exhibits a false, forged or altered book 
 paper, etc., to any public officer or board authorized by law to 
 examine the organization of such corporation. {Id., § 592.) A 
 person who places any obstruction upon a railway track, or injures 
 the same or its structure, or wilfully discharges a loaded firearm 
 or projects a stone or missile at a railway train or locomotive 
 whereby the safety of any person is endangered. {Id., § 635.) 
 A person who unlawfully and maliciously, by the explosion of 
 gunpowder or other explosive substance, destroys or damages any 
 building or vessel whereby the life or safety of a human being is 
 endangered. {Id., § 636.) A person who exhibits any false light 
 or signal, or wrongfully shows, alters or removes a light or signal 
 with intent to bring a vessel, railway engine or railway train into 
 
TO WHAT OFFICER. 601 
 
 danger. {Id., § 638.) A person who resists process after procla- 
 mation by the governor. {Id., § 123.) A sheriff, coroner, clerk 
 of a court, constable, or other ministerial officer or subordinate, 
 "who mutilates*or destro_ys any records or papers pertaining to the 
 office, or appropriates any money, evidence of debt or other 
 property intrusted to him. {Id,, § 114.) An officer, agent or 
 other person in the service of a joint-stock company or coi'poration 
 ■who sells, pledges, or signs or executes, with the intent to sell or 
 pledge any stock, certificate or bond of indebtedness of such com- 
 pany or corporation in excess of the power of such company or 
 corporation, is punishable by imprisonment not less than three 
 nor more than seven years. {Penal Code, § 591.) 
 
 Robbery in the Jvrst degree is punishable by imprisonment for 
 not less than ten years nor more than twenty years. {Penal 
 Code, § 231.) In the second degree, not less than five nor more 
 than fifteen. {Id., § 232.) In third degree, not more than ten 
 years. {Id., § 233.) 
 
 Fitting out a vessel with the intent to have the same wrecked? 
 is pimishable by imprisonment in State prison not exceeding ten 
 years. {Penal Code, % 576.) 
 
 The justice, upon ascertaining that he cannot take bail in the 
 case, or that the prisoner is unable to give bail, naturally inquires 
 to what officer he must commit the prisoner, and by what pro- 
 cess. These inquiries will be the subject of consideration in the 
 remaining portion of this chapter. 
 
 2. To WHAT OlTICBE. 
 
 The statute does not designate any particular prison or jail 
 to which the justice must commit the prisoner, but merely 
 requires that he must be committed to the sheriff of the county 
 of {or, in the city and countj^ of ISTew York, to the keeper 
 
 of the city prison of the city of JNew York). {Grim. Pro., 
 § 209.) The statute relative to county jails contains the follow- 
 ing provision : " The common jails in the several counties of 
 this State shall be kept by the sheriffs of the counties in which 
 they are respectively situated, and shall be used as prisons for, 
 among other things, the detention of persons charged with crimes, 
 and committed for trial." {Laws of 1847, chap. 460, § 1.) There 
 can be no doubt, then, that the prisoner is to be committed to the 
 common jail of the county. If the prisoner has been arrested 
 
602 NEW YORK JUSTICE. 
 
 upon an indorsed warrant, he must, unless bail be given in 
 some other county than the one from which the warrant originally 
 issued, be brought before the magistrate by whom the warrant 
 was issued. The magistrate indorsing the warrant, has, as we 
 have before seen {ante, p. 569), no power to commit or try the 
 offender, but can only, in certain cases, admit him to bail. (1 
 Chitty's Grim. Law, 108.) In half-shire counties, as the county 
 of Seneca, where there are two common jails, the officer should 
 commit the prisoner to the nearest jail. 
 
 3. The Mittimus ob Commitment. 
 
 Great care should be exercised by the Justice in drawing the 
 process for the commitment of the prisoner, or as it is familiarly 
 termed the tnittinvus. This mittimus is the warrant which 
 authorizes the jailer to receive and detain the prisoner in his 
 custody {Davis' Just., 104) ; and it is said, that though it need 
 not be drawn with the same precision as an indictment, yet it 
 ought to be framed with great accuracy, or the party may, 
 though prosecuted for a felony, be discharged out of custody, 
 or, if he escape, the officer may not be answerable. {Chitty's 
 Crim. Lam, 109.) If the warrant of commitment be defective, 
 the prisoner will not, however, be, for that reason, finally dis- 
 charged ; but, if a crime be made out by the depositions (which, 
 as we have seen, are to be returned to the Court at which the 
 witnesses are bound to appear), the course is to discharge the 
 prisoner pro forma, and then remand him upon a special order. 
 {Ex parte Taylor, 5 Cow., 39.) 
 
 The commitment must be in writing, and be signed by the 
 magistrate, and have apparent upon its face the time and place of 
 making it, and the official character of the magistrate. (1 Chitty's 
 Crim. Laui, 109; Barh. Crim. Law, 568; Davis' Justice, 106.) 
 A Justice may verbally order a party to be detained a reasonable 
 time, until he can prepare a mittimus. (2 Hale, 123.) 
 
 It is stated by Mr. Chitty that the mittimus may be made 
 either in the King's name, or in that of the Justice awarding it, 
 but the latter is the more usual. (1 Chitty's Crim. Laxo, 109.) 
 There seems no propriety or authority for issuing -a, mittimus in 
 the name of a Justice. He is simply the instrument of the 
 people of the State, elected by them to enforce the laws which 
 from time to time they enact, and whatever the Justice does in 
 
THE MITTIMUS OR COMMITMENT. 603 
 
 his official capacity ought to be done in their name. {Davi^ 
 Justice, 107.) Besides, the statute provides that all process shall 
 be in the name of the people of this State, except when other- 
 wise provided by law {Code Civil Pro., § 22) ; and though this has 
 reference to civil process only, the form prescribed by tlie Code 
 of (Jriminal Procedure (§ 214), directs that it issue in the name 
 of the People of the State of New York. 
 
 The mittimus should contain both the Christian nams and sur- 
 name of the prisoner, if they are known. If they are not known, 
 it will be sufficient to describe the person by his apparent age, 
 stature, complexion, color of the hair, etc., and to add tliat he 
 refuses to tell his name. (I Chittifs Crim. Law, 110; 1 Burns' 
 Justice, 276 ; Dams' Justice, 107.) 
 
 The mittimus ought to state that the party has been held to 
 answer. In other words, it must set forth a good cause for com- 
 mitment, be expressed with certainty, and appear to be supported 
 by oath. (3 Cranch, 448 ; People v. Rhoner, 4 Park. Cr., 166.) 
 There may be an exception to this rule in the case of a commit- 
 ment made by a magistrate immediately after seeing a crime 
 perpetrated, in which case an oath does not appear to be essen- 
 tially requisite. It is not necessary, however, that the evidence 
 of the charge made against the jDrisoner should be stated in the 
 commitment. {Bing v. Wilkes, 2 Wilson, 158.) 
 
 It is necessary, also, that the mittimus should set fortli clearly 
 the particular species of crime with which the prisoner is 
 charged. (1 Ckitty's Crim. Law, 110; Barl. Crim Law, 570; 
 1 Burns' Justice, 276 ; Davii Justice, 108.) Therefore, if the 
 commitment be for a felony, it ought not to be generallj' for a 
 felony, but it should express the special nature of the felony 
 briefly, as, " for a felony in causing the death of A. B.," or, 
 " for burglary in breaking into the house of A. B." The reason 
 is, that it may appear, on the return of a habeas corpus, wliether 
 it be a felony or not. {Ld.) If no cause be shown in the com- 
 mitment, and the prisoner escape, it is said the officer is not 
 answerable. (1 Chittifs Crim. Law, 111.) It is not necessary, 
 however, to allege in the mittimus that the ofEense was feloni- 
 ously committed ; it is sufficient if it appear upon its face that 
 the charge was one of felony. {Id., 113.) There is another 
 reason why the commitment should show the cause for which 
 the prisoner is committed. The statute requires the keeper of 
 
604 NEW YORK JUSTICE. 
 
 every county jail to present to every Court of Oyer and Termi- 
 ner, and to every Court of Sessions held in this county, at the 
 opening of such Court, a calendar stating the name of every 
 prisoner detained in such jail, the time when such pnsoner was 
 committed, and by virtue of wliat precept or process, and the 
 cause of detention of every such prisoner. {Laws of 1847, 
 chap. 460, § 25.) The keeper of the prison can only ascertain 
 these particulars from the mittimus, which should, for that if for 
 no other reason, be so precisely drawn that the keeper may make 
 out and return his calendar in compliance with the require- 
 ments of the statute. {Davis' Justice, 109.) There can be no 
 objection to incorporating in the mittimus the body of the com- 
 plaint, as originally preferred by the complainant, if the charge 
 has been made out by the evidence. Where the offense is created 
 by statute, the justice should pursue the terms of the statute in 
 describing it. [Barb. C'rim. Law, 571.) 
 
 The mittimus should point out the sheriff of the county to 
 whom the prisoner is to be committed, as has been before 
 remarked. (Ante, j>. 602.) Where the nearest jail (if there are 
 two in the same county), is not sufficiently secure, the prisoner 
 should be sent to the more distant one ; but of that sufficiency 
 the officer conveying the prisoner should be the judge, and not 
 the magistrate. If the county jail is unsafe, it is the duty of the 
 board of supervisors to acquire some other place for the confine- 
 ment of prisoners {Laws of 1881, chap. 570); and in such case 
 the officer is to commit the prisoner to the place so designated. 
 
 The magistrate should notice the distinction in the termination 
 of the order for the commitment and i\\e termination of the com- 
 mitment, which is delivered to the sheriff or peace officer with 
 the prisoner. On the order for commitment, the final words are, 
 "And that he be committed to the sheriff of the county of , 
 
 or (in New York city), to the keeper of the city prison of the 
 city of New York ; " while, in the mittimus or commitment, the 
 final words are, "You are commanded to receive him into your 
 custody and detain him until he be legally discharged." 
 
 The forms heretofore given for complaints will answer to 
 guide the Justice in describing the offense in the mdttimus. 
 
 The Tnittimus should state at its commencement the juris- 
 diction of the Justice, and be directed to the sheriff of the county 
 named in the mittimus, and not to the keeper of the particular 
 
THE MITTIMUS. 605 
 
 jail to which the prisoner is to be committed, and should com- 
 mand the sheriff to receive the prisoner into his custody and 
 detain him until he be legally discharged. 
 
 For the old forms of mittimus or commitment, see 1 Chitty's 
 Crim. Laio, 110, 116 ; Barh. Grim. Law, 573 ; 1 Burns' Justice, 
 276 ; Davis' Justice, 107, 114. 
 
 If the officer to whom the mittimus is directed, wilfully or 
 corruptly refuses to execute it, or wilfully or corruptly executes 
 it in such a manner that the prisoner escapes, or receives any 
 gratuity, reward, security or engagement for the same, from the 
 prisoner, to procure, assist, connive at or permit the escape of 
 such prisoner, he is liable, upon conviction, to be punished by 
 imprisonment in the county jail, not exceeding one year, or by 
 fine, not exceeding five hundred dollars, or both. {Penal Code, 
 §§115 andXh.) 
 
 The keeper of the jail must receive and safely keep the pris- 
 oner, and must not, without lawful authority, let him out oi 
 prison on bail, or otherwise. {Laws of 1847, chap. 460, § 3.) 
 He must be kept in a room separate and distinct from the room 
 in which persons convicted are coniined. {Id., § 4.) While he 
 is so detained in jail he may converse with counsel, and with 
 such other persons as the keeper, in his discretion, may allow. 
 {Ld., § 7.) If the keeper, in violation of a duty imposed upon 
 him by law to receive a person into his official custody, or into a 
 prison under his charge, wilfully neglects or refuses so to do, he 
 is guilty of a misdemeanor. {Penal Code, § 116.) If the keeper 
 of the jail will not receive the prisoner, it is said he may be kept 
 in the house of the person who arrested him. (1 Chitty's Crim. 
 Law, 117.) Tlie officer to whose custody he was committed on 
 the mittimus may, in such case, keep him until the jailer can be 
 induced or compelled to receive him. {Davis'' Justice, 115.) 
 If the jailer should receive, by mistake, from the constable, a 
 person whom it was not intended to confine, he is protected from 
 liability. (1 Chitty's Crim. Law, 117.) 
 
 The constable must deliver the warrant of commitment to the 
 jailer at the time of delivering the prisoner, for it is the jailer's 
 authority for keeping him, and is the only return the jailer can 
 make to a writ of habeas corpus, if one should be sued out. It is 
 prudent for the constable to keep a copy of the warrant, and to take 
 a receipt for the prisoner from the jailer. ( Barb Crim. Law, 573 .^ 
 
606 NEW YORK JUSTICE. 
 
 If a Justice, acting within the scope of his jurisdiction, takes 
 au erroneous view of the effect of tlie evidence, and comes to a 
 wrong conclusion, and commits the defendant, and the latter is 
 afterwards discharged on habeas corpus, the Justice is not liable 
 to an action of trespass. (1 ChiUy''s Grim. Law, 116 ; 14 East, 
 82 ; Clark v. Holdridge, 40 IIow., 320 ; S. C, 58 Barh., 61.) 
 
 If the prisoner is advised that his commitment is illegal, or 
 that he is entitled to be discharged or bailed, he has liis remedy- 
 by habeas corpus or certiorari. It is not, however, within the 
 ecope of this work to consider proceedings beyond the jurisdiction 
 of Justices of the Peace. 
 
 A prisoner may also be discharged upon giving bail. Thus, if 
 he is not ready with bail at the time he is apprehended or exam- 
 ined, he may at any time be released from imprisonment on 
 finding sureties. [JBarb. Vrim. Law, 575.) 
 
 The fee allowed to a constable for taking a defendant into 
 custody on a mittimus is twenty-five cents for conveying him to 
 jail, ten cents for every mile, going and returning. {Laws of 
 1877, chap. 89.) A sheriff is entitled to the same fees for like 
 services, and to thirty-seven and a-half cents as keeper of the 
 jail, for receiving the prisoner. (2 R. S., 752.) These fees are 
 to be audited by the board of supervisors, and paid in the same 
 manner as other county charges. {Id.) 
 
 § 122. Warrant of Commitment. 
 " County of Albany \or, as the ease may he.] 
 " In the name of the People of the State of 'New York : 
 " To the sheriff of the county of Albany " [or, in the city and 
 county of New York, "to the keeper of the city prison of the 
 city and county of New York"]. 
 
 "An order having this day been made by me that A. B. be 
 held to answer to the court of , upon a charge of 
 
 [stating briefly t/te 7iature of the crime], you are commanded to 
 receive him into your custody, and detain him until he be legally 
 discharged. 
 
 " Dated at the City of Albany [or, as the case may be], this 
 day of , 18 . 
 
 " C. D., Justice of the Peace." 
 [or, as the case may be.] 
 
 Before issuing the commitment the magistrate must observe 
 the directions of the following statute : 
 
 If, however, it appear from the examination that a crime has 
 
THE MITTIMUS. 607 
 
 been committed, and that there is sufficient cause to beheve 
 the defendant guilty thereof, the magistrate must, in like maimer, 
 indorse on the depositions and statement an order, signed by 
 him, to the following effect : " It appearing to me by the within 
 depositions [and statement, if any] that the crime therein men- 
 tioned [or any other crime according to the fact, stating generally 
 the nature thereof] has been committed, and that there is suffi- 
 ■cient cause to believe the within named guilty thereof, 1 order 
 that he be held to answer tlie same." {Crim. /'ro., § 208.) 
 
 If the crime be not bailable, the following words, or words to 
 the same effect, must be added to the indorsement : "And that 
 he be committed to the sheriff of the county of ," [or 
 
 in the city and county of New York, " to the keeper of the city 
 prison of the city of New York "]. {Id., § 209.) 
 
608 NEW YORK JUSTICE. 
 
 CHAPTER YII. 
 
 OF BAIL AND ITS INCIDENTS. 
 
 If the offense with which the prisoner is charged is bailable by 
 a Justice of the Peace, and the prisoner offers sufficient bail, 
 such bail may be taken and the prisoner discharged. {Crim. 
 Pro., § 210.) If the prisoner is admitted to bail the Justice 
 must add to his order on the depositions the words, " and 1 have 
 admitted him to bail to answer, by the undertaking hereto 
 annexed." (ld>) 
 
 1. "What Offenses ake Bailable by a JtrsTiOB. 
 The first question which arises is, what offenses are bailable 
 by a J ustice of the Peace. The statute provides that oflScers before 
 whom persons charged with crime shall be brought, shall have 
 power to let to bail as follows : 
 
 1. The Judges of the Supreme Court. 
 
 2. The Judges of any City Court. 
 
 3. Tlie County Judges and Special County Judges. 
 
 4. The City Judge of the city of New York and the Judge of 
 the Court of G-eneral Sessions in the city and county of New York. 
 
 5. The Justices of the Peace. 
 
 6. The Police and other special Justices appointed or elected 
 in a city, village or town. 
 
 7. The Mayors and Eecorders of cities. {Crim. Pro., §§ 557 
 and 147.) 
 
 If, therefore, the crime charged is a felony not punishable by 
 imprisonment in the State prison exceeding five years, the 
 Justice, if sufficient bail be offered, is authorized to take it and 
 discharge the prisoner. If the crime is a felony punishable by 
 imprisonment in the State prison exceeding five years, then the 
 Justice, as we have seen, has no discretion ; he must commit the 
 prisoner. It becomes necessary, therefore, to ascertain the 
 various crimes designated as felonies, in which the punishment 
 cannot exceed five yeai-s' imprisonment in the State prison. 
 This includes the following offenses : 
 
"WHAT OFFEJTSES ABE BAILABLE BY A JUSTICE. 609 
 
 Abduction. A person who, 
 
 1. Takes a female under the age of sixteen years, without the 
 consent of her father, mother, guardian or other person having 
 legal charge of her person, for the purpose of marriage, 
 prostitution or sexual intercourse ; or, 
 
 2. Inveigles or entices an unmarried female under the age of 
 twenty-five years, of previous chaste character, into a house of 
 ill-fame or of assignation, or elsewhere, for the purpose of 
 prostitution or sexual intercourse ; or, 
 
 3. Takes or detains a woman unlawfully against her will, with 
 the intent to compel her, by force, menace, or duress, to marry 
 him, or to marry any other person, or to be defiled ; 
 
 Is guilty of abduction, and punishable by imprisonment for 
 not more than five years, or by a fine of not more than one 
 thousand dollars, or by both. {Penal Code, § 282.) 
 
 Abortion defined. A person who, with intent thereby to pro- 
 cure the miscarriage of a woman, unless the same is necessary to 
 preserve the life of the woman, or of the child of which she is 
 pregnant, either 
 
 1. Prescribes, supplies, or administers to a woman, whether 
 pregnant or not, or advises or causes a woman to take any 
 medicine, drug, or substance ; or, 
 
 2. Uses, or causes to be used, any instrument or other means ; 
 Is guilty of abortion, and is punishable by imprisonment in a 
 
 State prison for not more than four years, or in a county jail for 
 not more than one year. {Penal Code, § 294.) 
 
 A pregnant woman attempting abortion, unless to preserve her 
 own life or that of the child, is punishable with imprisonment 
 for not less than one year nor more than five years. {Penal Code, 
 § 295.) 
 
 Assault in second degree. A person who, under circumstances 
 not amounting to assault in first degree, 
 
 1. With intent to injure, unlawfully administers to, or causes 
 to be administered to, or taken by another, poison, or any other 
 destructive or noxious thing, or any drug or medicine, the use of 
 which is dangerous to life or health ; or, 
 
 2. With intent thereby to enable or assist himself or anj' other 
 person to commit any crime, administers to, or causes to be 
 administered to, or taken by another, chloroform, ether, laudanum, 
 or any other intoxicating narcotic or anesthetic agent ; or, 
 
 39 
 
GIO NEW YORK JUSTICE. 
 
 3. Wilfully and wrongfully wounds or inflicts grievous bodily 
 harm upon another, either with or without a weapon ; or, 
 
 4. Wilfully and wrongfully assaults another by the use of a 
 weapon, or other instrument or thing likely to produce grievous 
 bodily harm ; or, 
 
 5. Assaults another with intent to commit a felony, or to pre- 
 vent or resist the execution of any lawful process or mandate of 
 any court or officer, or thcs lawful apprehension or detention 
 of himself or of any other person ; 
 
 Is guilty of an assault in the second degree. {Penal Code, 
 % 218.) 
 
 Assault in second degree. Assault in the second degree is pun- 
 ishable by imprisonment in a penitentiary or State prison for not 
 less than two nor more than five years, or by a fine of not more 
 than one thousand dollars, or both. {Penal Code, § 221.) 
 
 False auditing and paying claims. A public officer, or a per- 
 son holding or discharging the duties of any office or place of 
 trust under the State, or in any county, town, city or village, a 
 part of whose duties it is to audit, allow or pay, or take part in 
 auditing, allowing or paying claims or demands upon the State, 
 or such county, town, city or village, who knowingly audits, 
 allows or pays, or directly or indirectly consents to, or in any way 
 connives at the auditing, allowance or payment of any claim or 
 demand against the State, or such county, town, city or village, 
 which is false or fraudulent, or contains charges, items or claims 
 which are false or fraudulent, is guilty of felony, punishable by 
 imprisonment for not less than two nor more than five years, or 
 by a fine not exceeding five thousand dollars, or both. {Penal 
 Code, § 165.) 
 
 False auditing and paying claims. A person who, being or 
 acting as a public officer or otherwise, by wilfully auditing or 
 paying, or consenting to, or conniving at the auditing or payment 
 of a false or fraudulent claim or demand, or by any other means, 
 wrongfully obtains, receives, converts, disposes of or pays out or 
 aids, or abets another in obtaining, receiving, converting, dispos 
 ing of, or paying out any money or property, held, owned, or in 
 the possession of the State, or of any city, county or village, oi 
 other public corporation, or any board, department, agency, 
 trustee, agent or officer thereof, is guilty of a felony, punishable 
 by imprisonment for not less than three nor more than five years, 
 
WHAT OFFENSES ARE BAILABLE BY A JUSTICE. 611 
 
 or by a fine not exceeding five times the amount or value of the 
 money or the property converted, paid out, lost or disposed of by 
 means of the act done or abetted by such person, or by both such 
 imprisonment and fine. The amount of any such fine when paid 
 or collected, shall be paid to the treasury of the corporation or 
 body injured. A conviction under this section forfeits any oiBce 
 held by the offender, and renders him incapable thereafter of 
 holding any office or place of trust. {Penal Code, § 166.) 
 
 Bigamy defined ; how punished. A person who, having a hus- 
 band or wife living, marries another person, is guilty of bigamy, 
 and is punishable by imprisonment in a penitentiary or State 
 prison for not more than five years. {Penal Code, % 298.) 
 
 Bigamy — exceptions. The last section does not extend 
 
 1. To a person whose former husband or wife has been absent 
 for five years successively then last past, without being known to 
 him or her within that time to be living, and believed by him or 
 her to be dead ; or, 
 
 2. To a person whose former marriage has been pronounced 
 void or annulled, or dissolved by the judgment of a court of 
 competent jurisdiction, for a cause other than his or her adul- 
 tery ; or, 
 
 3. To a person who, being divorced for his or her adultery, has 
 received from the court which pronounced the divorce permission 
 to marry again ; or, 
 
 4. To a person whose former husband or wife has been sen- 
 tenced to imprisonment for life. {Penal Code, § 299.) 
 
 The bigamous consort who knowingly enters into such marriage 
 is. punishable by imprisonment for not more than five years. 
 {Penal Code, § 301.) 
 
 Delivering false hill of lading to canal collector. A person 
 whose duty it is to deliver to any collector of tolls upon any of 
 the canals belonging to this State, a bill of lading of any property 
 transported upon such canal, who delivers a false bill of lading as 
 true, or makes or signs a false bill of lading, intending it to be 
 delivered as true, knowing such bill to be false, is punishable by 
 imprisonment in a State prison not exceeding two years, or by a 
 fine not exceeding three times the value of the property omitted 
 in such bill, or both. {Penal Code, § 476.) 
 
 Blackmail. A person who, knowing the contents thereof, and 
 with intent, by means thereof, to extort or gain any money or 
 
612 NEW YORK JU8TICB. 
 
 other property, or to do, abet, or procure any illegal or wrongtul 
 act, sends, delivers, or in any manner causes to be forwarded or 
 received, or makes and parts with for the pm-pose that there may 
 be sent or delivered, any letter or writing threatening, 
 
 1. To accuse any person of a crime ; or, 
 
 2. To do any injury to any person or to any property ; or, 
 
 3. To publish or connive at publishing any libel ; or, 
 
 i. To expose or impute to any person any deformity or 
 disgrace ; 
 
 Is punishable by imprisonment for not more than five years. 
 {Penal Code, § 558.) 
 
 £ody stealing. A person who removes the dead body of a 
 human being, or any part thereof, from a grave, vault, or other 
 place where the same has been buried, or from a place where the 
 same has been deposited while awaiting burial, without authority 
 of law, with intent to sell the same, or for the purpose of dissec- 
 tion, or for the purpose of procuring a reward for the return of 
 the same, or from malice or wantonness, is punishable by impris- 
 onment for not more than five years, or by a fine not exceeding 
 one thousand dollars, or both. {Penal Code, § 311.) 
 
 Receiving stolen body. A person who purchases or receives, 
 except for the purpose of burial, the dead body of a human being, 
 or any part thereof, knowing that the same has been removed con- 
 trary to the last section, is punishable by imprisonment for not 
 more than three years. {Penal Code, § 312.) 
 
 Opening grave. A person who opens a grave or other place of 
 interment, temporary or otherwise, or a building wherein the 
 dead body of a human being is deposited while awaiting burial 
 without authority of law, with intent to remove the body, or any 
 part tl'o.reof, for the purpose of selling it or demanding money 
 for thj* me, or for the purpose of dissection, or from malice or 
 wantonness, or with intent to steal or remove the coffin or any 
 part thereof, or anything attached thereto, or any vestment or 
 other article interred, or intended to be interred with the dead 
 body, is punishable by imprisonment for not more than two years, 
 or by a fine of not more than two hundred and fifty dollars, or by 
 both. {Penal Code, § 313.) 
 
 Burglary in third degree. A person, who either, 
 
 1. With intent to commit a crime therein, breaks and enters a 
 building, or a room, or any part of a bailding ; or, 
 
WHAT OFFENSES AKE BAILABLE BT A JUSTICE. 613 
 
 2. Being in any building, conamits a crime therein, and breaks 
 out of the same ; 
 
 Is guilty of burglary in the third degree {Penal Code, § 498), 
 and is punishable by imprisonment for not more than five years, 
 nor less than one ytar. (/c?., § 507.) 
 
 Compounding crimes. A person who takes money or other 
 property, gratuity or reward, or an engagement or promise 
 therefor, upon an agreement or understanding, express or implied, 
 to compound or conceal a crime, or a violation of statute, or to 
 abstain from, discontinue or delay a prosecution therefor, or 
 to withhold any evidence thereof, except in a case where a com- 
 promise is allowed by law, is guilty 
 
 1. Of a felony, punishable by imprisonment in a State prison 
 for not more than five years, where the agreement or understand- 
 ing relates to a felony punishable by death, or by imprisonment 
 in a State prison for life ; 
 
 2. Of a felony, punishable by imprisonment in a State prison 
 for not more than three years, where the agreement or 
 understanding relates to another felony. {Penal Code, § 
 125.) 
 
 County treasurer. A county treasurer who wilfully misappropri- 
 ates any moneys, funds or securities received by or deposited with 
 him as such treasurer, or who is guilty of any other malfeasance 
 or wilful neglect of duty in his ofiice, is punishable by a fine 
 not less than five hundred dollars, nor more than ten thousand 
 dollars, or by imprisonment in a State prison not less than one 
 year, nor more than five years, or by both such fine and 
 imprisonment. {Penal Code, § 472.) 
 
 Falsifying the public accounts under such circumstances as do 
 not amount to a felony, is punishable by imprisonment not 
 exceeding two years. {Penal Code, § 471.) 
 
 Destroying or delay of election returns. A messenger appointed 
 by authority of law to receive and carry a report, certificate or 
 certified copy of any statement relating to the result of any 
 election, who wilfully mutilates, tears, defaces, obliterates or 
 destroys the same, or does any other act which prevents the 
 delivery of it as required by law; and a person who takes away 
 from such messenger any such report, certificate or certified copy, 
 with intent to prevent its delivery, or who wilfully does any 
 injury or other act in this section specified, is punishable by 
 
614 
 
 NEW YORK JUSTICE. 
 
 imprisonment in a State prison not exceeding five years, and not 
 less than two years. {Penal Code, § 649.) 
 
 False rumors as to puUic funds, etc. A person who, with 
 intent to affect the market price of the public funds of this State, 
 or of the United States, or of any State or territory thereof, or of 
 a foreign country or government, or of the stocks, bonds, oi 
 other evidences of debt of a corporation or association, or the 
 jnarket price of gold or silver coin or bullion, or any merchandise 
 or commodity whatever, 
 
 1. Without lawful authority, falsely signs the name of an 
 officer of a corporation, or of any other person to a letter,, 
 message, or other paper; or, 
 
 2. Utters or circulates such a letter, message or paper, knowing 
 that the same has been so falsely signed ; or, 
 
 3. Knowingly circulates any false statement, rumor, or 
 intelligence ; 
 
 Is punishable by a fine of not more than five thousand dol- 
 lars, or by imprisonment for not more than three years, or both. 
 {Penal Code, § 435.) 
 
 Palse pretenses, obtaining/ property iy. A person who, with intent 
 to cheat or defraud another, designedly, by color or aid of a false 
 token or writing, or other false pretense, obtains the signature of 
 any person to a written instrument, is punishable by imprison- 
 ment in a State prison for not more than three years, or in a 
 county jail for not more than one year, or by a fine of not more 
 than three times the value of the money or property affected or 
 obtained thereby, or by both such fine and imprisonment. (Penal 
 Code, § 566.) 
 
 Obtaining property for chariidble purposes. A person who, 
 wilfully, by color or aid of any false token or writing, or other 
 false pretense, obtains the signature of any person to any written 
 instrument, or any money or property, for any alleged or pretended 
 charitable or benevolent purpose, is punishable by imprisonment 
 for not less than one nor more than three years, or by a fine to 
 an amount not exceeding the value of the money or property 
 obtained, or by both. {Penal Code, § 56Y.) 
 
 Forgery in third degree. A person who, with intent to defraud 
 or to conceal any larceny or misappropriation by any person of 
 any money or property, either, 
 
 1. Alters, erases, obliterates, or destroys an account, book of 
 
WHAT OFFENSES ARE BAILABLE BY A JUSTICE. 615 
 
 accounts, record, or writing, belonging to, or appertaining to the 
 business of, a corporation, association, public office or officer, part- 
 nership, or individual ; or, 
 
 2. Makes a false entry in any such account or book of 
 Kcconnts ; or, 
 
 3. Wilfully omits to make true entry of any material particu- 
 lar in a'l}' such account or book of accounts, made, written, or 
 kept by him or under his direction ; 
 
 Is guilty of forgery in the third degree. {Penal Code, § 515.) 
 
 Forging United States stamps. A person who forges, counter- 
 feits or alters any postage or revenue stamp of the United States, 
 or who sells, or offers, or keeps for sale, as genuine or as forged, 
 any such stamp, knowing it to be forged, counterfeited or falsely 
 altered, is guilty of forgery in the third degree. {Penal 
 Code, % 517.) 
 
 Forging passage tickets. A person who, with intent to defraud, 
 forges, counterfeits or alters any ticket or paper purporting tc 
 entitle the holder to a passage upon any railway, vessel or other 
 public conveyance, or sells or offers to sell the same, knowing the 
 same to have been forged or falsely altered, is guilty of forgery 
 in the third degree. {Penal Code, § 516.) 
 
 A person who either, 
 
 1. Being an officer, or in the employment of a corporation, 
 association, partnership or individual, falsifies or unlawfully and 
 corruptly alters, erases, obliterates or destroys any books of 
 accounts, records, or other writing, belonging to, or appertaining 
 to the business of, the corporation, association, partnership, or 
 individual; or, 
 
 2. In any way assists or abets, with intent to defraud, in the 
 making, forging or altering any letter, telegram, report or com- 
 munication, by which any person shall be injured in his good 
 name or reputation ; or, 
 
 3. Who shall alter, or connive at the altering, of any telegram, 
 report or communication purporting to have been written by 
 another person, by which such person shall be misrepresented or 
 injured ; 
 
 Is guilty of forgery in the third degree. {Penal Code, § 5 14.) 
 A person selling passenger tickets contrary to the provisions of 
 this statute, is liable to imprisonment in a State prison not 
 exceeding two years. {Penal Code, §§ 618 and 619.) 
 
616 KEW YOKK JUSTICE. 
 
 Forged shares of corporation. An officer, agent or otlier per 
 son employed by any company or corporation existing under the 
 laws of this State, or of any other State or territory of the United 
 States, or of any foreign government, who wilfully and witli a 
 design to defraud, sells, pledges or issues, or causes to be sold, 
 pledged or issued, or signs or procures to be signed, with intent 
 to sell, pledge or issue, or to be sold, pledged or issued, a false, 
 forged or fraudulent paper, writing or instrument, being or pur- 
 porting to be a scrip, certificate or other evidence of the owner- 
 ship or transfer of any share or shares of the capital stock of 
 such company or corporation, or a bond or other evidence of debt 
 of such company or corporation, or a certificate or other evidence 
 of the ownership or of the transfer of any such bond or other 
 evidence of debt, is guilty of forgery in the third degree, and 
 upon conviction, in addition to the punishment prescribed in this 
 title for that offense, may also be sentenced to pay a fine net 
 exceeding three thousand dollars. {Penal Code, § 518.) 
 
 Falsely indicating person as corporate officer. The false 
 making or forging of an instrument or writing, purporting to 
 have been issued by or in behalf of a corporation or association. 
 State or government, and bearing the pretended signature of any 
 person, therein falsely indicated as an agent or officer of such 
 corporation, is forgery in the same degree as if that person were 
 in truth such officer or agent of the corporation or association, 
 State or government. {Penal Code, § 519.) 
 
 Forgery in the third degree is punishable by imprisonment for 
 not more than five years. {Penal Code, § 525.) 
 
 Common gambler, etc. A person who is the owner, Eigent or 
 superintendent of a place, or of any device or apparatus for 
 gambling; or who hires, or allows to be used, a room, table, 
 establishment or apparatus for such a purpose ; or who engages 
 as dealer, game-keeper, or player in. any gambling or banking 
 game, where money or property is dependent upon the lesult • 
 or who sells or offers to sell what are commonly called lottery 
 policies, or any writing, paper or document in the nature of 8 
 bet, wager or insurance upon the drawing or drawn numbers of 
 any public or private lottery ; or who indorses or uses a book, or 
 other document, for the purpose of enabling others to sell, or 
 offer to sell, lottery policies, or other such writings, papers or 
 documents, is a common gambler, and punishable by imprison- 
 
"WHAT OFFENSES ARE BAILABLE BY A JUSTICE. 617 
 
 ment for not more than two years, or by a fine not exceeding 
 one thousand dollars, or both. {Penal Code, § 344.) 
 
 Gunpowder, keeping unlawfully. A person who makes or 
 keeps gunpowder, nitro-glycerine, or any other explosive or com- 
 bustible material, within a city or village, or carries such materials 
 through the streets thereof, in a quantity or manner pri^hibited 
 by law or by ordinance of the city or village, is guilty of a mis- 
 demeanor. And a person, who, by the careless, negligent, or 
 unauthorized use or management of gunpowder or other explo- 
 sive substance, injures, or occasions the injury of, the person or 
 property of another, is punishable by imprisonment for not more 
 than two years. {Penal Code, § 389.) 
 
 Explosion, damaging building, etc., hy. A person who unlaw- 
 fully and maliciously, by the explosion of gunpowder, or any 
 other explosive substance, destroys or damages any building or 
 vessel, is punishable as follows : 
 
 1. If thereby the life or safety of a human being is endangered, 
 by imprisonment for not more than ten years; 
 
 2. In every other case by imprisonment for not more than five 
 years. {Penal Code, § 636.) 
 
 Injuring highway boundary, pier, sea wall, dock, lock, buoy, 
 landmark, mile board, p>ipe, main, sewer, machine, telegraph, etc. 
 A person who wilfully or maliciously displaces, removes, injures 
 or destroys, 
 
 1. A public highway or bridge, or a private way laid out by 
 authority of law, or a bridge upon such public or private way ; or, 
 
 2. A pier, boom, or dam, lawfully erected or maintained upon 
 anj' water within the State, or hoists any gate in or about such 
 dam ; or, 
 
 3. A pile, or other material, fixed in the ground and used for 
 securing any sea-bank or sea-walls, or the bank or dam of any 
 river or other water, or any dock, quay, jetty, or lock ; or, 
 
 4. A buoy or beacon, lawfully placed in any waters within the 
 State; or, 
 
 5. A tree, rock, post, or other monument, which has been 
 either erected or marked for the purpose of designating a point 
 in the boundary of the State, or of a county, city, town, or 
 village, or of a farm, tract or lot of land, or any mark or inscrip- 
 tion thereon ; or. 
 
618 NEW YORK JUSTICE. 
 
 6. A mile-board, mile-stone, or guide-post, erected upon a high- 
 way, or any inscription upon the same ; or, 
 
 Y. A line of telegraph, or any part thereof, or any appurte- 
 nance or apparatus connected with the working of any magnetic 
 or electric telegraph, or the sending or conveyance of messages 
 by any such telegraph ; or, 
 
 8. A pipe or main for conducting gas or water, or any works 
 erected for supplying buildings with gas or water, or any appur- 
 tenance or appendage connected therewith ; or, 
 
 9. A sewer or drain, or a pipe or main connected therewith, or 
 forming a part thereof ; or who, 
 
 10. Destroys or damages with intent to destroy or render use- 
 less any engine, machine, tool or implement intended for use in 
 trade or hiisbandry ; 
 
 Is punishable hj imprisonment for not more than two years. 
 {Penal Code, § 639.) 
 
 Presenting false proofs of loss in support of claim upon 
 policy of insurance. A person who knowing it to be such, either 
 presents or causes to be presented a false or fraudulent claim, or 
 any proof in support of such a claim, for the payment of a loss 
 upon a contract of insurance ; or. 
 
 Prepares, makes or subscribes a false or fraudulent account, 
 certificate, affidavit of proof of loss, or other document or writing 
 with intent that the same may be presented or used in support 
 of such a claim, 
 
 Is punishable by imprisonment for not more than five years, or 
 by a tine of not more than five hundred dollars, or by both such 
 fine and imprisonment. {Penal Code, § 579.) 
 
 Destroying property insured. A person who, with intent to 
 defraud or prejudice the insurer thereof, wilfully burns, or in 
 any manner injures or destroys property not included or described 
 in section five hundred and seventy-five, which is insured at the 
 time against loss or damage by fire or by any other casualty, 
 under such circumstances that the offense is not arson in any of 
 its degrees, is punishable by imprisonment for not more than five 
 years, or by a fine of not more than five hundred dollars, or by 
 both such fine and imprisonment. {Penal Code, § 578.) 
 
 Grand larceny in the second degree. A person is guilty of 
 grand larceny in the second degree who, under circumstances not 
 
"WHAT OFFElSrSES ABE BAILABLE BY A JUSTICE. C19 
 
 amounting to granH larceny in the first degree, steals or unlaw- 
 fully obtains or appropriates. 
 
 1. Property of the value of more than twenty-five dollars, but 
 not exceeding five hundred dollars, in any manner whatsoever; or, 
 
 2. Property of any value, by taking the same from the person 
 of another ; or, 
 
 3. A record of a court or ofiicer, or a writing, instrument or 
 record kept, filed or deposited according to law, with or in keep- 
 ing of any public office or officer. (Penal Code, § 531.) 
 
 Grand larceny in the second degree is punishable by imprison- 
 ment for not less than two nor more than five years. {Penal 
 Code, § 534.) 
 
 Lottery, contriving, drawing of, eto. A person who contrives, 
 proposes or draws a lottery, or assists in contriving, proposing or 
 drawing the same, is punishable by imprisonment for not more 
 than two years, or by a fine of not more than one thousand 
 dollars, or both. {Penal Code § 325). 
 
 Medical prescriptions. No person employed in a drug store 
 shall prepare any medical prescription, unless he has served two 
 years' apprenticeship, or is a graduate of a college of medicine or 
 pharmacy, or allow any other person to do so, unless so qualified, 
 and in case death arises from a violation of this provision, the 
 person offen<3ing is punishable by imprisonment not less than two 
 years, nor more than four years {Penal Code, § 405.) 
 
 Allowing masquerades to he held in places of public resort. 
 A person being a proprietor, manager or keeper of a theater, 
 circus, public garden, public hall, or other place of public meet- 
 ing, resort or amusement, for admission to which any price or 
 payment is demanded, who permits therein any assemblage of 
 persons masked, prohibited in this title, is guilty of a misde- 
 meanor, punishable by imprisonment in a State prison not 
 exceeding two years, or in a county jail not exceeding one year, 
 or by a fine not exceeding five thousand dollars, and not less than 
 one thousand dollars, or by both such fine and imprisonment. 
 {Penal Code, § 453.) 
 
 Mock auctions. A person who obtains money or property from 
 another, or obtains the signature of another to any writing, the 
 false making of which would be forgery, by means of any false 
 or fraudulent sale of property or pretended property by auction, 
 or by any of the practices known as mock auctions, is punishable 
 
620 NEW YORK JUSTICE. 
 
 by imprisonment in a State prison not exceeding three years, or 
 in the county jail not exceeding one year, or by a fine not exceed- 
 ing one tliousand dollars, or by both such fine and imprisonment ; 
 and in addition thereto he forfeits any license he may hold to 
 act as an auctioneer, and is forever disqualified from receiving a 
 license to act as auctioneer within this State. {Penal Code, § 574.) 
 
 A person who has in his possession a counterfeit of any gold 
 or silver coin, whether of the United States or of any foreign couur 
 try or government, knowing the same to be counterfeited, with 
 intent to sell, utter, use, circulate or export the same, as true or 
 as false, or to cause the same to be so uttered or passed, is pun- 
 ishable by imprisontnent not more than five years, or by a fine 
 not exceeding five hundred dollars, or by both such fine and 
 imprisonment. {Penal Code, % 526.) 
 
 Advertising counterfeit money. A person who with intent to 
 defraud prints, circulates, or distributes a letter, circular, card, 
 pamphlet, handbill, or any other written or printed matter, offer- 
 ing, or purporting to offer, for sale, exchange, or as a gift, 
 counterfeit coin or paper money, or giving, or purporting to give, 
 information where counterfeit coin or paper money can be pro- 
 cui-ed, is punishable by imprisonment not more than five years, 
 or by a fine not exceeding five hundred dollars, or both such fine 
 and imprisonment. {Penal Code, § 527.) 
 
 Money for pTetended charitable purposes. A person who wil- 
 fully, by color or aid of any false token o r writing, or other false 
 pretense, obtains the signature of any person to any written 
 instrument, or any money or any property for any alleged or 
 pretended charitable or benevolent purpose, is punishable by 
 imprisonment for not less than one nor more than three years. 
 {Penal Code, § 567.) If under like circumstances he obtains 
 the signature for other than pretended charitable purposes, he is 
 punishable by imprisonment in a State prison for not more than 
 three years. {Id., § 566.) If the false token by which the 
 money or other property is obtained is a pretended note or other 
 negotiable evidence of debt purporting to have been issued by 
 any banking company or corporation, the punishment may not 
 exceed seven years {id., 568), and in such case the Justice could not 
 take bail. 
 
 Injury, etc., to public record. A person who wilfully and un- 
 lawfully removes, mutilates, destroys, conceals or obliterates a 
 
WHAT OFFENCES ARE BAILABLE BY A JUSTICE. 621 
 
 record, map, book, paper, docnmcnt, or other thing, filed or 
 deposited in a public office or with any public oificer by authority 
 of law, is punishable by imprisonment for not more than five 
 years, or by a fine of not more than five hundred dollars, or by 
 both. {Penal Code, % 94.) 
 
 Punishment of riot. A person guilty of riot, or of partici- 
 pating in a riot, either by being personally present, or by insti- 
 gating, promoting, cir aiding the same, is punishable as follows : 
 
 1. If the purpose of the assembly, or of the acts done or 
 threatened or inteuded by the persons engaged, is to resist the 
 enforcement of a statute of this State, or of the United States, 
 or to obstruct any public officer of this State, or of the United 
 States, in serving or executing any process or other mandate of a 
 Court of competent jurisdiction, or in the performance of any 
 other duty ; or if the ofEender carries, at the time of the riot, 
 fire-arms or any other dangerous weapon, or is disguised ; by 
 imprisonment for not more than five years, or by a fine of not 
 more than one thousand dollars, or by both such fine and 
 imprisonment. 
 
 2. In any other case, if the offender directs, advises, encourages, 
 or solicits other persons, present or participating in the riot or 
 assembly, to acts of force or violence, by imprisonment for not 
 more than two years, or by a fine of not more than five hundred 
 dollars, or by both such fine and imprisonment ; 
 
 3. In any case, not embraced within the foregoing subdivisions 
 of this section, by imprisonment for not more than one year, or 
 by a fine of not more than two hundred and fifty dollars, or by 
 both such fine and imprisonment. {Penal Code, § 460.) 
 
 Salt works, injuries to. A person who wilfully burns, destroys, 
 or injures any salt manufactory connected with the Onondaga 
 salt springs, or any building appurtenant to such manufactory, or 
 any part of such manufactory, or any of the buildings, reservoirs, 
 pumps, conductors or water conduits, belonging to this State, 
 used in the raising of salt water for the manufacture of salt, 
 without authority of law, is punishable by imprisonment in a 
 State prison not exceeding five years. {Penal Code, § 483.) 
 
 Seduction under promise of marriage. A person who, under 
 promise of marriage, seduces and has sexual intercourse with an 
 unmarried female of previous chaste character, is punishable by 
 imprisonment for not more than five years, or by a fine of not 
 
622 NEW yOKK JUSTICE. 
 
 more than one thousand dollars, or by both. {Penal Code, 
 §284.) 
 
 Stolen property, knowingly receiving. A person who buys or 
 receives any stolen property, or any property which has been 
 wrongfully appropriated in such a manner as to constitute larceny 
 according to this chapter, knowing the same to have been stolen 
 or so dealt with, or who corruptly, for any money, property, 
 reward, or promise or agreement for the same, conceals, with- 
 holds, or aids in concealing or withholding any property, knowing 
 the same to have been stolen, or appropriated wrongfully in such 
 a manner as to constitute larceny under the provisions of this 
 chapter, if such misappropriation had been committed within 
 the State, whether such property were so stolen or misappropriated 
 within or without the State, is guilty of criminally receiving such 
 property, and is punishable, by imprisonment in a State prison 
 for not more than five years, or in a county jail for not more than 
 six months, or by a fine of not more than two hundred and fifty 
 dollars, or by both such fine and imprisonment. {Penal Code, § 550.) 
 
 Punishment of attempting suicide. Every person guilty of 
 attempting suicide is guilty of felony, punishable by imprison- 
 ment in a State prison not exceeding two years, or by a fine not 
 exceeding one thousand dollars, or both. {Penal Code, § ITS.) 
 
 Trespass on property, how punished. A person who unlawfully 
 and wilfully destroys or injures any real or personal property of 
 another, in a case where the punishment thereof is not specially 
 prescribed by statute, is punishable, 
 
 1. If the value of the property destroyed, 'r the diminution 
 in the value of the property by the injury is more than twenty- 
 five dollars, by imprisonment for not more than four years. 
 {Penal Code, § 654.) 
 
 Vessel, destruction of. A person who wrecks or destroys a 
 vessel or the cargo, or wilfully permits it to be done, to the pre- 
 judice of any one, is punishable by imprisonment for not more 
 than five years. {Penal Code, § 575.) If he fits out or lades a 
 vessel with the intent that it shall be wrecked or destroyed, he is 
 liable to imprisonment not more than ten years nor less than three 
 years. {Id., 576.) If he makes a false or fraudulent manifest, 
 invoice or bill of lading, with intent to defraud, he is liable to 
 imprisonment in a State prison not exceeding three years. 
 {Id., % 577.) 
 
BAIL, WHEN TO BE TAKEN. 623 
 
 § 693. Woman concealing 'birth of issue. 
 
 A woman who, having been convicted of endeavoring to con- 
 ceal the still birth of any issue of her body, which, if born alive, 
 would be a bastard, or the death of any such issue under the age 
 of two years, subsequently to such conviction endeavors to conceal 
 any such birth or death, is punishable by imprisonment in a 
 State prison not exceeding five years, and not less than two years. 
 
 The provisions of the Penal Code enumerating and defining 
 the various crimes, distinguished as misdemeanors, are too volu- 
 minous to be inserted in this work. ISTor is it necessary that they 
 should be. If the Justice does not find, within the enumeration 
 of felonies given in the text, the particular crime with which the 
 prisoner is charged, the presumption is that his offense is a mis- 
 demeanor, and therefore bailable by a Justice. 
 
 2. Bail, When to be Taken. 
 
 Bail, from the French word iailler, signifies the delivery of a 
 man out of custody, upon the undertaking of one or more per- 
 sons for him, that he shall appear at a day limited, to answer and 
 be justified by the law. (1 Burns' Justice, 110.) This bail or 
 undertaking every person may offer who is brought before a 
 Justice, cliarged with a criminal offense bailable by such Justice ; 
 and, if sufficient bail be offered, it is presumed it must be 
 accepted. {Barb. Grim. Law, 575.) The provision of tlie 
 statute is : If thg offense be bailable by a Justice of the Peace, 
 and the prisoner off*r sufficient ball, such bail rnay be taken, and 
 the prisoner discharged. " May," it seems to be understood, is to 
 be here construed " must," and tnis construction appears to be 
 warranted by the language of another portion of the statute. 
 If the crime be bailable, and the defendant be admitted to bail, 
 but bail have not been taken, the Justice is to indorse oh the 
 papers, " that he be admitted to bail in the sum of dollars, 
 
 and be committed to the sheriff of until he give such 
 
 bail." {Grim. Pro., § 212.) 
 
 If no bail be offered, or the offense be not bailable by a 
 Justice of the Peace, the prisoner shall be committed to prison. 
 This power to commit is, at most, but a conditional authority, to 
 be exercised only when the prisoner offers no sufficient bail, or 
 when his offense is not bailable by a Justice or an alderman. 
 
624 NEW YOUK JUSTICE. 
 
 Nor does tliis construction facilitate the escape of offanders, or 
 militate against the intention of the statute in authorizing bail to 
 be taken. That intention is, that the appearance of the prisoner 
 at the proper Court, to answer the charge preferred against him, 
 shall be secured. How ? By exacting sufficient bail. The 
 magistrate is the judge of its sufficiency, and has a discretion 
 either to accept it or to refuse it ; but, if he refuses it, it must be 
 for the reason that it is insufficient. The eighth amendment to 
 the Constitution of the United States provides that " excessive 
 bail shall not be required " (8<A Amend. Const. JJ. S. / 1 R. S., 
 94, § 17), and the statute says that if suifioieat bail be offered it 
 may be taten. The Justice, therefore, must judge of the suffi- 
 ciency of the bail offered. But by what standard ? How is that 
 sufficiency to be determined and the provision of the Constitu- 
 tion to be adhered to ? Manifestly, by fixing the amount of the 
 bail in view of the magnitude of the offense charged, and of the 
 other circumstances connected with the case, which may affect 
 the probability of the prisoner's appearance to answer the charge. 
 If the Justice is of opinion that the offense charged miy, by the 
 death of the person injured by the prisoner, or from some other 
 cause, become merged in an offense not bailable by him, and if 
 he is also of opinion that he is not at liberty to refuse bail, he 
 has the option, and it is his duty, either to detain the prisoner in 
 custody until the person wounded shall have been pronounced 
 out of danger {Barb. Crini. Law, 577), or to require bail in such 
 a sum and with sureties of such unquestionable responsibility as 
 will ensure the appearance of the prisoner. (Davis' Justice, 88.) 
 If the Justice refuses or delays to bail any person who is 
 clearly entitled to be bailed, he is guilty of a criminal offense at 
 common law, and is also liable in damages to the party injured. 
 {Barb. Crim. Law, 576; Davis' Justice, 83.) It is not, how- 
 ever, the duty of the Justice to demand bail, but the prisoner is 
 bound to tender it, otherwise the Justice may commit him. 
 (1 Ohitty's Grim. Law, 103.) If the offense is not bailable by a 
 Justice, and he admits the prisoner to bail, he is guilty of negli- 
 gent escape. (1 Ohitty's Grim. Law, 102.) 
 
 Justices of the Peace have the power, also, under the act of 
 Congress of September 24, 1789, to admit to bail all persons 
 arrested for any crime or offense against the United States, except 
 where the punishment may be death. The process issued for the 
 
BAIL, BY WHOM TO BE GIVEN. 625 
 
 arrest of a criminal under this act, together with the recognizances 
 taken bj the Justice, are to be returned to the clerk's office of 
 such Court of the United States as has cognizance of the offense. 
 If the witnesses upon the examination refuse to enter into a 
 proper recognizance, the Justice has power to imprison them. 
 {U. S. Revised Stats., § 1014.) 
 
 It has been held that a Justice may take a recognizance, with 
 sureties, for the appearance of a party charged with a bailable 
 offense, at an adjourned examination ; and, if the party do not 
 appear, he and his sureties must be called, and a proper entry of 
 their default made ; but it is not necessary that the Justice should 
 render judgment that the recognizance is forfeited. (1 Bay, 98 ; 
 See 2 Washington's C. C. E., 422 ; 1876, chap. 21.) 
 
 If the offense is bailable, the refusal of the prisoner to be 
 examined is not a ground for refusing bail. That examination is 
 a personal privilege, for the benefit of the accused, and a recogni- 
 zance entered into after a waiver of the examination is valid. 
 {Champlain v. People, 2 Com., 82.) 
 
 3. Bail, by Whom to be Given. 
 We have seen that the statute says : " If sufficient bail be 
 offered, it may be taken." {Ante, p. 623.) This sufficiency has 
 reference not only to the responsibility of the sureties, but also 
 to the amount of the penalty of the recognizance {Davis' Justice, 
 96), as the latter must necessarily be determined before deciding 
 upon the former. Here, again, the Justice must exercise hia 
 best discretion, bearing in mind that the intention of the statute 
 is to secure the appearance of the prisoner. He may require an 
 amount proportioned to the enormity of the offense and the 
 improbability of the prisoner's appearance, provided he does not 
 violate the provision of the Constitution against excessive bail. 
 {Ante, p. 624.) If the prisoner is a man of property, and known 
 to the Justice to be responsible for the amoimt of the penalty, 
 he, with one surety of adequate responsibility, may be permitted 
 to execute the recognizance. (1 Ohitty's Grim. Law, 99 ; Ba/rb. 
 Grim. Law, 578 ; Davis' Justice, 96.) The common practice, 
 however, appears to be to require two sureties of undoubted 
 ability to answer the penalty of the recognizance. In order to 
 satisfy himself of such ability, the Justice may require the 
 sureties to answer on oath as to the value of their property. 
 40 
 
626 NEW YORK JUSTICE. 
 
 {Crim. Pro., § 573.) The bail must be a resident and a house- 
 holder or a fi-ceholder within the State, and must be worth the 
 amount specified in the undertaking, exclusive of property exempt 
 from execution. The Justice may allow two or more bails to 
 justify severally, eai.li in less than the whole amount, but the 
 whole equivalent to the sufBcient surety. {Crim. Pro., § 569.) 
 
 A minor cannot become a surety, for he cannot bind himself 
 during his minority, nor can a married woman, because her bond 
 cannot be estreated ; and therefore, when either a minor or a 
 married woman is arrested, a recognizance can be taken only from 
 the sureties. (1 Chitty's Crim. Law, 100; 1 Black., 236; 11 
 Leigh, 665.) 
 
 In a criminal case, an attorney may become bail for his client. 
 (Hawkins v. Magnall, Douglass, 466.) 
 
 4. Contents of the Eecognizance. 
 
 The recognizance need not set forth the offense, with the par- 
 ticularity required in an indictment (17 Wend., 252 ; 4 Den., 
 530 ; Gildersleeve v. People, 10 Bari., 35), nor need it recite 
 that the defendant was charged ou oath with an offense, or that 
 the magistrate adjudicated thereon. (Champlain v. People, 2 
 Corns., 83.) The cause of taking it must, however, appear, and 
 it must specify the charge which the prisoner is to answer. If 
 the latter is omitted, the defect is one which cannot be suppUed 
 by parol proof. (2 Kelly, 363 ; 14 Ve^-mont Rep., 64.) The 
 recognizance should state in substance aU the proceedings which 
 show the authority of the magistrate to take it. (9 Mass. Pep., 
 620 ; 16 id., 447.) 
 
 A recognizance in general binds to three things — to appear 
 and answer a specified charge, or such matter as may be objected ; 
 to stand to and abide the judgment of the Court ; and not to 
 depart the Court without leave. Each of these particulars is dis- 
 tinct and independent. (6 Hoisted, 124.) 
 
 The statute prescribes jthe form of the condition of the 
 recognizance or undertaking, that the prisoner " shall appear and 
 answer the charge above mentioned, in whatever court it may 
 be prosecuted ; and shall at all times render himself amenable to 
 the orders and process of the court." 
 
 In considering the form of the recognizance to be given by 
 witnesses, we stated the rule which detennines the Court at 
 
JFOEM OF THE RECOGNIZANCE OR UNDERTAKING. 627 
 
 ■which they must be bound to appear. {Ante, ip. 580.) The 
 eanae rule applies in determinins: the Court at which the prisoner 
 must be bound to appear. If the condition be, to appear at a 
 time when no court is by law to be held, the recognizance is 
 void. (12 Smedes <& Marshall, 470; 14 Vermont Hep., 64.) 
 So, also, if it be made returnable to a Court not having juris- 
 diction of the offense charged. (1 Sergeant (& Howie, 328; 
 Braytov, 140.) 
 
 5. FoEM OF THE EeOOGNIZANCE OE UNDERTAKING. 
 
 The statute requires, that all recognizances in any criminal 
 matter or proceeding, must be in writing, and be subscribed by 
 the parties to be bound thereby ; and a seal is not essential to 
 their validity. It is not legally necessary that the principal and 
 sureties should unite in the same recognizance. {People v. 
 Muggins, 10 Wend., 464.) 
 
 § 123. Reoogni3am.oe or undertaking 
 
 "An order having been made on the day of , 
 
 eighteen hundred and , by A. B., a justice of the peace of 
 
 the town of \or, as the case may he'], that C. D. be held to 
 
 answer upon a charge of [stating hfiefly the nature of the crime'], 
 upon which he has been duly admitted to bail in the sum 
 of dollars. 
 
 " We, [C. D., defendant, if the defendant join in the under- 
 taking'], of \stat%ng his place of residence and his occupation] and 
 E. F., [and Gr. H., stating place of residence and occupation] 
 surety or sureties [as tlie case may he], hereby undertake, jointly 
 and severally, that the above named C. D. shall appear and 
 answer the charge above mentioned, in whatever Court it may 
 be prosecuted ; and shall at all times render himself amenable to 
 the orders and process of the court ; and, if convicted, shall 
 appear for judgment, and render himself in execution thereof ; 
 or if he fail to perform either of these conditions, that we will 
 pay to the people of the State of New York the sum of 
 dollars " [inserting the sum in which the defendant is admitted 
 to hail.] {Grim. Pro., % 568.) 
 
 This recognizance is to be certified by the Justice taking it, to 
 the Court at which the witnesses are bound to appear, on the first 
 day of the sitting thereof. 
 
 If the prisoner is not ready with bail at the time he is appre. 
 bended, and the offense is bailable by a Justice, he may, at any 
 
628 NEW TOEK JUSTICE. 
 
 time before conviction, be released from imprisonment on finding 
 sureties. Upon the allowance of the bail and the execution of 
 the undertaking, the Court or magistrate must make an order, 
 signed by him, with his name of office, for the discharge of the 
 defendant, to the following effect : 
 
 § 124. Warrant to liberq,te a prisoner 
 
 " To the sherifE of the county of , [or, in the 
 
 city and county of New York, ' to the keeper of the city prison 
 of the city of Kew York : ' ] 
 
 A. B., who is detained by you on a commitment to answer a 
 charge for the crime of [designating it generally\ having given 
 sufficient bail to answer the same, you are commanded forthwith 
 to discharge him from your custody." 
 
 H. T. C, Justice of the Peace. 
 
 •) 
 
 If in any trial or examination it is necessary that such trial or 
 examination should be continued to some other day, the Justice 
 may take a recognizance, with sufficient surety, by OT^e or more 
 freeholders or householdei-s, residents of the State, for the appear- 
 ance of the person to be tried or examined. {Grim,. Pro., § 192.) 
 
jtirisdictiojS' op courts of speoial sessions. 629 
 
 CHAPTER YIII. 
 
 OF COURTS OF SPECIAL SESSIONS GENERALLY, 
 AND TRIALS THEREIN. 
 
 If no bail is offered for the prisoner, he is, as we have before 
 seen, to be committed by the Justice, except in cases in which a 
 Court of Special Sessions is authorized to try him. 
 
 Formerly, Courts of Special Sessions were held by the magis- 
 trate before whom the prisoner was brought, associated with two 
 Justices of the Peace of the county. But now they are required 
 to be held by one Justice of the peace of the town or city in 
 which the same is held. AH the offenses triable by the Court of 
 Special Sessions may be tried by such single magistrate, with or 
 without a jury at the election of the prisoner; and all the pro- 
 ■visions of law which are applicable to the powers, duties and 
 proceedings of such Courts of Special Sessions, apply to the single 
 magistrate and the proceedings before him. 
 
 1. Jurisdiction of Courts of Special Sessions. 
 
 The legislature in 1881 extended the jurisdiction of Courts of 
 Special Sessions, as follows : 
 
 THB SPECIAL SESSIONS, EXCEPT IN THE CITIES OF NEW YORK AND ALBANT. 
 
 Section 56. Jurisdiction of courts. 
 
 57. Exclusive jurisdiction. 
 
 58. ijimitation. 
 
 59. Trial and punishment of certain crimes. 
 
 60. Special sessions in Brooklyn. 
 
 61. Id., in Oswego. 
 63. By whom held. 
 
 63. Eecorder of a city to hold court. 
 
 § 56. Jurisdiction of Courts. 
 Subject to the power of removal provided for in this chapter, 
 Courts of Special Sessions, except in the city and county of 
 New York and the city of Albany, have, in the first instance. 
 
630 NEW YORK JUSTICE. 
 
 exclusive jurisdiction to hear and determine charges of mis- 
 demeanors committed within their respective counties, as f oUowa : 
 
 1. Petit larceny, charged as a first offense. 
 
 2. Assault in the third degree. 
 
 3. Racing, running or testing the speed of any animal within 
 one mile of the place where any court is held. 
 
 4. Wrongfully severing any produce or article from the free- 
 hold, not amounting to grand larceny. 
 
 5. Selling poisonous substances not labeled as required by law. 
 
 6. Wrongfully and maliciously removing, defacing or cutting 
 down monuments or marked trees. 
 
 7. Wrongfully destroying or removing mile-stones, mile-boards 
 or guide boards, or altering or defacing any inscription thereon. 
 
 8. Wrongfully destroying any public or toll-gate or turnpike 
 gate. 
 
 9. Intoxication of a person engaged in running any locomotive 
 engine upon any railroad, or while acting as a conductor of a car, 
 or train of cars, on any such railroad. 
 
 10. Setting up or drawing unauthorized lotteries, or printing 
 and publishing an account of any such illegal lottery, game or 
 device, or selling lottery tickets, or procuring them to be sold, or 
 offering for sale or distributing any property depending upon any 
 lottery, or for selling any chances in any lottery contrary to the 
 provisions of law. 
 
 11. Unlawfully running, trotting or pacing horses or any other 
 animals. 
 
 12. Making or selling slung-shot or any similar weapon. 
 
 13. Unlawfully disclosing the finding of an indictment. 
 
 14. Unlawfully bringing to or carrying letters from any State 
 prison. 
 
 15. Unlawfully destroying or injuring any mill-dam or embank- 
 ment necessary for the support of such dam. 
 
 16. Unlawfully injuring any telegraph wire, post, pier, abut- 
 ment, materials or property belonging to any line of telegraph. 
 
 17. Unlawfully counterfeiting any representation, likeness, 
 similitude or copy of private stamp, wrapper or label of any 
 mechanic or manufacturer. 
 
 18. Malicious trespass on lands, trees or timber, or injuring any 
 fruit or ornamental or shade tree. 
 
 19. Maliciously breaking or lowering any canal walls, or 
 
JURISDICTION OF COURTS OP SPKCIAL SESSIONS. C31 
 
 wantonly opening any lock-gate, or destroying any bridge, or 
 otherwise unlawfully injuring such canal or bridge. 
 
 20. Unlawfully counterfeiting or defacing marks on packages. 
 
 21. Unlawfully setting fire to wood or fallow land, or allowing 
 the same to extend to lands of others, or unlawfully refusing to 
 extinguish any tire. 
 
 22. Unlawfully or negligently cutting out, altering or defacing 
 any mark on any logs, timber, wood or plank, floating in any 
 waters of this State, or lying on the banks or shores of any such 
 waters, or at any saw-mills, or on any island where the same may 
 have drifted. 
 
 23. Unlawfully frequenting or attending a steamboat landing, 
 railroad depot, church, banking institution, broker's office, place 
 of public amusement, auction room, store, auction sale at private 
 residence, passenger car, hotel restaurant or at any other gathering 
 of people. 
 
 24. Unlawfully taking and carrying away the oysters of another, 
 lawfully planted upon the bed of a river, bay, sound or other 
 waters within the jurisdiction of this State. 
 
 25. Removing property out of the county, with intent to pre- 
 vent the same from being levied upon by execution, or secreting, 
 assigning, conveying or otherwise disposing of property, with 
 intent to defraud any creditor, or to prevent the property being 
 made liable for the payment of debts, or for receiving property 
 with such intent. 
 
 26. Driving a carriage upon any turnpike, road or highway for 
 the purpose of running horses. 
 
 27. Cruelty to animals contrary to law. 
 
 28. Cheating at games. 
 
 29. Winning or losing at any game or play, or by any bet, as 
 much as twenty-five dollars within twenty-four hours. 
 
 30. Selling liquors in a court-house or jail contrary to law. 
 
 31. Crimes against the provisions of existing laws for the pre- 
 vention of wanton or malicious mischief. 
 
 32. When a complaint is made to or a warrant is issued by a 
 committing magistrate, for a violation of the laws relating to 
 excise and the regulations of taverns, inns and hotels, or for 
 unlawfully selling or giving to any Indian spirituous liquors or 
 intoxicating drinks. 
 
682 NKW YORK JUSTICE. 
 
 33. Such other jurisdiction as is now provided by special statute 
 or municipal ordinance authorized by statute. 
 
 § 57. Exclusive jurisdiction. 
 Upon filing with the magistrate before whom is pending a 
 charge for any of the crimes specified in the last section, a certifi- 
 cate of the County Judge of the county, or of any Justice of 
 the Supreme Court, that it is i-easonable that such charge be 
 prosecuted by indictment, and fixing the sum in which the 
 defendant shall give bail to appear before the grand jury ; and 
 upon the defendant giving bail as specified in the certificate, 
 all proceeding} before the Justice shall be stayed; and he shall 
 within five days thereafter, make a return to the district 
 attorney of the county of all proceedings had before him upon 
 the charge, together with such certificate and the undertaking 
 given by the defendant thereon, and the district attorney shall 
 present such charge to the grand jury ; provided, however, that 
 no such certificate shall be given except upon at least three days' 
 notice to the complainant, or to the district attorney of the county 
 of the time and place for the application therefor. 
 
 § 58. Limitation. 
 "When a person is brought before a magistrate charged with 
 the commission of any of the crimes mentioned in section 
 fifty-six, and asks that his case be presented to the grand jury, 
 the proceedings shall be adjourned for not less than five nor 
 more than ten days ; and if on or before the adjourned day the 
 certificate mentioned in section fifty-seven is not filed with the 
 magistrate before whom the charge is pending, and bail given by 
 the defendant as therein prescribed, the magistrate shall proceed 
 with the trial, and when the defendant is brought before the 
 magistrate, it shall be the duty of the magistrate to inform him 
 of his rights under section fifty-seven and this section. 
 
 § 59. Trial and Punishment of certain Crimes. 
 A Court of Special Sessions having jurisdiction in the, place 
 where any of the crimes specified in section fifty-six is committed, 
 has jurisdiction to try and determine a complaint for such crime, 
 and to impose the punishment prescribed upon conviction, unless 
 the defendant obtains the certificate and gives the bail mentioned 
 in section fifty-seven. 
 
JUBISIXICTIOiSr OF COUETS OF. SPECIAL SESSIONS. 633 
 
 § 60. Special Sessions in the City of BrooMyn. 
 Subject to the power of removal, as provided by sections fifty- 
 seven and fifty-eight of this Code, Courts of Special Sessions in 
 the city of Brooklyn shall, in the first instance, have exclusive 
 jurisdiction to try and determine all complaints for misdemeanors 
 committed in said city, where the term of imprisonment does not 
 exceed one year, with or without fine, excepting conspiracies, 
 and to impose the same punishment as is authorized by statute in 
 like cases to be inflicted by the Court of Sessions of the county 
 of Kings. 
 
 § 61. Special Sessions in Oswego. 
 
 The Court of Special Sessions in the city of Oswego, where 
 held by the recorder, has also jurisdiction over all cases of offenses, 
 crimes against public decency, selling unwholesome provisions, 
 cheats, breaches of the peace, disobeying the commands of oflScers 
 to render assistance in criminal cases, obstructing officers in the 
 discharge of their duties, adulterating distilled spirits, not deliv- 
 ering marked property, defacing marks or putting false marks on 
 floating timber, all violations against the laws and ordinances of 
 or applicable to the city, when such violation is a misdemeanor, 
 and all attempts to commit any crimes herein named or referred 
 to when such attempt is a misdemeanor. 
 
 § 62. By whxrni held. 
 Unless provision is otherwise made by law, a Court of Special 
 Sessions must be held by one Justice of the Peace of the town 
 or city in which the same is held. 
 
 § 63. Hecorder of a City to hold Court. 
 
 A recorder of a city has power to hold a Court of Special 
 Sessions therein. 
 
 The following provisions of the Code of Criminal Procedure 
 shall apply as far as may be to proceedings in all Courts of Special 
 Sessions or Police Courts : (§ 62.) 
 
 § 293. y/hen A-mendment Allowed. 
 
 Upon the trial of an indictment, when a variance between the 
 
 allegation therein and the proof, in respect to time, or in the name 
 
 or description of any place, person or thing, shall appear, the 
 
 court may, in its judgment, if the defendant cannot be thereby 
 
634 NEW TOEK JUSTICE. 
 
 prejudiced in hie defense on the merits, direct the indictment to 
 be amended, according to the proof, on such terms as to the post- 
 ponement of the trial, to be had before the same or another jury, 
 as the court may deem reasonable. 
 
 § 294. Trial, to Proceed. 
 After such amendment the trial, whenever the same shall be 
 proceeded with, shall proceed in the same manner and with the 
 same consequences as if no such variance had occurred. 
 
 § 295. Effect of Verdict, d;o. 
 A verdict and judgment, which shall be given after the making 
 of any such amendment, shall be of the same force and efliect as 
 if the indictment had originally been fouad in its amended form. 
 
 § 310. If the Defendant gave another Name, subsequent Pro- 
 ceedings to he had hg that Name, referring to Name in the 
 Indictment. 
 
 If when arraigned the defendant allege that another name is 
 his true name, the court must direct an entry thereof in the 
 minutes of the arraignment ; and the subsequent proceedings on 
 the indictment may be had against him, by that name, referring 
 also to the name by which he is indicted. 
 
 § 332. The different Kinds of Pleas. 
 There are three kinds of pleas to an indictment ; a plea of 
 
 1. Guilty. 
 
 2. Not guilty. 
 
 3. A former judgment of conviction or acquittal of the crime 
 charged, which may be pleaded either with or without the plea 
 of not guilty. 
 
 § 333. Plea, how put in. 
 Every plea must be oral, and must be entered upon the minutes 
 of the court. 
 
 § 334. Its form. 
 
 The plea must be entered in substantially the following form : 
 
 1. If the defendant plead guilty to the crime charged in the 
 idictment " the defendant pleads that he is guilty." 
 
 2. If he plead guilty to any lesser crime than that charged in 
 the indictment, " the defendant pleads guilty to the crime of " — 
 {naming it). 
 
JUEISDICTION OF COURTS OF SPECIAL SESSIONS. 635 
 
 3. If he pleads not guilty, " the defendant pleads not guilty." 
 
 4. If he plead a former conviction or acquittal : " The defend- 
 ant pleads that he has already been convicted {or, acquitted, as 
 the case may be) of the crime charged in this indictment, by the 
 judgment of the Court of {naming it), rendered at 
 {naming the place), on the day of ." 
 
 § 335. Plea of Guilty, how put in. 
 A plea of guilty can only be put in by the defendant himself 
 in open Court, except upon an indictment against a corporation, 
 in which case it may be put in by counsel. 
 
 § 336. Plea of Insanity. 
 Whenever a person in confinement under indictment desires 
 to offer the plea of insanity, he may present such plea at the time' 
 of his arraignment, as a specification under the plea of not guilty. 
 
 § 837. Plea may be Withdrawn by Permission of the Court. 
 
 The Court may, in its discretion, at any time before judgment 
 upon a plea of guilty, permit it to be withdrawn, and a plea of 
 not guilty substituted. 
 
 § 338. What is Denied by a Plea of Not Guilty. 
 The plea of not guilty is a denial of every material allegation 
 in the indictment. 
 
 § 339. What may be given in Evidence under it. 
 
 All matters of fact tending to establish a defense, other than 
 
 that specified in the third subdivision of section three hundred 
 
 and thirty-two, may be given in evidence under the plea of not 
 
 guilty. 
 
 § 340. What is Deemed a Former Acquittal. 
 
 If the defendant were formerly acquitted on the ground of a 
 variance between the indictment and the proof, or the indictment 
 were dismissed upon an objection to its form or substance, without 
 a judgment of acquittal, it is not deemed an acquittal of the same 
 
 offense. 
 
 § 341. Id. 
 
 When, however, the defendant was acquitted on the merits, he 
 is deemed acquitted of the same offense, notwithstanding a defect 
 in form or substance in the indictment on which he was acquitted. 
 
636 NEW YORK JUSTICE. 
 
 § 342. 1/ Defendant refuse to answer Indictment, Plea of Not 
 Guilty to he entered. 
 
 If the defendant refuse to answer an indictment by demurrer 
 or plea, a plea of not guilty must be entered. 
 
 In addition to above provision, so much of the Code of 
 Criminal Procedure as has reference to " Challenging the jury," 
 " The trial," " Conduct of the jury after the cause is submitted 
 to them," and " The verdict," apply, so far as may be, to pro- 
 ceedings in Special Sessions. {Grim. Pro., § 62.) 
 
 There are various statutory provisions respecting Courts of 
 Special Sessions in different cities and towns in the State, which 
 will be noticed hereafter. {Post, part II, chap. IX.) 
 
 2. By Whom Held. 
 
 We have already remarked that Courts of Special Sessions 
 must be held by a single magistrate, and that all the provisions 
 of law applicable to the powers, duties and proceedings of such 
 Courts apply to such magistrate and the proceedings before him. 
 {Ante, p. 559.) 
 
 Turning then to the statute prescribing the mode of proceeding 
 in Courts of Special Sessions, we iind that when a person charged 
 with any of the offenses above enumerated, requests to be tried 
 by a Court of Special Sessions, it becomes the duty of the Justice, 
 acting as such Court, to proceed and try him. 
 
 But when a person is brought before a magistrate charged with 
 the commission of any of the crimes, of which the Court of Spe- 
 cial Sessions has jurisdiction, and asks that his case be presented 
 to the grand jury, the proceedings shall be adjourned for not less 
 than five nor more than ten days in order that the person charged 
 with crime may obtain a certificate of the County Judge of the 
 county, or of any Justice of the Supreme Court, that it is reason- 
 able that such charge be prosecuted by indictment, and fixing the 
 sum in which the defendant shall give bail to appear before 
 the grand jury. Upon the defendant giving bail, as specified in 
 the certificate, all the proceedings before the Justice shall be 
 stayed ; and he shall, within five days thereafter, make a return 
 to the district attorney of the county of all proceedings had before 
 him upon the charge, together with the certificate and the under- 
 taking given by the defendant. 
 
 If on or before the adjourned day the certificate above men- 
 
DISPOSITION OF PKISONEK WHILE AWAITING TRIAL. 637 
 
 tioned is not filed with the magistrate before -whom the charge is 
 pending, and bail given by the defendant as therein prescribed, the 
 magistrate shall proceed with the trial. {Grim. Pro., §§ 57, 58.) 
 
 3. Disposition of the Pbisonee while Awaiting Tbial. 
 
 During the time allowed to a prisoner to obtain the certificate 
 and give bail, he must be committed for safe keeping to the 
 sheriff of the county, or in the city of New York to the keeper 
 of the city prison as the magistrate issuing the warrant of arrest 
 shall direct ; and, after the Court of Special Sessions has con- 
 vened, the prisoner must be brought before it, and be continued 
 in the custody of the oflScer having him in charge until the term- 
 ination of the proceedings. The Court of Special Sessions must 
 cause the prisoner to be brought before it, and, as soon as may 
 be, proceed to his trial. 
 
 If the Justice commits the prisoner till the expiration of the 
 time the following form may be used : 
 
 § 125. Warrant of Commitment of Prisoner to await trial. 
 
 County of 
 
 In the name of the people of the State of New York : 
 To the sheriff of the county of [or, to the keeper of the 
 
 city prison of the city of New York) : 
 
 An order having been this day made by me that W. Y. be 
 held to answer to the Court of upon a charge of [stating 
 
 iriefty the nature of the crime] you are commanded to receive him 
 into your custody and detain him until he be legally discharged. 
 
 Dated at this day of , 188 . 
 
 C. D., Justice of the Peace. 
 
 § 126. Order to Sheriff to bring up Prisoner for Trial, 
 
 County, ss. : 
 To the sheriff of the said county : 
 
 You are hereby commanded forthwith to bring before me, J. 
 H. B., a Justice of the Peace of the said county, now holding a 
 Court of Special Sessions at my office in [name of townl, W. v ., 
 now in your custody by virtue of a warrant of commitment signed 
 by me, and dated [date], together with the said warrant, to the 
 end that he may be tried by me for the offense charged in the 
 said warrant. 
 
 Witness my hand this [date]. 
 
 J. H. B., Justice of the Peace. 
 
638 NEW YORK JUSTICE, 
 
 The following sections of the Code of Criminal Procedure are 
 for the government of Special Sessions and Police Courts : 
 
 § 699. Charge to he read to Defendant, and he required to Plead, 
 In the cases in which the Courts of Special Sessions or Police 
 Courts have jurisdiction, when the defendant is brought before 
 the magistrate the charge against him must be distinctly read to 
 him, and he must be required to plead thereto. 
 
 § 700. The Plea, and how put in. 
 The defendant may plead the same pleas as upon an indict- 
 ment, as provided in section three hundred and thirty-two. His 
 plea must be oral, and entered upon the minutes of the Court. 
 
 § 701. Issue, how tried. 
 Upon a plea other than a plea of guilty, if the defendant do 
 not demand a trial by jury, the Court must proceed to try the 
 issue. 
 
 § 702. Defendant may Demand Trial hy Jury. 
 
 Before the Court hears any testimony upon the trial the defend- 
 ant may demand a trial by jury. 
 
 If the case is to be tried by a jury, before a juror is called the 
 defendant must be informed by the Court, or under its direction, 
 that if he intend to challenge a juror he must do so when the 
 juroi appears, and before he is sworn. {Id., § 369.) A challenge 
 to an individual juror is aither peremptory or for cause. Each 
 party is entitled to five peremptory challenges, for which no 
 reason need be given. {Id., §§ 372, 373.) 
 
 § 375. General Causes of Challenge. 
 General causes of challenge are : 
 
 1. A conviction for a felony. 
 
 2. A want of any of the qualifications prescribed by the Code 
 of Civil Procedure to render a person a competent juror. 
 
 § 376. Particular Causes of Challenge. 
 Particular causes of challenge are of two kinds : 
 1. For such a bias, as, when the existence of the facts is ascer- 
 tained, does in judgment of law disqualify the juror, and which 
 is known in this Code as implied bias. 
 
DISPOSITION OF PRISONER WHILE AWAITING TRIAL. 639 
 
 2. For the existence of a state of mind on the part of the 
 juror, in reference to the case, or to either party, which satisfies 
 the Court, in the exercise of a sound discretion, that such juror 
 cannot try the issue impartially and without prejudice to the sub- 
 stantial rights of the party challenging, and which is known in 
 this Code as actual bias. But the previous expression or forma- 
 tion of an opinion or impression in reference to the guilt or 
 innocence of the defendant, or a present opinion or impression in 
 reference thereto, is not a sufficient ground of challenge for actual 
 bias, to any person otherwise legally qualified, if he declare on 
 oath that he believes that such opinion or impression will not 
 influence his verdict, and that he can render an impartial verdict 
 according to the evidence, and the Court is satisfied that he does 
 not entertain such a present opinion or impression as would influ- 
 ence liis verdict. 
 
 § 377. Grounds of Challenge for Implied Bias. 
 A challenge for implied bias may be taken for all or any of the 
 following caused, and for no other : 
 
 1. Consanguinity or affinity within the ninth degree to the 
 person alleged to be injured by the crime charged, or on whose 
 complaint the prosecution was instituted, or to the defendant. 
 
 2. Bearing to him the relation of guardian or ward, attorney 
 or client, or client of the attorney, or counsel for the people or 
 defendant, master or servant, or landlord or tenant, or being a 
 member of the family of the defendant, or of the person alleged 
 to be injured by the offense charged, or on whose complaint the 
 prosecution was instituted, or in his employment on wages. 
 
 3. Being a party adverse to the defendant in a civil action, or 
 having complained against or been accused by him in a criminal 
 prosecution. 
 
 4. Having served on a trial jury which has tried another per- 
 son for the crime charged. 
 
 5. Having been one of a jury formerly sworn to try the same 
 matter, and whose verdict was set aside, or which was discharged 
 without a verdict after the cause was submitted to it. 
 
 6. Having served as a juror in a civil action brought against 
 the defendant for the act charged as a crime. 
 
 If the facts be denied the challenge must be tried by the 
 ■Court. 
 
640 new york justice. 
 
 4. The Tbial. 
 
 The time allowed to the prisoner by statute, in which to give 
 b*i], having expired, and no bail being offered, it becomes the 
 duty of the Justice to proceed and try the prisoner. For this 
 purpose he issues his order (the form for which has just been 
 given) to the sheriff, in whose custody the prisoner may be, com- 
 manding him to bring the prisoner before the Court to be tried 
 for the offense charged. 
 
 (1.) The Prisoner's Plea. 
 
 "When the prisoner appears the magistrate must inform him of 
 his rights under sections iifty-seven and fifty-eight of the Code 
 of Criminal Procedure, and if he is to be tried then the charge 
 made against him, as stated in the warrant of arrest or commit- 
 ment, must be distinctly read to him, and he must be required to 
 plead thereto. The justice must enter the plea in the minute of 
 proceedings to be kept by him. When the prisoner refuses to 
 plead, but stands mute, the Justice must enter a plea of not 
 guilty. {Grim. Pro., § 342.) 
 
 There are three kinds of pleas to a charge or complaint : 
 
 1. Guilty. 
 
 2. JNot guilty. 
 
 3. A former judgment of conviction (or acquittal) of the crime 
 charged. 
 
 This last may be pleaded either with or without the plea of 
 not guilty. 
 
 Every plea must be oral and entered upon the minutes of the 
 Court as follows : 
 
 The defendant pleads that he is guilty ; or 
 
 The defendant pleads not guilty ; or 
 
 The defendant pleads that he has already been convicted [or, 
 acquitted] of the crime charged in this charge or complaint 
 by the judgment of the court of rendered at on 
 
 the day of 
 
 (2.) Trial Tyy the Justice. 
 The prisoner may be tried with or without a jury, at his elec- 
 tion ; and if no jury be demanded the Justice must proceed and 
 himself try the issue raised by the plea, and determine the same 
 
TRIAL BY A JUET. 
 
 641 
 
 according to the evidence whicli may be produced against and in 
 behalf of the defendant. 
 
 (3.) Trial hy a Jv/ry. 
 
 After the issue is joined, and before the Court has proceeded 
 to an investigation of the merits of the case by the hearing of 
 any testimony, the defendant may demand that he be tried by a 
 jury. This demand must be made before the hearing of any 
 testimony, that is, before any witnesses have been examined, and 
 when so made the Justice is bound to comply with it. It is not 
 absolutely necessary, to support a conviction, that the Justice 
 should inform the prisoner of his right to be tried by a jury, or 
 that the prisoner should expressly waive it. {People v. Goodwin^ 
 5 Wend., 251.) As, however, there can be no object in keeping 
 from the prisoner the knowledge of his right to be tried by a 
 jury, it seems to be proper that the Justice should inform liim of 
 the privilege granted liim by statute. It may be that he will be 
 glad to exercise it ; if otherwise he can waive it. {Germond et al. 
 V. People, 1 Hill, 343.) 
 
 If the prisoner demands to be tried by a jury, his demand is to 
 be complied with in the following manner : The Justice must 
 issue an order, directed to any constable of the county, or marshal 
 of the city, where the offense is to be tried and having authority 
 to execute process from the Court commanding him to summon 
 twelve good and lawful men, qualified to serve as jurors, and not 
 exempt from such service by law, and who shall be in nowise of 
 kin either to the complainant or the defendant, to be and appear 
 before such Court, at a time not more than three days from the 
 date of the order, and at a place to be named therein, to make a 
 jury for the trial of such offense. {Crim. Pro., § 703.) (As to 
 what persons are exempt from service as jurors, see ante, p. 285.) 
 
 § 131. Venire or Order. 
 
 State of New York, ) ^^ . 
 County, j 
 
 To any constable of the said county [or, to any marshal of the 
 
 said city], greeting : 
 
 The people of the State of New York command you to 
 summon twelve good and lawful men in the town [or, city] 
 of , qualified to serve as jurors and not exempt from 
 
 41 
 
642 NEW YOUK JUSTICE. 
 
 such service bj law, and who are in nowise of kin eitlier to 
 David Abbott or to William Van tine, to be and appear before 
 me, now holding a Court of SjDecial Sessions, at my office in the 
 town [or, city] of , on the day of instant, 
 
 at o'clock in the noon [or, forthwith], to make a 
 
 jury for the trial of said William Vantine, on a charge [as the 
 charge may he'] ; and have you then there this precept, with a 
 certified list of the persons you have summoned annexed to the 
 same. 
 
 Witness my hand this [dais]. 
 
 J. H. B., Justice of the Peace. 
 
 The officer to whom an order ia delivered must execute the 
 same fairly and impartially, and must not summon any person 
 whom he suspects to be biased or prejudiced for or against the 
 defendant. He must summon the jurors personally, and must 
 make lists of the persons summoned, whicti he is to certify aud 
 annex to the order and return with it to the Court. {Crim. 
 Pro., § 704.) 
 
 The names of the persons so returned are to be respectively 
 written on several and distinct pieces of paper, as nearly of one 
 size as may be, and be folded as nearly as may be in the same 
 manner, so that the name cannot be seen, and put together in a 
 box or other convenient thing. The Court is then to draw out 
 six of such papers, one after another, and, if any of the persons 
 whose names are drawn do not appear, or are challenged or set 
 aside, then such further number is to be drawn as will be suffi- 
 cient to make up the number of six after all legal causes of chal- 
 lenge have been allowed. If a sufficient number of competent 
 jurors is not drawn the Court may supply the deficiency by 
 directing the constable to summon any of the bystanders, or 
 others, who may be competent, and against whom no cause of 
 challenge appears, to act as jurors in the cause. {Crim. Pro., 
 %% 704-708.) 
 
 The Court has no authority to try a person on a criminal 
 charge by a jury of less than six. (1 Hill, 343 ; lut see People 
 V. Johnson, 2 Parh. Gr., 322.) 
 
 If the officer to whom the order was delivered does not return 
 the same as thereby required, the Court must issue a new order, 
 upon which the same proceedings are to be had as in respect to 
 the first order. {Orim. Pro., § 704.) 
 
"WITBTESSES. (343 
 
 The prisouer is entitled to challenge peremptorily five of the 
 jurors drawn, and to challenge for cause as many as he may see 
 fit. (As to challenges of jurors for cause, and to the powers of 
 Courts to discharge and excuse jurors, see ante, p. 290.) 
 
 The jurors are not entitled to any fees. If they fail to appear, 
 they are subject to like penalties, and may be proceeded against 
 in the same manner as jurors who refuse to appear in a Justice's 
 Court. {Crim. Pro., § 730; ante, p. 284.) 
 
 To each juror the Justice must administer the following oath 
 or affirmation : 
 
 Tou do swear [or, " you do solemly affirm," as the case may ie] 
 that you will well and truly try this issue between the People of 
 the State of New York and the defendant, and a true 
 
 verdict give according to the evidence. {Crim. Pro., § 711.) 
 
 After the jury are sworn they are to sit together and hear the 
 proofs and allegations in the case, which are to be delivered in 
 public and in presence of the defendant. {Id., § 712.) 
 
 (4.) Witnesses. 
 
 At the time of issuing the order the Justice, if he has not 
 before done so, should issue subpoenas for the witnesses, and 
 deliver them to the officer to be served. {Id., § 729.) He 
 must indorse upon the back of each subpoena a memorandum, 
 showing whether the same was issued for the people or for the 
 prisoner. {Laws of 1845, ohap. 180, § 18.) Every officer or 
 person who inserts tlie names of witnesses intended for the pris- 
 oner, in a subpoena issued for the people, with intent thereby to 
 deceive any person, or to obtain any pay as for services in sub- 
 poenaing witnesses for the people, is guilty of a misdemeanor. 
 {Id.) The Justice is not entitled to charge for more than six 
 subpoenas in any one criminal case, and the board of supervisors 
 are not to allow any charge for issuing or serving any subpoena, 
 in any criminal case or proceeding, issued or served on behalf of 
 a defendant. {Id.) 
 
 The witnesses are not entitled to any fees. If they refuse to 
 obey the subpoena, they may be proceeded against in the same 
 manner as witnesses who refuse to appear in a Justice's Court. 
 {Crim Pro., § 619 ; anU, pp. 272, 275.) The prisoner may 
 testify in his own behalf. {Crim. Pro., § 393.) 
 
644 NEW YORK JUSTICE. 
 
 § 132. SvJ)p(Bna. 
 
 In the name of the People of the State of New York to \_wit- 
 
 nesses' names], greeting : 
 
 You are commanded to be and' appear before the undersigned, 
 one of the Justices of the Peace of the said county, holding a 
 Court of Special Sessions at his office in- , in said county, 
 
 on the day of , at o'clock in the noon 
 
 [or, forthwith], as a witness in a criminal action prosecuted by 
 the people of the State of New York against W. V. Hereof fail 
 not at your peril. 
 
 Witness my hand this day of , 1885. 
 
 J. H. B., Justice of the Peace. 
 
 The Justice must administer the proper oath to the witnesses. 
 The provisions of law as to the mode of administering oaths have 
 been heretofore cited. {Ante, pp. 295, 296.) The following 
 form may be used where the person who swears lays his hand 
 upon and kisses the Grospels : {Code (Jiv. Pro., § 845.) 
 
 § 133. Oath to Witness. 
 
 You do swear that the evidence you shall give on this issue of 
 traverse between the people of the State of New York and W. 
 T., the defendant, shall be the truth, the whole truth, and noth- 
 ing bnt the truth, so help you God. 
 
 Where the witness desires to swear without laying his hand 
 upon or kissing the Gospels {id., § 846), or is permitted to affirm 
 {id., § 847), the foregoing form may be varied as in Forms § 42 
 and § 43. {Ante, p. 295.) 
 
 (5.) Evidence. 
 
 The subject of evidence has already been considered in a former 
 part of this work, but it may not be improper here to state a few 
 of the general rules which should govern the Justice in the 
 admission or rejection of testimony in criminal proceedings. 
 
 The prosecution cannot give evidence of the prisoner's charac- 
 ter, unless the prisoner has himself called witnesses in support of 
 it ; and even then the prosecution cannot call witnesses as to par 
 ticular facts. {People v. White, 14 Wend., 111.) 
 
 Evidence of a good character is of no avail in a clear case. 
 {Bofrb. Crim. Law, 395.) 
 
 Where the prisoner pleads not guilty, the prosecution must 
 prove every fact and circumstance which is material and neces- 
 
VERDICT OF THE JURY. 645 
 
 sary to constitute the offense. {Id.) And the offense must be 
 proved to have been committed in the county of the Justice 
 holding the Court or he has no jurisdiction. {Crim. Pro., § 56 ; 
 1 Chitty's Crim. Lav\ 559.) 
 
 A particular time, unless where it enters into the essence of 
 the offense, as in burglary, need not be precisely proved, though 
 stated in the charge. (Barb. Grim. Law, 397.) 
 
 If the offense charged relates to the taking of certain specified 
 goods, the evidence must correspond with the description of 
 goods charged in the warrant of arrest or commitment. {Aroh- 
 holcCs Crim. Plead., 66.) A charge of stealing boots is not 
 supported by evidence of stealing a pair of shoes. {Id.) 
 
 Proof of a particular value or sum charged is not necessary, 
 unless it forms the essence of the offense, or is matter of descrip- 
 tion, as in forgery. {Ktng v. Gillam, 6 Term Rep., 265.) 
 
 The identity of the prisoner must be established, and this is a 
 question for the jury. {Barb. Crim,. Law. 398.) 
 
 It lies upon the prosecution to prove the commission of the 
 offense, and not upon the prisoner to prove his innocence. (1 
 Chitty's Crim. La\o, 564.) 
 
 As a general rule a husband and wife cannot be witnesses either 
 for or against each other. {Ante, p. 361.) 
 
 The credibility of witnesses is governed by rules similar to 
 those which apply in civil cases (1 Chitty^s Crim. Law, 350), which 
 have already been stated. {Ante, p. 373.) The defendant may 
 testify in his own behalf. {Laws of 1869, chap. 678.) 
 
 (6.) Verdict of the Jury. 
 After hearing the proofs and allegations the jury are to be kept 
 together, in some convenient place, until they agree on a verdict, 
 or are discharged by the Court ; and a constable or marshal must 
 be sworn to keep them, in like manner as upon a trial in a 
 Justice's Court. {Crim. Pro., § 713; ante, jp. 301.) The 
 constable is bound to take charge of the jury, and may, if he 
 refuses, be punished by a fine and imprisonment, or both, as for 
 a misdemeanor. 
 
 § 1 34. Constable's Oath on retiring with -lury. 
 You do swear that you will keep this jury together in some 
 private and convenient place, without food or drink, except bread 
 
646 NEW YORK JUSTICE. 
 
 and water, unless otherwise ordered by the Court ; tliat you will 
 not permit any person to speak to or communicate with tliem, nor 
 do so yourself, unless it be to ask them whether they have agreed 
 upon a verdict, and that you will return them into Court when 
 they have so agreed, or when ordered by the Court. 
 
 (7.) General Rules. 
 
 "When the jurors have determined upon their verdict they are 
 to deliver the same to the Court publicly, and the Justice must 
 enter it in the minutes of the proceedings to be kept by him. 
 {Grim. Pro., § 714.) 
 
 The Court has the power, and it is its duty, to issue a second 
 venire for a jury to try a defendant in a criminal case, if the first 
 jury are discharged because they cannot agree upon a verdict, 
 ( Vanderwerker v. The People, 5 Wend., 530.) 
 
 No Court can be opened or transact any business on Sunday, 
 unless it be for the purpose of receiving a verdict or discharging 
 a jury, and every adjournment of a Court on Saturday to another 
 day must always be to some other day than Sunday, except such 
 adjournment as may be made after a cause has been committed 
 to a jury. {Giv. Pro., § 6.) "Where a cause was submitted to a 
 jury at two o'clock in the morning of Sunday, and the jury ren- 
 dered their verdict about three o'clock, it was held that the con- 
 viction was erroneous, and it was reversed. [Pulling v. The 
 People, 8 Bar})., 384.) A case may be adjourned from Saturday 
 until Monday, and such adjournment will not be a keeping of the 
 Court open on Sunday within the meaning of the statute. ( Yan- 
 derwerher v. The People, 5 Wend., 53u.) 
 
 If, after the trial is commenced, it is postponed at the request 
 of the prisoner for several days, and the jury are allowed to 
 separate, under instructions from the Court not to converse with 
 any one in relation to the case, such postponement constitutes no 
 reason for reversing the conviction. {Behee v. The People, 5 
 Eill, 32.) 
 
 5. Peoceedings Subsequent to a Tkial. 
 
 When the defendant is convicted the Court must render judg- 
 ment thereon, of fine or imprisonment, or both, as the case may 
 jequire ; but such fine can in no case exceed fifty dollars, nor 
 such imprisonment six months. {Grim. Pro., § 717.) 
 
PBOCEEDINGS SUBSEQUENT TO A TRIAL. 647 
 
 On a conviction of any of the offenses heretofore specified 
 {ante, pp. 629 to 635), as within the jurisdiction of Courts of 
 Special Sessions, the Justice may fine or imprison, or both 
 (always, however, within the limit of a fine not exceeding fifty 
 dollars, and imprisonment not exceeding six months), except in 
 the cases of defacing or destroying mile posts, &c., in regard to 
 which the punishment that may be awarded by the Justice has 
 been heretofore stated. {Ante, p. 630.) 
 
 If the prisoner is acquitted he must be immediately discharged. 
 {Crim. Pro., § 4.52.) It is not necessary that a defendant in a 
 criminal proceeding should be present in Court when judgment 
 is pronounced, except when corporal punishment is to be awarded. 
 {Son. V. The People, 12 Wend., 344.) 
 
 The Justice must keep minutes of the proceedings had before 
 him on the trial. They may be in the following form ; 
 
 § 135. Minutes of Proceedings. 
 County, ss. : 
 
 Minutes of a Court of Special Sessions held at [city or town] 
 in said county, before J. H. B., Esquire, a Justice of the Peace 
 of the said county, for the trial of William Vantine, charged 
 before tlie said Justice by D. A. with [state the offense^ 
 
 December 16th, 1885. The Court convened at the office of 
 the said J. H. B. at 10 o'clock a. m , the said complainant and 
 defendant being both present. The defendant was arraigned, and 
 the complaint was read to him [or, the charge made was stated 
 to him] ; whereupon he pleaded not guilty, and demanded a 
 trial b}' jury. A venire was issued to Norman Parker, con- 
 stable, returning forthwith, and the persons summoned as jurors 
 appearing, six were drawn and sworn as jurors as follows : [insert 
 names']. The following witnesses were sworn on behalf of the 
 people : [insert na'ines] ; and the following on the part of the pris- 
 oner: [insert names]. After hearing the proofs the jury retired 
 under the charge of said Parker, and at 12 m. returned into Court 
 and declared that they found the prisoner guilty. Whereupon the 
 said William Yantine was sentenced by me to pay a fine of [ten 
 dollars], and to be imprisoned in the county jail for [ten] days, 
 
 J. H. B., Justice of the Peace. 
 
 After the prisoner has been convicted the Justice must make 
 up and sign a certificate of conviction in substantially the follow- 
 ing form : 
 
648 NEW YORK JUSTICE. 
 
 § 138. Certificate of Conviction at Special Sessions. 
 
 Court of Special Sessions or Police Court. 
 
 County of Alhcmy, town of Berne [w, as the case may ie]. 
 The People of the State of New York ) 
 against > 
 
 A. B. ) January 1, 18 . 
 
 The above named A. B., having been brought before C. D., 
 Justice of Special Sessions, Justice of the Peace [or, other magis- 
 trate, as the case m.aybe], or Police Justice of the town [or, city 
 or village] of [as the ease may be], charged with [hricjiy desig- 
 nating the offense']. 
 
 And having thereupon pleaded guilty* or not guilty [or, as tJie 
 case may be], and demanded [or, failed to demand, as the case 
 may be] a jury, and having been thereupon duly tried, and upon 
 such trial duly convicted, it is adjudged that he be imprisoned in 
 the jail of 'this county days [t>r, pay a fine of dollars, 
 
 and "be imprisoned until it be paid not exceeding days, or 
 
 both, as the case may he]. 
 
 Dated at the town [or, city] of , the day 
 
 of . eighteen hundred and 
 
 C. D. 
 
 Justice of the Peace or Police Justice or other magistrate [as 
 the case may be] of the town [or, city] of [as the case may be]. 
 
 This certificate, or a duly certified copy thereof, is evidence in 
 all Courts and places, of the facts stated therein {Crim. Pro., 
 § 724), and will be received as such in a collateral proceeding, 
 although it does not show that the Court had obtained jurisdic- 
 tion of the person of the prisoner. (People v. Powers, 7 Barb., 
 462; S. C, 2 Seld., 50.) It should, however, state sufficient to 
 show an offense within the jurisdiction of the Justice (Powers v. 
 People, 4 Johns., 292), and the place where the ofEense was com- 
 mitted should appear. 
 
 The fine imposed by the Justice, if paid before commitment, 
 must be received by him and applied to the payment of the 
 charges of apprehending and prosecuting the offender ; and after 
 deducting the sums allowed therefor, the remainder, if any, must 
 be paid by the Justice, within thirty days after the receipt thereof, 
 to the county treasurer, for the use of such county. (Grim. Pro., 
 § 726.) If the defendant is acquitted he is to be discharged 
 without being required to pay any fees. 
 
 The judgment of the Court must be executed by the sheriff, 
 
PROCEEDINas SUBSEQUENT TO A TRIAL. 649 
 
 constables and marshals of the county, or city and county, in 
 ■which a conviction is had, upon receiving a copy of the certificate 
 tinder the hand of the magistrate who held the court, certified by 
 the court or the county clerk. {Grim. Pro., % 725.) 
 
 A waiTant of commitment issued by a Justice of the Peace 
 upon a conviction for petit larceny is void, unless it be directed 
 to the officer, or class of officers, by vrhom it is to be executed, 
 and will afford no protection to the constable who executes it. 
 The legislature, by the section of the statute relative to warrants 
 of commitment issued by Courts of Special Sessions, did not 
 intend to prescribe any form for such warrants, or to vary the 
 common-law rule respecting them. Hence, a warrant which 
 would be good at common law is good under the statute. {Rus- 
 sdl V. Hubbard, 6 Barb., 654.) 
 
 § 137. Certificate of Commitment from Special Sessions under 
 a Plea of Ouiliy. 
 
 As in the last form to the* and then add: And the above 
 named A. B. having been thereupon duly convicted upon a plea 
 of guilty, it is adjudged that he be, &c., as in the last form to 
 the end. 
 
 Certificate, when filed. "Within twenty days after the convic- 
 tion the Court must cause the certificate to be filed in the office 
 of the clerk of the countj'. {Grim. Pro., § 723.) 
 
 This warrant must be executed by the officer to whom it is 
 directed and delivered ; and if he refuses, he is liable to a fine 
 and imprisonment. 
 
 If a fine imposed be paid before commitment, it must be 
 received by the Court., and within thirty days after its receipt 
 paid by such Court into the county treasury. {Crirn. Pro., § 726.) 
 
 If a fine is imposed upon the defendant, and he does not pay 
 it until after he is committed to prison, he must pay it to the 
 sheriff of the county, by whom it is to be paid to the county 
 treasurer. {Grim. Pro., § 727.) 
 
 If the Justice or the sheriff neglect to pay to the county 
 treasurer the fines received by them respectively, it is his duty 
 immediately to commence a suit therefor, and prosecute it to effect. 
 
 The prisoner may apply to the County Court of the county in 
 which he was convicted for the remission of the fine imposed 
 upon him, and that Court may remit the fine, but cannot dis- 
 
650 NEW YORK JUSTICE. 
 
 charge him from the imprisonment. {Civil Code, § 3.53.) If 
 the fine, however, was imposed for a contempt of Court it cannot 
 be remitted. 
 
 Whenever any person under the age of sixteen years is con- 
 victed of any crime in the first, second and third judicial dis- 
 tricts, the Court, instead of sentencing such person to imprison- 
 ment in the county jail, may order that he be removed to and 
 confined in the house of refuge established by the society for the 
 reformation of juvenile delinquents in the city of New York. 
 {Penal Code, § 701.) 
 
 It is made the duty of every Court or magistrate by whom 
 any person may be sentenced for a term of not less than sixty 
 days, for any crime or misdemeanor not punishable by imprison- 
 ment in the State prison, to sentence such person to imprison- 
 ment in some penitentiary designated by the supervisors. {Laws 
 1874, chap. 209.) 
 
 And wlienever any person under the age of twenty-one and 
 above the age of sixteen years, shall be convicted of an offense 
 punishable with imprisonment in the State prison, in a judicial 
 district having a penitentiary within it, the Court may, in its 
 discretion, sentence the person convicted to imprisonment in such 
 penitentiary. {Penal Code, § 699.) 
 
 The several Courts having criminal jurisdiction, and who shall 
 hold Courts within the limits of the fourth, fifth, sixth, seventh 
 and eighth judicial districts, are required to order all juvenile 
 delinquents by them respectively sentenced, to be removed to the 
 western house of refuge for juvenile delinquents in the city of 
 Rochester. {Penal Code, § 701.) 
 
 Place to he specified in sentence of removal. The place of the 
 imprisonment must be specified in the judgment and sentence of 
 the Court. But convicts may be removed from one place of 
 confinement to another in a case and by the authority designated 
 by statute. {Penal Code, § 705.) 
 
 6. Judgment whbn the Complaint was Malicious. 
 Defendant on acquittal to he discharged ; order that prose- 
 cutor -pay the costs. "When the defendant is acquitted, either by 
 the Court or by a jury, he must be immediately discharged ; and 
 if the Court certify upon its minutes, or the jury find that the 
 prosecution was malicious or witliont pfobable cause, the Court 
 
JUDGMENT WHEN THE COMPLAINT "WAS MALICIOUS. 651 
 
 must order the prosecutor to pay the costs of the proceedings, or 
 to give satisfactory security, by a written undertaking, with one 
 or more sureties, to pay the same to the county within thirty days 
 after the trial. {Penal Code, % 719.) 
 
 Judgment against prosecutor for costs. If the prosecutor do 
 not pay the costs or give security therefor, the Court may enter 
 judgment against him for the amount thereof, which may be 
 enforced in all respects in the same manner as a judgment ren- 
 dered by a Justice's Court held by a Justice of the Peace. {Penal 
 Code, § 720.) 
 
 During the time allowed to the defendant to give bail, and 
 until judgment is given, he may be committed in the custody of 
 the officer or committed to the jail of the county. 
 
 Form of comtnitinent. The commitment must be signed by the 
 magistrate, by his name of office, and must be in substantially the 
 following form : 
 
 The sheriff of the county of is required to receive and 
 
 detain A. B., who stands charged before me for {designating the 
 offense generally], to answer the charge before a Court of 
 Special Sessions in the town [or, city] of [_as the case 
 
 may he]. 
 
 Dated at the town [or, city] of the day of ,18 
 C. D., Justice of the Peace of the town 
 
 [or, city] of , [as the case may he]. 
 
 Or the defendant may give bail for his appearance as follows: 
 
 § 138. Farm of the Undertaking. 
 
 The undertaking must be in substantially the following form : 
 
 A. B. having been duly charged before 0. D., a Justice of the 
 Peace in the town [or, city] of , [as the case may he], with 
 
 the offense of [designating the offense generally]. We undertake 
 jointly and severally that he shall appear thereon from time to 
 time, until judgment, at a Court of Special Sessions in the town, 
 or village [or, city] of , [as the case may he], competent to 
 
 try the case, or that he will pay to the county of [naming the 
 
 county in which the court is held] the sum of dollars [insert- 
 
 ing the sum fixed hy the magistrate]. 
 
 Dated at the town [or, city] of [as the case may he]. 
 
 (See Penal Code, § 738.) 
 
652 NEW YORK JTT8TI0E. 
 
 CHAPTER IX. 
 
 OF COUETS OF SPECIAL SESSIONS IN PAETICULAE 
 LOCALITIES. 
 
 THB SPECIAL SESSIONS IN THE CITY AND COUNTY OF NEW YOEK. 
 
 Section 64. Jurisdiction. 
 
 65. Officers, how appointed. 
 
 66. Term of office. 
 '67. Court, when held. 
 
 § 64. Jurisdiction. 
 The Court of Special Sessions in the city and county of New 
 York has jurisdiction : 
 
 1. To try and determine according to law all complaints for 
 misdemeanors, unless tlie defendant elects to be tried at the Court 
 of General Sessions, or the Court of Special Sessions sends the 
 case to the Court of General Sessions for trial. 
 
 2. To remit fines imposed by it, and in place of the fine remit- 
 ted substitute, in its discretion, imprisonment. 
 
 3. By an order entered in its minutes, to declare forfeited the 
 recognizances of a defendant, taken by the Court to appear 
 thereat, upon liis failure so to appear. 
 
 4. To impose the same punishment as is authorized by statute 
 to be infileted in like cases tried in the Court of General Sessions 
 of the Peace of that city and county. 
 
 5. By warrant attested in the name of any one of the Jnstiees 
 authorized to hold the Court, signed by the clerk thereof and 
 entered in the minutes of the Court, to enforce its judgments and 
 orders ; to bring before the Court all accused persons for trial 
 and judgment in all eases in which it has jurisdiction ; to issue 
 subpoenas for the attendance of witnesses, attachments for con- 
 tempt, and other process necessary for the proper conduct of the 
 Court. 
 
 6. To require the principal in a recognizance to appear at the 
 Court and enter into a further recognizance to keep the peace, or 
 
SPECIAL SESSIONS IN PARTICULAR LOCALITIES. 653 
 
 to be of good behavior, or both, toward the people of the State, 
 for a period not exceeding one year, and in default thereof to 
 commit him to prison till he be discharged therefrom according 
 to law. 
 
 § 65. fleers, how Appointed. 
 
 The Police Justices of the city and county of New York, by 
 the vote of a majority, have the exclusive power to appoint the 
 clerk, deputy clerk, stenographer, interpreter and other officers 
 of the Court of Special Sessions in the city and County of New 
 York. 
 
 § 66. Term of Office. 
 
 The term of office of the clerk and deputy clerk of the Court 
 of Special Sessions in the city and county of New York is the 
 same as the term of office of the Police Justices of that city. 
 
 § 67. Coxirt, when Held. 
 The Court of Special Sessions in the city and county of New 
 York may be held as often and at such times as the Justices 
 thereof may think expedient. 
 
 THE SPECIAL SESSIONS IN THE CttTT OF ALBANY. 
 
 Section 68. .1 urisdiction. 
 
 69. By whom held. 
 
 70. Inability of Judge. 
 
 71. Officers to attend. 
 78. Clerk. 
 
 73. Court, when and where held. 
 
 § 68. J'Lirisdiction. 
 The Court of Special Sessions in the city of Albany has 
 jurisdiction : 
 
 1. To try and determine all cases of petit larceny charged as a 
 first offense, and all misdemeanors, not being infamous crimes, 
 committed within the city. 
 
 2. To take recognizances to appear before the Court at a suc- 
 ceeding term from persons charged with a crime or misdemeanor, 
 triable therein. 
 
 3. To impose and enforce sentence of tine or imprisonment, or 
 both in the discretion of the Court, in all cases within its juris- 
 diction upon conviction, to the same extent as the Court of 
 Sessions of the county of Albany could do in like cases. 
 
664 NEW TOKK JUSTICE. 
 
 4. To punish a contempt of Court in the same manner and to 
 the same extent as the Court of Oyer and Terminer of the county- 
 could do in like cases. 
 
 5. In cases where a jury trial is demanded by a defendant, to 
 draw from the jury box containing the names of jurors who 
 reside in the city of Albany such number of names as the recorder 
 or County Judge may direct, and to require the sheriff of the 
 county to summon the persons so drawn to appear at the time 
 designated for trial, to impan^el a jury of twelve men, to require 
 the attendance of additional jurors and to punish a juror or wit- 
 ness neglecting to appear, in the same manner and to the same 
 extent as the Court of Oyer and Terminer of the county could 
 do in like cases. 
 
 6. On motion of the district attorney, to issue a warrant for 
 the arrest of a person who neglects to appear agreeably to the 
 requirements of a recognizance to appear thereat, command- 
 ing the officer executing the same to bring the party forthwith 
 before the court, if in session, otherwise to commit him to the 
 common jail of the county, there to remain until delivered bj 
 due course of law. 
 
 § 69. By whom Held. 
 Upon charges for offenses triable by this Court, the police magis- 
 trate, or any other magistrate in the city hearing the same, shall, 
 if offered, take recognizances in the cases provided by law returna- 
 ble at the Court of Special Sessions ; and all such recognizances 
 as shall have been so taken shall be returned to and filed with the 
 district attorney of the county of Albany. If no such recog- 
 nizance be offered, the magistrate or magistrates shall commit the 
 ■defendant to the common jail of the county of Albany until he 
 shall be thence delivered in due course of law, and the trial of 
 such person shall be had before the Court of Special Sessions, 
 except that where a Police Justice or other magistrate in this city 
 has jurisdiction, the defendant may elect to be tried before such 
 Police Justice or other magistrate. 
 
 § 70. Inability of Judge. 
 
 Whenever a person is brought before a Police Justice or 
 
 other magistrate of xhe city charged with any of the followino- 
 
 crimes, viz. : Petit larceny charged as a first offense, offenses 
 
 against the laws relating to excise and the regulation of taverns, 
 
SPECIAL SESSIONS IN PARTICULAR LOCALITIES. 655 
 
 inns and hotels, offenses being misdemeanors against the laws 
 relating to gaming. Assaults upon, and interference with, a 
 public ofidcer in the dischai-ge of his duty, and it shall appear to 
 the magistrate that the crime has been committed and that there 
 is sufficient cause to believe the defendant guilty thereof, the 
 magistrate must order him to be held to answer the charge before 
 the court of Special Sessions. 
 
 § 71. Officers to Attend. 
 The Court of Special Sessions in the city of Albany must be 
 held by the recorder of the city, with or without one or more of 
 the Justices of the Peace to be associated with him. In case 
 of the absence or inability of the recorder to act, the County 
 Judge of the county of Albany must act in his place. If the 
 recorder and County Judge are both unable, by reason of absence 
 or other cause, to hold the court, the clerk must adjourn the court 
 to the next following Tuesday, and continue such adjournments 
 until the recorder or county judge attends. Not more than two 
 officers shall be designated or appointed by the sheriff or other 
 authority to attend the Court of Special Sessions of the city of 
 Albany, unless the court shall, by an order entered in its minutes, 
 require the attendance of a greater number. 
 
 § 72. Clerk. 
 The county clerk of Albany county is clerk of the Court of 
 Special Sessions of the city of Albany, and must attend the same 
 in person or by deputy. 
 
 § 73. Court, When and Where Held. 
 The Court of Special Sessions of the city of Albany must be 
 held at the City Hall, in the city of Albany, on Tuesday of each 
 week, and may be held and continued for such length of time as 
 it deems proper. 
 
656 NEW YORK JUSTICE. 
 
 THK POLICE COURTS. 
 
 Section 74. Jurisdiction. 
 
 75. Election of Justices. 
 
 76. Justice to take and file oath of office, &c. 
 
 77. Justice, how to bold office. 
 
 78. Compensation of Justice. 
 
 § 74. Jurisdiction. 
 Police Justices have such jurisdiction, and such only, as is 
 specially conferred upon them by statute. The Courts held by 
 Police Justices are called Police Courts, and Courts of Special 
 Sessions are also called Police Courts, and are so designated in 
 difEerent parts of the Code. 
 
 § 75. Election of Justices. 
 Upon the application in writing of not less than twenty-five 
 electors, inhabitants of any incorporated village in this State, in 
 which no provision now exists for the election of a Police Justice, 
 the board of trustees of such village may determine, by resolution 
 to be entered in their minutes of proceedings, that a Police Jus- 
 tice should be elected for such village ; and, if they so determine, 
 the electors of the village may, at their next annual election, or 
 at a special election to be called for the purpose, and to be con- 
 ducted in the same manner as the annual election, choose a Police 
 Justice, who must be a resident elector of the village ; and there- 
 after a Police Justice must be elected in such village, at the 
 annual charter election next preceding the expiration of a regular 
 term, or at the next annual election after a vacancy, on the same 
 ticket with the other elective village officers. Any vacancy must 
 be filled by appointment by the board of trustees of the village. 
 
 § 76. Justice to Take and file Oath of Office, etc. 
 A Police Justice elected or appointed as prescribed in the last 
 section must, before entering upon the duties of his office, and 
 within fifteen days after receiving notice from the village clerk 
 of his election or appointment, take before the clerk the consti- 
 tutional oath of office, and file the same with the clerk, together 
 with a bond with such sureties and in such amount as shall be 
 approved by the board of trustees of the village, conditioned for 
 the faithful performance of his official duties. 
 
SPECIAL SESSIONS IN PARTICULAR LOCALITIES. 657 
 
 § 77. Justice ; How to hold Office. 
 A Police Justice, elected or appointed, as prescribed in section 
 seventy-five, holds his office as follows : 
 
 1. If elected at the first election held after the creation of the 
 office, he must enter upon the duties of his office immediately 
 after qualifying, as prescribed in the last section, and may hold 
 his office until and including the thirty-first day of December in 
 the third year succeeding his election. 
 
 2. If elected at any subsequent election, except as prescribed 
 in the next subdivision, he must enter upon the duties of his 
 office on the first day of January succeeding his election, and 
 may hold his office for three years. 
 
 3. If elected to fill a vacancy, he must enter upon the duties 
 of his office immediately after qualifying, as prescribed in the 
 last section, and may hold his office for the unexpired term. 
 
 4. If appointed, he must enter upon the duties of his office 
 immediately after qualifying, as prescribed in the last section, 
 and may hold his office until his successor is elected and qualities. 
 
 § 78. Compensation of Justice. 
 
 A Police Justice cannot retain to his own use any costs or fees, 
 but may receive for his services an annual salary, to be fixed in 
 villages by the board of trustees, and in cities by the common 
 council, except where the same is otherwise fixed by law ; and 
 such salary shall not be increased or decreased during his term of 
 office. 
 
 BrooUyn. The act of March 24, 1849 {Laws of 1849, chap. 
 125, § 33, as amended iy Laws of 1850, chap. 102, § 16), pro- 
 vides as follows : " Either of the Justices of the Peace, or the 
 Police Justice, of the city of Brooklyn, shall have power to hold 
 a Court of Special Sessions alone, and shall have jurisdiction also, 
 other than that heretofore given them, to try any person arrested 
 in said county who may be brought before them, or either of 
 them, charged with an affray, riot, malicious mischief or cruelty 
 to any animal, committed within said county ; and in all cases 
 which are triable in such Court of Special Sessions, the party 
 accused shall not be required to give bail to appear at any other 
 Court of criminal jurisdiction, unless the city Judge of said city, 
 the County Judge of said county, or a Justice of the Supreme 
 Court, shall certify that the charge is one that ought to be tried 
 42 
 
NEW YORK .TUSTICE. 
 
 in some other criminal Court; and the said Justices, except tlie 
 Police Justice, shall have tJie like jurisdiction in all civil eases as 
 is now exercised by the Justices of the Peace of the towns in this 
 State, in addition to the powers and jurisdiction given them 
 under the said act hereby amended ; and no Justice of the Peace, 
 other than the Police Justice and the Justices elected in the city 
 of Brooklyn, shall have or exercise any civil or criminal jurisdic- 
 tion in said city. 
 
 Elmira. The recorder of Elmira shall have jurisdiction exclu- 
 sive of any Justice of the Peace or other officer in said city, except 
 the mayor and Judges of Courts of Record, to issue all criminal 
 process, and all process other than in civil actions, which a single 
 Justice or two Justices of the Peace in towns are empowered or 
 directed by law to issue ; to hear all complaints and conduct all 
 examinations in criminal cases ; to hold Courts of Special Sessions 
 with all the power and jurisdiction of such Courts as regulated 
 by statute ; to try, convict and sentence all persons who may be 
 guilty of any offenses which are triable by Courts of Special 
 Sessions, and to commit for trial all persons who shall be guilty 
 of felonies not triable in such Courts. {Laws of 1875, p. 391, 
 chap. 370.) 
 
 Monroe. Courts of Special Sessions in the county of Monroe, 
 in addition to the powers vested in said Courts by the first and 
 second sections of chapter seven hundred and sixty-nine of the 
 Laws of eighteen hundred and fifty-seven, shall have exclusive 
 jurisdiction to hear, try and determine charges for crimes and 
 offenses, in the cases in this section mentioned, arising within 
 said county, provided, however, that the accused in such cases shall 
 have the right to demand a trial in said Court as provided by law : 
 
 1. All cases of petit larceny not charged as a second offense. 
 
 2. Cases of assault and battery not charged to have been com- 
 mitted riotously, or iipon any public officer. 
 
 3. Cases of intoxication, arising under the seventeenth section 
 of an act entitled " An act to suppress intemperance and to regu- 
 kte the sale of intoxicating liquors," passed April sixteenth, 
 eighteen hundred and fifty-seven. But this not to affect the 
 jurisdiction of Courts of Sessions or Oyer and Terminer in cer- 
 tain cases. {Laws of 1870, chap. i7,p. 122.) 
 
 Oswego. The recorder of Oswego, in addition to such other 
 powers and duties as are now or may be prescribed by law, shall 
 
SPECIAL SESSIONS IN PARTICULAE LOCALITIES. 659 
 
 be and act as a Police Justice in said city, and as such sliall liave 
 all the powei's of Justices of the Peace, and sole and exclusive 
 jurisdiction to hear all complaints, and to conduct all examina- 
 tions in criminal cases, and proceedings in the nature of criminal 
 cases, anu to hold all Courts of Special Sessions in said city, and 
 possess all the powers and jurisdiction, and do and perform all 
 the duties of such Courts. {Laws of 1860,^. 859, chap. 403.) 
 
 PougJikeepsie. The recorder of the city of Ponghkeepsie has 
 exclusive jurisdiction, as a Court of Special Sessions, to try all 
 criminal maiters. (Laws <?f 1880, chap. 17.) 
 
 Rensselaer. The act of April 10, 1855 (amended in 1876), pro- 
 vides that when any person charged with any offense specified in 
 article first, title third, chapter second of the fourth part of the 
 Revised Statutes, or with the commission of any of tlie acts or 
 offenses enumerated in section first, title fifth, chapter twentieth 
 of part first of the Revised Statutes, or with being guilty of 
 malicious mischief, when the damage charged to have been done 
 shall be less than one hundred dollars, or with vagrancy, or with 
 indecently exposing their person, or by tumultuous or riotous 
 conduct disturbing the public peace, or either fighting or being 
 engaged in any affray, or being intoxicated under such circum- 
 stances as to amount to a violation of public decency, shall be 
 brought before any Justice of the Peace of the county of 
 Rensselaer ; such Justice shall, upon conviction of such offender, 
 have power to punish him by a fine not exceeding fifty dollars, 
 or by imprisonment in the county jail of said county at hard 
 labor for a term not exceeding six months, or by both such fine and 
 imprisonment. 
 
 All persons who shall abandon their wives or children without 
 adequate means of support, or who shall neglect or refuse to 
 support them according to their ability, shall be deemed dis- 
 orderly persons within the meaning of the Revised Statutes, and 
 for the purposes of trial and punishment as prescribed in the 
 above section. 
 
 When any person charged with any offense as specified above 
 shall be brought before such Justice, it shall be his duty forthwith 
 to hear, try and determine such complaint or prosecution accord- 
 ing to the provisions of said article first, title third, chapter second 
 of the foui-th part of the Revised Statutes, whether the person 
 charged with such offense requests to be tried or not, and before 
 
660 NEW TOEK JUSTICE. 
 
 entering upon such trial such Justice may in his discretion adjourn 
 the hearing or trial thereof from time to time for the purpose of 
 procuring material testimony, either on the part of the people or 
 the accused, for a period not exceeding sixty days, and such Justice 
 may commit the accused to jail until such adjourned day, or suffer 
 such accused to go at large upon his or her executing to the people 
 of the State of New York, and filing with such Justice, a bond 
 with sureties to be approved by him in a penalty not exceeding 
 five hundred dollars, conditioned for the personal appearance of 
 said accused before such Justice on the day to which such hearing 
 or trial shall be adjourned, and that he or she will not depart there- 
 f)-om without the leave of the Court. 
 
 Every bond so given which shall be forfeited, shall be delivered 
 by said Justice to an overseer of the poor of the town where the 
 proceedings are had, and such overseer shall, and he is hereby 
 authorized to prosecute and collect the same oflicially for the 
 benefit of the poor of such town. 
 
 Section seven of chapter one hundred and eighty-three of 
 Session Laws of eighteen hundred and forty-seven, is hereby so 
 amended in its application to the county of Rensselaer, that the 
 words " three months," in said section, shall be made to I'ead 
 " two months." 
 
 It shall be the duty of the Court which shall hereafter sentence 
 any person under the provisions of this act to imprisonment, 
 where the term of such imprisonment is more than two months, 
 to cause such person to be conveyed forthwith, by the oflicer in 
 whose charge the prisoner shall be, to the penitentiary of the 
 county of Albany ; and the officer's fees shall be as follows, to 
 be audited by the board of supervisors of Rensselaer county, 
 and charged to the respective towns according to the statutes : 
 For executing the warrant seventy-five cents, and ten cents per 
 mile for necessary travel in conveying one prisoner. For one 
 additional prisoner, one-half the above fees in addition. For 
 each additional prisoner beyond the two as above, one-third the 
 fees for carrying the first. {See Laws of 1876, chajp. 390.) 
 
 Lansi'igburgh. The foregoing provisions so far as they affect 
 the village of Lansingburgh, are modified by the following : 
 The Police Justices of said village shall have jurisdiction and 
 authority to hear, try and determine, in the manner now pro- 
 vided by law, all complaints and charges for criminal offenses 
 
SPECIAL SESSIONS IN PAETICITLAE LOCALITIES. 661 
 
 in the cases enumerated in section first, article first, title third, 
 chapter second, of the fourth part of the Revised Statutes, except 
 that bail shall not be taken in such cases to the next Criminal 
 Court of the county ; but it shall be the duty of the Justice 
 before whom complaint shall be made to proceed to the trial of 
 the person charged with the ofEense, whether such trial be 
 requested or not, within twenty-four hours after such person 
 shall be brought before him, unless, upon good cause shown, such 
 Police Justice may deem a longer time necessary for procuring 
 material testimony, in which case the hearing or trial may be 
 further postponed for a period not exceeding fifteen days. {Laws 
 0/1864, p. 415; 1866, chap. SOS.) 
 
 Utica. The act of March 6, 1873 {ohap. 54, § 6), provides as 
 follows : All Courts of Special Sessions of the Peace in said 
 city, shall be held by said recorder ; and said Court is hereby 
 invested with all the authority devolved upon Courts of Special 
 Sessions, for the trial, conviction and punisliment of ofFenses, 
 and in the summoning of jurors for such trial. The said recorder 
 is hereby invested with all the authority possessed by any Justices 
 of the Peace in hearing complaints, issuing process, causing 
 arrests, compelling the attendance of witnesses, taking examina- 
 tions and recognizances, letting to bail, binding over and commit- 
 ting in criminal cases. The recorder shall have exclusive author- 
 ity to try and determine all cases arising under the ordinances 
 passed, or which may hereafter be passed, by the common council 
 of said city in such way and manner as such cases are now tried 
 and determined by Justices of the Peace in said city, and shall 
 have power to summon juries in all such cases in the same way 
 and manner as Justices of the Peace in said city now have power 
 to summon them ; and any Justice of the Peace of said city is by 
 said act authorized to perform the duties of said recorder, in case 
 of said recorder's absence from the city, or his illness, or his 
 incapacity from any cause to act. {Laws of 1873, chap. 54.) 
 
 The said recorder shall not charge or receive any fees or per- 
 quisites, by virtue of his office, in civil or criminal cases, but shall 
 be allowed and paid an annual salary of twenty-five hundred 
 dollars, one thousand dollars by the board of supervisors of the 
 county of Oneida, and fifteen hundred dollars by the city of Utica. 
 (M, § IT.) 
 
CG2 NEW YORK JUSTICE. 
 
 Watertown. The act of April 12, 1855, provides as follows : 
 
 § 1. Section second, article first, title third, chapter second 
 of the fourth part of the Revised Statutes, in its application to 
 the town of "Watertown in Jefferson county, is so amended as to 
 read as follows : 
 
 When any person chai-ged with any offense, as is specified in 
 the first section of said article, or with the commission of any 
 of the acts or offenses designated in the first section of title five, 
 chapter twentieth of part first of the Revised Statutes, or shall 
 be charged with habitual drunkenness or disorderly conduct, 
 shall be brought before any Justice of the Peace of said town of 
 Watertown, such Justice shall, upon conviction of such offense, 
 have power to punish by fine not exceeding fifty dollars, or by 
 imprisonment in the county jail of said county not exceeding 
 six months, or to hard labor on the highways in the village of 
 Watertown, with ball and chain, under the charge of the street 
 commissioner of said village, or some other proper person for 
 that purpose appointed by the trustees of said village, and to be 
 imprisoned in the county jail of said county, or a place designated 
 by the said trustees of said village, when not at labor on the high- 
 ways as aforesaid, or by both such fine or imprisonment or labor. 
 
 § 2. When any person charged with any offense, as specified 
 above, shall be brought befoi*e such Justice, it shall be his duty 
 forthwith to hear, try and determine such complaint or prosecu- 
 tion, according to the provisions of said article first, title third, 
 chapter second of the fourth part of the Revised Statutes, as 
 amended by act of May 20, 1845, whether the person charged 
 with such offense requests to be tried or not; and, before enter- 
 ing upon such trial such Justice may, in his discretion, adjourn 
 the hearing or trial thereof from time to time, for the purpose 
 of procuring material testimony, either on the part of the people 
 or the accused, for a period not exceeding ninety days ; and 
 such Justice may commit the accused to jail until such day, or 
 suffer such accused to go at large, upon his or her executing to 
 the people of the State of New York, and filing with said Justice, 
 a bond to be approved by him, in a penalty of not exceeding 
 five hundred dollars, conditioned for the personal appearance 
 of said accused before said Justice on the day to which such 
 heai-ing or trial shall be adjourned, and that he or she will not 
 depart therefrom without the leave of the Court. 
 
SPECIAL SESSIOlSrS IN PAKTICULAR LOCALITIES. 663 
 
 § 3. Every bond so given, which shall be forfeited, shall be 
 retui-ned to the next Court held in and for the said county of 
 Jefferson, exercising criminal jurisdiction, and shall be prosecuted, 
 collected and applied as if the same had been originally made 
 returnable to said Court. 
 
 Watervliet. The act of April 2, 1850 {chaj>. 139, §§ 1 to 3), 
 provides as follows : " Section second, article first, title third, 
 cliapter second of the fourth part of the Revised Statutes (2 -R. 
 S., 711, § 2; ante, jp. 635), in its application to the town of 
 Watervliet, in Albany county, io so amended as to read as 
 follows : 
 
 "When any person charged with any offense, as is specified in 
 the first section of said article (2 R. S., 711, § 1, ante, p. 630), 
 or with the commission of any of the acts or ofEenses designated 
 in the first section of title five, chapter twenty of part first of 
 the Revised Statutes (1 R. S., 638, § 1 ; post, part III, chap. 
 XI), or shall be charged with habitual drunkenness and disor- 
 derly conduct, shall be brought before any Justice of the Peace 
 of said town of Watervliet, such Justice shall, upon conviction 
 of such offender, have power to punish by fine not exceeding 
 fifty dollars, or by imprisonment in the penitentiary of said 
 county not exceeding six months, or by both such fine or 
 imprisonment. 
 
 When any person charged with any offense, as specified above, 
 shall be brought before such Justice, it shall be his duty forth- 
 with to hear, try and determine such complaint or prosecution 
 according to the provisions of said article first, title third, chap- 
 ter second of the fourtli part of the Revised Statutes (2 R. S., 
 Til, § 1 ; ante, p. 630), whether the person charged with such 
 offense requests to be tried or not ; and before entering upon 
 such trial such Justice may, in his discretion, adjourn the hearing 
 or trial thereof from time to time, for the purpose of procuring 
 material testimony, either on the part of the people or the 
 accused, for a period not exceeding ninety days ; and such Justice 
 may commit the accused to jail until such day, or suffer such 
 accused to go at large upon his or her executing to the people of 
 the State of New York, and filing with said Justice, a bond, to 
 be approved by him, in the penalty of not exceeding three liun- 
 dred dollars, conditioned for the personal appearance of said 
 accused before such Justice on the day to which the hearing or 
 
664 NEW YORK JUSTICE, 
 
 trial shall be adjourned, and that he will not depart therefrom 
 without leave of the Court. 
 
 Every bond so given, which shall be forfeited, shall be 
 returned to the next Court held in and for the said county of 
 Albany, exercising criminal jurisdiction, and shall be prosecuted, 
 collected and applied as if the same had been originally made 
 returnable to said Court. 
 
 The Laws of 1877 {chap. 93) provides that a Police Justice 
 shall be elected in said town, to hold office for three years, and 
 shall keep an office in the village of West Troy. He has no 
 jurisdiction in civil actions, and no Justice of the Peace of said 
 town can be compelled to issue any paper or process in criminal 
 proceedings or receive any compensation for so doing. The 
 compensation of such Police Justice to be one thousand eight 
 hundred dollars per annum. 
 
COMPROMISE OF OFFENSES. 665 
 
 CHAPTER X. 
 
 OF THE COMPEOMISE OF OFFENSES. 
 
 Certain crimen for which the party injured has a civil action 
 may he compromised. When a defendant is brought before a 
 magistrate, or is held to answer on a charge of a misdemeanor, 
 for which the person injured by the act constituting the crime 
 has a remedy by a civil action, the crime may be compromised, 
 as provided in the next section, except when it was committed : 
 
 1. By or upon an officer of justice while in the execution of 
 the duties of his office. 
 
 2. Riotously ; or 
 
 3. With an intent to commit a felony. {Crim. Pro., § 663.) 
 Comirromise to he hy permission of the Court ; order thereon. 
 
 If the party injured appear before the magistrate or before the 
 Court, to which the depositions and statement are required, by 
 section two hundred and twenty-one, to be returned at any time 
 before trial or commitment by the magistrate or trial on an indict- 
 ment for the crime, and acknowledged in writing that he has 
 received satisfaction for the injury, the magistrate or Court may, 
 in its discretion, and on payment of the costs and expenses incur- 
 red, if such magistrate or Court shall see lit so to direct, order all 
 proceedings to be stayed upon the prosecution and the defendant 
 to be discharged therefrom. But in that case the reasons for the 
 order must be set forth therein and entered upon the minutes. 
 {Grim. Pro., § 664.) 
 
 Such order is a bar to another prosecution for the same offense. 
 There can be no compromise, however, after a conviction. {The 
 People V. Bishop, 5 Wend., 111.) 
 
 The compounding or compromising of offenses which are pun- 
 ishable with death, or by imprisonment in the State prison for 
 any term, is expressly forbidden by statute. 
 
NEW YORK JUSTICE. 
 
 § 138. Acknowledgment of Satisfaction. 
 County, 68. : 
 I hereby acknowledge that I have received from "William 
 Vautine live dollars, in full satisfaction and compensation for 
 all injury and damages done to me by the said William, on 
 the day of , 1885, by assaulting and beating me, 
 
 whereof I complained to J. H. B., Esq., a Justice of the Peace of 
 the said county, on the day of , 1 885, and 1 pray that 
 
 the said William Vantine may be released from his imprisonment, 
 and that no further proceedings may be had against him. 
 
 DANIEL ABBOTT. 
 
 § 139. Order Supersedvng the Commitment of the Prisoner. 
 County, ss. : 
 To the Keeper of the common jail of the said county ; 
 
 Daniel Abbott, for assaulting and beating whom, William 
 Yantine was committed by me to your custody on the day 
 
 of , 1885, having this day acknowledged in writing that 
 
 he has received satisfaction for the injury and damage he sus- 
 tained by reason of such assault and beating, you ai-e hereby 
 required, on the receipt of this order, to discharge the said 
 William Vantine from your custody in the said jail, unless he be 
 therein detained by you for some other cause. 
 
 Witness my hand and seal, this day of , 1885. 
 
 J. H. B. [l. s.], Justice of the Peace. 
 
 § 140. Order Discharging the Recogmzances of the Prisoner 
 amd the Witnesses. 
 County, ss. : 
 Daniel Abbott, the complainant within named, having appeared 
 before me, the Justice by whom this ]-ecognizance was taken, and 
 acknowledged in writing that he has received satisfaction for the 
 injury and damage therein complained of, I hereby order this 
 recognizance to be discharged. 
 
 Witness ray hand, this day of , 1885. 
 
 J. H. B., Justice of the Peace. 
 Tills discharge is to be indorsed upon each of the several 
 recognizances. 
 
PROCEEDINGS TO BEVER8E JUDGMENTS. 667 
 
 CHAPTER. XI. 
 
 OF PEOCEEDIJSTGS TO EEVERSE JUDGMENTS IN 
 CRIMINAL CASES. 
 
 Judgment of Special Sessions reviewable only upon appeal. 
 A judgment upon conviction rendered by a Court of Special 
 Sessions, Police Coiirt, Police magistrate or Justice of tlie Peace, 
 in any criminal action or proceeding or special proceeding of a 
 criminal nature, may be reviewed by the Court of Sessions of the 
 county, upon an appeal as prescribed by this title, and not other- 
 wise ; and any appeal lieretofore taken and allowed from a judg- 
 ment of any Police Court or police magistrate, in the manner 
 that appeals are directed to be taken and allowed by this title, and 
 now pending undetermined in any Court of this State, are hereby 
 declared to be legal and valid and of the same force and effect as 
 if taken after the passage of this act. {Grim. Pro., § 749.) 
 
 Appeal, for what causes allowed. An appeal may be allowed 
 for an erroneous decision or Jetermination of law or fact upon 
 the trial. {Id., § 750.) 
 
 Appeal, how taken. For the purpose of appealing, the defend- 
 ant, or some one on his behalf, must, within ten days after the 
 judgment, make an affidavit, stating the fact showing the alleged 
 errors in the proceedings or conviction complained of, and must, 
 within that time, present it to the County Judge or a Judge of 
 the Supreme Court, or in the city and county of New York to 
 the recorder or city Judge, or Judge of General Sessions of that 
 city, and may apply thereon for the allowance of the appeal. 
 {Id., § 751.) 
 
 How allowed. If, in the opinion of the Judge, it is proper that 
 the question arising on tlie appeal should be decided by the Court 
 of Sessions, he must indorse on the affidavit an allowance of the 
 appeal to that Court. {Id., § 752.) 
 
 Discharge of defendant from custody, upon unaertaMng. Upon 
 allowing the appeal, the Judge may take from the defendant a 
 written undertaking, with such sureties as he may approve, that 
 the defendant will abide the judgment of the Court of Sessions 
 
668 NEW YORK JUSTICE. 
 
 upon the appeal ; and may thereupon order that he be discharged 
 from imprisonment, on service of the order upon the officer hav- 
 ing him in custody, or if he ba not in custody, that all proceedings 
 on the judgment be stayed. {Id., § 753.) 
 
 Undertaking, when and with whom filed. The undertaking 
 upon the appeal must be immediately filed, with the clerk of the 
 Court of Sessions. {Id., § TS-t.) 
 
 Delivery of aiffidavit, and allowance of appeal, to magistrate 
 or clerk of Police Court, -within five days after allowance. 
 The affidavit and allowance of the appeal must be delivered to 
 the magistrate wh© tried the action, or, if in the city and county 
 of New York, to the clerk of the Court of Special Sessions, 
 within five days after the allowance of the appeal ; and when so 
 delivered, the appeal is deemed taken. (Id., § 755.) 
 
 Return, when and how made. The magistrate or Court render- 
 ing the judgment must make a return to all the matters stated 
 in the affidavit, and must cause the affidavit and return to be filed 
 in the office of the clerk of the Court of Sessions, within ten 
 days after the service of the affidavit and allowance of the appeal. 
 (M, §756.) 
 
 Compelling return. If the return be not made within the time 
 prescribed in the last section, the Court of Sessions, or the pre- 
 siding J udge thereof, may order that a return be made within a 
 specified time wliich may be deemed reasonable ; and the Coui-t 
 may, by attachment, compel a compliance with the order. {Id-, 
 §757.) 
 
 Ordering and compelling further or amended return. K the 
 return be defective, a further or amended return may be ordered, 
 and the order may be enforced in the manner provided in the last 
 section. (M, § 758.) 
 
 Appeal, ly whom and how hrought to argument. "When the 
 return is made, the appeal may be brought to argument by the 
 defendant, on any day in term, upon a notice of not less than 
 five days before the term, to tlie district attorney of the county. 
 {Id., § 759.) 
 
 If not hrought to argument, as provided in last section, to ie 
 dismissed, unless continued for cause shown. If the defendant 
 omit to bring the appeal to argument, as provided in the last sec- 
 tion, the Court must dismiss it, unless it continue the same, by 
 special order, for cause shown. {Id., § 760.; 
 
PROCEEDINGS TO REVERSE JUDGMENTS. 609 
 
 Service of return on district attorney^ and consequences of 
 failure. Tlie defendant must serve upon the district attorney a 
 copy of the return with or before the notice of argument. If 
 he fail to do so, the appeal must be dismissed, upon proof of the 
 failure, unless the Court otherwise direct. (/cZ., § 761.) 
 
 If irought to hearing iy defendant, appeal must he argued, 
 though no one oppose, etc. If the appeal be brought to hearing by 
 the defendant, it must be argued, though no one appear to 
 oppose ; but if brought on by the district attorney, he may take 
 judgment of affirmance, unless the defendant appear to argue the 
 appeal. {Id., § 762.) 
 
 Appeal to he heard on original retu/rn. The appeal must be 
 heard upon the original return ; and no copy thereof need be 
 furnished for the use of the Court. {Id., § 763.) 
 
 What judgment tnay ie rendered. After hearing the appeal 
 the Court must give judgment without regard to technical errors 
 or defects which have not prejudiced the substantial rights of the 
 defendants, and may render the judgment which the Court below 
 should have rendered, or may, according to the justice of the 
 case, affirm or reverse the judgment, in whole or in part, as to all 
 or any of the defendants, if there be more than one, or may 
 order a new trial, or may modify the sentence. {Id., § 764.) 
 
 Judgment to he entered on the minutes. When judgment is 
 given upon the appeal, it must be entered upon the minutes. 
 {Id., § 765.) 
 
 Order upon judgment for affirmance. If the judgment be 
 affirmed, the Court must direct its execution, and if the defend- 
 ant be discharged on bail, after the commencement of the execu- 
 tion of a judgment of imprisonment, must commit him to the 
 proper custody for the remainder of his term of imprisonment. 
 {Id., § 766.) 
 
 Order upon judgment of reversal. If the judgment be reversed, 
 and the defendant be imprisoned in pursuance of the judgment 
 of the Police Court, the Court of Sessions must order him to be 
 discharged. {Id., § 767.) 
 
 If new trial ordered, to he had in Court of Sessions j pro- 
 ceedings thereon. If a new trial be ordered, it must be had in the 
 Court of Sessions, in the same manner as upon an issue of fact 
 on an indictment ; and that Court may proceed to judgment ano 
 execution, as in an action prosecuted by indictment. {Id., § 768.) 
 
 / / 
 
670 NEW YOEK JUSTICE. 
 
 Proceedings to carry judgment wpon appeal into effect, to be 
 had in Court of Sessions. If any proceedings be necessary to 
 carry the judgment upon the appeal into effect, they must be had 
 in the Court of Sessions. {Id.^ § 769. ) 
 
 On judgment of Court of Sessions defendant may appeal to 
 Supreme Court; his admission to hail. If the judgment on the 
 appeal be against the defendant, he may appeal therefrom to the 
 Supreme Court, in the same manner as from a judgment m an 
 action prosecuted by indictment, and may be admitted to bail 
 upon the appeal in like manner. {Id., § 770.) 
 
 Judgment of Supreme Court, upon appeal, final. The judg- 
 ment of the Supreme Court upon the appeal is final. {Id., § 771.) 
 Proceedings to carry into effect judgment of Supreme Court. 
 The same proceedings must be had, to carry into effect the judg- 
 ment of the Supreaie Court upon the appeal, as if it had been 
 taken upon a judgment in an action prosecuted by indictment. 
 {M., § 772.) 
 
 § 141. Affidavit to OUain an Appeal from Special Sessions. 
 
 In the Court of Special Sessions, County of Monroe : 
 The People of the" 
 
 - Before A. B., a Justice of the Peace. 
 
 State of JMew York 
 
 V. 
 
 John Doe. 
 County of Monroe, ss. : 
 
 John Doe, the defendant above named, being duly sworn, says, 
 that heretofore and on or about the day of , at the 
 
 town of Greece, in said county, he was arrested and brought 
 before the said A. B., Esq., a Justice of the Peace of said county, 
 under and by virtue of a warrant issued by the said Justice for 
 the arrest of this deponent, upon the charge of malicious mis- 
 cliief [or, set forth the true charge'], and that thereupon an 
 examination of deponent on said charge, and such other proceed- 
 ings were had upon tlie said charge against this deponent, by 
 and before said Justice of the Peace ; that this deponent, in 
 pursuance of the statute in such case made and provided, 
 demanded a trial before the Special Sessions, and that in pursu- 
 ance of such demand and of the statute in such case made and 
 provided, a Court of Special Sess-ions was held by the said A. 
 B., in the town of Greece aforesaid, on the day of , and 
 
 that thereupon, on the said last mentioned day, this deponent did 
 duly and in person appear in the said Court to answer and 
 stand trial, by and before tlie said Court, upon the said charge 
 
PEOCEEDINGS TO REVERSE JUDGMENTS. 071 
 
 pending against him in tlie said Court. That this deponent was, 
 in manner required by law, arraigned by the said Court upon 
 the said charge, and required to plead to the said charge as con- 
 tained or stated in the said warrant [or, charge], and plead not 
 guilty thereto ; that thereupon such proceedings were had in 
 said Court that the following testimony was offered on behalf of 
 the said people, and objected to on the part of this deponent, 
 as follows : [Here state the questions, the objections, the ruling 
 of the Court and the exceptions of the defendant, and the finding 
 of the Court.^ That the said Court, upon the finding of the 
 verdict [or, judgment], did thereupon adjudge, determine and 
 sentence that this deponent should be confined in the Aiouroe 
 county jail for the period of thirty days. 
 
 And deponent further says that he did thereupon, on the day 
 last aforesaid, give notice to said Court tliat he intended to 
 remove such conviction, by \A'rit of certiorari, to the Court of 
 Sessions of the county of Monroe ; and thereupon made and 
 entered into a recognizance before said Court, as required by law, 
 conditioned for his appearance at the next Court of Sessions to 
 be held in and for the county of Monroe, to abide the determina- 
 tion of the said Court on said certiorari. 
 
 Deponent further says that lie is advised and believes and 
 alleges that the rulings of said Court were erroneous in [here 
 state the erroneous and improper rulings or other errors\ And 
 deponent claims that said conviction was irregular and illegal, 
 by reason of each and all tlie errors in the proceedings and on 
 the trial hereinbefore mentioned. Deponent therefore desires 
 and applies for a writ of certiorari, to be issued to said Court 
 of Special Sessions, to remove the said conviction of this depo- 
 nent to the Court of Sessions of Monroe county, pursuant to the 
 statute in such case made and provided. 
 
 Sworn before me, &c. John Doe. 
 
 § 14-2. Indorsement on the foregoing Affidavit. 
 
 I hereby certify that the within affidavit was presented to me 
 this day of , upon an application for a writ of 
 
 certiorari, to remove the conviction of the defendant within 
 named from the Special Sessions to the Court of Sessions for 
 the county of Monroe, and that upon said affidavit I have this 
 day allowed an appeal to the Court of Sessions of Monroe county. 
 
 L. P., Justice Supreme Court. 
 
 § 143. Undertaking on Appeal to the County Sessions. 
 
 Whereas, at a Court of Special Sessions held on the day 
 
 of , 1885, before J. P., Justice of the Peace of the 
 
 town of Greece, in the county of Monroe, for the trial of "W". 
 
^^■^ NEW YORK JUSTICE. 
 
 y. for [state the qfense], upon the complaint of B. S., the said 
 W. V. was convicted of said offense by said Court, and has 
 appealed to the Court of Sessions of said county. 
 
 Now we, W. V. and E. F. and G. N., farmers of said town of 
 Greece, do jointly and severally undertake that the said W. V. 
 ■will appear and abide the judgment of the Court of Sessions 
 upon the appeal ; if he fail' so to do, that we will pay to the 
 People of the State of New York the sum of two hundred dollars. 
 
 Witness our hands this day of , 1885. 
 
 AV.V., &c. 
 
 § 144. Indorse'fTient on thb Undertaki/ri,g. 
 
 The within undertaking is hereby approved by me as to the 
 form and sufficiency of the sureties, pursuant to statute, this 22d 
 day of June, 1885. 
 
 G. B., Justice Supreme Court [or. County Judge]. 
 
 § 145. Recognizance on Appeal to County Sessions. 
 
 State of New York, ) 
 
 County of Monroe, \ 
 
 We, John Doe, L. M. and N. P., of the town of Greece, in 
 said county, acknowledge ourselves to be severally indebted to 
 the People of the State of New York ; that is to say, the said 
 John Doe in the sum of one hundred dollars, the said L. M. in 
 the sum of one hundred dollars, and the said N. P. in the sum 
 of one hundred dollars, to be well and truly paid if default shall 
 be made in the condition following : 
 
 Whereas, at a Court of Special Sessions held this day, before 
 A. B., Justice of the Peace, at the said town of Greece, in said 
 county, for the trial of the said John Doe, for [whatever the con- 
 mct%on may ie], upon the complaint of N. S., the said John Doe 
 was convicted of said offense by said Court. 
 
 Now, the condition of this recognizance is such that if the 
 said John Doe shall appear at the next Court of Sessions of the 
 Peace, to be held in and for said county of Monroe, and shall 
 abide the order and judgment of that Court in the premises, 
 then this recognizance to be void ; otherwise to remain in full 
 force and virtue. Johj^ j)qj,_ 
 
 Taken, subscribed and acknowledged the } L. M 
 
 day of , 1885, before me, f Jf. p| 
 
 A. B., Justice 
 
SURETY OF THE PEACE. 673 
 
 CHAPTER XII. 
 
 OF SUEETT OF THE PEACE. 
 
 Under the title of " Security to Keep the Peace " the statute 
 provides that Justices of the Peace and Police Justices shall 
 have power to cause to be kept all laws made for the preservation 
 of the public peace, and, in the execution of that power, to 
 require persons to give security to keep the peace in the manner 
 therein prescribed. 
 
 The power thus conferred has evoked from Mr. Justice Black- 
 stone a glowing encomium, and he esteems it an honor to the 
 English laws that they furnish a preventive remedy similar to 
 that just quoted from our own statute. In his language, ^'■Pre- 
 ventive justice is, upon every principle of reason, of humanity, 
 and of sound policy, preferable in all respects to j>unishing jus- 
 tice." {Blacks. Com. 252.) 
 
 We will now proceed to consider how this " preventive justice " 
 or security is to be obtained. 
 
 Whenever information is laid before a magistrate, a Justice of 
 a Justice's Court, a Police Justice or a Justice of the Peace, that 
 any person has threatened to commit any offense against the per- 
 son or property of another, it is their duty to examine the com- 
 plainant, and any witnesses he may produce, on oath, and to reduce 
 the examination to writing, and cause it to be subscribed by the 
 parties examined. {Grim. Pro., § 85.) 
 
 Under a similar statute it was decided that where the examina- 
 tion of the complainant, reduced to writing, and subscribed and 
 sworn to by him, contained matter sufficient to authorize the 
 issuing of a warrant of arrest, the Justice who issued it has 
 jurisdiction, although no complaint in writing, separate and dis- 
 tinct from the examination, was made. {Bradsl/reet v. Ferguson, 
 17 Wend., 181.) This decision, however, was reversed by the 
 Court for the Correction of Errors, to which Court the case was 
 carried, and it was there held that on an application to a magis- 
 trate for sureties of the peace, there must be a formal complaint 
 43 
 
674 NEW YORK JUSTICE. 
 
 in writing and upon oath, besides the examination in writing 
 required by the statute, to justify the magistrate in issuing a 
 warrant against tlie party complained of ; and that it was not 
 enough that the complaint was embraced in the examination. 
 {S. C, 23 id., 638.) If, however, the warrant of arrest recites 
 that there was a complaint in writing and upon oath, it is jyrima 
 facie evidence that such proceedings were had, and will protect 
 the magistrate in an action against him until it is affirmatively 
 shown on the other side that there was not such a complaint. {Id}} 
 
 All persons, being of sane memory, whether citizens or aliens, 
 have a right to make a complaint and to demand sureties of the 
 peace. A wife may demand it against her husband when he 
 threatens to beat her, and a husband may have it against his 
 wife. And, on the other hand, ther*^- can be no doubt that any 
 person whatever, being of sane memory, may be required to 
 give security to keep the peace, whether he be of full age or 
 under age, whether he be a magistrate or a private person. But 
 infants under age and married women must, as we have already 
 seen {Ante, p. 626), find security by their friends ; for they are 
 incapable of binding themselves. (4 Blacks. Comm., 250, 251; 
 Damis' Justice, 400.) 
 
 The first step, then, is to make a complaint in writing, upon 
 oath, before the Justice, stating the threatened offense against 
 the person or property, which complaint may be in these words : 
 
 § 146. Complaint to dbtavn Surety of the Peace. 
 County, ss. : 
 
 A. B., of said county, being duly sworn says that on the 
 day of » 18 , one D. A., of the town of , in said 
 
 county, did threaten to beat and wound [or, kill, as the case may 
 he], him, the said A. B. ; and that he hath just cause to fear that 
 the said D. A. will beat and wound [or,' kill, as the case may 
 he], him, the said A. B. ; * wherefore this deponent prays that 
 the said offender may be bound by recognizance to answer the 
 said offense at the next Court of Sessions to be held in the said 
 county, and in the meanwhile to keep the peace. 
 
 Sworn, &c. [as vn § 57.] ^ ]3_ 
 
 Tf it appears from the examination that there is just reason to 
 fear the commission threatened by the person complained of, it 
 is the duty of the Justice to issue a warrant under liis hand, to 
 
SUEETY or THE PEACE. 675 
 
 tlie sheriff of the county or some peace ofScer, commanding the 
 officer to whom it is directed forthwith to apprehend the person 
 so complained of, and bring him before the Justice. {Grim. 
 Fro., § 86.) 
 
 § 147. Peace Warrant. 
 County, ss. : 
 
 In the name of the People of the State of New York : 
 To any Peace officer in this State or of the said County : 
 
 "Wiereas, A. B. hath this day made complaint, upon oath, before 
 me, C H., one of the Justices of the Peace of the said town, 
 that on the day of , 18 , one D. A., of, &c. [as in 
 
 § li6, to the* and then add] : and the said A. B. hath thereupon 
 prayed surety of the peace : You are therefore commanded forth- 
 with to apprehend the said D. A., and bring him before me, at 
 my office in said town of , to be dealt with according 
 
 t» law. 
 
 "Witness my hand, this day of ,18. 
 
 G. H., Justice of the Peace. 
 
 It is not necessary that the warrant should contain a formal 
 adjudication that there is reason to fear the commission of the 
 offense charged. {Bradstreet v. Ferguson, 17 Wend., 181.) 
 
 When the defendant is brought before the Justice, the com- 
 plaint and examination should be read over to him, and he should 
 then be asked what he has to say in his defense, or what he can 
 allege against the finding of sureties. {Bari. Ciim. Law, 510.) 
 After he has been so interrogated, the Justice may require him, 
 if he think the case demands it, to enter into a recognizance in 
 such sum, not exceeding one thousand dollars, as he may deem 
 proper, with one or more sufficient sureties, to abide the order of 
 the next Court of Sessions to be held in the county where the 
 complaint is made, and in the meantime to keep the peace 
 towards the people of this State, and particularly towards the 
 complainant, {prim. Pro., § 89.) 
 
 § 148. Undertaking to keep the peace. 
 
 An order having been made on the day of , 1885, 
 
 by A. B., a Justice of the Peace of the town of Greece, county 
 of Monroe, requiring one "W. V. to enter into an undertaking 
 in a sum of five hundred dollars, with one or more sufficient 
 sureties, to abide the order of the next Court of Sessions of said 
 county, and in the meantime to keep the peace towards the people 
 of this State, and particularly towards C. D. 
 
 y 
 
676 NKW YORK JUSTICE. 
 
 We, W. V. and E. F. and G. "W.. do hereby undertake that 
 the said W. V. will abide the order of the next Court of Sessions 
 of the county of Monroe, and in the meantime keep the peace 
 towards the people of this State, and particularly towards C. D., 
 and if the said W. Y. fails to perform these conditions we will 
 ay to the people of the State of New York five hundred 
 ollars. 
 Dated , 1885. W. V., &c. 
 
 S 
 
 If the recognizance is given, the party complained of must be 
 discharged. If he refuses to find the security, it is the duty of 
 the Justice to commit him to prison until he does find it, and to 
 specify in the warrant the cause of commitment, and the sum in 
 which security is required. {Grim. Pro., § 90.) It is not neces- 
 sary, however, to state in the warrant of commitment the crime 
 for the prevention of which the application for security of the 
 peace was made; it is enough to state that the party is com- 
 mitted for refusing to give sureties. {Bradstreet vs. Ferguson, 
 23 Wend., 638.) 
 
 § 149. Commitmemt for not Finding Sureties. 
 County, ss : 
 
 In the name of the People of the State of New York, 
 To any Peace Officer in this State or of the said County : 
 
 Whereas, A B, this day made complaint to me in writing, on 
 oath, that D A, on the day of instant [or, last 
 
 past], threatened to, &c. [as in the complaiiit]. And whereas, 
 it appeared to me upon the examination of the said complahiant, 
 and of E F and O P, witnesses, duly made on oath, reduced to 
 writing, and subscribed by them, that there was just reason to 
 fear the commission of the said offense by the said I) A ; and he, 
 having been brought before me on my warrant, was required to 
 enter into a recognizance in the sum of dollars, with suffi- 
 
 cient surety, to appear at the next Court of Sessions to be held in 
 said county, and not to depart the same without leave, and in the 
 meantime to keep the peace towards the people of this State, and 
 particularly towards the said complainant; and the said D A, 
 having refused [or, neglected], to find such security, you are 
 therefore commanded, in the name of the people of tlie State of 
 New York, forthwith to convey him to the common jail of the 
 said county, and to deliver him to the keeper thereof, who is 
 hereby required to receive the said D A into his custody, and him 
 safely keep in the said jail, until he shall find such security, or be 
 discharged by due course of law. 
 
 Witness, &c. [as in § li7]. 
 
SURETY OF THE PEACE. 677 
 
 The warrant of commitment will be valid without a seal. 
 {Gano vs. Hall, 5 Parle. Cr., 651.) 
 
 Any person committed for not finding sureties as thus provided, 
 may be discharged by any two Justices of the Peace of the 
 county, upon giving such security as was originally required of 
 him. {Grim. Pro., % 91.) 
 
 § 150. Warrant to Discha/rge Prisoner on Finding Sureties. 
 County, ss: 
 G H and S T, Esqrs., two of the Justices of the Peace of the 
 said county, to the keeper of the common jail of the said 
 county, greeting : 
 These are to command you forthwith to discharge out of your 
 custody D A, if detained by you in such common jail for no other 
 cause than what is specified in his warrant of commitment, made 
 by the said G H, dated the day of > 18 , for not 
 
 finding sureties of the peace, he having since his said commitment 
 found such sureties before us. 
 
 Given under our hands and seals, this day of , 18 . 
 
 G H, Justice. [l. s.J 
 S T, Justice. [l. s.] 
 
 The recognizance taken by the Justice must be transmitted to 
 the next Court of Sessions of the county. {Grim. Pro., § 92.) 
 
 A person who, in the presence of a court or magistrate, assaults 
 or threatens to assault another, or to commit a crime against his 
 person or property, and who contends with another in angry 
 words, may be ordered by such court or magistrate, without any 
 other proof, to give seciirity as above specified ; and, in case of 
 his refusal to do so, may be committed in the manner above 
 described. {Grim. Pro., § 93.) 
 
 The statute further provides, that every court of criminal juris- 
 diction before which any person shall be convicted of any criminal 
 offense not punishable with death or imprisonment in the State 
 Prison, shall have power, in addition to such sentence as may be 
 prescribed or authorized by law, to require such person to give 
 security to keep the peace, or to be of good behavior, or both, for 
 any term not exceeding two years, or to stand committed until 
 such security be given. But this provision does not extend to 
 convictions for writing or publishing &X]j libel; nor can any 
 such security be required by any Court, upon any complaint 
 
678 NEW YORK JUSTICE. 
 
 prosecution or conviction, for any such writing or publishing. 
 
 {2 H. S., 7S7, n-) 
 
 No security to keep the peace, or to bo of good behavior, can 
 be required, nor can any person be committed to prison for not 
 giving the saipe, in any cases except such as are authorized or 
 prescribed by statute. 
 
PEES IN CRIMINAL OASES. 679 
 
 CHAPTER XIII. 
 
 OF FEES m CEIMIJJAL CASES. 
 
 All fees and accounts of magistrates and other officers for 
 criminal proceedings, including cases of vagrancy, are to be paid 
 by the several towns or cities wherein the offense was comijiitted. 
 All accounts rendered for such propeedJUgs njust state where the 
 offense was comniitted, aiid the board of supervisors jnust assess 
 such fees and accounts upon the several towns or cities desig- 
 nated by the accounts. But, when any person is bound over to 
 the Oyer and Terminer, or Court of Sessions, or committed to 
 jail to await a trial in either of said Courts, the costs of the pro- 
 ceedings had before the single magistrate are chargeable upon the 
 towns or cities aforesaid, and the costs of the proceedings had 
 after the person has been so bound over or committed are charge- 
 able to the county. {Laws of 1845, chap. 180, § 26, as amended 
 ly Laws of 1847, chap. 455.) 
 
 No account can be audited by any board of town auditors, or 
 supervisors, or superintendents of the poor, for any services or 
 disbursements, unless the account is made out in items, and 
 accompanied with an affidavit (which is to be attached and tiled 
 with such account), mad e by the person presenting or claiming 
 the same, that the items of such account are correct, and that the 
 disbursements and services charged therein have been in fact 
 made or rendered, or are necessary to be made or rendered at 
 that session of the board, and stating that no part thereof has 
 been satisfied. {Laws of 1845, chap. 180, § 24 ; 1847, chap. 490, 
 and 1869, chap. 855.) And any taxpayer may appeal to the 
 supervisors. {Laws of 1871, chap. 274.) 
 
 § 151. Affidavit to Accompany Account. 
 County, ss. : 
 J. H. B., of , in said county, being duly sworn, says 
 
 that he is a Justice of the Peace in and for said county, that the 
 items of the account hereto annexed are correct, and that the dis- 
 bursements and services chained in the said account have in fact 
 
680 NEW YORK JUSTICE. 
 
 been made and rendered by him, or are necessary to be made and 
 rendered by him at the present session of the board of of 
 
 said county, and that no part of the said accoimt has been paid 
 or satisiied. J. H. B. 
 
 Sworn, &c. [as in § 57.] 
 
 For the following services in criminal cases, performed in the 
 cases authorized by law, by the officers hereinafter named, the 
 following fees are allowed : {Laws of 1884, chap. 188, § 3.) 
 
 Fees of Justices of the Peace. 
 
 For administering an oath, ten cents. 
 
 For drawing an information, twenty-five cents. 
 
 For taking deposition of a witness on information, twenty-five 
 cents. 
 
 For issuing a warrant of arrest, twenty-five cents. 
 
 For indorsing warrant from another county, twenty-five cents. 
 
 For each day's necessary attendance upon the hearing or exam- 
 ination of accused, one dollar. 
 
 For every necessary adjournment of the hearing or examina- 
 tion, twenty-five cents. 
 
 For warrant of commitment, twenty-five cents. 
 
 For a subpoena, including all the names inserted therein, 
 twenty-five cents, and each copy subpoena for service, ten cents. 
 
 For filing each paper required by law, five cents. 
 
 For furnishing copies of papers in any proceeding, at the rate 
 of five cents per folio of one hundred words. 
 
 For each order in writing or certificate required by law, twenty- 
 five cents. 
 
 For drawing an undertaking of bail, twenty-five cents. 
 
 For taking an acknowledgment, twenty-five cents. 
 
 Fees of Courts of Special Sessions. {Laws 1866, chap. 192.) 
 
 For a venire to summon a jury, twenty-five cents. 
 
 For swearing a jury, twenty-five cents. 
 
 For swearing each witness on the trial, ten cents. 
 
 For a subpoena, including all names inserted therein, twenty- 
 five cents. 
 
 For a trial fee, one dollar per day during the necessary and 
 actual continuance of the trial. 
 
 For swearing constable to attend a jury, ten cents. 
 
FEES OF CONSTABLES. 681 
 
 For receiving and entering the verdict of the jury, twenty 
 cents. 
 
 For entering the sentence of the court, twenty-five cents. 
 For warrant of commitment on sentence, twenty-five cents. 
 For record of conviction and filing same, ssventy-five cents. 
 
 But all such charges, in any one case, shall not exceed five 
 dollai-s, unless such Court continue more than one day ; in such 
 case the costs of such additional day may be added thereto. 
 
 For a return to any writ of certiorari, to be paid by the county, 
 two dollai-s. As associate in a bastardy case, two dollars per day. 
 {Laws of 1866, chap. 692.) 
 
 Whenever a conviction shall be had in any Court of Sessions 
 for any criminal offense, a record thereof shall be made by said 
 Court and filed in the ofiice of the clerk of the county where 
 said conviction shall be had, within twenty days from the time 
 of said conviction; and whenever any fine imposed by said 
 Court shall be paid to said Court, the same shall be paid to the 
 treasurer of said county within thirty days after the receipt 
 thereof ; and any neglect or i-efusal to file such conviction, or 
 pay over said money within the period aforesaid, shall be deemed 
 a misdemeanor. {Crim. Pro., %% 723 and 726.) 
 
 All acts and parts of acts inconsistent with this act are hereby 
 repealed, except such as are locally applicable to any of tlie cities 
 of this State. 
 
 The Kevised Statutes provide that the fees just specified shall 
 be divided equally between the persons composing a Court of 
 Special Sessions. (2 R. S., 749, § 2.) This provision is not 
 directly changed by the act to reduce the number of town officers, 
 before referred to {ante, p. 559), whereby those Courts are required 
 to be held by a single magistrate. It is presumed, therefore, that 
 a single magistrate holding a Court of Special Sessions is entitled 
 to the same compensation that the three magistrates by whom the 
 Court was formerly held were entitled to. 
 
 The fees of Justices of the Peace given by Code of Civil Pro- 
 cedure do not apply to criminal cases. 
 
 Fees of Constables. 
 Serving a warrant or other process for the arrest of any per- 
 son, issued by any magistrate or Court, seventy-five cents ; and 
 the same fees for traveling to make such service as are allowed 
 
632 NEW YORK JUSTICE. 
 
 for serving a civil warrant (ten cents a mile for going anc* 
 returning). 
 
 Taking a defendant in custody on a mittimus, twenty-five 
 cents; taking a person to jail, ten cents per mile, going and 
 returning. {Laws 1877, chap. 89.) 
 
 Serving a subpsena, twenty-five cents for eacn witness, and foi 
 every mile traveled in serving each subpoena, going and returning, 
 five cents ; for notifying a complainant, twenty-five cents ; for 
 every mile traveled in notifying a complainant, five cents, going 
 and returning ; for keeping a prisoner after being brought before 
 the Justice, and by his direction in custody, one dollar per day ; 
 for taking charge of a jury during theia- deliberations, fifty cents ; 
 for attending any Court, pursuant to a notice from the sheriff for 
 that purpose, two dollars for each day, and five cents a mile for 
 each mile traveled in going to and returning from such Court , 
 which fees shall be chargeable to the county, and shall be paid by 
 the treasurer thereof on the production of the certificate of the 
 clerk, specifying the number of days and distance traveled 
 (^Laws of li'il, chap. 89, p. 93 ) 
 
 Whenever a subpoena for witnesses in criminal cases or com- 
 plaints, containing one or more names, is served by a constable 
 or other officer, such officer can be allowed for mileage only foi 
 the distance, going and returning, actually traveled to made such 
 service upon all the witnesses in such cases of complaint, and not 
 separate mileage for each witness, unless the l)oard of supervisors, 
 auditing accounts for such services, deem it equitable to make 
 a further allowance. {Laws of 1836, chap. 506.) 
 
 The board of supervisors may allow such further compensation 
 for the service of process, and the expenses and trouble attending 
 the same, as they may deem reasonable. 
 
 For other services in criminal cases, for which no compensation 
 is specially provided by law, such sum as the board of supervisors 
 of the county shall allow. (2 R. S., 750, § 4.) 
 
 The provisions of law prohibiting tlie taking of any fees for 
 services in civil cases, other than such as are allowed by statute, 
 apply to the taking of fees for services in criminal cases beyond 
 the amount allowed by law for such services. {Id., 753, § 1 7.) 
 The taking of fees not allowed by law is a misdemeanor. {Penal 
 Code, § 50.) 
 
PART III. 
 
 OF THE SPECIAL POWERS AND DUTIES OF 
 JUSTICES OF THE PEACE. 
 
PART III. 
 
 OF THE SPECIAL POWERS AND DUTIES OF JUSTICES OF 
 
 THE PEACE. 
 
 Hating considered, as fully and particularly as the limits of 
 this work would permit, the civil and criminal jurisdiction of 
 Justices of the Peace, we come now to the consideration of the 
 third and last division of our work, which embraces the powers 
 aud duties conferred upon Justices by special statutory pro- 
 visions. 
 
 It is proper to say, with reference to all these powers aud 
 duties, that the statute conferring or requiring them must be 
 stricJily pursued. Indeed, the only safety that a Justice can 
 have in exercising these powers, especially in summarily con- 
 victing offenders, which, as we shall see, he may do in cei'tain 
 cases, is in following the precise commands of the statute. 
 Thus, if the statute requires two Justices of the Peace to exe- 
 cute a judicial power, they must meet and execute it together; 
 [The King agt. Forrest, 3 Term Rep. 38;) and if authority is 
 given to the next Justice of the county where the offence was 
 committed, he alone can exercise it. {Sanders' case, 1 Saun- 
 ders, 263, note.) 
 
 Justices, before rendering any service which they are required 
 to perform, may demand the fee allowed by law for such service. 
 {Civ. Pro., § 3281.) 
 
 Every sheriff, constable, marshal, or other officer, to whom la 
 directed and delivered any attachment, summons, precept to 
 summon a jury, warrant to apprehend a witness or any other 
 person, or any other process authorized by law to be issued by 
 a Justice of the Peace, in any special proceeding or matter 
 
NEW YORK JUSTICE. 
 
 before him, except civil actions, must execute such process, aa 
 therein commanded ; and for any wilful neglect so to do, may 
 be fined by the Justice issuing the same, in a sum not exceeding 
 twenty-five dollars. {Oiv. Fro., § 103.) 
 
 When any person has been personally summoned to attend 
 as a juror, to inquire into any matter or thing, or to hear and 
 try any controversy, in any special proceeding or matter above 
 specified, and wilfully neglects to attend in obedience to such 
 summons, he may be fined by the Justice issuing the same, in y 
 sum not exceeding twenty-five dollars. But this section does 
 not extend to any case where special provision is made by law, 
 for punishing the default of any juror. {Id., § 1195.) 
 
 When any sherifi", constable, or other officer, who has sum- 
 moned any jury, in the cases mentioned in the two last sections, 
 is required by the Justice issuing the summons, to attend such 
 jury and take charge of them, he is bound to do so; and, for 
 any wilful neglect to obey such order, or for any misconduct 
 while attending such jury, by which the rights or remedies of 
 any party to such proceeding may be impaired or prejudiced, 
 such sheriff, constable, or other officer is liable to be fined by 
 the Justice before whom such jury has appeared, in a sum not 
 exceeding twenty-five dollars. {Id., § 1196.) Upon such fiue 
 being imposed in any of the cases above specified, notice thereof 
 must be given to the person fined, to the end that he may render 
 an excuse to the Justice, or show cause why such fine should be 
 remitted. {Id., § 1197.) If no such excuse be rendered, or 
 cause shown, within thirty days after the service of such notice, 
 and such fine be not remitted by the Justice, the Justice must 
 make a special return of the delinquency or misconduct for 
 which such fine was imposed, with the amount thereof, to the 
 next County Court of the county in which such delinquent 
 resides. {Id., § 1198.) 
 
 In case of the death, sickness, resignation, removal from 
 office, absence from the county of his residence, or other disa- 
 bility, of any officer before whom any special proceedings autho]-- 
 ized by any statute may have been commenced, and where no 
 express provision is made by law for the continuance of such pro- 
 ceedings, the same may be continued by the successor in office of 
 such officer, or by any other officer residing in the same county 
 who might originally have instituted such proceedings; or, if 
 
SPECIAL POWEES OF JUSTICES. 687 
 
 there be no such officer in the same county, then by the nearest 
 public officer in any other county who might have originally 
 had jurisdiction of the subject matter of such proceedings, if 
 such matter had occurred or existed in his own county. 
 {Civ. Pro., § 52.) At the same time and place specified in 
 any notice or order which may have been given for parties to 
 appear, or for any other proceeding to be had, the officer sub- 
 stituted according to the foregoing or any other provision of 
 law, to continue proceedings commenced before another, may 
 make any order, and do and form any act, in relation to 
 such proceedings, as if the same had been originally com- 
 menced before him. {Civ. Pro., § 53.) But, before any pro- 
 ceedings can be had before any such substituted officer, at any 
 other time or place than such as was specified in the notice or 
 order requiring parties to appear, notice of such substitution 
 must be given to the parties who may be affected thereby, 
 either by personal service, or by publication, in such manner 
 and for such time as the substituted officer shall direct. Such 
 substituted officer will thereupon be authorized to make every 
 order, and to do and perform every act, in relation to such pro- 
 ceedings, as if the same had been originally commenced before 
 him. (id. ^53.) 
 
 "With these general remarks, we now proceed to consider m 
 detail the special powers and duties conferred upon Justices of 
 the Peace. 
 
688 NEW YORK JUSTICE. 
 
 CHAPTER I. 
 
 OF THE ACKNOWLEDGMENT AND PEOOF OF CON- 
 VEYANCES AND OTHEE WEITTEN INSTEUMENTS. 
 
 To entitle any conveyance of real estate to be recorded, it 
 must be acknowledged by the parties executing it, or be proved 
 by a subscribing witness thereto, before a proper officer. .(1 R. 
 S. 756, § 4.) By the act abolishing the office of commissioner 
 of deeds in the several towns of this State, its powers and 
 duties were conferred upon Justices of the Peace in towns, 
 {Laws of 1840, chap. 238,) who have power, therefore, at any 
 place within the counties in which they reside, 1. To take the 
 proof and acknowledgment of conveyances of real estate, and 
 of the discharge of mortgages; 2. To take the acknowledgment 
 of satisfaction of judgments in the County Court of the county 
 for which they are elected, or in the Supreme Court. (2 R. S. 
 282, § 41.) Although, prior to the amendments made to the 
 Code in 1849, Justices of the Peace in towns had power to 
 take the acknowledgment of bail in any action of the Supreme 
 Court, and in the County Court of the county for which thej 
 were elected, (id.) 
 
 A Justice cannot take an acknowledgment of a conveyance 
 unless he knows, or has satisfactory evidence, that the person 
 making it is the individual described in, and who executed, the 
 conveyance. (1 id. 758, § 9.) 
 
 Where the execution of a conveyance is proved by a sub- 
 scribing witness thereto, he must state his own place of resid- 
 ence, and that he knew the person described in and who exe- 
 cuted the conveyance; but such proof cannot be taken, unless 
 the Justice is personally acquainted with the witness, or has 
 satisfactory evidence that he is the same person who was the 
 subscribing witness. (1 R. S. 758, § 12; 2 Wend. 555; 7 id. 
 364; Oillett vs. Stanley, 1 Hill, 121.) 
 
 The identity of a grantor, on an acknowledgment by him, 
 need not be proved by a subscribing witness, but may be proved 
 by any one, so that the evidence be satisfactory to the officer. 
 
ACKNOWLEDGMENT AND PEOOF OF CONVEYANCES. 689 
 
 {Dibble vs. Rogers, 13 Wend. 536.) On taking proof of execu- 
 tion, the Justice should be careful to ascertain that the sub- 
 scribing witness saw the execution, and knew the grantor of the 
 deed, and not that the execution was acknowledged to him by 
 the grantor. {JVbrman vs. Wells, 17 Wend. 136; 2 id. 555.) 
 
 Formerly, the acknowledgment of a married woman residing 
 within this State, to a conveyance purpoi'ting to be executed by 
 her, could not be taken, unless, in addition to the knowledge or 
 satisfactory evidence of her identity, which the Justice must have, 
 she acknowledges, on a private examination, apart from her 
 husband, that she executed the conveyance freely, and without 
 any fear or compulsion of her husband. (1 B. S. 758, § 10.) 
 But, when any married woman, not residing in this State, joins 
 with her husband in any conveyance of any real estate situated 
 within this State, the acknowledgment or proof of the execution 
 of such conveyance by her, may be the same as if she were sole. 
 (id. § 11.) And it is held that since the acts of 1848 (chapter 
 200) and 1849 (chapter 375), which enable any married female 
 to take, &c., &c., and convey in the same manner as if she were 
 unmarried — where a married woman convej^s her real property 
 acquired since the passage of the act, the deed may be executed 
 and acknowledged in like manner, and in the same form as if she 
 were unmarried. She need not acknowledge on a private ex- 
 amination, or apart from her husband, or acknowledge that she 
 executed without any fear or compulsion of her husband. (Broad 
 vs. Humphrey, 17 Barb. 660 ; Laws of 1880, ehap. 300.) 
 
 "Where a married woman executed a power by grant, the grant 
 was not a valid execution of the power, unless it was acknowledged 
 by her on a private examination, in the manner above prescribed 
 in regard to conveyances by married women. (1 R. 8. 736, § 117.) 
 
 Whenever erasures or interlineations occur in a conveyance, 
 thev should be noted previous to the execution, or be men- 
 tioned in the certificate of the officer taking the proof or ac- 
 knowledgment. (Lewis vs. Payne, 8 Qow. 71.) 
 
 The Justice taking the acknowledgment or proof of any con- 
 veyance, must endorse a certificate of the proof or acknowledg- 
 ment, signed by himself, on the conveyance. In such certifi- 
 cate, he must set forth the matters before specified as required 
 to be done, known or proved on such acknowledgment or proof, 
 together with the names of the witnesses exammed before him, 
 
690 NEW YORK JUSTICE. 
 
 their places of residence, and the substance of the evidence given 
 by them. (1 li. S. 759, § 15.) 
 
 The Justice has power to administer all oaths that may be 
 necessary in the course of taking any acknowledgment or proof. 
 {id. 284, § 49; Laws of 1840, chap. 238.) 
 
 The certificate need not be in the precise words of the statute, 
 but it must show a substantial compliance therewith; {Meriam 
 vs. Harsen, 2 Barb. Oh. B. 232; 13 Wend. 536; 14 id. 562;) 
 nor is it necessary that the Justice should certify that the wit- 
 ness who identifies a subscribing witness is known to him. 
 {Jackson vs. VicJcory, 1 id. 406; 11 Johns. 434.) 
 
 A certificate that a married woman acknowledged that she 
 executed a conveyance withovt any fear, threat or compulsion 
 of her hiLsband, is sufficient. The word freely, in the statute, 
 does not import that the wife should execute the instrument 
 without a motive, as a mere act of generosity, and without any 
 hope of present or future benefit, but that she should execute it 
 without constraint, or coercion, or fear of injury from her hus- 
 band. (2 Barb. Oh. R. 232; Dennis vs. Tarpenny, 20 Barb. 
 371.) So a certificate of acknowledgment by a wife on au 
 examination, "separate and apart from her husband," is suffi- 
 cient, though the word " private" is omitted. 
 
 It is not necessary that the certificate should be endorsed on 
 the deed; it may be on any part of it. And, if it state that the 
 Justice knew the grantor to be the person who executed the 
 deed, it will be sufficient, although it do not state that he knew 
 him to be the person described in the deed. {Thurman vs. 
 Cameron, 24 Wend. 87.) 
 
 The Justice should state, after his signature, his official title, 
 and the name of the county in which he is a Justice. 
 
 Any Justice who is guilty of any malfeasance, or fraudulent 
 practice, in the execution of any duty prescribed by law in re- 
 lation to the taking, or certifying the proof or acknowledgment, 
 of any conveyance, mortgage, or instrument in writing, is guilty 
 of a misdemeanor, and, upon conviction, may be punished by 
 fine or imprisonment, and is also liable in damages to the party 
 injured. (1 R. 8. 762, § 35.) 
 
 The term conveyance, as used in this chapter, and in the stat- 
 utory provisions in regard to taking the proof and acknowledo-- 
 ment of conveyances, embraces every instrument in writing by 
 
CKNOWLEDGMENT AND PROOF OF CONVEYANCES. 691 
 
 which any estate or interest in real estate is created, aliened, 
 mortgaged, or assigned, or by which the title to any real estate 
 may be affected in law or equity, except last wills and testa^ 
 ments, leases for a term not exceeding three years, and execu- 
 tory contracts for the sale or purchase of lands. (1 R. 8. 762, 
 k 38.) 
 
 A Justice can also take the acknowledgment or proof of the 
 execution of any written instrument, except a promissory note, 
 a bill of exchange, or the last will of a deceased person, in the 
 same manner that he can take the proof or acknowledgment 
 of a conveyance of real estate, and, when he does so, must 
 indorse on the instrument a like certificate. {Code Civ. Pro., 
 § 937.) 
 
 The docket of a judgment rendered in any Court of Record 
 may be cancelled and discharged by the clerk thereof, upon 
 filing with him an acknowledgment of satisfaction, signed by the 
 party in whose favor such judgment was obtained, or by his 
 executors or administrators, duly authenticated. {Oiv. Pro., 
 § 1260.) Such acknowledgment may be made before Jus- 
 tices of the Peace in towns. {Laws of l%A:Qi, chap. 238.) The 
 officer must certify that the party making the same was known, 
 or made known to such officer, by competent proof. (2 R. 8. 
 362, \ 23; Laws of 1834, chap. 262.) Such acknowledgment 
 may also be made by the attorney on record of the party in 
 whose favor the judgment was rendered, within two years afte^ 
 the filing of the record of the judgment. {Civ. Pro., § 1260.^ 
 
 § 152. Certificate of Acknowledgment ly a Party known to the 
 
 O^cer. 
 
 County, ss:* 
 On the fii'st day of June, in the year of our Lord one thousand 
 eight hundred and fifty-three, before me personally came A B, 
 to me known to be the individual described in, and who executed 
 the within [or, above, or, annexed] conveyance [or, bond; or, 
 letter of attorney; or, instrument in writing,] and acknowledged 
 that he executed the same. 
 
 J H B, Justice of the Peace, in and for said county. 
 
 • If a conveyance or instrument is proved or acknowledged in this state, but it 
 is to be used or recorded in another state, the name of the state should be insert- 
 ed in the heading of the certificate as well as that of the county 
 
692 NEW YORK JUSTICE. 
 
 § 153. By a Party, where Ms Identity is proved to the Officer. 
 
 County, ss: 
 On the first clay of June, &c., before me personally came A B, 
 proved to me satisfactorily to be the same person described in, 
 and who executed the within conveyance, by the oath of C D, 
 subscribing witness thereto* who, being by me duly sworn, did 
 depose and say, that he resided in the of , in said 
 
 county, that he was acquainted with the said A B, and that he 
 knew him to be the individual described in and who executed 
 the within conveyance; and, thereupon, the said A B acknowl- 
 edged that he executed the same. 
 
 J H B, Justice, &c.t 
 
 \ 154. By Husband and Wife, both known to the Officer. 
 
 County, ss : 
 On the first day of June, &c., before me personally came A B, 
 and Mary, his wife, to me known to be the individuals described 
 in, and who executed, the within conveyance, and severally 
 acknowledged that they severally executed the same. 
 
 J H B, Justice, &c. 
 
 The wife is not required to acknowledge separate and apart from 
 her husband. {Laws of 1879, ohap. 249 ; 1880, chap. 300.) 
 
 § 155. By Husband and Wife, both proved to the Officer. 
 
 County, ss: 
 On this first day of June, &c., before me personally came A 
 B, and Mary his wife, both proved to me satisfactorily to be the 
 individuals described in, and who executed the within convey- 
 ance, by the oath of C D, subscribing witness thereto, who, being 
 by me duly sworn, did depose and say, that he resided in the 
 of , in said county; that he was acquainted with 
 
 the said A B, and Mary his wife; that he knew them to be the 
 
 * If the person by whose oath the identity is established is not a subscribing 
 witness, the words in italic, in the above and subsequent forms, must be omitted. 
 
 t The official title of the Justice should always be written in full, as in Form 
 § 162, and not be abbreviated. 
 
 X It is held that the private examination of a wife may be omitted where the 
 conveyance is of her separate property acquired since the acts of 1848 and '49, and 
 that her acknowledgment may be in such case as if she were sole, (^nie, 687; 
 Brood vs. Humphrey, 17 Barb. 660.) But the former practice and form had better 
 be followed. 
 
ACKNOWLEDGMENT AND PROOF OF CONVEYANCES. 693 
 
 individuals described in, and who executed tlie within convey- 
 ance; and, thereupon, they severally acknowledged that they 
 executed the same; 
 
 J H B, Justice, &c. 
 
 ^ 156. By Husband and Wife — Husband knoton, and Wife 
 proved to the Officer. 
 
 County, ss: 
 On the first day of June, &c., before me personally came 
 A B, and Mary his wife; the said A B being known to me to 
 be one of the individuals described in, and. who executed, the 
 within conveyance; and the said Mary being proved to me 
 satisfactorily to be one of the individuals described in, and who 
 executed, the within conveyance, by the oath of C D, subscrib- 
 ing witness thereto, who, being by me duly sworn, did depose 
 and sajr, that he resided in the town of , in said county, 
 
 that he was acquainted with the said Mary, the wife of the said 
 A Bj and knew her to be one of the individuals described in, 
 and who executed, the said conveyance; and, thereupon, the 
 said A B and the said Mary his wife, severally acknowledged 
 that they executed the same. 
 
 J H B, Justice, &c. 
 
 § 157. By two Husbam,ds and their Wives, all known to the 
 
 officer. 
 County, ss : 
 On the first day of June, &c., before me personally came A B, 
 and Mary his wife, and C D, and Lucy his wife, known to me 
 to be the individuals described in, and who executed the within 
 conveyance, and severally acknowledged that they severally exe- 
 cuted the same. 
 
 J H B, Justice, &c. 
 
 § 158. By Wife in separate Certificate. 
 County, ss : 
 On the first day of June, &c., before me personally came M B, 
 wife of A B, described in the within conveyance, the said M B 
 being known to me to be one of the individuals described in, and 
 who executed the said conveyance; and she acknowledged that 
 she executed the same, 
 
 J H B, Justice, &c. 
 
694 NEW YORK JUSTICE. 
 
 ^ 159. By two or more Parties. 
 
 County, ss: 
 On the first day of June, &c., before me personally came 
 A B and C D, to me known to be the individuals described in, 
 and who executed, the within conveyance, and they severally, 
 each for himself, acknowledged that they executed the same. 
 
 J H B, Justice, &c. 
 
 \ 160. By one of several Parties. 
 
 County, ss: 
 On the first day of June, &c., before me personally came 
 A B, to me known to be one of the individuals described in, 
 and who executed the within conveyance, and acknowledged 
 that he executed the same. J H B, Justice, &c. 
 
 § 161. By an Attorney. 
 County, ss: 
 On the first day of June, &c., before me personally came 
 A B, known to me to be the individual described in, and who 
 executed the within conveyance, and acknowledged that he 
 executed the same as the act and deed of C D, therein 
 described, by virtue of a power of attorney, duly executed 
 by the said C D, bearing date the day of , in 
 
 the year , and recorded in the office of the clerk of the 
 
 county of , in book of , page , on the 
 
 day of , in the year 
 
 J H B, Justice, &c. 
 
 § 162. By an Executor or Trustee. 
 
 County, ss: 
 On this first day of June, &c., before me personally came 
 A B, known to me to be the Executor of the last will and 
 testament \or^ Trustee of the estate] of C D, mentioned and 
 described in the within conveyance, and also known to me to 
 be the same individual described in and who executed the said 
 conveyance, and acknowledged that he executed the same, as 
 such Executor [or, Trustee] as aforesaid. 
 
 J H B, Justice, &c. 
 
 § 163. Certificate of 'proof by a Svhscrihing Witness known to 
 
 the Officer. 
 County, ss; 
 On tUs first day of June, &c., before me personally came 
 C D, subscribing witness to the within conveyance, to me 
 
ACKNOWLEDGMENT AND PROOF OF CONVEYANCES. 695 
 
 known, and he, being by me duly sworn, did depose and say, 
 that he resided in the of , in said county; that 
 
 he knew A B, the individual described in, and who executed 
 the said conveyance; that he was present and saw the said A B 
 execute the same; and that thereupon he, the said C D, became 
 the subscribing witness thereto. J H B, Justice, &c. 
 
 § 164. By a Subscribing Witness where his Identity is proved 
 
 to the officer. 
 County, ss: 
 On this first day of June, &c., before me personally came M 
 N, and C D, and the said M N, to me known, having been by 
 me duly sworn, did depose and say, that he resided in the 
 
 of in said county; that he was acquainted with the 
 
 said C D, the subscribing witness to the within conveyance, and 
 that he knew him to be the same person, which is to me satisfac- 
 tory evidence thereof; and the said C D, being by me duly 
 sworn, &c., \as in § 163 to the end.J J H B, Justice, &c. 
 
 ^ 165. Sy Subscribing Witness — Grantors residing in another 
 
 State. 
 County, ss: 
 On this first day of June, &c., before me personally came C 
 D, to me known, and he, being by me duly sworn, did depose 
 and say, that he resided in the of in said county; 
 
 that he knew A B, and E his wife, the individuals described in, 
 and who executed the within conveyance; that they severally 
 resided in the town of in the State of ; that he 
 
 was present and saw them execute the said conveyance; that 
 they severally acknowledged to him the execution thereof ; and 
 that he thereupon became the subscribing witness thereto. 
 
 J H B, Justice, &c. 
 
 § 166. The same, by Subscribing Witness proved to the Officer: 
 
 County, ss: 
 On this first day of June, &c., before me personally came M 
 N, and C D, and the said M N, to me known, having been by 
 me duly sworn, did depose and say, that he resided in the 
 of in said county; that he was acquainted with the said 
 
 C D, the subscribing witness to the within conveyance, and that 
 he knew him to be the same person, which is to me satisfactory 
 evidence thereof; and the said C D, being by me duly sworn, 
 on his oath, said, that he resided in the of in 
 
 the State of , that he knew A B, and E his wife, &o., 
 
 [as in § 165 to the end.] J H B, Justice, <fec. 
 
696 NEW YORK JUSTICE. 
 
 § 167. By Subscribing Witness as to the Husband, and Acknowl- 
 edgment by the Wife, both being known to the Officer. 
 
 County, ss: 
 On this first day of June, &c., before mc personally came C 
 D, to me known, and he, being by me duly sworn, did depose 
 and say, that he resided in the of in said county; 
 
 that he knew A B, one of the individuals described in, and who 
 executed the within conveyance; that he was present and saw 
 the said A B execute the same; and that thereupon he, the said 
 C D, became the subscribing witness thereto. At the same time, 
 also appeared before me E B, the wife of the said A B, to me 
 known to be one of the individuals described in, and who executed 
 the said conveyance, and she acknowledged that she executed the 
 within conveyance. 
 
 J H B, Justice, &c. 
 
 § 168. By Subscribing Witness as to the Husband, and Acknowl- 
 edgment by the Wife, both proved to the Officer. 
 
 County, ss: 
 On this first day of June, &c., before me personally came C 
 D, and he, being by me duly sworn, &c., [as in § 164, to the end, 
 omitting the words in italic, and then add:^ And at the same 
 time also appeared before me M N, to me personally known, 
 and he, being by me duly sworn, did deiDOse and say, that he 
 resided in the of in the county of ; that 
 
 he knew the said C D, to be the same person who was a sub- 
 scribing witness to the within conveyance, which is to me satis- 
 factory evidence thereof; and that he also knew the said E B, 
 who made the aforesaid acknowledgment to be one of the indi- 
 viduals described in, and who executed the said conveyance, 
 which is to me satisfactory evidence thereof. 
 
 J H B, Justice, &c. 
 
 § 169. By Subscribing Witness to Deed executed by an Attorney. 
 
 County, ss: 
 On this first day of June, (fee, before me personally came C 
 D, to me known, and he, being by me duly sworn, did depose 
 and say, that he resided in the of in said couutj'; 
 
 that he knew A B, the individual described in, and who executed 
 the within conveyance as the Attorney in fact of M N, therein 
 named; and that he was present and saM' the said A B, execute 
 the same as such Attorney; that the said A B, acknowledged to 
 
ACKNOWLEDGMENT AND PROOF OF CONVEYANCES. 697 
 
 him that he executed the same as such Attorney; and that there- 
 upon he, the said C D, became the subscribing witness thereto. 
 
 J H B, Justice, &c. 
 
 § 170. Proof of Deed by a Religious Corporation. 
 
 County, ss: 
 On this first day of June, &c., before me personally came A 
 B, subscribing witness to the within conveyance, to me known, 
 and he, being by me duly sworn, did depose and say, that he 
 resided in the of in said county, and was the Clerk 
 
 of the Corporation of the Rector, Churchwardens, and Vestry- 
 men of the Protestant Episcopal Church of St. Peter's [or, the 
 Corporation of the Trustees of the first Methodist Episcopal 
 Society,] in the of aforesaid; that the seal affixed to 
 
 the within conveyance was the corporate seal of the said corpo- 
 ration; that it was affixed by order of the said corporation; and 
 that he, the said A B, became the subscribing witness to the 
 execution of the said conveyance by virtue of a like order of 
 the said corporation. 
 
 J H B, Justice, &c. 
 
 § 171. Satisfaction of Mortgage and Achnowledgment, by Indi- 
 vidual known to the Officer. 
 
 I, A B, of the town of in the county of and 
 
 State of , do hereby certify, that a certain mortgage, 
 
 bearing date the day of , in the year one thousand 
 
 eight hundred and , made and executed by C D. of the 
 
 first part, to me the said A B, of the second part, and recorded 
 in the oflice of the Clerk of the county of , in book 
 
 of mortgages, at page , on the first day of June, 1852, [if 
 
 the mortgage has been assigned, insert the name of the assignee, 
 instead of A B, at the commencement of the certificate, omit the 
 words, "me, the said," in italic, and insert here: and which said 
 mortgage was duly assigned to me by the said A B, the mort- 
 gagee above named, by assignment dated the day of 
 , in the year , and recorded in the office of the 
 Clerk of the county of aforesaid, in book of mort- 
 gagees, at page , on the tenth day of June, A. D., 1852,] is 
 fully paid, satisfied and discharged. 
 
 Dated the first day of June, 1853. A B. 
 
 In presence of 
 GH. 
 
 County, ss: 
 On this first day of June, in the year one thousand eight hun- 
 dred and fifty-three, before me came A B, known to me to be 
 
698 NEW YORK JUSTICE. 
 
 the individual described in, and who executed, the above certifi- 
 cate, and acknowledged that he executed the same. 
 
 J H B, Justice, &c. 
 
 § 172. Certificate of Satisfaction to be wHtten on a Mortgage. 
 
 I, A B, the mortgagee within named, [or, the assignee of the 
 within named mortgagee,] do hereby certify that the within 
 named mortgage is fully paid, satisfied and discharged. Dated 
 the first day of June, A D. 1853. A B. 
 
 \Add acknowledgment as in § 171. J 
 
 § 173. Satisfaction hy an Executor, Administrator or Trustee. 
 
 J, A B, executor of the last will and testament of C D, de- 
 ceased, \or, administrator of the goods, chattels and credits, 
 which were of C D, deceased, or, trustee of the estate of C D, 
 &c.,] do hereby certify that a mortgage made and executed by 
 E F to the said C D, in his lifetime, [or, to me as such 
 as aforesaid,] bearing date, &c. [Follow the preceding formSy 
 as the case may require^ A B. 
 
 In presence of 
 GH. 
 
 § 174. Satisfaction of Judgment in a Jtisticc's Court, where a 
 Transcrijpt is filed in the County ClerKs Office. 
 
 County Clerk's Office: 
 
 A B ■] Judgment rendered in favor of the plaintifi", against 
 
 against \ the defendant, before J H B, Esq., a Justice of the 
 
 C D. J Peace in and for said county, for dollars and 
 
 cents, damages and costs. 
 
 Transcript filed and judgment docketed, the day ol 
 
 , in the year 1852. 
 Satisfaction of the above mentioned judgment is hereby ac- 
 knowledged. A B. 
 
 County, ss: 
 Subscribed and acknowledged before me, the day of 
 
 , in the year 1853, by A B, known to me [or, made 
 known to me by the oath of E F] to be the plaintifi" above named 
 \or, to be one of the plaintiffs above named.] 
 
 J H B, Justice, &c. 
 
 § 175. Satisfaction of Judgment in a Court of Record. 
 Supreme Court [or, County Court:] 
 
 A B 1 
 aaainst \ ^^ *^® ^^^ °^ January, one thousand eight hun- 
 
 ?-, -p. I dred and fortj'^-seven. 
 
 Satisfaction is acknowledged between A B, plaintifi", and C D, 
 
ACKNOWLEDGMENT AND PROOF OF CONVEYANCES. 699 
 
 defendant, for dollars. Judgment docketed the tenth 
 
 day of January, one thousand eight hundred and forty-five, in 
 the office of the clerk of county. 
 
 A B. [or, T S, Attorney for Plaintiff.] 
 
 County, ss: 
 
 Subscribed and acknowledged before me, the day of 
 
 , 1853, by A B, known to me [or, made known to me 
 
 by the oath of E F] to be the plaintiff in the above entitled 
 
 cause [oj-, the Attorney for the plaintiff in the above entitled 
 
 cause, or, one of the plaintiffs in the above entitled cause.] 
 
 J H B, Justice, &c. 
 
 § 176. Oa(7i to be administered to a Subscniinq Witness. 
 
 You do solemnly swear, that you will true answers make, to 
 such questions as shall be put to you, touching the execution of 
 this deed; So help you God: \or, You do swear in the presence 
 of the ever-living God, that, &c., as above, omitting the words: 
 So help you God; or. You do solemnly, sincerely, and truly 
 declare and affirm, that, &c., as above, omitting the words as 
 aforesaid.^ {^For the cases in which these various forms of oath 
 are proper, see ante, p. 295.) 
 
 ^ 177. Oath to a Witness proving the Identity of the Parties, or 
 of the Subscribing Witness, to a Conveyance. 
 
 You do solemnly swear, that you will true answers make to 
 such questions as shall be put to you, touching the identity of 
 the parties [or, of the subscribing witness] to this conveyance; 
 So hel]3 you God. [If necessary, vary as in the foregoing 
 Form.^ 
 
 Fees. 
 
 Justices are entitled for taking the proof or acknowledgment 
 of a conveyance or mortgage of real estate, or of any written in- 
 strument, to be read in evidence, and drawing and signing the 
 certificate — for one person, to a fee of twenty-five cents; for 
 each addditional person having executed the same instrument, 
 twelve cents ; for swearing each witness thereto, six cents. {Code, 
 § 3298.) 
 
 For administering an oath or affirmation and certifying the 
 same, twelve cents, {id.) 
 
700 NEW YORK JUSTICE. 
 
 CHAPTER II. 
 
 OF AFFIDAVITS AND OATHS. 
 
 Whenever any oath or affidavit is or may be required or 
 authorized by law, in any cause, matter, or proceeding, (except 
 oaths to jurors and witnesses in the trial of a cause, oaths of 
 office, and such other oaths as are required by law to be taken 
 before particular officers,) the same may be taken before any 
 Justice of the Peace in a town. The oath or affidavit must be 
 certified by the justice to have been taken before him. {Civ. 
 Fro., § 842. 
 
 A Justice has power to administer an oath and take an affi- 
 davit only in a case where such oath or affidavit is or may be 
 required or authorized by law in some cause, matter or proceed- 
 ing. Justices should, therefore, be careful not to administer 
 oaths or take affidavits in regard to any and every conceivable 
 matter where an oath or affidavit is desired by a party; for, un- 
 less the oath or affidavit be authorized or required by law, the 
 action of the Justice will be wholly extra-official. And such 
 action may be the source of annoyance and trouble to him; as, 
 if he should swear a person to a libelous paper, where the oath 
 was not required by law, he might perhaps make himself liable 
 for assisting in the publication of the libel. 
 
 Justices are specially authorized to administer oaths to arbi- 
 trators, swearing them faithfully and fairly to hear and examine 
 the matters in controversy before them, and to make a just 
 award, according to the best of their understanding. (Civ. 
 Fro., § 2369.) 
 
 They are also specially authorized to administer to any super- 
 visor, town clerk, assessor, overseer of the poor, coramissioner 
 of highways, or town sealer, the oath of affirmation of office pre- 
 scribed in the 12th article of the Constitution, thus: 
 
 "I do solemnly swear, ["or, affirm, cm the case may 6e,J that 
 I will support the Constitution of the Umted States, and 
 the Constitution of the State of New York, and that I will 
 
AFFIDAVITS AND OATHS. 701 
 
 faithfully discharge the duties of according to the best 
 
 of my ability." 
 
 This oath or affirmation must be in writing, and be subscribed 
 by the party. (1 R. 8. 345, § 13.) And the Justice must also 
 certify in writing the day and year when the oath was taken, 
 and deliver the certificate to the party making the oath. {id. 
 
 Justices are also authorized to administer the Constitutional 
 oath to any commissioned officer of the militia, {id. 290, § 29.) 
 The Justice must endorse a certificate of the oath on the officer's 
 commission, {id. § 30.) 
 
 It is further provided, that whenever application is made to 
 any public officer to do any act in an official capacity, and such 
 officer requires information or proof, to enable him to decide on 
 the propriety of doing such act, such information or proof ma}- 
 be required to be given by affidavit, and such officer may admin- 
 ister all necessary oaths for that purpose. {Civ. Pro., § 843.) 
 
 As to the various modes of administering oaths, see ante, p. 
 295, where the Forms are given. The following is the usual 
 form of swearing a person to an affidavit: 
 
 § 178. Oath to a Deponent. 
 
 You do solemnly swear, that the contents of this affidavit, by 
 you subscribed, are true; so help you God. [Vary as in § 42 
 and § 43, when necessary.^ 
 
 Fees. 
 
 For administering an oath or affirmation, in cases where no 
 fee is specially provided by law, and certifying the same when 
 required, twelve cents. {Code, § 3298.) 
 
 But a Justice is not entitled to any fee for administering the 
 oath of office to any military officer, or to any town officer, or 
 for certifying the same, or for more than ten cents to any other 
 oSc^r. {Code, § 32»9.) 
 
702 NEW YORK JUSTICE. 
 
 CHAPTER III. 
 
 OF APPEENTICES. 
 
 Section 1. On and after the passage of this act, it shall not be 
 lawful for any person or persons in this State to employ or take, 
 as an apprentice, any minor person to learn the art or mystery of 
 any trade or craft, without first having obtained the consent of 
 such person's legal guardian or guardians ; nor shall any minor 
 person be taken as an apprentice aforesaid unless an agreement 
 or indenture be drawn up in writing, in accordance with the pro- 
 visions of this act, and duly executed under seal by the person or 
 persons employing said apprentice, and also by the parents or 
 parent, if any be living, or by the guardian or guardians of said 
 apprentice, and likewise by said minor person so becoming an 
 apprentice. 
 
 § 2. Said agreement or indenture, in order to make the law 
 valid, shall contain the following covenants and provisions : 
 
 1. That said minor person shall be bound to serve his employer 
 or employers for a term of not less than three or more than five 
 years. 
 
 2. That said minor person so indentured shall not leave his 
 said employer or employers during the term for which he shall 
 be indentured, and if any said apprentice so indentured as afore- 
 said shall leave his said employer or employers, except as herein- 
 after provided, the said employer or employers may compel the 
 return of the said apprentice under the penalties of this act. 
 
 3. That said employer or employers shall covenant and agree 
 in said indenture to provide at all times during the continuane? 
 of the same, suitable and proper board, lodging and medica. 
 attendance for said apprentice, and said employer or employers 
 shall also further covenant and agree to teach or cause to be care- 
 fully and skillfully taught to his or their said apprentice every 
 
APPRENTICES. 703 
 
 branch of his or their business'to which said apprentice may be 
 indentured, and said employer or employers shall be further 
 bound, at the expiration of said apprenticeship, to give to said 
 apprentice a certificate in writing, stating that said apprentice 
 has served a full term of apprenticeship of not less than three or 
 more than five years, at such trade or craft as may be specified in 
 said indenture. 
 
 § 3. Any person or persons taking an apprentice without com- 
 plying with the provisions of this act shall be deemed guilty of a 
 misdemeanor, and on conviction thereof in the court of sessions 
 of general or special sessions, held in and for the county in which 
 the business of said employer or employers may be conducted, 
 shall be subject to a fine of not less than five hundred dollars, the 
 fine to be paid to the treasurer of said county for the use and 
 benefit of said county. 
 
 § 4. Any and all indentures made under and in pursuance of 
 the provisions of this act shall not be canceled or annulled before 
 the expiration of the term of said indentures, except in case of 
 death ; or by the order of or judgment of the county or supreme 
 court of this State for good cause, and any apprentice so inden- 
 tured who shall leave his employer or employers without his or 
 their consent or without sufficient cause, and shall refuse to 
 return, may be arrested upon the complaint of said employer or 
 employers, and taken before any magistrate having jurisdiction 
 of misdemeanors, who may cancel said indentures, and on con- 
 viction commit said apprentice to the house of correction, house 
 of refuge, or county jail, in and for said county, for such length 
 of time as such magistrate may deem just, or until said apprentice 
 shall have attained the age of twenty-one years, and in case said 
 apprentice so indentured shall willfully neglect or refuse to per- 
 form his portion of the contract as specified in said indenture, 
 then said indenture may be canceled in the manner aforesaid, and 
 said apprentice so violating said indentures shall forfeit all back 
 pay and all claims against said employer or employers, and said 
 indentures shall be canceled. 
 
 § 5. Should any employer or employers neglect or refuse to 
 teach, or cause to be taught to said apprentice the art or mystery 
 of the trade or craft to which said apprentice has been indentured, 
 •or fail at any time to provide suitable and proper board, lodging 
 
704 NEW TOEK JUSTICE. 
 
 and medical attendance, said apprentice individually, or his 
 parent or parents, guardian or guardians, may bring an action 
 against said employer or employers, to recover damages sustained 
 by reason of said neglect or refusal ; and, if proved to the satis- 
 faction of the court, said court shall direct said indentures to be 
 canceled, and may impose a fine on said employer or employers, 
 not exceeding one thousand and not less than one hundred dollars, 
 and said fine shall be collected and paid over to said apprentice 
 or his parent or guardian for his sole use and benefit. 
 
 § 6. Any indentures made and executed, wherein parts conflict 
 with or are not in accordance with the provisions of this act, shall 
 be invalid and without any binding effect. 
 
 § Y. All acts or parts of acts inconsistent herewith are hereby 
 repealed. 
 
 § 8. This act shall take effect immediately. {Lams of 1871, 
 ch. 934.) 
 
 No particular form of words is necessary for the certificate. 
 {People vs. First Judge, 2 Hill, 596.) 
 
 An infant cannot be bound as an apprentice, unless he is a 
 party to and executes the deed or indenture. {Matter of Mc- 
 Dowell, 8 Jolms. 328.) 
 
 The indenture is only prima facie evidence of the age of 
 the apprentice, and he may go behind it, and show what his true 
 age is. {Matter of Brennan, 1 Sandf. 711.) 
 
 Every sum of money paid, or agreed for, in relation to the 
 binding out of any clerk, or apprentice, must be inserted in the 
 indentures. (2 B. S. 155, § 9.) 
 
 The statute does not require any particular business to be speci- 
 fied, and it is suflicient that the master agrees to bring up the 
 apprentice, and teach him such manual employment as shall be 
 found best adapted to his talents and capacity. Therefore, iu a 
 case where the master was described as trustee of a society, and 
 the apprentice was to be under his care and in his employment, 
 in whatever might be for his present good, or tend to his future 
 welfare, it was held to be sufficient. {People vs. Pillow, 1 Sandf. 
 672.) 
 
 Any person coming from any foreign country beyond sea, may 
 bind himself to service, if an infant, until the age of twenty-one 
 years, or for a shorter term. Such contract of service, if made 
 
APPRENTICES. 705 
 
 for the purpose of raising money to pay liis passage, or for the 
 payment of such passage, may be for the term of one year, 
 although such term may extend beyond the time when such per- 
 son will be of full age ; but it can in no case be for a longer term. 
 (2 R. 8. 155, § 12.) No contract made as aforesaid will bind the 
 servant, imless it be acknowledged by him before some mayor, 
 recorder, or alderman of a city, or some jiistice of the peace; 
 nor unless a certificate of such acknowledgment, and that the 
 same was made freely, on a private examination, be endorsed 
 upon such contract, {id. 156, § 13.) And such contract may be 
 assigned by the master, by an instrument in writing, endorsed 
 thereon, executed in the presence of two witnesses, if such assign- 
 ment be approved of, in writing, by any such magistrate, and 
 such approbation be also endorsed on the contract. (2 H. S. 156, 
 §14.) 
 
 The vohintary continuance of the infant in the service of the 
 assignee of his master, until he has attained his majority, is a 
 continuance of his apprenticeship with his own consent, and the 
 law will not imply a promise by the master to pay the apprentice 
 for his services. ( Williams vs. Finch, 2 Barb. 208.) 
 
 If any person lawfully bound to service, willfully absents him- 
 self from such service without the leave of his master, he can be 
 compelled to serve double the time of his absence, unless he other- 
 wise makes satisfaction for the loss and injury sustained by his 
 absence ; but he cannot be compelled to serve more than three 
 years after the expiration of his original term of service. (2 It. S. 
 158, § 28.) 
 
 If the apprentice is employed by a third person, without the 
 knowledge or consent of his master, the master is entitled to all 
 the earnings, whether the person who employed him did or did 
 not know that he was an apprentice. {James vs. Le Roy, 6 
 Johns. 2Y4.) But, in an action for enticing away and harboring 
 an apprentice, it is essential for the master to prove that the 
 defendant knew the fact of the apprenticeship. {Stewart vs. 
 Simpson, 1 Wend. 376.) 
 
 By comparing the present statute, as passed in 1871, with the 
 provisions of the Revised Statutes, it will be seen that very 
 many changes have been made, and the liabilities to bo assumed 
 under the new law are of sncli a nature as to deter many mas- 
 
706 NEW YORK JUSTICE. 
 
 ters from the taking of apprentices. As many of the indentures 
 which were executed under the Revised Statutes are still in 
 force, the several forms in regard to remedies for the breach of 
 such indentures will undoubtedly be useful, while the relief and 
 remedy sought under the new statute can be obtained by a slight 
 modification or altering of the forms as here printed. 
 
 § 179. Apprentice's Indenture. 
 
 (Under the Law of 1871.) 
 
 This indenture made by and between A B, a minor of the age 
 of seventeen years, party of the first part, C D, carpenter, of the 
 second part, and E F B, father {or, guardian) of the said A B, of 
 the third part, aU of the town of Knox, in the county of Albany, 
 witnesseth : 
 
 That said A B, of his own free will and accord, hath volun- 
 tarily, and of his own free will and accord, put and bound him- 
 self as an apprentice to the said C D, to learn the art, mystery, 
 trade or craft of a carpenter, and, as such apprentice, hereby 
 binds himself from this date, for and during, and until the 
 full end and term, of (the term should be not less than three or 
 more than five years), during all which time he covenants and 
 agrees not to leave his said employer {or, employers) ; and during 
 all said time he, the said A B, agrees to serve his master faith- 
 fully, honestly, and industriously ; his secrets keep, and lawful 
 commands everywhere readily obey ; and at all times protect and 
 preserve the goods and property of his said master, and not 
 suffer or allow any to be injured or wasted. He agrees not to 
 buy, sell, or traffic with his own goods, or the goods of others, 
 nor be absent from his said master's service, day or night, without 
 leave ; but in all things behave himself as a faithful apprentice 
 ought to do, during said term. And the said C D hereby cove 
 nants and agrees to provide at all times during the continuance 
 of said apprenticeship, suitable and proper board, lodging, and 
 medical attendance, for the said A B, his apprentice ; and also 
 further covenants and agrees to teach, or cause to be carefully 
 and skillfully taught, to the said A B, every branch of his said 
 business of carpentry : And at the expiration of said apprentice- 
 ship to give to the said A B, his said apprentice, a certificate in 
 writing, stating that said apprentice has served a full term of 
 apprenticeship of not less than three or more than five years, at 
 such trade or craft of carpentry. And the said C D further 
 agrees to cause the said apprentice, within said term, to be 
 
APPKEXTICES. 707 
 
 instructed to read and Avrite, and in the general rules of arith- 
 metic ; and, at the end of said term, give the said apprentice a 
 new bible. And the said C D further agrees to pay the said 
 A. B the following sums of money, viz. : for the first six months 
 of his service, iifty cents per week, at the end of each and every 
 week; and for the second term of six months, one dollar per 
 week, at the end of each and every week. 
 
 In witness whereof, the parties aforesaid have hereunto set 
 their hands and seals, the day of , 1873. 
 
 A B. [l. s.J 
 
 D. [l. s.] 
 
 E F B. [l. s.] 
 
 § 179.* Apprentice's Indenture. 
 
 (Under the Bevlsed Statutes.) 
 
 This indenture witnesseth: That C B, of the town of , 
 
 in the countj'' of , and the State of , now aged 
 
 fourteen years, by and with the consent of A B, his father, and 
 H B, his mother, \or, mother, his father being dead, o?', being 
 legally incapacitated, or, having abandoned and neglected to 
 provide for his family,] endorsed hereupon, hath voluntarily, 
 aud of his own free will and accord, put and bound himself ap- 
 prentice to E F, of the town of, &c., to learn the art, trade, and 
 mystery of a hatter, and, as an apprentice, to serve from this 
 date for, and during, and until the full end and term of five 
 years next ensuing, [or, until the said C B shall have attained 
 the age of twenty-one years, which will be on the day of 
 
 , in the year 18 ,] during all which time the said 
 apprentice shall serve his master faithfully, honestly, and indus- 
 triously; his secrets keep, and lawful commands everywhere 
 readily obey; and at all times protect and preserve the goods 
 and property of his said master, and not suffer or allow any to 
 be injured or wasted. He shall not buy, sell, or traffic, with 
 his own goods, or the goods of others, nor be absent from his 
 said master's service, day or night, without leave; but in all 
 things behave himself as a faithful apprentice ought to do, dur- 
 ing the said term. And the said master shall clothe and pro- 
 vide for the said apprentice in sickness and in health, and sup- 
 ply him with suitable food and clothing; and shall use and 
 employ the utmost of his endeavors to teach, or cause him, the 
 said apprentice, to be taught or instructed, in the art, trade, or 
 mystery of a hatter; and also cause the said apprentice, Avithin 
 45 
 
708 NEW YORK JUSTICE. 
 
 such term, to be instructed to read and write, and in the general 
 rules of arithmetic; and at the end of the said term, give the 
 said apprentice a new bible. \If necessary, insert here: And 
 the said E F acknowledges that he has received, with the said 
 C B, from A B, his father, [or, mother,] the sum of dollars, 
 as a compensation for his instruction, as above mentioned; or, 
 And the said E F further agrees to pay to the said C B the 
 following sums of money, viz : for the first year of his service, 
 dollars; for the second year of his service, dollars; 
 
 and for every subsequent year, until the expiration of his term 
 of service, dollars; which said payments are to be made 
 
 on the first day of January in each year.] And, for the true 
 performance of all and singular the covenants and agreements 
 aforesaid, the said parties bind themselves, each unto the other, 
 firmly by these presents. 
 
 In witness whereof, the parties aforesaid have hereunto set 
 their hands and seals, the day of , in the year 
 
 one thousand eight hundred and 
 
 Signed, sealed, and delivered, "] C B. 
 
 in presence of \ E F. 
 
 GH. J 
 
 L. S. 
 L. S. 
 
 § 180. Consent hy Father or Mother. 
 
 I [or we,] do hereby consent to, and approve of, the binding 
 of my \or our,] son, C B, as in the above \or within,] indenture 
 mentioned. Dated the day of , in the year 18 . 
 
 AB. 
 
 \ 181. Justice^s Certificate, where the Father does not give the 
 
 Consent, 
 
 I, G H, a Justice of the Peace of the town of , in the 
 
 county of , do certify, that A B, the father of the infant 
 
 named in the within indenture, is dead [or, is not in a legal 
 capacity to give his consent thereto; or, has abandoned and 
 neglected to provide for his family.] Dated the day of 
 
 , 18 . G H, Justice of the Peace. 
 
 \ 182. Consent hy Guardian. 
 
 I, S T, the guardian, duly appointed, of C B, the infant in 
 the within indenture named, do certify, that the father and 
 mother of the said C B are dead, [or, that the father of the said 
 C B is dead, and that the mother of the said C B refuses her 
 consent to the said indenture of apprenticeship, or, is not in 
 legal capacity to give her consent to the said indenture of ap- 
 
APPRENTICES. 709 
 
 prenticeship;] and that I do hereby consent, as his guardian, 
 that he, the said C B, may bind himself in and by the said 
 indenture. Dated the day of , 18 . 
 
 S T, Guardian of the said C B. 
 
 ^ 183. Consent by the Overseers of the Poor, or tivo Justices of 
 the Peace of the town, or the County Judge of the 
 county where the Infant resides. 
 
 We, the undersigned, Overseers of the Poor of the town of 
 , [or, two Justices of the Peace of the town of , 
 
 or, I the undersigned County Judge of county,] where 
 
 the within named C B resides, do certify, tliat the said C B has 
 no parent living, \or, no parent in a legal capacity to give con- 
 sent to the within indenture; or, no father living, and that his 
 mother is not in a legal capacity to give consent to the within 
 indenture,] and that he has no guardian, and that we, the said 
 Overseers, [or, Justices; or, I, the said Judge,] do consent that 
 the said C B may bind himself in and by the said indenture. 
 
 GH. 
 
 MP. 
 
 ^ 184. Complaint by Master against Apprentice for refusing to 
 
 serve. 
 
 To G H, a Justice of the Peace of the County of 
 
 I, E F, of the town of , in said county, hatter, here- 
 
 by make complaint to you, that C B, an apprentice lawfully 
 bound to sei-ve me, the said E F, whose term of service is still 
 unexpired, and with whom I have neither received, nor am en- 
 titled to receive any sum of money as a compensation for his 
 instruction, refuses to serve me, as by law and the terms of his 
 indenture of apprenticeship he is required. 
 
 Dated the day of , 18 . E F. 
 
 County, ss: 
 
 E F, the person named in the foregoing complaint, being 
 duly sworn, deposes and says, that the foregoing complaint, and 
 the facts and circumstances stated and set forth therein, are true. 
 
 Sworn to before me, this ) E. F. 
 
 day of , 18 . 5 
 
 G H, Justice of the Peace. 
 
 § 185. Warrant on the foregoing Complaint. 
 
 County, ss: 
 To any Peace Officer of said County, greeting : 
 
 Whereas, complaint has been made to me, G H, one of the 
 Justices of the Peace of said county, upon the oath of E F, of 
 
710 NEW YORK JUSTICE. 
 
 , in said county, hatter, that C B, an apprentice lawfully 
 bound to serve the said E F, whose term of service is still unex- 
 pired, and with whom the said E F has neither received, nor is 
 entitled to receive, any sum of money as a compensation for his 
 instruction, refuses to serve the said E F, as by law and the 
 terms of his indenture of apprenticeship he is required: Now, 
 therefore, you are commanded, in the name of the people of the 
 State of New York, forthwith to apprehend the said C B, and 
 bring him before me at my office in , to answer to the 
 
 said E F, and to be dealt with according to law. 
 
 Given under my hand, this day of , 18 . 
 
 G H, Justice of the Peace. 
 
 § 186. Commitment of an Apprentice refusing to serve. 
 
 County, ss: 
 To any Constable of said county, greeting: 
 
 Whereas complaint on oath was made to me, the undersigned, 
 G H, a Justice of the Peace of said county, hj E F, of , 
 
 in said county, hatter, that C B, an apprentice lawfully boimd 
 to serve the said E F, whose term of service was still unexpired, 
 and with whom the said E F had neither received, nor was en- 
 titled to receive, any sum of money as a compensation for his 
 instruction, refused to serve the said E F, as by law and the 
 terms of his indenture of apprenticeship he was required; And 
 whereas the said C B, by virtue of my warrant thereupon issued, 
 has been brought before me to be dealt with according to law; 
 And whereas, after due proof before me of the facts as above 
 stated and set forth, the said C B still persists in such refusal to 
 serve the saidE F: Now, therefore, you are hereby commanded, 
 in the name of the people of the State of New York, to take 
 and convey the said C B to the common jail of said county, and 
 deliver him to the keeper thereof, who is commanded to receive 
 the said C B into the said common jail, there to remain until he 
 shall consent to serve the said E F, according to law. 
 
 Given, &c., \as in § 185. J 
 
 § 187. Comjilaint concerning any Misdemeanor or III Behavior 
 
 of an Apprentice. 
 
 To G H, Esquire, Justice of the Peace of the county of : 
 
 I, E F, of the town of , in said county, hatter, hereby 
 
 make complaint to you that C B, an apprentice, lawfully bound 
 to serve me, the said E F, whose term of service is still unex- 
 pired, and with whom 1 have neither received nor am entitled 
 to receive, any sum of money as a compensation for his iiistriic- 
 
APPKENTICES. 711 
 
 tion, has been guilty of misdemeanors and ill behavior toward 
 me, the said E F, as follows, viz: [describe the particulars of the 
 offences.] E F. 
 
 County, ss: 
 E F, the person named in the foregoing complaint, being duly 
 sworn, &c., [as in § 184.] 
 
 \ 188. Warrant on the foregoiny Complaint. 
 
 County, ss : 
 To any Peace officer of said county, greeting : 
 
 Whereas complaint has been made to me, the undersigned, 
 Justice of the Peace in and for the said county, upon the oath 
 of E F, of , in said county, hatter, that C B, an appren- 
 
 tice lawfully bound to serve the said E F, whose term of service 
 is still unexpired, and with whom the said E F has neither 
 received nor is entitled to receive any sum of money as a com- 
 pensation for his instruction, has been guilty of misdemeanors 
 and ill behavior towards him, the said E F, as follows, viz : [giAie 
 the particulars as in the complaint:] Now, therefore, ycu ire 
 hereby commanded, in the name of the people of the State oi 
 New York, forthwith to apprehend the said C B, and bring him 
 before me, at the office of Gr H, in the town of , that 
 
 I may hear, examine into, and determine the said complaint, and 
 deal with the said C B according to law. 
 
 Given under my hand, this day of , 18 
 
 G II, Justice of the Peace. 
 
 § 189. Commitment of an Apprentice on the foregoing 
 complaint. 
 County, ss : 
 To any Peace officer of said county, greeting : 
 
 "Whereas complaint on oath was made to me, G H, one of the 
 Justices of the Peace in and for the said county, by E F, of 
 , in said county, hatter, that C B, an apprentice lawfully 
 bound to serve the said E F, whose term of service was still 
 unexpired, and with whom the said E F had neither received 
 nor was entitled to receive, any sum of money as a compensa- 
 tion for his instruction, had been guilty of misdemeanors and 
 ill behavior toward him, the said E F, as follows, viz. : [as in 
 the complaint :] And whereas the said C B, by virtue of my 
 warrant thereupon issued, has been brought before me, and, 
 upon due examination of the proofs and allegations of the parties, 
 it satisfactorily appears to me that the said C B is guilty 
 
712 NEW YORK JUSTICE. 
 
 of the premises charged against him, as aforesaid:* Now, there- 
 fore, you are hereby commanded, in the name of the people 
 of the State of New York, to take and convey the said C B to 
 the common jail of said county, and deliver him to the keeper 
 thereof, who is commanded to receive the said C B into the 
 said common jail, there to be employed in hard labor, and to 
 be confined in a room with no other person, for the term of 
 [not exceeding one month.] 
 Given, &c., [as in § 188.] 
 
 § 190. Discharge of the Apprentice from his Service, and of the 
 Master from his Obligations. 
 
 County, ss: 
 
 "Whereas complaint on oath was made to me, &c., [as in § 189 
 to the *, and then add:'] Now, therefore, I do hereby discharge 
 the said C B from the service of the said E F and the said 
 E F from all and every of his obligations to the said B, 
 incurred under and by virtue of the indentures of apprenticeship 
 of the said C B, 
 
 Given, &c., [as in § 188.] 
 
 § 191. OomploMht iy am. Apprentice for the Gruelinj or Misusage 
 of his Master, or his refusal to furnish him, with 
 necessary Provisions or Clothing. 
 
 To G H, Esquire, one of the Justices of the Peace of the 
 
 county of : 
 
 I, C B, apprentice to E F, of the town of , in fcaid 
 
 county, hatter, hereby make complaint to you that the said 
 E F, to whom I am lawfully bound by indentures of apprentice- 
 ship, the term of service under which has not yet expired, and 
 who has neither received, nor is entitled to receive, any sum of 
 money as a compensation for my instruction, has cruelly beat, 
 bruised and wounded me, the said C B l:)eing his apprentice, as 
 aforesaid ; [or, lias misused and ill-treated me, the said C B, 
 being his apprentice, as aforesaid, by refusing to furnish me with 
 necessary provisions and clothing ;] to wit, at aforesaid, 
 
 on the day of , 18 . C B. 
 
 County, ss ; 
 
 C B, the person named in the foregoing complaint, being duly 
 sworn, &c., [as in § 184.] 
 
 § 192. Summons on the foregoing Complaint. 
 County, ss : 
 To any Peace officer of the said county, greeting : 
 
 "Whereas, complaint has been made to me, the undersigned 
 
APPRENTICES. 713 
 
 Justice, of the Peace in and for the said county, upon the oath 
 of C B, apprentice to E F, of , in said county, hatter, 
 
 that the said E F, to whom the said C B is lawfully bound by 
 indentures of apprenticeship, the term of service under which 
 has not yet expired, and who has neither received, nor is enti- 
 titled to receive, any sum of money as a compensation for the 
 instruction of the said C B, has cruelly beat, &c., [as m \ 101, 
 substituting hivcyfor me:] Now, therefore, you are liereby coni- 
 iiianded, in the name of the people of the State of New Yorli, 
 to summon the said E F and B to appear before me, at the 
 office of Gr H, in the town of , on the day of 
 
 instant, at two o'clock in the afternoon of that day, 
 that I may examine into, hear and determine the said com- 
 plaint. 
 
 Given, &c. [as in § 188]. 
 
 § 193. Discharge of Apprentice on the foregoing Complaint. 
 
 County, ss. : 
 
 Whereas, complaint on oath was made to me, tlie undersigned 
 G II, one of the Justices of the Peace in and for said county, by 
 C B, apprentice to E F, of , in said county, hatter, that 
 
 the said E F, to whom the said C B was lawfully bound by 
 indentures of apprenticeship, the term of service under which was 
 still unexpired, and who had neither received, nor was entitled 
 to receive, any sum of money as a compensation for tlie instruc- 
 tion of the said C B, had cruelly beat, &c. [as in § 192]. And 
 whereas, the said E F, by virtue of my summons thei'enpon 
 issued, has appeared before me, and upon due examination of 
 the proofs and allegations of the parties, it satisfactorily appears 
 to me that the said E F is guilty of the premises so charged 
 against him as aforesaid. Now, therefore, I do liereby discharge 
 the said G B from the service of the said E F, anything in 
 his indentures of apprenticeship, as aforesaid, to the contrary 
 notwithstanding. 
 
 Given, &c. [as in § 188]. 
 
 § 194. Complaint hy an Apprentice against his Master, where 
 Money has been paid, or agreed to be paid. 
 
 To G H, a Justice of the Peace of the county of : 
 
 I, C B, apprentice to E F, of the town of , in said 
 
 county, hatter, hereby make complaint to you that the said E F, 
 to whom I am lawfully bound by indentures of apprenticeship, 
 the term of service under which has not yet expired, and who 
 has received the sum of fifty dollars [or, who is entitled to 
 receive the sum of fifty dollars, on the day of , 18 ], 
 
714 NEW YORK JUSTICE. 
 
 as a compensation for my instruction, has cruelly beat, bruised, 
 and wounded me, the said C B, being his apprentice, as afore- 
 said, [or, has misused and ill-treated me, &c., as in § 191.] 
 
 County, ss: 
 C B, the person named in the foregoing complaint, being duly 
 sworn, &c., [as in § 184.] 
 
 § 195. Summons on the foregoing Complaint. 
 
 County, ss: 
 To any Constable of said county, greeting: 
 
 Whereas complaint has been made to me, one of the Justices 
 of the Peace in and for the said county, upon the oath of C B, 
 apprentice to F F, of , in said county, hatter, that the said 
 
 E F, to whom the said B is lawfully bound by indentures of 
 apprenticeship, the term of service under which has not yet ex- 
 pired, and who has received the sum of fifty dollars, [or, as in 
 § 194,] as a compensation for tlie instruction of the said C B, h:is 
 cruelly beat, bruised, and -wounded him, the said C B, being his 
 apprentice, as aforesaid, [or, has misused and ill-treated him, 
 &c., as in § 191:] Now, therefore, you are hereby commanded, 
 in the name of the people of the State of New York, to summon 
 the said E F and C B to appear before me, at my office, in the 
 town of , in said county, on the day of instant, 
 
 at two o'clock in the afternoon of that day, that I may inquire 
 into the matter and make such order and direction between the 
 said E F and the said C B as the equity of the case may require. 
 
 Given, &c., [as iii § 185.] 
 
 § 196. Recognizance of Master and Surety, on the foregoing 
 
 Complaint. 
 State of New York, ? g^. 
 County, ) 
 
 We, E F and L M, of , in said county, acknowledge 
 
 ourselves to be severally indebted to the People of the State of 
 New York, that is to say: The said E F in the sum of 
 dollars, and the said L M in tlie sum of doUai-s, to be 
 
 well and truly paid, if default shall be made in the condition 
 following:* 
 
 Whereas complaint on oath was made to the undersigned 
 G H, a Justice of the Peace of the said county, by C B, an ap- 
 prentice, against E F, his master, above named, and the parties 
 were summoned and appeared before the said Justice, and, after 
 due examination into the premises, the difficulty between the 
 said parties could not be compounded or reconciled: Now, there- 
 fore, the condition of this recognizance is such, that if the said 
 
APPRENTICES. Hi 
 
 E F shall personally appear at the next Court of Sessions, to be 
 held in and for said county, then and there to answer to the 
 complaint aforesaid, and to do and receive what shall by the 
 Court be then and there enjoined upon him, and shall not depart 
 the Court without leave, then this recognizance shall be void, 
 otherwise, of force. 
 
 Taken, subscribed, and acknowledged, ) E F. l. s. 
 
 the day of , 18 , before me, J L M. "l. s. 
 
 G H, Justice of the Peace. 
 
 ^ 197. Complaint by Master against Apprentice refusing to serve, 
 where Money has been paid, or agreed to be paid. 
 
 To G H, a Justice of the Peace of the county of : 
 
 I, E F, of the town of , in said county, hatter, hereby 
 
 make complaint to you, that C B, an apprentice lawfully bound 
 to serve me, the said E F, whose term of service is still unexpired, 
 and with whom I have received the sum of dollars, [or, 
 
 with whom I am entitled to receive the sum of dollars, on 
 
 the day of , 18 ,J as a compensation for his in- 
 
 struction, refuses to serve me, as by law and the terms of his 
 indenture of apprenticeship he is required. Dated, &c., [as in 
 § 184, with the verification.^ 
 
 § 198. Summons on the foregoing Complaint. 
 
 County, ss: 
 
 To any constable in said county, greeting: 
 
 Whereas complaint has been made to me, G H, one of the 
 Justices of the Peace of said county, upon the oath of E F, of 
 , in said county, hatter, that C B, an apprentice law- 
 fully bound to serve the said E F, whose term of service is still 
 unexpired, and with whom the said E F hath received the sura 
 of dollars, [or, with whom the said E F is entitled to 
 
 receive the sum of dollars, on the day of , 
 
 18 ,] as a compensation for his instruction, refuses to serve 
 the said E F, as by law and the terms of his indenture of ap- 
 prenticeship he is required: Now, therefore, you are hereby 
 commanded, &c., [as in § 195.] 
 
 § 199. Recognizance of Apprentice and Surety on the foregoing 
 
 Complaint. 
 State of New York, ) 
 County, ) 
 "We, C B and R B, of, &c., [as in § 196 to the*, and then 
 add:'] Whereas, complaint on oath was made to the undersigned 
 
716 NEW YORK JUSTICE. 
 
 G H, a Justice of the Peace of the said county, by E F, the 
 master, against C B, his apprentice above named, and the par- 
 ties were summoned, &c., [as in § 196 to the end, substituting 
 the name of the apprentice for that of the master.^ 
 
 Fees. 
 
 The fees allowed by law for services under the statute relating 
 to masters and apprentices are as follows : 
 
 To Justices.] {Code, § 3322.) Drawing, copying and certify- 
 ing a recognizance, twenty-five cents ; 
 
 A warrant of commitment, twenty-five cents ; 
 
 Taking and certifying the acknowledgment of any instrument 
 which is required to be acknowledged before a Justice, twenty- 
 five cents ; 
 
 For administering any oath or afBrmation, ten cents ; 
 
 For issuing a summons, twenty-five cents ; 
 
 For warrant of arrest, twenty-five cents. 
 
 To Constables.] {Code, 3323.) Serving a summons, twenty- 
 five cents; 
 
 Mileage, going and returning, for each mile, ten cents; 
 
 Arresting and committing any person pursuant to process, 
 one dollar. 
 
 Mileage, going and returning, ten cents. 
 
 CHAPTER IV. 
 
 OF BASTAEDS. 
 
 EvEET child is deemed a bastard, within the meaning of this 
 chapter, who is begotten and born : 1. Out of lawful matri- 
 mony ; 2. While the husband of its mother was separate from 
 her for one whole year previous to its birth ; 3. During the 
 separation of its mother from her husband, pursuant to a judg- 
 ment of competent Court. {Crim. Pro., § 838.) 
 
BASTAKDS. 717 
 
 The statute provides, that if any woman shall be delivered of a 
 bastard child, which shall be chargeable, or likely to become 
 chargeable, to any county, city or town, or shall be pregnant of a 
 child likely to be born a bastard, and to become chargeable to 
 any county, city or town, some one of the superintendents of the 
 poor of the county, or of the overseers of the poor, or other 
 officer of the alms-house, of the town or city, where such woman 
 shall be must apply to some Justice of the Peace or Police Justice 
 of the county to make inquiry into the facts of the case. {Crim. 
 Pro., § 840 ; Sjprague vs. Eccleston, 1 Lans., 74.) 
 
 § 200. Application of a Superintendent or Overseer of the Poor, 
 in a case of Bastardy. 
 
 County, ss: 
 To G H, Esq,'a Justice of the Peace of said county : 
 
 E B having been delivered of a bastard, which is chargeable 
 \or, likely to become chargeable] to the said county [or, to the 
 town of , in said county ; or, E B, being pregnant of a 
 
 child likely to be born a bastard, and to become chargeable, 
 &c.], the undersigned E F, a Superintendent of the Poor of 
 the said county [o-r, the Overseer of the Poor of said town], 
 pursuant to the statute in such case made and provided, 
 applies to you to make inquiry into the facts and circumstances 
 of the case. 
 
 Dated this day of , 18 . E F. 
 
 The Justice so applied to must, by an examination of the 
 woman on oath, and upon such other testimony as may be 
 offered, ascertain the father of the bastard, or of the child likely 
 to be born a bastard ; and must then issue his warrant, directed 
 to any Peace officer of the county, commanding him forthwith 
 to apprehend the reputed father, and bring him before the 
 Justice issuing the warrant, for the purpose of having an adjudi- 
 cation respecting the filiation of such bastard, or of such child 
 likely to be born a bastard. 
 
 § 201. Examination before Birth. 
 County, ss : 
 E B, of the town of , in said county, being duly sworn, 
 
 says, that she is now with child, and that the child of which she 
 is pregnant is likely to be born a bastard, and to become charge- 
 
718 NEW YORK JUSTICE. 
 
 able to said county; [or, to the town of , in said county;] 
 
 and that C D. of , is the father of said child. 
 
 Subscribed and sworn, this ? E B. 
 
 day of , 18 , before me, ) 
 
 G H, Justice. 
 
 § 202. Examination after Birth. 
 
 County, ss: 
 E B, of the town of , in said county, being duly sworn, 
 
 says, that on the day of last, she was delivered of a 
 
 bastard child, which is chargeable [or, likely to become charge- 
 able] to said county; [or, to the town of , in said county;] 
 and that C D, of, &c., [as in § 201, to the end.\ 
 
 § 203. Warrant to ap-preliend Repided Father. 
 
 County, ss: 
 To any Peace Officer of said county, greeting : 
 
 "Whereas, E B, of , in said county, upon lier examina- 
 
 tion on oath, before me, the undersigned, a iTustice of the Peace 
 of said county, this day had, did declare that, &c. [as in the 
 examination /] And whereas, E F, Overseer of the Poor of said 
 town [or, one of the Superintendents of, &c., as the case may 
 le], in order to indemnify the said town [or, county], in the 
 premises, has applied to me to make inquiry into the facts and 
 circumstances of the case : You are therefore hereby commanded, 
 in the name of the people of the State of New York, forthwith 
 to apprehend the said C D, and to bring him before me, at my 
 office in , aforesaid, for the purpose of having an adjudi- 
 
 cation respecting the filiation of such bastard child [or, of such 
 child likely to be born a bastard]. 
 
 Witness my hand, this day of , 18 . 
 
 G H, Justice of the Peace. 
 
 If the person charged as the reputed father resides or is in 
 any other county of the State than that in which the warrant 
 issued, the Justice issuing the same miist direct, in writing, upon 
 the warrant, the sum in which the defendant shall give security. 
 {Crim. Pro., § 843.) 
 
 § 204. Endorsement on a Warrant of Arrest to be Executed in 
 a Foreign County. 
 
 I, the within named Justice of the Peace, direct that the penal 
 sum in which any bond shall be taken of the within named C D 
 shall be dollars. G H, Justice. 
 
BASTARDS. 719 
 
 The ojEcer having the warrant must carry it to some Justice 
 of the city or county whei'ein the person charged as the reputed 
 father resides; and the Justice to whom it is presented, must, 
 on proof being made to him of the hand-writing of the Justice 
 who issued it, endorse his name thereon, with an ai^thority to 
 arrest such person in the county where the Justice so endorsing 
 resides. {Crim. Pro., § 843.) 
 
 § 205. Endorsement by a Justice in a Foreign County. 
 
 County, ss: 
 
 The within warrant, with the endorsement made thereon by 
 the Justice by whom it was issued, of the sum in which any bond 
 is to be taken, having been presented to me, the undersigned, 
 I J, Justice of the Peace of said county, and proof having been 
 made to me of the hand-writing of the Justice who issued the 
 said warrant, the arrest of the said C D is hereby authorized, 
 if he can be found within the county of 
 
 Dated, &c., [as in § 200.] I J, Justice. 
 
 This endorsement is a sufficient authority to the person bring- 
 ing the warrant, and to all others to whom it was originally 
 directed, to execute it in the county where it is endorsed. {Crim. 
 Fro., § S43.) 
 
 The reputed father, when apprehended, must be carried 
 before the Justice who endorsed the warrant, or some other 
 Justice of the same county, who may take from him a bond to 
 the people of the State, with good and sufficient sureties, in the 
 sum so directed on the warrant, conditioned to indemnify the 
 county, town or city where the bastard shall have been born, 
 or where the wonan lilsely to have the bastard shall be, and 
 every other county, town, or city which may have incurred any 
 expense, or may be put to any expense, for the support of 
 such child, or of its mother during her confinement and recov- 
 ery therefrom, against all such expenses, and to pay the costs 
 of ajDprehending such father, and of any order of filiation that 
 may be made. {Id., § 844.) Or, the Justice may take from the 
 reputed father a bond as aforesaid, in the sum directed on the 
 warrant, with good and sufficient sureties, conditioned that such 
 father will appear at the next Court of Sessions to be held in 
 
720 JSTEW YORK JUSTICE. 
 
 the county where the warrant was originally issued, and obey its 
 order thereon. {Grim. Ptv., § 844.) 
 
 A bond conditioned to indemnify the county, or to appear a1 
 the next Court of Sessions, although in the alternative, is valid, 
 and may be enforced; {People vs. Tilton, 13 Wend. 597;) bul 
 if the bond, in addition to the conditions required by statute, 
 contains other conditions, imposing further obligations on the 
 obligors, it is void. {People vs. Meighan. 1 Hill, 298.) 
 
 § 206. Bond to he taJcen by the Justice before whom the reputed 
 Father is carried. 
 
 Know all men by these presents, that we, C D and E F, of 
 , in the county of , are held and firmly bound 
 
 unto the People of the State of JN'ew York, in the sum of 
 dollars, for which payment, well and truly to be made, 
 we bind ourselves, our heirs, executors and administrators, 
 jointly and severally, firmly by these presents. Sealed with 
 our seals, and dated this day of , 1853.* 
 
 Whereas, the said C D has been this day brought before the 
 undersigned, IJ, one of the Justices of the Peace of the county 
 of , by virtue of a warrant issued by G H, one of the 
 
 Justices of the Peace of the county of , whereon my 
 
 name [or, the name of O M, one of the Justices of the Peace 
 of the said county of ,] is endorsed, with an authority 
 
 to arrest the said C D in said county of ; in which 
 
 warrant it is recited, that E B, of , in said county of 
 
 , upon her examination on oath, before the said G H, 
 Justice, did declare herself pregnant of a child, which is likely 
 to be born a bastard, and to become chargeable \or, did declare 
 that she was, on the day of last, at 
 
 aforesaid, delivered of a bastard child, which is chargeable] to 
 said town [or, county:] And whereas, upon the said warrant is 
 endorsed the direction of the said G H, that the penal sum in 
 which any bond shall be taken from the said C D, shall be 
 $ : Now, the condition of this obligation is such, that if 
 
 the said C D shall indemnify the said town [or, county] of 
 , and every other couuty, town, or city which may 
 have incurred any expense, or may be put to any expense, for 
 the support of such child, or of its mother during her confine- 
 ment and recovery therefrom, against all such expenses, and 
 .shall pay the costs of apprehending him, the said C D, and of 
 any order of filiation that may be made in this matter [or, if 
 the said D shall appear at the next Court of Sessions to be 
 holden in the said county of , and shall obey the order 
 
BASTAKDS. 
 
 721 
 
 of said Court thereon], then this obligation to be void ; other- 
 wise of force. 
 
 Sealed and delivered in the presence of ) CD [l. s.] 
 
 and the security approved by me, ( E F [l. s.] 
 
 I J, Justice, &c. 
 
 If the reputed father gives the bond with either of the condi- 
 tions required by the statute, then the Justice taking it must 
 discharge him from arrest, and endorse on the warrant a certifi- 
 cate to that effect. He must then deliver the warrant and the 
 bond so taken by him, to the constable who brought the warrant, 
 by whom they must be delivered to the Justice who granted the 
 warrant, who must proceed thereupon in the same manner as if 
 such bond had been taken by him. {Crim. Pro., § 845.) 
 
 § 207. Certificate to be endorsed, on Warrant 
 
 County, ss: 
 I certify that the within named C D, who was brought before 
 me, I J, one of the Justices of the Peace of the county of 
 , by virtue of the within named warrant, was dis- 
 charged from arrest by me, upon his executing a bend pursu- 
 ant to statute. I J, Justice. 
 Dated, &c., [as in § 200.J 
 
 If the person apprehended does not execute the bond so re- 
 quired, with one or the other of the conditions aforesaid, to the 
 satisfaction of the Justice before whom he is brought, then the 
 cjonstable or other officer having the warrant must take him 
 before the Justice who originally issued the warrant. {Crvm. 
 Pro., § 84:6.) When he is brought before such Justice, whether 
 he was arrested in the county of that Justice, or in some other 
 county, such Justice must immediately call to his aid some other 
 Justice of the same county, and they two must proceed, without 
 any unnecessary delay, to make an examination of the matter. 
 They must examine the mother of the child, or the woman who 
 is pregnant, on oath, in presence of the person so charged or 
 apprehended, touching the father of the child, and must hear 
 any proofs that may be offered in relation thereto; and, on the 
 application of the person so charged, or of the persons appear- 
 ing in behalf of the public, either of the Justices may issue a 
 subpoena to compel the attendance of witnesses before them, 
 which may be enforced, and the witnesses may be compelled to 
 
722 NEW YOEK JUSTICE. 
 
 appear and testify, in the same manner as in any civil action 
 before a Justice of the Peace. {Crim. Pro., % 848 ; amte, 
 jp. 272.) Where the mother of the alleged bastard is a married 
 woman, although she is from the necessity of the case a com- 
 petent witness to prove the illicit intercourse, and who is in fact 
 the father of the child, she is not competent to establish the 
 non-access of her hnsband, nor his absence from the State, nor 
 any other fact which can be proved from other testimony ; nor 
 can an order of filiation be made in such a case, upon mere hear- 
 say evidence of the continued absence of the husband from the 
 State. {People vs. Overseers of Ontario, 1.5 Barb., 286.) 
 
 § 208. S'ubpwna in a case of Bastardy. 
 County, ss. : 
 
 In the name of the people of the State of New York : 
 To E F, O P, &c., greeting : 
 
 You are hereby commanded personally to appear before G H, 
 and the undersigned S T, two of the Justices of the Peace of 
 said county, fortliwith [or, as the ease m,ay 5e], at the ofHce of 
 the said S T, in , in said county, to testify what you do 
 
 know touching the father of a bastard child, wherewith E B 
 alleges she i.i now pregnant \or, which was lately born of E B.] 
 
 Witness, &c. \_as in § 203.] 
 
 If the person charged requires delay, and gives sufficient 
 reasons therefor, the Justice may adjourn such examination far 
 any time not exceeding thirty days, and must take from such 
 person a bond, with two sureties, for his appearance before them 
 at such adjourned day, with a penalty in such a sum as they shall 
 deem a full indemnity for the expense of supporting the bastard 
 and its mother. {Grim. Pro., § 849.) Where the bond has 
 been given for his appearance, he must continue to appear from 
 day to day, should there be several adjournments. {People vs. 
 Jayne, 27 Ban^l., 58.) 
 
 § 209. Bond of Adjournment. 
 Know all men, &c. [as in % 206, to the,* and then add'\ : 
 Whereas, the above named C D has been this day brought 
 before G H and S T, two of the Justices of the Peace of said 
 county, charged upon the oath of E B, of aforesaid, with 
 
 being the father of a bastard child, with which the said E B 
 alleges she is pregnant [or, of a bastard child lately born of the 
 
BASTAEDS. 723 
 
 said E B;] And whereas, at the request of the said C D, and 
 for sufficient reasons given, the said Justices have determined to 
 adjourn the examination of the said matter, upon the execution 
 of this bond, until the day of instant, at o'clock 
 
 in the noon, at the office of the said G H, in : Now, 
 
 the condition of this obligation is such, that if the said C D shall 
 personally appear before the said Justices, at the time and place 
 last aforesaid, and not depart therefrom without leave, then this 
 obligation to be void ; otherwise, of force. C D. 
 
 EP. 
 Executed and delivered in the presence of us, by whom the 
 enreties and penalty are approved, G H, 
 
 S T, 
 Justices of the Peace. 
 
 The bond to be given on adjournment only requires the de- 
 fendant to appear before the Justices before whom he was 
 examined, and no others. {People vs. Boardman, 24 How. 
 512.) 
 
 The Justices must determine who is the father of the bastard, 
 or of the child likely to be born a bastard, and must proceed as 
 follows: 1. If they determine that the person charged and appre- 
 hended is not the father of the bastard or child, they must forth- 
 with discharge him; 2. If they determine that he is such father, 
 they must make an order of filiation, in which they must specify 
 the sum to be paid weekly, or otherwise, by the putative father, 
 for the support of the bastard, or of the child likely to be born 
 a bastard; 3. If the mother of the child be in indigent circum- 
 stances, they must determine the sum to be paid by the putative 
 father, for the sustenance of the mother during her confinement 
 and recovery; 4. They must certify the reasonable costs of 
 apprehending and securing the putative father, and of the order 
 of filiation; 5. They must reduce their proceedings to writing 
 and subscribe them. {Crim. Pro., 850.) An adjudication thus 
 made by two Justices in favor of the person charged with being 
 the father of a bastard child, is a bar to a second proceeding 
 against him respecting the same matter. {Thayer vs. Overseers 
 of Hamilton, 5 Hill, 443.) And such order is not appealable. 
 {People vs. Tompkins General Sessions, 19 Wend., 154.) 
 
 § 210. Order of Filiation. 
 County, ss. : 
 Whereas, we, the undersigned, G H and S T, being two of 
 
724 NEW TOEK JUSTICE 
 
 the Justices of the Peace of said county, have this day associa- 
 ted, at , in said county, upon the application of E F, 
 Overseer of tlie Poor of the town of , \or, a Superintend- 
 ent of the Poor of said county,] for the purpose of making an 
 examination and determination touching a certain bastard child, 
 lately born in said town, of the body of E B, [or, of a certain 
 child wherewith E B is said to be pregnant, and which, when 
 born, will be a bastard,] and chargeable [or, likely to become 
 chargeable] to said town, [or, county,] and of which child C D 
 was alleged to be the father; And whereas we have duly ex- 
 amined the said E B on oath, in the presence of the said C D, 
 touching the father of said child, and have also heard the proofs 
 and allegations to us offered in relation thereto, as well on the 
 part and behalf of the said Overseer, [or, Superintendent,] as 
 of the said C D; And whereas it appears that the said E B was, 
 on the day of last, delivered of a bastard child in 
 said town, [or, that the said E B is now pregnant of a child, 
 which, when born, will be a bastard,] and which is chargeable 
 [or, likely to become chargeable] to said town, [or, county,] and 
 that the said C D is the father of said child: We do, therefore, 
 adjudge him, the said C D, to be the father of said bastard child; 
 And further, we do hereby order that the said C D pay to the 
 Overseer of the Poor of the said town of , [or, to the 
 Superintendents of the Poor of said county,] for the support of 
 the said child, the weekly sum of one dollar, so long as the said 
 child shall continue chargeable to said town, [or, county;]^ And 
 inasmuch as it appears to us, and we find, that the said E B is 
 in indigent circumstances, we determine and order that the said 
 C D pay to the said Overseer of the Poor, [or. Superintendents,] 
 for the sustenance of the said E B, during her confinement and 
 recovery therefrom, the sum of twenty dollars. And we do 
 hereby certify the reasonable costs of apprehending and securing 
 the said father, and of this order of filiation, at the sum of 
 dollars. 
 
 Given under our hands, at aforesaid, this day 
 
 of , 18 . G H, 
 
 S T, Justices, &c. 
 
 An order of filiation, legally made, cannot afterwards be 
 vacated by two other Justices. (Carpenter vs. Whitman, 15 
 Johns. 208.) 
 
 The person adjudged to be the reputed father must, upon 
 notice of the order, immediately pay the amount certified as the 
 costs of his apprehension, and of the order of filiation. {Grim. 
 Pro., § 851.) He must also enter into a bond to the People 
 
BASTARDS. 725 
 
 of this State, in such sum as the Justices shall direct, with good 
 and sufficient sureties, to be approved by them, with one or the 
 other of the following conditions: 1. That he will pay weekly, 
 or otherwise, as shall have been ordered, such sum for the sup- 
 port of the child, and for the sustenance of the mother, as shall 
 have been ordered, or shall at any time thereafter be ordered 
 by the Court of Sessions of the same county; and that he will 
 fully and amply indemnify the county and town, or city, where 
 i/he bastard was born, or where the woman likely to have such 
 oastard shall be, and every other county, town or city, which 
 may have incurred any exisense, or may be put to any expense 
 for the support of such child, or of its mother during her 
 confinement and recovery therefrom, against all such expenses ; 
 or, 2. That he will appear at the next Court of Sessions of said 
 county, and obey its order thereon. {Grim. Pro., § 851.) 
 
 The sureties in an indemnity bond, conditioned lo indemnify 
 the town at all times thereafter, will not be discharged when the 
 infant attains the age of twenty-one years; they are liable as 
 long as the child or man continues chargeable to the town. 
 {Falls vs. Belknap, 1 Johns. 486.) The mother of a bastard 
 child three or four years old, is entitled to its custody, and the 
 putative father and his surety in a bond given for the mainte- 
 nance of the child, cannot exonerate themselves from liability 
 by demanding the child. {Carpenter vs. Whitman, 15 Johns. 
 208.) 
 
 § 211. Bond on Order of Filiation. 
 
 Know all men, &c., [as in \ 206, to the*, and then add-] 
 Whereas, by an order this day duly made and subscribed by 
 the undersigned, Justices of the Peace of the said county, it is 
 adjudged that the said C D, is the father of a bastard child of 
 which E B is pregnant, and which is likely to become charge- 
 able [or, of a bastard child lately born in said town, of E B, 
 and which is chargeable] to said town, [or, county;] And it was 
 thereupon ordered bj' the said Justices, that, &c., [recite the or- 
 der for the support of the bastard and the sustenance of the 
 mother, as in § 210:] Now, the condition of this obligation is 
 such, that, if the said C D shall pay such sums for the support 
 of the said bastard child, and the sustenance of its mother, as 
 are ordered by the said Justices, as aforesaid, or as shall at any 
 time hereafter be ordered by the Court of Sessions of said 
 
726 NEW YORK JUSTICE. 
 
 county, and shall fully and amply indemnify the said town, [or, 
 connty,] and every other county, town or city, which may have 
 incurred any expense, or may be put to any expense, for the 
 support of such child, or of its mother during her confinement 
 and recovery therefrom, against all such expenses, then this 
 obligation to be void; otherwise, of force. \If the party intends 
 to appeal, instead of the foregoing, say: Now, the condition of 
 this obligation is such, that if the said C D shall personally 
 appear at the next Court of Sessions of said county, and shall 
 obey tlie order of the said Court, then this obligation to be void ; 
 otherwise, of force.] 
 
 Sealed, &c. \_as in § 209.] D. [l. s.] 
 
 E F. [l. 8.] 
 
 The bond should not contain both of the above conditions, as 
 that would make it void. {Hoogland vs. Hudson, 8 How. 243.) 
 
 If the bond is executed to the satisfaction of the Justices, 
 they must discharge the putative father from arrest. If he re- 
 fuses or neglects to execute a bond, with one or the other of 
 the conditions above mentioned, or to pay the costs and charges 
 as certified in the order of filiation, he must be committed by 
 the Justices, or by one of them, to the county jail, by wan-ant, 
 there to remain until discharged by the Court of Sessions, or 
 until he executes the bond in the penalty required by the Jus- 
 tices, or until he paj^s the costs; the warrant to be varied to 
 correspond with his default. {Grim. Pro., § 862 ; People vs. 
 Stowell, 2 .Denio, 127.) Should the bond contain superfluous 
 provisions, it will not for that reason be void. {People vs. 
 Mitchell, 4 Sand/., 466.) 
 
 If the reputed father of a bastard child, against whom an 
 order of filiation has been made, does not pay the amount cer- 
 tified for the costs of his apprehension and of the order of fili- 
 ation, the Justices may issue a warrant for his commitment, 
 even though he has given the bond required by the statute! 
 When such bond has been given, but the costs are not paid, the 
 warrant should direct the father to be safely kept until' dis- 
 charged by the Court of Sessions, or until he pays the costs. 
 {People vs. Stowell, 2 Denio, 127.) 
 
 The penalty of every bond taken for the appearance of the 
 putative father, either before Justices of the Peace, or at the 
 Court of Sessions, must, in all cases, be such a sum as shall be 
 
BASTARDS. 727 
 
 deemed a full indemnity for the expense of supporting the bastard 
 and its mother. {Grim. Fro., § 851.) 
 
 § 212. Warrant to Commit Putative Father. 
 
 County, ss: 
 To any Constable of said County, greeting: 
 
 Whereas, by an order of filiation this day made by us, the 
 undersigned, G H and S T, Justices of the Peace of said county, 
 at , in said county, we did adjudge C D to be the 
 
 father of a bastard child, lately born in the town of , 
 
 in said county, of the body of E B, \or, of a certain child where- 
 with E B is said to be pregnant, and which, when born, will be 
 a bastard,] and chargeable, [or, likely to become chargeable,] 
 to said town, [or, county,] and did thereupon order that the 
 said C D pay, &c., [set forth the directions for the support of the 
 child and the sustenance of the mother, and the amount of costs 
 and charges required to he paid, as in the 07-der;^ And whereas, 
 upon the making and subscribing such order, we did require 
 the said C D immediately to pay the costs so certified, and to 
 enter mto a bond to the people of this State, in the penal sum 
 of dollars, with good and sufficient sureties, to be by 
 
 us approved, with one or the other of the conditions, which, by 
 the statute in such case made and provided, are prescribed; 
 And whereas due notice of our said order has been given to the 
 said C D, but he has wholly neglected [or, refused] to pay the 
 said costs and charges; [or, to execute a bond as aforesaid; or 
 both, as the case may l)e:~\ These are, therefore, to command 
 you, in the name of the people of the State of New York, to 
 convey the said C D to the common jail of the said county, the 
 keeper whereof is hereby required to receive and detain the 
 said C D in custody in said jail, until he shall be discharged by 
 the Court of Sessions of the said county, or shall pay the said 
 costs and charges; [or, shall execute such bond in the penalty 
 required, as aforesaid; or both, as the case may 6e.] 
 
 Given, &c., [as in \ 210.] 
 
 During the examination, and until he is discharged by the 
 Justices, the reputed father must remain in the custody of the 
 constable who apprehended him, unless a bond shall have been 
 taken for his appearance upon any adjournment, as before spe- 
 cified. If he is committed to jail, he must be confined therein 
 without being let to bail, and is not entitled to the jail liberties. 
 {Grim. Fro., § 853.) 
 
 When any bond, taken out of the county as aforesaid, by which 
 
728 NEW YORK JUSTICE. 
 
 the person charged shall be bound to appear at the next Court of 
 Sessions, is returned to the Justice who issued the warrant, such 
 Justice must, in like manner, call in the aid of another Justice 
 of the Peace of the same county; and the two Justices must 
 proceed, in the manner aforesaid, to determine who is the father 
 of the bastard, or of the child Likely to be born a bastard; and 
 must make an order of filiation, and prescribe the sum to be 
 paid by such putative father, for the support of the child, and 
 for the sustenance of the mother, as aforesaid; and must certify 
 the reasonable costs of apprehending the said father, and of 
 the order of filiation, (firim. Pro., % 854.) Such examination 
 and order may be made in the absence of the person so charged, 
 unless, before they arc made, he personally requires of the Jus- 
 tice issuing the warrant, that the examination be made in his 
 presence. If he so requires, reasonable notice of the time and 
 place of the examination must be given to him; and he may 
 appear and offer testimony in relation to the matters to be 
 inquired into, and the same proceedings must be had as in the 
 case of his being brought before such Justice. {Id. § 855.) 
 
 In making an examination so authorized, the Justice or Jus- 
 tices may compel the mother of a bastard so chargeable, or 
 likely to become chargeable, or woman pregnant with a child 
 likely to become a bastard and to become so chargeable, to 
 testify and disclose the name of the father of such bastard or 
 child; and, in case of her refusal, may, after the expiration of one 
 month from the time of her delivery, if she shall be sufiiciently 
 recovered, commit her to the common jail of the countj'', by a 
 warrant under his hand, or the hands of such Justices, there to 
 remain until she shall testify and disclose the name of such 
 father. The warrant must distinctly set forth the cause of com- 
 mitment. (/<;?., §856.) The Justices must be careful to describe 
 the person committed, by her proper name ; otherwise, they may 
 be liable to an action for false imprisonment. {Scott vs. Ely 
 cmd White, 4 Wend., 555.) 
 
 § 213. Warrant to Commit a Mother who He/uses to Disclose 
 the Name of the Father 
 County, ss. ; 
 To any Constable of said county, greeting : 
 
 Whereas we, the undersigned, G H and S T, Justices of the 
 Peace of said county, being now associated for the purpose of 
 
BASTARDS. 729 
 
 examining into and making order for the indemnity of the town 
 of , in said count}-, [o7\ for the indemnity of said county,] 
 
 against the support of a certain child, said to have been born a 
 bastard of the body of E B, and chargeable [or, likely to be- 
 come chargeable] to said town, [or, county,] upon the applica- 
 tion of E F, Overseer of the Poor of said town, [or, a Super- 
 intendent of the Poor of said county,] have required the said 
 E B, who is now before us, to submit to an examination on 
 oath, touching such charge, in the presence of C D, who has 
 been brought before us charged with being the father of said 
 child, and to testify and disclose the name of such father, but 
 the said EB wholly refuses so to testify and dischose; and inas- 
 much as it now appears to us, upon due proof thereof, given 
 on oath before us, that more than a month has elapsed since 
 the said E B was delivered of said child, and that she is now 
 sufficiently recovered from her confinenemeut: You are there- 
 fore hereby commanded, in the name of the people of the State 
 New York, to take the said E B, and convey her to the com- 
 mon jail of the said county, the keeper whereof is required to 
 detain the said E B in his custody in said jail, until she shall 
 so testify and disclose the name of such father. 
 Given, &c., [as in § 210.] 
 
 If the mother of a bastard child, chargeable or likely to be 
 chargeable, as before declared, is possessed of any property in 
 her own right, any two Justices of the Peace of the county 
 where such mother may be, on the application of any county 
 superintendent, or overseer of the poor, must examine into the 
 matter, and, in their discretion, make order for the keeping of 
 such bastard, by charging such mother with the payment of 
 money weekly, or other sustentation, for the support of the 
 child, as they shall think meet. {Crim. Fro., § 857.) 
 
 § 214. Summons where the Mother has Property in her 
 
 own Right. 
 County, SB. : 
 To any Constable of the said county, greeting : 
 
 The People of the State of New York command you to summon 
 E B of , in said county, to appear before us, the under- 
 
 signed, G H and S T, Justices of the Peace of said county, on 
 the day of , instant, at two o'clock in the afternoon, at the 
 
 office of the undersigned, G H, to show cause, if any she may have, 
 why we should not make an order for the keeping of a bastard 
 child, said to have been lately born of the said E B, and chai-geable 
 
730 NEW YORK JUSTICE. 
 
 [or, likely to become chargeable] to said county, [or, town,] by 
 charging the said E B with the payment of money weekly, or 
 other sustentation, for the support of such child; E F, Overseer 
 of the Poor of the said town, [or, a Superintendent of the Poor 
 of said county,] having applied to us for that purpose. 
 Given, &c., [as in § 210.] 
 
 § 215. Order to compel the Mother to pay for the Support of the 
 
 Child. 
 County, ss: 
 
 "Whereas, E F, one of the Superintendents of the Poor of 
 said county, [or. Overseer of the Poor of the town of , 
 
 in said county,] has made application to us, G H and S T, two 
 of the Justices of the Peace of said county, complaining that E 
 B, of , in said county, was lately delivered at , 
 
 aforesaid, of a bastard child, which is chargeable [or, likely to 
 become chargeable,] to said county, [or, town,] and that the 
 said E B is possessed of some property in her own right, and 
 desired that we should examine into the matter, and make order 
 for the indemnity of the said county, [or, town;] And whereas, 
 upon examination into the matter of said application, and upon 
 due proof on oath before us given, it appears to us that the said 
 E B was so delivered of such child, and is possessed of some 
 propertjr in her own right, and the said E B. though jDresent at 
 such examination, not showing any sufficient cause to the con- 
 trary, [or, and the said E B neglecting to appear before us and 
 show cause, if any she might have, to the contrary, although 
 duly summoned so to appear,] we do therefore hereby order, 
 that the said E B pay weekly to said Superintendent, [or. to 
 said Overseer,] the sum of , for the support of said child; 
 
 [If necessary, insert here: unless the said E B shall nurse and 
 take care of said child herself.] 
 
 Given, &c., [as in § 210.] 
 
 The statute does not seem to require that the mother of the 
 child should be summoned to appear before the Justice when 
 they examine into the matter, Ijut it is proper she should l)e. 
 
 If, after the service of such order, subscribed by the said Jus- 
 tices, upon such mother, she refuses or neglects to perform its 
 requirements, she must be committed to the common jail of the 
 county, there to remain, without bail, until she complies with 
 such order, unless she executes a bond to the people of this 
 State, in such sum as the Justices maj'- direct, Mdth good and 
 ijufficient sureties, to appear at tlie then next Court of Sessions 
 
BASTARDS. 731 
 
 in said county, and not to depart the said Court without its leave. 
 {Grim. Pro., % 858.) 
 
 § 216. Wai-rant to Commit the Mother. 
 
 County, ss: 
 To any Constable of the said county, greeting: 
 
 Whereas, by an order duly made by us, the undersigned, G 
 H and S T, Justices of the Peace of said county, bearing date 
 the day of instant, in relation to the keeping of 
 
 a certain bastard child, lately bom in said county, of the body 
 of E B, which is chargeable [or, likely to become chargeable,] 
 to the town of , [or, said county,] we directed, &c., [as 
 
 in the order ;'\ which order was so made upon the application of 
 E F, Overseer of the Poor of said town, [or, a Suj)erintendent 
 of the Poor of said county;] and after due notice to the said E 
 B, to show cause, if any she might have, against the making of 
 such order; And whereas said order, subscribed by us, has been 
 served upon the said E B, and she has not executed the bond 
 required by law for her appearance at the next Court of Ses- 
 sions in said county, and has refused [or, neglected] to perform 
 the requirements of the said order: You are therefore hereby 
 commanded, in the name of the people of the State of New 
 York, to take the said E B, and convey her to the common jail 
 of said comity, there to remain, without bail, until she shall 
 comply with such order, or execute a bond to the people of this 
 State, in the sum of dollars, with good ancl sufficient 
 
 sureties, to appear at the next Court of Sessions in said county, 
 and not to depart the said Court without its leave. 
 
 Given, &c., [as in § 210.] 
 
 § 217. Bond by the Mother of a Bastard to appear at the next 
 Court of Sessions. 
 
 Know all men by these presents that we, E B, R F, and L M, 
 of , in the county of , [as in § 206, to the*, and 
 
 then add:] 
 
 Whereas, E B, above named, was, by an order made on the 
 day of , 18 , by G H and S T, two of the 
 
 Justices of the Peace of the said county, required to pay weekly 
 to E F, one of the Superintendents of the Poor of said county, 
 [or, Overseer of the Poor of the town of , in said 
 
 coimty,] the sum of dollars, for the support of a bastard 
 
 child of which she was lately delivered as aforesaid, and which 
 is chargeable [or, likely to become chargeable,] to said county, 
 [or, town; Add here, if it is in the order: unless she should 
 nui-se and take care of said child herself:] Now, therefore, the 
 
732 NEW YORK JUSTICE. 
 
 condition of this obligation is such, that if the said E B shall 
 personally be and appear at the next Court of Sessions to 
 be held in the said county of , and obey the order of 
 
 the said Court, then this obligation to be void ; otherwise, of 
 force. 
 
 Sealed, &c. [as in § 209]. E B. [l. s.j 
 
 E F. [l. 8.] 
 L M. [l. s.] 
 
 The Justices who have made any order of filiation or main- 
 tenance against the father or mother of any bastard, may, from 
 time to time, vary the amount therein directed to be paid, by 
 reducing the same, as circumstances may require. {Grim. Pro., 
 § 899.) 
 
 ^ 218. Order reducing the Sum to be paid by the Father or 
 Mother of a Bastard Child, 
 
 County, ss: 
 To E F, Overseer of the Poor of the town of , in said 
 
 county; [cr, the Superintendents of the Poor of said county:] 
 Whereas, by an order of filiation by us made, bearing date 
 the day of last, we did determine that C D was the 
 
 father of a certain bastard child, then lately born in afore- 
 
 said, of one E B, and did thereupon direct, among other things, 
 that the said C D should pay to you, the said Overseer, \or, 
 Superintendents,] for the support of said child, the weekly sum 
 of one dollar, so long as said child should continue chargeable 
 to said town, \or, county;] And whereas, upon the application 
 of the said C D we have this day inquired into the circumstances 
 of the case, and heard the proofs and allegations to us submit- 
 ted in relation thereto; and it appearing to us, upon such inquiry, 
 that the circumstances in relation to said bastard child, render 
 it proper and expedient that the sum required to be paid by the 
 said C D, by our former order, should be reduced as hereinafter 
 expressed; and inasmuch as you the said Overseer, [or, Super- 
 intendents,] have shown before us no sufficient reason against 
 such reduction, although appearing before us, [or, notified to 
 appear before us and show cause, if any you might have:] "We 
 do, therefore, reduce the sum required to be paid by the said C 
 D, by our former order as aforesaid, to the weekly sum of 
 Given, &c., [as in § 210.] 
 
 An appeal may, in certain cases, be taken to the Court of Ses- 
 sions of the countj^, by a person aggrieved, from any order or 
 determination made by any two Justices in bastardy proceed- 
 
BASTARDS. 733 
 
 ings and notice of tlie appeal must be given to the Justices in 
 certain cases. {Grim. Pro., § 862.) No Justice of the Peace 
 who has assisted in any judgment, or in making any order 
 appealed from, in proceedings under the bastardy statute, can sit 
 in the Court of Sessions upon the hearing of any appeal made 
 from such judgment or order, {Civil Pro., § 48.) 
 
 The Justices who have taken or received any bond for the 
 appearance of any party at the Sessions, must transmit the same 
 to the clerk of the Court before the opening thereof, together 
 with the orders of maintenance and sustenance which shall have 
 been made, or true copies thereof signed by the Justices making 
 the same. {Grim. Pro., § 863.) 
 
 If the woman who is so pregnant shall be married before she 
 is delivered of the child, or if she miscarries so that the child is 
 not born alive, or if it appears that she is not so pregnant, them 
 the person charged as the father of such child must be imme- 
 diately relieved out of custody, by a warrant under the hands of 
 the Justices by whom he was committed, upon such fact appear- 
 ing to them. {Grim. Pro., § 866.) 
 
 § 219. Warrant to discharge Pviative Father. 
 
 County, ss: 
 To the keeper of the common jail of the said county, greeting: 
 
 Whereas, C D was, by a warrant signed by the undersigned, 
 G H and S T, Justices of the Peace of said county, and dated 
 the day of , 18 , committed to your custody in 
 
 the said jail, because, having been adjudged by us to be the 
 father of a bastard child, of which E B was lately delivered at 
 in said county, and which was chargeable to said county, 
 he neglected [or, refused] to pay the costs and charges by us 
 certified; [or, to execute the bond required by the statute; or 
 both, as the case may 5e;] And whereas it now appears to us 
 that the said E B was married before she was delivered of the 
 said bastard child: You are, therefore, hereby commanded, on 
 the receipt hereof, to discharge and relieve the said C D out of 
 your custody in the said jail, unless he be therein detained by 
 you for some other cause than that expressed in the said war- 
 rant. 
 
 Given under our hands and seals, this day of , 
 
 18 . GH, [L-s.] 
 
 S T, [L. s.] 
 Justices, &C. 
 
734 NEW YOKK JUSTICE. 
 
 The Court of Sessions is authorized, when any order of filiar 
 tion and maintenance is quashed for any other reason than upon 
 the merits and facts, to bind over the person charged as the 
 leputed father to appear at the next Court of Sessions; and, in 
 such case, the same proceedings may be had by the Justices 
 for the apprehension of the person charged as the father of a 
 bastard, or of a child likely to be born a bastard, and for the 
 making of an order of filiation and maintenance, and for the 
 commitment of such person in default of executing any bond 
 required by law, as are authorized to be had in the first instance ; 
 and the same proceedings must subsequently be had in all 
 respects. {Crim. Pro., § 876.) 
 
 The bonds taken by any Justice or Justices, for the appear- 
 ance of any person charged as the father of a bastard, or of a 
 child likely to be born a bastard, or for the appearance of any 
 mother of a bastard child, at any Court of Sessions, must be 
 signed by the persons binding themselves as principals and sure- 
 ties, and must be transmitted by the Justice or Justices taking 
 them, or receiving them from any constable, to the said Court, 
 at the opening of the next term thereof. 
 
 If the putative father or mother of any bastard, or of any 
 child likely to be born a bastard and to become chargeable, 
 shall run away from the place of their ordinary residence, leav- 
 ing such bastard or child chargeable or likely to become charge- 
 able to the public, the overseers of the poor of the town, or 
 the superintendents of the poor of the county, where any such 
 bastard shall be born or be likely to be born, may apply to any 
 two Justices of the Peace of the county where any estate, real 
 or personal, of the putative father or mother of such bastard 
 shall be, for authority to seize and take such real and personal 
 estate. Upon due proof being made to the satisfaction of such 
 Justices, of such facts, they may issue their warrant, in the same 
 maimer as is provided by statute in relation to parents abscond- 
 ing and leaving their children chargeable, and the same pro- 
 ceedings in all respects must be had thereon. {Crim. Pro. 
 § 860.) "' 
 
BASTARDS. 735 
 
 § 220. Warrant to seize the Pi-operty of Absconding Father of 
 
 Bastard. 
 County, ss: 
 To the Overseers of the Poor of the town of , in said 
 
 county, [or, To the Superintendents of the Poor of said 
 
 county:] 
 
 It appearing to us, two of the Justices of the Peace of said 
 county, as well by the representation and application to us made 
 by the said Ovei-seers, \or, the said Superintendents,] as upon 
 due proof of the facts before us given, that C D is the father of 
 a bastard child, whereof E B, of said town, is now pregnant, and 
 which, when born, is likely to become chargeable to said town, 
 [or, county,] or, that C D is the father of a bastard child lately 
 born in said town, of E B, and which is chargeable, or likely to 
 become chargeable, to said town [or, county,] and that said C 
 D has run away from said town, Avhich is the place of his ordi- 
 nary residence, leaving such bastard child likelj'- to become 
 chargeable \or, chargeable] to the public, and leaving in said 
 county some estate, real or personal: We therefore authorize 
 you, the said Overseers [or, the said Superintendents] of the 
 Poor, to take and seize the goods, chattels, effects, and things 
 in action, and the lands and tenements of the said C D, where- 
 ever the same may be found in said county: And you will, im- 
 mediately upon such seizure, make an inventory of the property 
 by you taken, and return the same, together with your proceed- 
 ings, to the next Court of Sessions of said county. 
 
 Given, &c., [as in § 210.] 
 
 If the party against whom such warrant issues, returns and 
 supports such bastard or child, or gives security satisfactory to 
 such Justices, to such overseers or superintendents, as the case 
 may be, that such bastard or child shall not become, or there- 
 after be, chargeable to the town or county, then such warrant 
 must be discharged by an order of such Justices, and the prop- 
 erty taken by virtue thereof must be returned to such party. 
 {Grim. Pro., § 924.) 
 
 § 221. Bond to le given hy Party where Property has hcen 
 
 seised. 
 
 Know all men by these presents, that we, C D and R F, of 
 , in the county of , are held and firmly bound 
 
 unto E F and P, Overseers of the Poor of the town of 
 
 , in said county [or, Superintendents of the Poor of said 
 county], [as in § 206 to the *, and then add:~\ Whereas, the said 
 
736 NEW TOKK JUSTICE. 
 
 0\ erseers [or, Superintendents] lately seized the property of 
 the said C D, under a warrant issued by G H and S T, two Jus- 
 tices of the Peace of said county, upon due proof to them given 
 that said C D was the father of a bastard child, whereof E B, 
 of said town, was then pregnant, and which, when born, was 
 likely to become chargeable to said town, [or, county,] [or, that 
 said C D, was the father of a bastard child lately bom in said 
 town, of E B, and which was chargeable, or likely to become 
 chargeable to said town, [or, county,] and that said C D had 
 run away from said town, which was the place of his ordinary 
 residence, leaving such bastard child likely to become charge- 
 able [or, chargeable] to the public, and leaving in said county 
 some estate, real or jjersonal; And the said C D having returned, 
 and being desirous of having his property so taken restored to 
 him: Now the condition of this obligation is such, that if the 
 said bastard child shall not become, or hereafter be, chargeable 
 to said town or county, then this obligation to be void; other- 
 wise, of force. 
 
 Sealed, &c., [as in § 209.] C D. [l. s.] 
 
 E F. [L. s.] 
 
 § 222. Order to discharge the Warrant and to restore the 
 Property. 
 County, ss: 
 To the Overseers of the Poor of the town of , in said county, 
 
 [or, to the Superintendents of the Poor of said county:] 
 
 Whereas, by a warrant, issued by us, to you directed, bearing 
 date the day of , 18 , you were authorized to 
 
 seize the goods, chattels, effects, and things in action, and the 
 lands and tenements, of C D, upon proof that he had run awaj^ 
 leaving a bastard child of which he is the father, likely to be- 
 come chargeable [or, chargeable] to the public; And whereas the 
 said C D, has now returned, and supports such bastard child, 
 [or, has given security to you, satisfactory to us, that such 
 bastard child shall not become, or hereafter be, chargeable to 
 said town or county:] We do, therefore, hereby discharge the 
 said warrant so issued against the said C D, and direct the prop- 
 erty taken to be restored to him. 
 
 Given, &c., [as in § 210.] 
 
 Every constable or other officer, to whom any bond of the 
 putative father of a bastard, or of a child likely to be born a 
 bastard, taken out of the county where the warrant was issued, 
 is delivered, who neglects or refuses to deliver the same to the 
 Justice who issued the warrant, within fifteen days after the 
 
BASTARDS. 737 
 
 receipt of the same, will forfeit the sum of twenty-five dollars, 
 to be sued for and recovered by ar.d in the name of any overseer 
 of the poor, or county superintendents, at whose instance the 
 warrant was issued. (1 R. S. 656, § 69.) 
 
 No Justice of the Peace is liable to any information, indict- 
 ment, action of trespass, or other action, by reason of his having 
 endorsed any warrant issued for the apprehension of the puta- 
 tive father of a bastard, or of a child likely to be born a bastard, 
 although it should afterwards appear that such warrant was 
 illegally or improperly issued, (id. § 70.) If any Justice who 
 has issued any warrant for the apprehension of the father of a 
 bastard, or of a child likely to be born a bastard, is dead, or has 
 vacated his office, or is absent, on the return of such warrant, 
 the constable who apprehends such father, must carry him before 
 some other Justice of the same town, who has the same authority 
 to proceed therein as the Justice who issued the warrant {Crvm. 
 Fro., § 847.) 
 
 JFees. 
 The fees allowed by law for services under the statute entitled 
 " Of proceedings respecting bastards," are as follows : 
 
 To Justices.] {Code, § 3322.) A warrant of arrest, fifty 
 cents; 
 
 Endorsing any such warrant issued from another county, 
 twenty-five cents ; 
 
 Drawing, certifying and copying a bond or recognizance and 
 filing with the clerk, twenty-five cents ; 
 
 A warrant of commitment, twenty-five cents ; 
 A summons, twenty-five cents ; 
 Every subpoena, twenty-five cents ; 
 
 Taking and certifying the acknowledgment of any instrument 
 which is required to be acknowledged before a Justice, twenty- 
 five cents ; 
 
 For administering an oath or affirmation, ten cents ; 
 Two dollars per day for each day actually and necessarily 
 devoted to the examination. 
 
 To Constables.] {Code, § 3323.) Serving a precept or other 
 mandate, twenty-five cents ; a warrant, fifty cents ; 
 
 Mileage, going and retm-ning, for each mile, ten cents ; 
 
738 NEW YORK JUSTICE 
 
 Arresting and committing any person pursuant to any process. 
 one dollar ; 
 
 Mileage, going and returning, for each mile, ten cents. 
 
 To Witness.] (Code, § 3327.) Each witness, for each day, 
 fifty cents. 
 
 CHAPTER Y. 
 
 OF BEGGAES AND YAGEANTS. 
 
 Wko are vagrants. The following persons are vagrants : 
 
 1. A person who, not having visible means to maintain him- 
 self, lives without emplo;yment. 
 
 2. A person who, being an habitual drunkard, abandons, 
 neglects or refuses to aid in the support of his family. 
 
 3. A person who has contracted an infectious or other disease, 
 in the practice of drunkenness or debauchery, requiring charitable 
 aid to restore him to health. 
 
 4. A common prostitute, who has no lawful employment, 
 whereby to maintain herself. 
 
 5. A person wandering about and begging, or who goes about 
 from door to door, or places himself in the streets, highways, 
 passages, or other public places, to beg or receive alms. 
 
 6. A person wandering abroad and lodging in taverns, gro- 
 ceries, ale-houses, watch or station-houses, out-houses, market- 
 places, sheds, stables, barns or uninhabited buildings, or in the 
 open air, and not giving a good account of himself. 
 
 7. A person who, having his face painted, discolored, covered 
 or concealed, or being otherwise disguised, in a manner calculated 
 to prevent his being identified, appears in a road or public high- 
 way, or in a field, lot, wood or inclosure. 
 
 8. Any child between the age of five and fourteen, having 
 sufficient bodily health and mental capacity to attend the public 
 school, found wandering in the streets or lanes of any city or 
 incorporated village, a truant, without any lawful occupation. 
 {Crim. Pro., § 887.) 
 
 Proceedings before Magistrate. When complaint is made to 
 any magistrate by any citizen or peace officer against any vagrant 
 
BEGGARS AND VAGRANTS. 739 
 
 under siibdivision eight of the last section, such magistrate must 
 cause a peace officer to bring such child before him for examina- 
 tion, and shall also cause the parent, guardian or master of such 
 child, if the child has any, to be summoned to attend such 
 examination. 
 
 If, thereon, the complaint shall be satisfactorily established, the 
 magistrate must require the parent, guardian or master to enter 
 into an engagement in writing to the corporate authorities of the 
 city or village, that he will restrain such child from so wandering 
 about, will keep him in his own premises or in some lawful occu- 
 pation, and will cause him to be sent to some school at least four 
 months in each year, until he become fourteen years old. 
 
 The magistrate may, in his discretion, require security for the 
 faithful performance of such engagement. 
 
 If the child has no parent, guardian or master, or none can be 
 found, or if the parent, guardian or master refuse or neglect, 
 within a reasonable time, to enter into such engagement, and to 
 give such security if required, the magistrate shall by warrant 
 commit the child to such place as shall be provided for his recep- 
 tion. If no such place for his reception has been provided, he 
 shall commit him to the alms-house of the county. {Id., § 888.) 
 
 Every child received pursuant to the last section, shall be kept 
 until discharged by the overseers of the poor or the commissioners 
 of the alms-house of the city or village, and may be bound out 
 as an apprentice by them, or either of them, with the consent 
 of any magistrate, or any of the aldermen of the city, or any 
 trustee of an incorporated village where he may be, in the same 
 manner, for the same periods and subject to the same provisions 
 in all respects as directed in respect to parents whose children 
 have become chargeable on any town. {Id., § 889.) 
 
 Peace oficers, when required iy any person, to carry vagrant 
 iefore a magistrate for examination. A peace ofScer must, when 
 required by any person, take a vagrant before a justice of the 
 Peace or Police Justice of the same city, village or town, or before 
 the mayor, recorder or city Judge, or Judge of the General 
 Sessions of the same city, for the purpose of examination. 
 {Id., § 890.) 
 
 Vagrant, when to he convicted ; form of certificate of convic- 
 tion. If the magistrate be satisfied, from the confession of the 
 person so brought before him, or by competent testimony, that 
 
740 NEW YORK JUSTICE. 
 
 he is a vagrant, he must convict him, and must make and sign, 
 with his name of office, a certificate substantially in the following 
 form: 
 
 § 224. Certificate of Conviction, 
 
 I certify that A B, having been brought before me, charged 
 with being a vagrant, I have duly examined the charge, and that 
 upon his own confession in my presence [or ' upon the testimony 
 of C D,' &e., naming the witnesses], by which it appears that 
 he is a person [pursuing the description contained in the subdivi- 
 sion of section eight hundred and eighty-seven, which is appro- 
 priate to the case], I have adjudged that he is a vagrant. 
 
 Dated at the town [or, city] of , the day of , 18 . 
 
 EF, 
 Justice of the Peace of the town of 
 
 [Or, as the case may be.] {Id., § 891.) 
 
 Certificate to constitute record of conviction, and to be filed ^ 
 commitment of vagrants. The magistrate must immediately 
 cause the certificate which constitutes the record of conviction 
 to be filed in the office of the clerk of the county, and must, by a 
 warrant signed by him with his name of office, commit the 
 vagrant, if not a notorious offender, and a proper object for such 
 relief, to the county poor house, if there be one, or to the alms- 
 house or poor-house of the city, village or town, for not exceeding 
 six months at hard labor, or if the vagrant be an improper person 
 to be committed, he must be committed for a like term to the 
 county jail, or in the city of New York, to the city prison or 
 penitentiary of said city, or in the county of Kings, to the 
 penitentiary of that county. {Id., % 892.) 
 
 Children begging, how disposed of. If a child be foimd beg- 
 ging for alms, or soliciting charity from door to door, or in a 
 street, highway, or public place in a city, village or town, a 
 Justice of the Peace or Police Justice, on complaint and proof 
 thereof, must commit the child to the county poor-house or other 
 place provided for the support of the poor, to be kept, employed 
 and instructed in useful laboi', until discharged by the County 
 Superintendents of the Poor, or in the city of ISTew York, by the 
 Commissioners of Charities and Corrections, or bntmd out as an 
 apprentice by them, as prescribed by special statutes. {Id., § 893.) 
 
 Peace Officers to arrest and pursue a person disguised, and 
 tahe him. before a magistrate. It is the duty of every Peace Officer 
 
BEGGARS AND TAGEANTS. 741. 
 
 of the county, city, village or town, where a person described in 
 the seventh subdivision of section eight hundred and eighty-seven 
 is found, to arrest and take him before a magistrate mentioned in 
 section eight hundred and eighty-eight, to be proceeded against as 
 a vagrant. {Id., § 894.) 
 
 Private citizens may do so without warrant. A private citizen 
 of the county may also, without warrant, exercise the powers con- 
 ferred upon a Peace Officer by the last section. {Id., § 895.) 
 
 Peace Officer may require aid; duty of persons required to 
 aid him.. In the execution of the duties imposed by section eight 
 hundred and ninety-four, the Peace Officer may command the aid 
 of as many male inhabitants of his county, city, village or town, 
 as he may think proper ; and a citizen so commanded, may pro- 
 vide himself or be provided with such means and weapon as the 
 officer giving the command may designate. {Id., § 896.) 
 
 Neglect or refusal to aid Peace Officer, without cause, a mis- 
 demeanor ; punishment. A person commanded to aid the officer, as 
 prescribed in the last section, and who without lawful cause 
 refuses or neglects to do so, is guilty of a misdemeanor, and is 
 punishable by a fine not exceeding two hundred and fifty dollars, 
 or by imprisonment not exceeding one year, or both. {Id., § 897.) 
 
 Magistrate may depute an elector of the county to inake arrest of 
 person disguised / if his name he not known, fictitious name may he 
 used. A magistrate to whom complaint is made against a person 
 charged as a vagrant, as described in the seventh subdivision of 
 section eight hundred and eighty-seven, may, by a warrant signed 
 by him, with his name of office, depute an elector of the county 
 to ari'est and bring the vagi-ant before him to answer the com- 
 plaint ; and if the name of the person complained of be not 
 known, he may be described in the warrant and in all subsequent 
 proceedings thereon by a fictitious name. {Id., § 898.) 
 
 § 226. Warrant to Commit a Child to the County Poor-Hoiise. 
 
 County, S3 : 
 To any Constable of said County, greeting : 
 
 AVherc-as, complaint on oath, and due proof, having this day, 
 been made to me, one of the Justices of the Peace of sa-id 
 county, that a male \or, female] child, by the name of A P, has 
 been found in the town \m\ city], of , in said county, beg- 
 
 ging for alms : You are therefore hereljy commanded, in the 
 name of the people of the State of New York, to convey the said 
 
742 NEW YORK JUSTICE. 
 
 child to the poor-house in said county [or, town ; or, the alma- 
 house of said city], the keeper whereof is required to detain, keep, 
 employ and instruct said child, in such useful labor as he [or, she] 
 may be able to perform, until discharged therefrom by the 
 County Superintendents of the Poor [or, by the Commissioners 
 of such alms-house, or, by the Overseers of the Poor], or bound 
 out as an apprentice by xhem. 
 Witness, &c. [as in § 225]. 
 
 J^ees. 
 
 The fees allowed by law for services under this statute are as 
 follows : 
 
 To Justices.] A warrant of arrest, twenty-five cents. 
 
 A record of conviction, fifty cents. 
 
 A warrant of commitment, twenty-five cents 
 
 For administering an oath or affirmation, ten cents. 
 
 Every subpoena, twenty -five cents. (Code, § 3322.) 
 
 To Constables.'] Serving a warrant, fifty cents. 
 
 Mileage, going and returning, for each mile, ten cents. 
 
 Arresting and committing any person pursuant to any process, 
 one dollar. 
 
 Mileage, going and returning, for each mile, ten cents. [Id., 
 § 3323.) 
 
 To Witnesses.} . Each witness, twenty-five cents a day. (Id. 
 § 3327.) 
 
 CHAPTER YI. 
 
 OF DISOEDEELY PEESOj^S. 
 
 Who a/re disorderly joersons. The following are disorderly 
 persons : 
 
 1. Persons who actually abandon their wives or children, with- 
 out adequate support, or leave them in danger of becoming a 
 burden upon the public, or who neglect to provide for them 
 according to their means. 
 
 2. Persons who threaten to run away and leave their wives or 
 children a burden upon the public. 
 
 3. Persons pretending to tell fortunes, or where lost or stolen 
 goods may be found. 
 
DISORDERLY PERSONS. 
 
 743 
 
 4. Keepers of bawdy houses or houses for the resort of prosti- 
 tutes, drunkards, tipplers, gamesters, habitual criminals, or other 
 disorderly persons. 
 
 5. Persons who have no visible profession or calling, by which 
 to maintain themselves, but who do so, for the most part, bj 
 gaming. 
 
 6. Jugglers, common showmen and mountebanks, who exhibit 
 or perform for profit, puppet shows, wire or rope dancers, or other 
 idle shows, acts or feats. 
 
 7. Persons who keep, in a public highway or place, an apparatus 
 or device for the purpose of gaming, or who go about exhibiting 
 tricks or gaming, therewith. 
 
 8. Persons who play, in a public highway or place, with cards, 
 dice or any other apparatus or device for gaming. 
 
 9. Habitual criminals within the provisions of this Code. 
 {Crim. Pro., § 899.) 
 
 On complaint, warrant to le issued. Upon complaint, on oath, 
 to a Justice of the Peace or Police Justice of a city, village or 
 town, or to the Mayor, Recorder, City Judge or Judge of the 
 General Sessions of the city, against a person, as teing disorderly, 
 the magistrate must issue a warrant, signed by him, with his name 
 of office, reqnirhig a Peace OfScer to arrest the defendant and 
 bring him before the magistrate for examination. {Grim. Pro., 
 § 900.) 
 
 On confession or proof that he ts a disorderly person, security 
 to le required. If the magistrate be satisfied from the confession 
 of the defendant, or by competent testimony, that he is a dis- 
 orderly person, he may require that the person charged give 
 security by a written undertaking, with one or more sureties 
 approved by the magistrate, to the following effect : 
 
 1. If he be a person described in the first or second subdivision 
 of section eight hundred and ninety-nine, that he will support 
 his wife and children, and will indemnify the county, city, village 
 or town against their becoming, within one year, chargeable upon 
 the public. 
 
 2. In all other cases, that he will be of good behavior for the 
 space of one year. 
 
 Or that the sureties will pay the sum mentioned in the under- 
 taking, and which must be fixed by the magistrate. ( Grim. Pro., 
 % 901.) 
 
744 NEW YORK JUSTICE. 
 
 § 227. Warrant to arrest a Disorderly Person. 
 County, ss. : 
 In the name of the People of the State of New York : 
 To any Peace Officer of said county, greeting : 
 
 Complaint on oath having been this day made before me, G 
 H, a Justice of the Peace of said county, that C D, of 
 in said county, is a disorderly person within the meaning of the 
 statute in such case made and provided, for that [here insert the 
 charge\ : You are therefore hereby commanded forthwith to 
 take the said C D, and bring him before me at my office in 
 the of , for examination as a disorderly person. 
 
 Given under my hand this day of , 18 . 
 
 G H, Justice, &c. 
 
 The confession here spoken of, on which the Justice may act, 
 means a plea of guilty, or some acknowledgment tantamount 
 thereto ; not an admission deduced by the magistrate argumenta- 
 tively. {Bennao vs. People, 4 Barb., 164.) 
 
 § 228. Recognizance of a Disorderly Person. 
 County, ss. : 
 We, C D, E F and L M, of , in said county, acknowl- 
 
 edge ourselves indebted to the people of the State of New 
 York ; that is to say, the said C D in the sum of dollars, 
 
 and the said E F and L M, each in the sum of dollars, to 
 
 be respectively made and levied of our several goods and chattels, 
 lands and tenements, to the use of the said people, if default 
 shall be made in the following condition : 
 
 The condition of this recognizance is such that if the said C 
 D shall be and continue of good behavior towards the people of 
 the State of New York, for the space of one year from and after 
 this day, then such recognizance to be void ; otherwise, of force. 
 
 C D. [l. s.] 
 
 Taken, subscribed and acknowledged ) E F. [l. s.] 
 
 before me, this day of , 18 . j L M. [l. s.] 
 
 G H, Justice, &c. 
 
 This recognizance remains with the magistrate taking it. 
 {People vs. Mitchell. 1 Sand/., 191.) 
 
 If security given, defendant to he discharged ; if not, to he 
 convicted ; form of certificate. If the undertaking be given, 
 the defendant must be discharged. But if not, the magistrate 
 must convict hira as a disorderly person, and must make, and sign 
 with his name of office a certificate in substantially the following 
 form : {Crim. Pro., § 902 ; People vs. Carroll, 3 Parh Or., 73.) 
 
DISORDERLY PERSONS. 745 
 
 § 229. Gertifioate of Conviction of a Disorderly Person. 
 
 I certify that A B, Laving been brought before me charged 
 with being a disorderly person, I have duly examined the charge, 
 and that upon his own confession in my presence [or, upon the 
 testimony of C D, &c., naming the witnesses'], by which it 
 appears tliat he is a [pursuing the description contained in the 
 subdivision of section eight hundred and nvaety-nine, which is 
 appropriate to the case], I have adjudged that he is a disorderly 
 person. 
 
 Dated at the town [or, city] of , the day of , 18 . 
 
 EF, 
 Justice of the Peace of the town of 
 [Or, as the case may le.] 
 
 Certificate to constitute record of conviction, and to he filed ; 
 commitment thereon. The magistrate must immediately cause the 
 certificate, which constitutes the record of conviction, to be tiled 
 in the office of the clerk of the county, and must, by a warrant 
 signed by him with his name of office, eommit the defendant to 
 tlie county jail, or in the city of ISTew York, to the city prison or 
 penitentiary of that city, or in the county of Kings, to the peni- 
 tentiary of that county, for not exceeding six months at hard 
 labor, or until he give the security prescribed in section nine 
 hundred and one. {Grim. Pro., § 903.) 
 
 This record of conviction must be made up by the magistrate 
 and signed by him, and filed in the county clerk's office before 
 the warrant of commitment can be issued. {Bennac vs. People, 
 4 Barh., 164.) 
 
 Undertaking, when forfeited. The undertaking mentioned in 
 section nine hundred and one is forfeited by the commission of 
 any of the acts which constitute the person by whom it was given 
 a disorderly person, and in the case of a pej'son described in the 
 seventh and eighth subdivisions of section eight hundred aiid 
 ninety -nine, by his playing or betting, at one time or sitting, for 
 money or property exceeding the value of two dollars and fifty 
 cents. {Grim. Pro., § 904.) 
 
 § 230. Warrant to Commit a Disorderly Person. 
 County, ss. : 
 In the name of the People of the State of New York : 
 To any Peace Officer of said county, and to the keeper of the 
 common jail of the said county, greeting : 
 Whereas, C D was this day duly convicted before me, G- H, a 
 
746 NEW YORK JUSTICE. 
 
 Justice of the Peace of tlie said county, upon complaint, on oatli 
 of R D and other competent testimony, of being a disorderly 
 person : And, whereas, upon such conviction I did require the 
 said C D to enter into a recognizance, with two sufficient sure- 
 ties, each in the sum of dollars, for his good behavior for 
 the space of one year ; And, whereas, the said C D made default 
 in finding such sureties, and I the said Justice made up and 
 signed, and filed in the county clerk's office a record of the said 
 conviction : You, the said constable, are therefore hereby required 
 and commanded forthwith to convey and deliver the said C D 
 into the custody of the said keeper, and you the said keeper are 
 hereby required to receive the said D into your custody in the 
 said jail, and him there safely keep until he shall find such sure- 
 ties, or be discharged according to law. 
 
 Given under my hand this day of , 18 . 
 
 G H, Justice of the Peace. 
 
 A warrant of commitment under this statute is valid to protect 
 the officer, if it describes the offense, and the conviction and 
 sentence, although it does not recite the facts proved. {Bennao 
 TS. People, 4 Barb., 31.) 
 
 How prosecuted, and proceeds how applied. When an under- 
 taking is forfeited, it may be prosecuted in the name of the 
 county superintendents of the poor, or the overseers of the poor 
 of the town, or in the city of New York, in the name of the cor- 
 poration of that city, and the sum collected in the action must be 
 paid into the county or city treasury, as tiie case may be, for the 
 benefit of the poor. 
 
 When new security may le required, or defendant committed 
 after recovery on undertaking. Upon a recovery on the undertak- 
 ing, the Court in which it is had may require from the defendant 
 new security in the manner provided in section nine hundred and 
 one, or if he fail to give it, may commit him in the manner pro- 
 yided in section nine hundred and three. iCrim. Pro., § 906.) 
 
 § 231. Warrant to commit a Disorderly Person after a Recovery 
 upon his Recognizance. 
 
 County, ss. : 
 In the name of the People of the State of New York : 
 To any Constable of said county, and to the keeper of the com- 
 mon jail of the said county, greeting : 
 Whereas, on the day of , 1 8 , a recognizance with 
 
 two sureties was entered into by C D, who was complained of on 
 
DISOEDEELT PEESONS. '747 
 
 oath before me as a disorderly person, conditioned for tLe good 
 behavior of the said C D towards tlie people of the State of New 
 York, for the space of one year from the date thereof ; And, 
 whereas, a recovery has this day been had before me, in an action 
 upon the said recognizance, for a breach thereof, in tliat [here 
 state the hreach'], of which K D, one of the superintendents of 
 the poor of the said county, complained : These are, therefore, 
 to command you, the said constable, forthwith to convey and 
 deliver the said C D into the custody of the said keeper ; And 
 you the said keeper are hereby required to receive the said G D 
 into yoiir custody in the said jail, and him there safely keep for 
 the term of {not exceeding six months), or until he shall be dis- 
 charged according to law. 
 
 Given under my hand this day of , 18 . 
 
 G H, Justice of the Peace. 
 
 Under this statute, the magistrate before whom the conviction 
 takes place, has no authority, acting singly, to take a recognizance 
 for good behavior, after the record of conviction is tiled. 
 {Feojile vs. Dufy, 5 jBarh., 205 ; 23 Wend., 47.) 
 
 Defendant committed for not giving security, how discharged- 
 A person committed as a disorderly person, on failure to give 
 security, may be discharged by any two Justices of the Peace or 
 Police Justices in the county, upon giving security as originally 
 required pursuant to section nine hundred and one. {Grim. 
 Pro., § 907.) 
 
 § 232. Discharge of a Disorderly Person, to he Granted hy any 
 
 two Justices. 
 County, ss. : 
 To the keeper of the Common Jail of said County, greeting : 
 
 Whereas C D was lately committed to your custody in said jail, 
 by the warrant of G H, a Justice of the Peace of the said county, 
 upon the conviction of the said C D, before the said Justice, of 
 being a disorderly person, and upon the faihire of the said C D 
 to procure sureties for his good behavior, according to law : And 
 whereas the said D has given such sureties as were originally 
 required by tlie said Justice from him : Now, therefore, we, being 
 two of the Justices of the Peace of said county, do hereby require 
 you to discharge the said C D, out of your custody, under his 
 commitment as aforesaid. 
 
 Given under our hands, this dav ot , 18 
 
 JHB, 
 
 HTC, 
 
 Justices of the Peace. 
 
74S NEW TOKK JUSTICE. 
 
 Fees. 
 
 The fees allowed by law for Bervices under this statute are as 
 follows : 
 
 To Justices. A warrant of arrest, twenty-five cents. 
 
 Every subpoena, twenty-five cents. 
 
 Administering an oath or aifirmation, ten cents. 
 
 Drawing, copying and certifying a recognizance, twenty-five 
 cents. 
 
 Taking the acknowledgment of any instrument which is required 
 to be acknowledged before a Justice, twenty-five cents. 
 
 A warrant of commitment, twenty -five cents. {Code, § 3322.) 
 
 To Constccbles. Serving a warrant, fifty cents. 
 
 Mileage, going and returning, for each mile, ten cents. 
 
 Arresting and committing any peison, pursuant to process, one 
 dollar. 
 
 Mileage, going and returning, for each mile, ten cents. {Id., 
 % 3323.) 
 
 To Witnesses. Each witness, twenty-five cents a day. {Id., 
 § 3327.) 
 
 CHAPTER YII. 
 
 OF THE DISTURBANCE OF EELIGIOUS MEETINGS 
 AND THE OBSERVANCE OF SUNDAY. 
 
 Disturbing religious meetings. A person who wilfully disturbs, 
 interrupts or disquiets any assemblage of people met for religious 
 worship, by any of the acts enumerated in the next section, is 
 guilty of a misdemeanor. {Penal Code, § 274.) 
 
 Definition of offense. The following acts, or any of them, con- 
 stitute disturbance of a religious meeting : 
 
 1. Uttering any profane discourse, committing any rude or 
 indecent act, or making any unnecessary noise, either within the 
 place where such meeting is held, or so near it as to disturb the 
 order and solemnity of the meeting. 
 
 2. Engaging in, or promoting, within two miles of the place 
 where a religious meeting is held, any racing of animals or gam- 
 ing of any description. 
 
DISTURBANCE OF RELIGIOUS MEETINGS. 749 
 
 3. Obstructing in any manner witliont authority of law, within 
 the like distance, free passage along a highway to the place of 
 such meeting. {Penal Code, § 275.) 
 
 The officers of a religious corporation )iave powei- to remove 
 disturbers. {Beokett vs. Lawrence, 7 Abh. [iV. 8.1, 403.) And 
 they may use force sufficient for that purpose. ( Wall vs. Lee, 
 34 N. Y., 141.) 
 
 § 233. Warrant. 
 County, ss. : 
 
 In the name of the People of the State of New York. 
 To any Peace Officer of said county, greeting : 
 
 Whereas complaint has been this day made, on oath, before 
 me by A B, that [state the offense] : You are therefore hereby 
 commanded forthwith to arrest the said [name of the offender], 
 and bring him before me at my office at , in said county, 
 
 to be dealt with according to la'v 
 
 Given under my hand, this day of , 18 . 
 
 J H B, Justice ©f the Peace. 
 
 It is not indispensable that the warrant should state upon its 
 face the offense charged, although it ought to state the substance 
 of the complaint. {Atchison vs. Spencer, 9 Wend., 62.) 
 
 If the person charged is found guilty, a record of his convic- 
 tion must be made up and signed by the Justice before issuing 
 any process to enforce the same. 
 
 The limits of this work will not permit a foitn to be given 
 for each case contemplated by the statute, nor is that necessary. 
 All that is required, or can be given, is an outline or skeleton 
 form, which can be easily adapted to the circumstances of any 
 particular case. 
 
 § 234. Record of Conviction. 
 County, ss. : 
 
 On this day of , 18 , A B personally appeared 
 
 before me, J H B, a Justice of the Peace in and for said county, 
 and complained "on oath that C D [here insert the offense]. 
 Whereupon I issued my warrant, by virtue of which the said 
 C D was arrested and brought before me, [and tlie said C D 
 having demanded a trial b}' jury, I proceeded, in the presence of 
 the said C D, and with the jtiry for that purpose duly summoned, 
 impanneled and sworn], to inquire [summarily] into the facts. 
 And thereupon the said C D was convicted before me, the said 
 Justice [by the verdict of the jury aforesaid], of the said offense 
 charged. Whereupon I did adjudge and determine that the said 
 
750 NEW TOKK JUSTICE. 
 
 C D forfeit, by reason of the said offense, the sum of 
 dollars, for the use of the poor of said county ; and the costs of 
 the said conviction were fixed by me at the sum of 
 dollars. 
 
 In witness whereof, I have hereunto set my hand, the day and 
 year first above written. 
 
 J H B, Justice of the Peace. 
 
 The conviction is final, and a certificate thereof must be made 
 by the Justice, and filed in the ofiice of the clerk of the county 
 within twenty days after the conviction. The certificate, or a 
 certified copy thereof, is conclusive evidence of the facts stated 
 therein. {Grim. Pro., §§ 723 cmd 724.) 
 
 § 235. Certificate of Gojwiction, 
 
 Court of Special Sessions [or, Police Court], County of 
 
 Town of 
 
 The People of the State " 
 of JSTew York 
 against 
 A B. J June 2, 1885. 
 
 The above named A B having been brought before C D, 
 Justice of the Special Sessions [Justice of the Peace, or Police 
 Justice] of the town of , charged with [briefiy desig- 
 
 nating the ojfense~\, and having pleaded guilty [or, not guilty], 
 and demanded [or, failed to demand] a jury, and having been 
 thereupon duly tried, and upon such trial duly convicted. 
 
 It is adjudged that he be imprisoned in the jail of this county 
 days [or, pay a fine of dollars, and be imprisoned 
 
 until it be paid, not exceeding [or both]. 
 
 Dated at the town of , the day of , 1885. 
 
 C D, Justice of the Peace. 
 
 If defendant has pleaded guilty, instead of the second para- 
 graph insert : "And the above named A B having been thereupon 
 duly convicted upon a plea of guilty." 
 
 The judgment must be executed by the sheriff of the county, 
 or by a constable, marshal or policeman of the city, village or 
 town in which the conviction is had, upon receiving a copy of 
 the certificate of conviction, certified by the Court or the county 
 clerk. The fine must be paid, within thirty days after its receipt, 
 into the county treasury. 
 
THE OBSERVANCE OF SUNDAY. 751 
 
 An attempt, by means of threats or violence, to compel any 
 person to adopt, practice or profess a particular form of religious 
 belief, is a misdemeanor. {Penal Code, § 272.) 
 
 A person who wilfully prevents, by threats or violence to 
 iinother person, from performing any lawful act enjoined upon 
 or recommended to such person by the religion which he pro- 
 fesses, is guilty of a misdemeanor. {Penal Code, § 273.) 
 
 II. On the Obseevanoe of Sunday. 
 
 The Sabbath. The iirst day of the week being by general con- 
 sent set apart for rest and religious uses, the law prohibits the 
 doing on that day of certain acts hereinafter specified, which are 
 serious interruptions of the repose and religious liberty of the 
 community. {Penal Code, § 259.) 
 
 Sabbath breaking. A violation of the foregoing prohibition is 
 Sabbath breaking. {Penal Code, § 260.) 
 
 Day defined. Under the term " day," as employed in the phrase 
 " first day of the week," when used in this chapter, is included 
 all the time from midnight to midnight. {Penal Code, § 261.) 
 {See Pulling vs. People, 8 Barb., 384, and Vanderwerker vs. 
 People, 5 Wend., 530.) 
 
 Sunday labor. All labor on Sunday is prohibited, excepting 
 the works of necessity or charity. In works of necessity or 
 charity is included whatever is needful during the day for good 
 order, health or comfort of the community. {Penal Code, % 263.) 
 
 As to works of necessity and charity see Merritt vs. Earle 
 (29 N. Y., 115); Sun Association vs. Tribune Association 
 (12 J. c& Sj)., 136), and Farmalee vs. IVilks (22 Barb., 539.) 
 
 Persons obsei^ving another day as a Sabbath. It is a sufficient 
 defense to a prosecution for servile labor on the first day of the 
 week, that the defendant uniformly keeps another day of the week 
 as holy time, and does not labor upon that day, and that the labor 
 complained of was done in such manner as not to interrupt or 
 disturb other persons in observing the first day of the week as 
 holy time. {Penal Code, § 264.) {Isaacs vs. Beth Hamedash 
 Society, 1 liilt, 469 ; Maxson vs. Annas, 1 Den., 204.) 
 
 Public sports. All shooting, hunting, fishing, playing, horse 
 racing, gaining or other public sports, exercises or shows upon 
 the first day of the week, and all noise disturbing the peace of the 
 day, are prohibited. {Penal Code, § 265.) 
 
752 NETV YORK JUSTICE. 
 
 All trades, manufactures, agricultural or mechanical employ- 
 ments upon the first day of the week are prohibited, except that 
 when the same are works of necessity they maybe performed on 
 that day in their usual and orderly manner, so as not to interfere 
 with the repose aud religious liberty of the community. {Penal 
 Code, § 266.) 
 
 Traffic. All manner of public selling; or offering for sale of 
 any property upon Sunday is prohibited, except that articles of 
 food may be sold and supplied at any time before ten o'clock in 
 the morning, and except, also, that meals may be sold to be eaten 
 on the premises, where sold or served elsewhere by caterers ; and 
 prepared tobacco in places other than where spirituous or malt 
 liquors or wines are kept or offered for sale, and fruit, confection- 
 ary, newspapers, drugs, medicines and surgical appliances may be 
 sold in a quiet and orderly manner at any time of day. {Penal 
 Code, § 267.) 
 
 Courts not to sit on Sunday except in special cases. A Court 
 shall not be opened or transact any business on Sunday, except to 
 receive a verdict or discharge a jury. An adjournment of a 
 Court on Saturday, unless made after a cause has been committed 
 to a jury, must be to some other day than Sunday. But this 
 section does not prevent the exercise of the jurisdiction of a 
 magistrate, when it is necessary to preserve the peace, or, in a 
 criminal case, to arrest, commit or discharge a person charged 
 with an offense. {Civil Pro., § 6.) 
 
 Service of process. All service of legal process of any kind 
 whatever, upon the first day of the week, is prohibited, except in 
 cases of breach of the peace, or when sued out for the apprehen- 
 sion of a person charged witli crime, or except when such service 
 is specially autliorized by statute. {Penal Code, % 268.) 
 
 Process cannot be legally issued or served on Sunday. ( Ywn 
 Vechten vs. Paddock, 12 Johns., 178; Butler vs. Kelseij, 15 id., 
 Vll) ISTor be made returnable. {Sould vs. Spencer, 5 Paige, 
 541 ; Arctic F. Ins. Co. vs. EicTcs, 7 Abb., 204.) 
 
 Rem,edy for serving process maliciously. Whoever maliciously 
 procures any process in a civil action to be served on Saturday, 
 upon any person who keeps Saturday as holy time, and does not 
 labor on that day, or serves upon him any process returnable on 
 that day, or maliciously procures any civil action to which such 
 person is a party to be adjourned to that day for trial, is guilty 
 
THE OBSEEVANCE OP STJJS'DAT. 753 
 
 of a misdemeanor. {Penal Code, § 271 ; see Maxson vs. Annas, 
 1 Denio, 204.) 
 
 Punishment of Sabbath Ireaking. Sabbath breaking is a misde- 
 meanor, punishable by a fine not less than one dollar and not 
 more than ten dollars, or by imprisonment in a county jail not 
 exceeding five days, or by both. {Penal Code, § 269.) 
 
 Forfeiture of commodities exposed for sale. In addition to the 
 penalty imposed by the last section all property and commodities 
 exposed for sale on the first day of the week, in violation of the 
 provisions of this chapter, shall be forfeited. Upon conviction 
 of the offender by a Justice of the Peace of a county, or by any 
 Police Justice or magistrate, or by a mayor, recorder or alderman 
 of a city, such officer shall issue a warrant for the seizure of the 
 forfeited articles, which, when seized, shall be sold on one day's 
 notice, and the proceeds paid to the overseers of the poor for the 
 use of the poor of the town or city. {Penal Code, § 270.) 
 
 Processions and parades. All processions and parades on 
 Sunday in any city, excepting only funeral processions for the 
 actual burial of the dead, and processions to and from a place of 
 worship in connection with a religious service there celebrated, 
 are forbidden ; and in such excepted cases there shall be no music, 
 fire-works, discharge of cannon or fire-arms, or other disturbing 
 noise. At a military funeral, and at the burial of a national 
 guardsman or of a deceased member of an association of veteran 
 soldiers, or of a disbanded militia regiment, music may be played 
 while escorting the body, but not within one block of a place of 
 worship where service is then celebrated. 
 
 A person wilfully violating any provision of this section is 
 punishable by fine not exceeding twenty dollars or imprisonment 
 not exceeding ten days, or by both. {Penal Code, § 276.) 
 
 Theatrical and other performances. The performance of any 
 tragedy, comedy, opera, ballet, farce, negro minstrelsy, negro or 
 other dancing, wrestling, boxing, either with or without gloves, 
 sparring contest, trial of strength, or any part or parts therein, or 
 any circus, erpestrian or dramatic performance or exercise, or any 
 performance or exercise of jugglers, acrobats, club performances 
 or rope dancers, on the first day of the week, is forbidden ; and 
 every person aiding in such exhibition, performance or exercise, 
 by advertisement, posting or otherwise, and every owner or lessee 
 of any garden, building or other room, place or structure, who 
 48 
 
754 NEW YOKE JUSTJCE. 
 
 leases or lets the same for the purpose of any such exhibition, 
 performance or exercise, or who assents to the use of the same 
 for any such purpose, if it be so used, is guilty of a misdemeanor. 
 In addition to the punishment therefor provided by statute, 
 every person violating this section is subject to a penalty of five 
 huu4)»ed dollars ; which penalty " The Society for the Reforma- 
 tion of Juvenile Delinquents," in the city of Ifew York, for the 
 use of that society, and the overseers of the poor in any other 
 city or town, for the use of the poor, aie authorized in the name 
 of the people of this State, to recover. Besides this penalty 
 every such exhibition, performance or exercise, of itself, annuls 
 any license which may have been previously obtained by the 
 manager, superintendent, agent, owner or lessee, using or letting 
 such building, garden, room, place or other structure, or consent- 
 ing to such exhibition, performance or exercise. {Penal Code, 
 § 277.) 
 
 § 239. Warrant to Seize the Goods Forfeited. 
 
 County, ss. : 
 
 In the name of the People of the State of New York : 
 To any Peace Officer of said County, greeting : 
 
 Whereas, C. D. has this day been duly convicted before me, 
 G. H., a Justice of the Peace of the said county, of [state the 
 offense and the articles exposed for sale'], contrary to the statute 
 in such case made and provided ; and whereas, the said C. D. 
 was adjudged by me to forfeit to the use of the poor the said 
 articles so exposed, and the costs of said conviction were fixed 
 by me at dollars, and I have made up and signed a record 
 
 of his conviction : You are therefore hereby commanded to take 
 and seize each and all of the said articles so exposed to sale, 
 and to sell the same at public auction, after having given one 
 day's notice of the time and place of such sale, and have you the 
 moneys arising from such sale before me, at my said ofiice in 
 said town [or, city], without delay. 
 
 Witness my hand, this day of , 1885. 
 
 G. H., Justice of the Peace. 
 
 III. Profane Cttesinq and Swearing. 
 
 The statute provided that every person profanely cursing or 
 swearing should forfeit one dollar for every offense, and might lie 
 summarily convicted by the Justice. (1 R. 8., 674, §§ 61, 62, 63.) 
 
 These provisions were embodied in the Penal Code, and after- 
 wards repealed. {Penal Code, §§ 255 to 258.) 
 
PROFANE CURSING AND SWEARING. 755 
 
 The repeal of these sections of the Penal Code probably 
 restores the provisions of the Eevised Statutes on the subject. 
 (See N. Y. Or. E., 245.) 
 
 Fees. 
 
 In all prosecutions for any of the ofEenses specified in the said 
 three articles, the like fees are allowed as in civil suits before 
 Justices of the Peace (J.?ifo,j>. 468) ; but they can in no case 
 exceed five dollars, and are to be paid by the party offending, 
 over and above the penalties incurred. If the offender is impris- 
 oned no charges or fees are allowed. (1 E. S., 677, § 77.) 
 
 The following services, however, do not appear to be provided 
 for by the fee bill in civil suits : 
 
 To Justices. Drawing and signing, and depositing with the 
 clerk, a record of conviction, fifty cents. 
 
 A warrant of commitment, twenty-five cents. [Code, § 3322.) 
 
 To Constables. Arresting and committing any person, pur- 
 suant to any process, one dollar. 
 
 Mileage, for each mile, ten cents. (Id., § 3323.) 
 
756 NEW YORK JUSTICE. 
 
 CHAPTER VIII. 
 
 OF DOGS. 
 
 If any dog, says the statute, shall attack any person peace- 
 ably travelling on any highway, or any horse in a carriage, or 
 upon which any person shall be mounted, and complaint there- 
 of be made to a Justice of the Peace, such Justice shall inquire 
 into the complaint, and, if satisfied of its truth, and that such 
 dog is dangerous, he shall order the owner or possessor of such 
 dog to kill him immediately. (1 R. 8. 705, § 16.) 
 
 § 243. Order to kill a dangerous Dog. 
 County, 
 
 Town of " ®®- 
 
 To A B, 
 
 Complaint having been made to me, J H B, a Justice of the 
 Peace of said county, that a dog of which you are the owner or 
 possessor is a dangerous dog, and that, on the day of , 
 
 18 , he attacked one C D, while travelling peaceably on the 
 highway from to : I, having inquired into 
 
 the said complaint, and being satisfied of its truth, do hereby 
 order you immediately upon the receipt of this notice, to kill 
 the said dog. J H B, 
 
 Justice of the Peace. 
 
 If the owner or possessor of any dog refuses or neglects to 
 kill him within forty-eight hours after having received such 
 order, he forfeits the sum of two dollars and fifty cents; and 
 the further sum of one dollar and twenty-five cents for every 
 forty-eight hours thereafter, until the dog is killed, {id. 706, 
 §18.) 
 
 When a complaint is made to any supervisor of a town, that 
 any penalties imposed by this section of the statute have been 
 incurred, he must commence a suit for the recovery thereof in 
 his name of office, and prosecute the same with due diligence, 
 and the moneys recovered must be paid by him to the county 
 treasurer, {id. § 19.) 
 
DEAINING SWAMPS. 757 
 
 Every person in possession of any dog, or who suffers any dog 
 to remain about his house for the space of twenty days previous 
 to the assessment of any tax, or previous to an injury, chasing 
 or worrying of sheep, or any such attack made by a dog, ia 
 deemed the owner of such dog for the foregoing purposes. (1 
 E. S. 706, § 20.) 
 
 Fees. 
 
 The law does not appear to have provided any fees for the 
 services of Justices under this statute, except where a suit is 
 brought for a penalty, and then the fees are the same as in civil 
 actions. {Code, § 3322; ante, p. 468.) 
 
 CHAPTER IX. 
 
 OF DRAINING SWAMPS. 
 
 Any person owning or possessing any swamps, bog, meadow, 
 or other low land within this State, who desires to drain such 
 land, and who deems it necessary, in order thereto, that a ditch 
 or ditches should be opened through lands belonging to another 
 person or other persons, in case the owner of any such lands re- 
 fuses to permit the opening of such ditch or ditches through the 
 same, may apply to the County Judge of the county where such 
 lands lie, for appointment of commissioners. So, too, any person 
 deeming it necessary for the public health may make the apph- 
 cation. {Laws of 1869, chap. 888.) The Judge to whom such 
 application is made, must appoint three persons, freeholders of 
 the county, one of whom must be a surveyor or engineer, who 
 are not interested in said lands, nor in any of them, to hear and 
 determine whether it is necessary, in order to drain such lands, 
 that a ditch or ditches or other channels should be opened through 
 lands belonging to others, and whether it is necessary for the 
 public health that such shall be drained, and to take such other 
 fiteps as in said act provided for. {id.) 
 
758 NEW TOKK JUSTICE. 
 
 § 24:4. Ordsr wppovatvng Commissioners. 
 
 An application having been presented to me asking the 
 appointment of three persons as commissioners to hear and 
 determine whether it is necessary in order to drain certain land 
 of A B, situate in the town of L, that a ditch or ditches should 
 be opened through the lands of D, and after hearing P M in 
 behalf of said application, 
 
 Ordered, that L M, P O and G H, freeholders in said county, 
 and in no way interested in said lands, be and they are hereby 
 appointed as such commissioners to hear and determine as to all 
 matters to be brought before them, and make and render an 
 inquisition in accordance with the provisions of the statute in 
 regard to the draining of swamps, marshes, &c. 
 
 T V, Seneca County Judge. 
 
 After the appointment of the said commissioners, they shall, 
 before entering upon the duties of their office, make and file with 
 the county clerk an oath that they will faithfully discharge the 
 duties of their office according to the best of their knowledge and 
 ability. 
 
 § 245. Oath to he administered to the Commissioners. 
 
 You do solemly swear, [or, affirm] that you will well and 
 truly examine and certify in regard to the benefits or damages- 
 which will result from the opening of a ditch [or, ditches] 
 through the lands of C D, and that you will faithfully discharge 
 the duties of your office according to the best of your knowledge 
 and ability, so help you God. 
 
 The commissioners, after quahfying, shall meet and appoint 
 one of their number chairman and another treasurer of the com- 
 mission. A majority of the commissioners present at any meet- 
 ing, of which all have notice, may exercise the powers of the 
 commission. The treasurer is to collect all moneys and pay them 
 out under the direction of two of the commissioners. 
 
 The treasurer shall, in all cases where the amount to be collected 
 or received by him exceeds five hundred dollars, give to the 
 supervisor a bond, with sufficient sureties, to be approved by the 
 County Judge. 
 
 The commissioners shall after notice to the petitioners and the 
 parties named in the petition, proceed by personal view of the 
 lands and otherwise to determine in regard to the necessity of 
 ditches or drains. 
 
DRAINING SWAMPS. 759 
 
 The person applying to have the ditch or ditches opened, 
 should deliver to the commissioners a map of the land through 
 which the same is or are to be opened, on which the plan, length, 
 width and depth of the ditch or ditches should be particularly- 
 designated. The commissioners must personally examine the 
 premises, and hear any reasons that may be offered in regard to the 
 question submitted to them ; and they may, if they think proper, 
 vary the plan or dimensions of any ditch so proposed to be opened. 
 If any alterations are made, they must be designated on the map. 
 If, after taking all the circumstances into consideration, the com- 
 missioners are satisfied that the opening of the ditch or ditches is 
 necessary and proper, they must so certify, by inquisition in 
 writing ; and, if so satisfied, they must further certify, by such 
 inquisition, that the benefits which will accrue to the owner of the 
 lands from the opening of the ditch or ditches, will or will not 
 be equal to any damages he will sustain thereby ; and, if such 
 benefits are certified not to be equal to the damages, the commis- 
 sioners must assess the damages which, in their judgment, wiU 
 be sustained therefrom by such owner, and make a complete and 
 detailed statement thereof, including all claims and expenses of 
 said commission. 
 
 § 246. Inquisition. 
 "We, the undersigned, who were appointed commissioners to 
 examine and certify in regard to the benefits or damages which 
 would result from the opening of a certain ditch [or, certain 
 ditches] through the lands of C D, situate in the town of , 
 
 in the county of , do hereby certify that, in obedience to 
 
 such appointment we met on the day of ,18, 
 
 at o'clock in the noon, on the premises of the said 
 
 C D ; that we personallj' examined such premises, and heard 
 the reasons that were ofiered in regard to the opening of the 
 said ditch, [or ditches ;] that we made no [or, that we made 
 certain] alterations in the plan of the said ditch [or, ditches] 
 submitted to us ; and that, after taking all the circumstances 
 into consideration, we are satisfied that the opening of the said 
 ditch [or, ditches] is necessary and proper. And we further 
 certify, that the benefits which will accrue to the said C D from 
 the opening of the said ditch [or, ditches] will be [or, will not 
 be] equal to any damages that he will sustain thereby. [If the 
 benefits are not equal to the damages, add : We therefore assess 
 and certify the damages which will be sustained by the said C 
 
760 NEW YOKE JUSTICE. 
 
 D from the opening of the said ditch \or, ditches,] at the sum of 
 dollars.] 
 In witness whereof, we have hereunto set our hands, this 
 day of , 18 .] 
 
 {Signai/wres of the Commissioners.] 
 
 This inquisition must be signed by all the commissioners, and 
 filed in county clerk's office. Upon the payment of tic costs, 
 and of the damages, if there are any, and of the delivery of the 
 inquisition, the supervisor and commissioner of highways may 
 enter upon the land, and cut and open the ditches, and they and their 
 successors have the right to enter upon the premises, and clean 
 out the ditches as often as the same shall be necessary. Any 
 person obstructing or injuring the ditches shall be deemed guilty 
 of a misdemeanor and, upon trial and conviction, shall be fined 
 not less than ten nor more than one hundred dollars. 
 
 The commissioners shall give notice of the filing of the inqui- 
 sition by printing the same twice in a newspaper published in the 
 town or in the nearest town thereto, and by mailing a printed 
 copy of such notice to each person interested in such lands, unless 
 he is personally served with such notice. 
 
 Any person feeling aggrieved may appeal thereafter within ten 
 days to the Judge of the county who shall, on motion of either 
 party, proceed to hear and determine said appeal ; and an appeal 
 may be taken from his decision to the Supreme Court. 
 
 The fees of the commissioners are three dollars per day, for 
 each full day actually employed in their said duties. 
 
EXCISE AND TAVEENS. 761 
 
 CHAPTER X. 
 
 OF EXCISE AKD TAVEENS. 
 
 The following is a brief statement of the principal provisions 
 of law relative to Excise and Taverns, with reference to some 
 decisions in regard to the statute. 
 
 A license granted by two of the Commissioners of Excise, 
 without the presence or consent of the supervisor, and when they 
 are not assembled as a Board for the purpose of granting licenses, 
 was held illegal and void. {Palmer vs. Doney, 2 Johns. Cases, 
 346.) 
 
 A town Board of Excise, until the actual entry of a resolution, 
 had a large discretion to exercise on the question of granting and 
 refusing licenses, which it was held a Court should, in no case, 
 attempt to control. {Ex parte Persons, 1 Hill, 655.) 
 
 Commissioners of Excise were indictable for knowingly and 
 corruptly granting a tavern license to a person who was not of 
 good moral character, who had not the necessary accommodations 
 and whose proposed tavern was not necessary for the actual 
 accommodation of travelers. {People vs. Morton, 7 Pari. 477.) 
 
 In all cases where a Justice issued any process for the purpose 
 of compelling the appearance of a defendant to any action for the 
 recovery of any penalty or forfeiture under the excise law, he 
 was required to endorse on such process a general reference to the 
 statute by which the action was given, e. g. : " According to 
 the section of title 9, chapter 20, part 1 of the Eevised 
 
 Statutes, entitled " Of excise, and the regulation of taverns and 
 groceries." An action to recover a penalty under the excise laws 
 might be maintained before a Justice of the Peace of the town, 
 for the benefit of the poor of which town the penalty, when 
 recovered, was to be applied, notwithstanding the provision of 
 the statute that no action to recover a penalty, given to a town, 
 should be brought before any Justice of the Peace of the town 
 for the benefit of which the action is prosecuted. {Wood vs. 
 Bice, 6 Eill, 58.) 
 
762 NEW YORK JUSTICE. 
 
 It was held that the complaint, in an action for a penalty for 
 selling liquors in violation of this statute, should state the town 
 where, the time when, and the kind and quantity of liquor 
 sold. {Bladsdell vs. Hewitt, 3 Caines, 137.) But, that it was 
 not necessary to prove the precise day of committing the offence, 
 {Tiffany vs. Briggs, 13 Johns. 253,) or the fact that the defend- 
 ant had not a license. {Porter vs. Deyo, 19 Wend. 361.) The 
 offence of selling the liquor might be proved by circumstantial 
 evidence; and the fact that the defendant kept liquor in his 
 grocery store to sell, was competent evidence for that purpose, 
 in an action against him to recover the penalty. ( Vallance vs. 
 Ikerts, 3 £arh. 553.) 
 
 A single action for a penalty might be sustained against several 
 who joined in selling liquors without license, though but one 
 penalty could be recovered. And the rule as to recovering but 
 one penalty was the same, whether there were one or several 
 actions. {Ingersoll vs. Skinner, 1 Den. 540.) Several distinct 
 penalties might, however, be recovered in the same suit. {Deyo 
 vs. Roore, 3 Hill, 527.) 
 
 It was held no answer to a charge of selling liquor by retail 
 without license, that it was sold to the purchaser under the 
 direction and prescription of a licensed physician ; it must also 
 appear that it was prescribed for medical purposes. {People vs. 
 Safford, 5 Den. 112.) 
 
 An inn-keeper's license does not authorize sales of liquor in a 
 mere drinking saloon, in the corner of a warehouse. {People vs. 
 Da/ois, 45 Barh. 494.) 
 
 A seller, without license, cannot avoid liability for the penalty, 
 by showing that he acted as agent for another person, who had no 
 license to sell at the place in question. {Board of Excise of 
 Orange vs. Dougherty, 55 Barh. 332.) 
 
 The provisions of the Eevised Statutes, relative to excise and 
 taverns, were repealed by act of April 16, 1857, and the acts 
 amendatory thereof. 
 
 Section 1. At the annual town meetings in the several towns 
 in this State, held next after the passage of this act, there shall be 
 elected in the same manner as other town oifieers are elected 
 three commissioners of excise, who while acting as such commis- 
 sioners, shall not hold either of the offices of supervisor. Justice 
 of the Peace, or town clerk, the office of president or trustee of 
 
EXCISE AKD TAV£RNS. 7G3 
 
 any incorporated village, and who shall compose the board of 
 excise of their I'espeetive towns, and discharge the duties imposed 
 upon the supervisor and Justices of the Peace of towns, and the 
 president and trustees of incorporated villages thei-eof, by chapter 
 one hundred and seventy-five of the laws of eighteen hundred 
 and seventy, and laws amendatory thereof and supplementai-y 
 thereto ; and shall be entitled to receive compensation at the rate 
 of three dollars per day, while in session, as a board of excise, 
 which shall be a town charge ; except in the counties where the 
 moneys received by said board are paid into the county treasury 
 as hereinafter provided, when it shall be a county charge. The 
 commissioners first elected under this act shall be classified by 
 lot, under the superintendence of the supervisor, the Justice of 
 the Peace having the shortest time to serve, and the town clerk, 
 or a majority of such oflicers who shall meet at the office of the 
 town clerk of their respective towns, for such purpose, within ten 
 days after such town meeting, and the persons drawing for one^ 
 two and three years, shall serve for such terms respectively ; and 
 annually thereafter one commissioner of excise shall be elected 
 for a term of three years. Vacancies occurring in said boards, 
 from any cause, shall be filled by appointment by the supervisor 
 and Justices of the Peace of said town, or a majority of them, 
 until the next annual town meeting, when such vacancy shall be 
 filled by election. (1874, ohap. 444, § 1.) 
 
 § 2. The said commissioners shall be voted for upon a separate 
 ballot, which shall be deposited in a separate box, marked " excise,'' 
 and before entering upon the duties of their ofiices, shall take ana 
 subscribe the constitutional oath of office and file the same with 
 the town clerk, and shall execute a bond to the supervisor thereof 
 to be approved by him in double the amount of the excise 
 moneys of the preceding year, conditioned for paying over tr. 
 him or his immediate successor in office, within thirty days after 
 the receipt thereof, all moneys received by them as such excise 
 commissioners. Said money shall be disposed of as directed by 
 the town board, except in tliose counties where the support of the 
 poor is a county charge, where such excise money shall be paid 
 into the county treasury, subject to the control of the board or 
 supervisors. (^^.) 
 
 § 3. Nothing in this act shall afEect the provisions of any special 
 
764 NEW YOHK JUSTICE. 
 
 act in so far as the same provides for any special disposition of 
 excise moneys or fines, {id.) 
 
 § 2. The mayor of each of the cities, except in the cities of 
 New York, Brooklyn and Poughkeepsie, shall appoint the com- 
 missioners of excise in their respective cities within ten days after 
 the passage of this act ; but in the cities of New York, Brooklyn 
 and Poughkeepsie, the mayor shall nominate three good and 
 responsible citizens to the board of aldermen of such cities respee- 
 ively, who shall confirm or reject such nominations. In case of the 
 rejection of such nominees, or any of them, the mayor shall 
 nominate other persons as aforesaid, and shall continue so to 
 nominate, until the nominations shall be confirmed. The pres- 
 ent commissioners of excise for the metropolitan district and 
 the commissioners for the counties shall continue to exercise the 
 duties of the office until such appointments, or some one of them 
 shall be appointed in such cities respectively, as herein provided. 
 Any one or more of the commissioners so appointed shall have 
 the power to act as a board of excise for the city in which he 
 shall be appointed, until the others shall be duly appointed. 
 Commissioners of excise in cities shall hold their offices for three 
 years, and until others shall be appointed in their places, and 
 shall receive a salary not to exceed twenty-five hundred dollars a 
 year each, to be fixed by the mayor and common council of their 
 respective cities, and shall be paid as other city officers are paid. 
 On the first Monday of April in every third year hereafter, the 
 mayor and board of aldermen shall proceed to appoint, in the 
 manner above described, persons qualified as aforesaid, to be such 
 commissioners of excise in their respective cities for the next 
 three years, commencing on the first day of May in that year 
 and shall, from time to time, as often as vacancies shall occur, 
 appoint persons qualified as aforesaid to fill the unexpired term 
 of any commissioners who shall die, resign, remove from the city, 
 or be removed from office. Such commissioners of excise in 
 cities shall be removed for any neglect or maHeasance in office, in 
 the same manner as provided by law for the removal of sheriffs. 
 (1879, chwp. 145.) 
 
 Commissioners of excise of New York city receive a salary 
 not to exceed five thousand dollars in each year. 
 
 § 2. The commissioners of excise shall meet in their respective 
 
EXCISE AND TAVERNS. 765 
 
 cities, villages and towns on the first Monday of May in each 
 year for the purpose of granting licenses as provided by law, and 
 at no other time except upon application for license. In cities 
 they shall meet on the first Monday of each month, and as often 
 as they shall deem necessary. All such licenses shall expire on 
 the first Monday of May after the time they shall be granted, 
 except in New York, Brooklyn and Rochester, where they shall 
 expire one year from the time they are granted, unless granted 
 for less.than one year. {Laws of 1882, o/iap. 126.) 
 
 The act of 1870 did not altogether abolish the county board of 
 commissioners of excise then existing. They still had power to 
 sue for penalties. {Board of Commissioners of Excise of Cap 
 taTa/agv,s ye,.Willey, 2 Lans., 427.) 
 
 § 4. The board of excise in any city, town or village, shall have 
 the power to grant license to any person or persons of good moral 
 character, who shall be approved by them, permitting him or 
 them to sell and dispose of, at any one named place within such 
 city, town or village, strong or spirituous liquors, wines, ale and 
 beer in quantities less than five gallons at a time, upon receiving 
 a license fee, to be fixed in their discretion, and which shall not 
 be less than thirty dollars, nor more than one hundred and fifty 
 dollars in any town or village ; and not less than thirty dollars, 
 nor more than two hundred and fifty dollars, in any city. Such 
 licenses shall only be granted on written application to the said 
 board, signed by the applicant or applicants, specifying the place 
 for which license is asked, and the name or names of the applicant 
 or applicants, and of every person interested or to be interested 
 in the business to authorize which the license shall be used ; and 
 the license shall be kept posted, by the person or persons licensed, 
 in a conspicuous position in the room or place where his or their 
 sales are made, and shall be exhibited at all times by the person 
 or persons so licensed, and by all persons acting under such license, 
 on demand, to every sheriff, constable or officer, or member of 
 police. Any omission so to display and exhibit such certificate, 
 shall be presumptive evidence that any person or persons so 
 omitting to display and exhibit the same has and have no license. 
 The said board of excise shall keep a complete record of the 
 names of all persons licensed, as herein provided, with a statement 
 
766 NEW YOEK JUSTICE. 
 
 of the place licensed, and license fee imposed and paid in each 
 case, which record they shall, at all times, permit to be seen, in a 
 convenient place, at their principal office in any city, or at the 
 clerk's office in any town or village. Persons not licensed may 
 keep and, in quantities not less than five gallons at a time, sell 
 and dispose of strong and spirituous liquors, wines, ale and beer, 
 provided that no part thereof shall be drunk or used in the build- 
 ing, garden or inclos are communicating with, or in, any public 
 street or place contiguous to the building in which the same be 
 so kept, disposed of or sold. {Laws of 1873, chap. 549, § 4.) 
 
 Licenses granted, as in this act provided, shall not authorize 
 any person or persons to expose for sale, or sell, give away, or 
 dispose of any strong or spiritous liquors, wines, ale or beer, on 
 any day between the hours of one and five o'clock in the morning. 
 And all places licensed as aforesaid, shall be closed, and kept 
 closed, between the hours aforesaid, and at all otlier times when 
 such selling is not authorized by law. And it shall be 
 the duty of every sheriff, constable, policeman and officer of 
 police to enforce the observance of the foregoing provisions. 
 ]!Tothing herein contained shall be construed to prevent hotels 
 from receiving and entertaining travelers at any time, subject to 
 the restrictions contained in this act and the act hereby amended. 
 (^^. §5.) 
 
 In no town or village shall the commissioners of excise, created 
 by this act, appoint a clerk of the board of excise. The pay of 
 commissioners of excise in towns or villages shall be three dollars 
 per diem. {Laws of 1870, chap. 175, § 7.) 
 
 The commissioners of excise shall have power to grant licenses 
 to keepers of inns, taverns or hotels, being residents of the town 
 or city where such inn, tavern or hotel is proposed to be kept, to 
 sell strong and spirituous liquors and wines to be drank in their 
 houses respectively ; and to store keepers, being such residents, a 
 license to sell such liquors and wines in quantities less than five 
 gallons, but not to be drank in their shops, houses, out- houses, 
 yards or gardens. {Laws of 1857, chap. 628.) 
 
 § 3. They shall keep a book of minutes of all their proceed- 
 ings in which shall be entered every resolution passed by them 
 granting a license to any person, with the sum required to be 
 
EXCISE AND TA VEENS. 767 
 
 paid, which minutes shall be verified by their signatures and filed 
 with the town clerk of the town for which such license shall be 
 granted, and in the several cities of the State with the city clerk, 
 within eight days thereafter. 
 
 All licenses shall be signed by the commissioners granting the 
 same. They shall not be issued until the requirements fixed by 
 the board shall have been complied with ; when issued they shall 
 be in force, unless revoked, until the first Monday in May next 
 succeeding the granting of such license, except in the cities of 
 New York, Brooklyn and Eochester. 
 
 § 5. Each of said boards of commissioners of excise shall have 
 the right to appoint a clerk for the time they may actually be 
 in session in accordance Avith tiie provisions of this act, such 
 clerk to receive the same compensation as is allowed by this act 
 to each of the commissioners. They shall keep a book of min- 
 utes of proceedings on which shall be entered the names of all 
 applicants for license, and they shall also enter on said book a list 
 of all licenses granted, with the names of the parties to whom 
 the same are granted and the names of the securities to the 
 bond required in each case. The said books of minutes shall be 
 deposited in the office of the county clerk. No fee or reward 
 shall be taken by any board of excise, or by any member there- 
 of, or by any clerk thereof, for any license to keep an inn, tavern 
 or hotel, or to sell strong or spirituous liquors, or for any service 
 required of such board, nor shall any compensation be retained 
 by any such board, or by any member thereof, or by any clerk 
 thereof, out of the excise money, but the whole amount thereof 
 shall be paid over to the county treasurers for the use of the 
 poor in the several counties; but the persons composing such 
 board of excise shall be entitled to receive the sum of thi'ee dol- 
 lars per day for services actually performed, to be allowed and 
 paid in like manner as other county charges, and no other or 
 sjreater compensation shall be allowed. The expenses of pro- 
 curing necessary books for minutes and necessary blanks, when 
 actually incurred, shall be audited and paid in like manner aa 
 other county charges. (As to towns and villages, see above.) 
 
 Commissioners are entitled to their per diem fees for meeting 
 to decide on prosecutions. {Board of Excise of Saratoga vs. 
 JDoheHy, 16 How. 46.) 
 
 § 6. License shall not be granted to any person to sell strong 
 
768 NEW YOEK JUSTICE. 
 
 aud spirituous liquors and wines to be drank on the premises of 
 the person licensed, unless such person proposes to keep an inn, 
 tavern or hotel, nor unless the commissioners are satisfied that 
 the applicant is of good moral character, and that he has suffi- 
 cient ability to keep an inn, tavern or hotel, and the necessary 
 accommodations to entertain travellers, and that an inn, tavern 
 or hotel is required for the actual accommodation of travellers, 
 at the place where such applicant resides or proposes to keep 
 the same, all which shall be expressly stated in such license; 
 and no such license shall be granted except on the petition of 
 not less than twenty respectable freeholders of this State, re- 
 siding in the election district where such inn, tavern or hotel is 
 proposed to be kept, by them duly signed, and verified by the 
 oath of a subscribing witness, and not then, unless in the opinion 
 of the commissioners such inn, tavern or hotel is necessary or 
 proper, and not more than one license shall be granted on the 
 memorial of the same petitioners, or any of them: all petitions 
 upon which such licenses shall be granted, shall be filed with 
 the county clerk within eight days. And in case the commis- 
 sioners shall gi'ant any license contrary to the provisions of this 
 act, they shall be deemed guilty of a misdemeanor. 
 
 § 7. Nor shall such license to keep an inn, tavern or hotel, be 
 granted until the applicant shall have executed and delivered to 
 the board of commissioners of excise herein provided, a bond to 
 the people of this State in the penal sum of two hundred and 
 fifty dollars, with sufficient sureties, who shall justify in the 
 sum of five hundred dollars, to be approved by the board of 
 commissioners, with a condition that such applicant during the 
 time that she shall keep any inn, tavern or hotel, will not suffer 
 it to be disorderly, or keep a gambling table of any description 
 within the inn, tavern or hotel, so kept by him, or in any out- 
 house, yard or garden belonging thereto. 
 
 § 8. Every keeper of an inn, tavern or hotel in any of the 
 towns or villages of this State, shall keep in his house at least 
 three spare beds for his guests, with good and sufficient bedding, 
 and shall provide and keep good and sufficient stabling and 
 provender of hay in the winter, and hay or pasturage in the sum- 
 mer, and grain for four horses or other cattle more than his own 
 stock, for the accommodation of travellers; and every keeper 
 of an inn, tavern or hotel, in the cities of this State, shall keep 
 
EXCISE AND TAVERNS. 769 
 
 at least three spare beds, and the necessary bedding for the 
 accommodation of travellers. For every neglect or default in 
 having either of the articles herein required, such keeper shall 
 forfeit ten dollars, to be recovered by the overseers of the poor 
 for the use of the poor. 
 
 ^ 9. Every inn, tavern or hotel-keeper licensed under the 
 provisions of this act, shall within thirty days after obtaining his 
 license, put up a proper sign on or adjacent to the front of his 
 house, with his name thereon, indicating that he keeps an inn, 
 tavern or hotel, and he shall keep up such sign during the time 
 that he keeps an inn, tavern or hotel. For every month's neg- 
 lect to keep up such sign, he shall forfeit ten dollars. 
 
 § 10. No inn, tavern or hotel-keeper who shall trust any per- 
 son other than those who may be lodgers in his house, for any 
 sort of strong or spirituous liquors or wines, shall be capable of 
 recovering the same by any suit. All securities given for such 
 debts shall be void; and the inn, tavern, or hotel-keeper taking 
 such securities with intent to evade this proposition, shall forfeit 
 double the sum intended to be secured thereby. 
 
 § 11. In all licenses that may be granted (excepting to inn, 
 tavern, or hotel-keepers,) to sell strong or spirituous liquors or 
 wines, in quantities less than five gallons, there shall be inserted 
 an express declaration that such license shall not be deemed to 
 authorize the sale of any strong or spirituous liquor or wine to 
 be drank in the house or shop of the person receiving such 
 license, or in any out-house, yard or garden appertaining thereto 
 or connected therewith. 
 
 § 12. Such licenses shall not be granted, unless the commis- 
 sioners are satisfied that the applicant is of good moral character, 
 nor until such applicant shall have executed a bond to the people 
 of this State in the penal sum of five hundred dollars, with suffi- 
 cient sureties, who shall duly justify in the sum of one thou- 
 sand dollars, to be approved by the commissioners, and to be 
 delivered to the commissioners, conditioned that, during the 
 term for which his license shall be granted, he will not sufier 
 his place of business to become disorderly; that he will not sell, 
 nor suffer to be sold, any strong or spirituous liquors or wines 
 to be drank in his shop or house, or in any out-house, yard or 
 garden appertaining thereto; and that he will not suffer any 
 such liquor, sold by virtue of such license, to be drank in hia 
 49 
 
770 NEW YORK JUSTICE. 
 
 shop or house, or in any out-house, yard or garden belonging 
 thereto; and whenever any person is seen to drink in such shop 
 or house, out-house, yard or garden belonging thereto, any 
 spirituous liquors or wines, forbidden to be drank therein, it 
 shall be prima facie evidence that such spirituous liquors or 
 wines were sold by the occupant of such premises, or his agent, 
 with the intent that the same should be drank therein. On any 
 trial for the offence last aforesaid, such occupant or agent may 
 be allowed to testify respecting such sale. 
 
 § 13. Whoever shall sell any strong or spirituous liquors or 
 wines in quantities less than five gallons at a time, without 
 having a license therefor, granted as herein provided, shall for- 
 feit fifty dollars for each ofience. 
 
 § 14. Whoever shall sell any strong or spirituous liquors or 
 wines to be drank in his house or shop, or any out-house, yard 
 or garden appertaining thereto, or shall suffer or permit any 
 such liquors or wines sold by him, or under his direction or 
 authority, to be drank in his house or shop, or in any out-house, 
 yard or garden thereto belonging, without having obtained a 
 license therefor, as an inn, tavera or hotel-keeper, shall forfeit 
 fifty dollars for each offence. 
 
 § 15. No inn, tavern or hotel-keeper, or any other person 
 licensed to sell any strong or spirituous liquors or wines, shall 
 personally, or by wife or agent, sell or give away any such liquors 
 or wines to any Indian or apprentice, knowing or having reason 
 to believe him to be such, without the consent of his master or 
 mistress, nor to any minor under the age of eighteen years, with- 
 out the consent of his father or mother or guardian. Whoever 
 shall offend against either of these provisions, shall forfeit ten 
 dollars, to be recovered by the master of such apprentice or ser- 
 vant, or by the parent or guardian of such minor ; and any pereon 
 who shall sell or give away any strong or spirituous liquor to any, 
 Indian in this State, or minor under age of fourteen, shall be 
 deemed guilty of a misdemeanor, and, on conviction, shall be 
 liable to a fine of twenty-five dollars for each and every offence. 
 (18T7. chwp. 420.) 
 
 § 16. It shall be the duty of every sheriff, under-sheriff, dep- 
 uty-sheriff, constable, marshal, policeman, or officer of the 
 police, to arrest all persons found actually engaged in the com- 
 
EXCISE AND TAVEKNS. 771 
 
 mission of any offence in violation of this act, and forthwith to 
 carry such person before any magistrate of the same city or 
 town, to be dealt with according to the provisions of this act ; 
 and it shall be the duty of such magistrate, on sufficient proof 
 that such offence has been committed, unless such person shall 
 elect to be tried before such magistrate, and unless the offence 
 charged be intoxication, to reqiiire a bond to be executed by such 
 offender in the penal sum of one hundred dollars with sufficient 
 sureties, that such offender will appear and answer the charge at 
 the next term of the Court of Oyer and Terminer or Sessions 
 to be held in said county, and abide the order and judgment of 
 the Court thereon, or to commit such offender to the county jail 
 until such judgment of said Court, or until he be discharged 
 according to law. And it shall be the duty of the magistrate to 
 entertain any complaint of a violation of this act, made by any 
 person under oath, and forthwith to issue a warrant and cause 
 such offender to be brought before him, to comply with the pro- 
 vieions of this section ; and such magistrate shall, within ten 
 days, cause such bond, together with all papers and affidavits, 
 with a list of the persons and residences of the complainants and 
 witnesses examined before him, to be delivered to the district 
 attorney of the county, whose duty it shall be forthwith to prose- 
 cute the same. (1869, chap. 856.) 
 
 § 17. It shall be the duty of every such officer, whenever he 
 shall find any person intoxicated in any public place, to appre- 
 hend such person, and take him before some magistrate of the 
 same city or town ; and if such magistrate shall, after due exam- 
 ination, deem him too much intoxicated to be examined, or to 
 answer on oath correctly, he shall direct said officer to keep him 
 in some jail, lock-up, or other safe and convenient place, until he 
 shall become sober, and thereupon forthwith to bring him before 
 said magistrate, whose duty it shall be to try him forthwith for 
 such offence, and he shall not be allowed his election to give a 
 bond as provided in section sixteen, and, upon conviction, he is to 
 be fined not less than three nor more than ten dollars or 
 imprisoned not less than ten days or to exceed six months; 
 such intoxication being hereby declared to be an offence against 
 the provisions of this act, punishable as above provided. 
 It shall be the duty of such officers to arrest or cause 
 
772 NEW YOKK JUSTICE. 
 
 to be arrested all such persons when so intoxicated, and of the 
 magistrate to entertain such complaints and make such exam- 
 ination under the penalty of fifty dollars, with full costs of suit, 
 for any neglect to comply with the provisions of this section. 
 
 The accused is punishable summarily, the act, as amended in 
 1869, chapter 856, having taken away the right in such cases 
 to give bail and to be tried only upon indictment by a grand 
 jury. 
 
 § 18. Whoever shall sell or give away any strong or spirituous 
 liquors or wines, or shall suffer any such liquors or wines to be 
 sold or given away under his direction or authority, to any 
 intoxicated person, shall forfeit not less than ten nor more than 
 twenty-five dollars for each offence. 
 
 § 19. It shall be the duty of magistrates and overseers of the 
 poor in any town or city, on complaint and satisfactory proof by 
 a wife, that her husband is an habitual drinker of intoxicating 
 liquors, to issue written notices to all dealers in intoxicating 
 liquors against whom such complaint is made, forbidding the 
 sale or giving of such liquor to such husband for the term of 
 six months from the date of the notice, under a penalty of fifty 
 dollars, with costs, for each and every sale or giving of such 
 liquor, after such notice shall have been given ; to be sued for 
 in her own name and for her own use. It shall be the duty of 
 such magistrates and overseers of the poor to forbid the sale in 
 like manner in all cases when a husband shall make like satis- 
 factory proof concerning the wife, and all the provisions of this 
 section shall apply the same in either case. It shall be the duty 
 of magistrates and overseers of the poor, when like proof is 
 made by a parent concerning a child who is a minor under the 
 age of twenty-one years, or by a child concerning a parent, to 
 forbid the sale in like manner ; and all the provisions of this 
 act shall apply as in other cases named above. 
 
 § 20. It shall not be lawful, under the provisions of this act, 
 to sell intoxicating liquors to any person guilty of habitual 
 drunkenness, nor to any person against whom the seller maj- 
 have been notified by parent, guardian, husband or wife, from 
 selling intoxicating liquors, and every party so selling or retail- 
 ing intoxicating liquors, shall on proof thereof, before any Court 
 of competent jurisdiction, be deprived of his license to sell, and 
 
EXCISE AND TAVERNS. 773 
 
 shall not be allowed a renewal of said license and in addition, 
 on conviction, shall be punished by a fine of not less than twenty 
 dollars nor more than fifty dollars for each and every violation 
 of the provisions herein set forth. If any inn, tavern or hotel 
 keeper, or any other person or persons whatsoever, knowingly 
 (outside of any poor-house) shall sell or give to any pauper or 
 inmate of any poor-house or alms-house, strong or spirituous 
 liquors or wines, such person or persons so ofiending shall be 
 fined twenty-five dollars, and be guilty of a misdemeanor, and 
 on conviction, shall be imprisoned not more than sixty days. 
 
 § 21. No inn, tavern or hotel keeper, or other person, shall 
 sell or give away any intoxicating liquors or wines on Sunday, 
 or upon any day on which a general or special election or town 
 meeting shall be held, and within one quarter of a mile from the 
 place where such general or special election, or town meeting 
 shall be held, in any of the cities, villages or towns of this State, 
 to any person whatever, as a beverage. In case the election or 
 town meetings shall not be general throughout the State, the 
 provisions of this section in such case, shall only apply to the city, 
 <jounty, village or towns in which such election or town meeting 
 shall be held. Whoever shall ofEend against the provisions of 
 this section shall be guilty of a misdemeanor, and shall be pun- 
 ished by fine of not less than thirty dollars or more than two 
 hundred and fifty dollars, or imprisoned not less than five nor 
 more than fifty days. (1873, diap. 549.) 
 
 It is not an indictable offence under this act for a person who 
 is not licensed to sell liquors, or who is not the keeper of an 
 inn, tavern or hotel, to sell or give away intoxicating liquors or 
 wines on Sunday. {People vs. Page^ 2 Path Cr. 600.) The 
 amount of bail to be given by a person indicted under this sec- 
 tion is in the discretion of the magistrate, (id^ 
 
 % 22. The penalties imposed by this act, except the penalties 
 provided for by sections fifteen and nineteen, shall be sued for 
 -and recovered in the name of the overseer of the poor of the town 
 or city, and paid over to the proper officers for the support of 
 the poor of the county. (1878, chap. 109.) 
 
 § 23. Every bond taken pursuant to the provisions of this 
 act, shall, within ten days after the execution of the same, be 
 filed in the office of the clerk of the town or village in which 
 the license shall be granted, and in cities, in the city clerk's 
 office. 
 
774 NEW YORK JUSTICE. 
 
 § 24. Whenever a breach of the condition of such bond, 
 given upon the granting of any license, shall happen, it shall 
 be the duty of the commissioners of excise, the supervisor of 
 the town, mayor of the city, or trustees of the village in which 
 the person who shall incur the penalty shall reside, to prose- 
 cute the same and recover the penalty therefor. 
 
 ^ 25. Whenever any conviction or judgment shall be obtained 
 against any person, licensed to sell strong or spirituous liquors 
 or wines, for any violation of the provisions of this act, either 
 in a suit for a penalty or in a suit upon a bond given by such 
 person, it shall be the duty of the justice or Court before 
 whom the same shall be had, to transmit to the next Court of 
 Sessions of the county, a statement of such conviction or judg- 
 ment, and the offence for which it was obtained. 
 
 § 26. The said Court shall cause the person or persons against 
 whom such conviction or judgment was obtained to be notified 
 to appear on such day as the Court shall appoint, to show cause 
 why any such license that may have been granted to him or 
 them should not be revoked. At the day appointed, and on 
 such other days as the Court shall appoint, it shall proceed ta 
 inquire into the circumstances, and shall revoke the license 
 granted to the person or persons violating the provisions of 
 this act. 
 
 § 27. The person whose license shall be revoked shall b& 
 incapable of receiving any such license to sell strong or spirit- 
 uous liquors or wines for the space of three yeai-s from the 
 time of such revocation. 
 
 § 28. Any person who shall sell any strong or spirituous 
 liquors or wines to any of the individuals to whom it is declared 
 by this act to be unlawful to make such sale, shall be liable for 
 all damages which may be sustained in consequence of such 
 sale, and the parties so offending may be sued in any of the 
 Courts of this State by any individual sustaining such injuries 
 or by the overseers of the poor of the town where the injured 
 party may reside, and the sum recovered shall be for the bene- 
 fit of the party injured. ^ 
 
 § 29. It shall be the duty of Courts to instruct grand jurors 
 to inquire into all offences against the provisions of this act, 
 and to present all offenders under this act, and also all persons 
 who may be charged with adulterating imported or other 
 
EXCISE AND TAVERNS. 
 
 775 
 
 intoxicating liquors with poisonous or deleterious drugs or 
 mixtures or selling the same, or with knowingly importing or 
 selling intoxicating liquors or wines adulterated with poison- 
 ous or deleterious drugs or mixtures; which oflFences are hereby 
 declared to be misdemeanors, to be punished by imprisonment 
 in the penitentiary, workhouse or jail, for a pei'iod of three 
 months, and by a fine of one hundred dollars. 
 
 § 30. In case the parties or persons whose duty it is to prose- 
 cute for any penalty shall neglect to prosecute for any penalty 
 provided by this act, for the period of ten days after complaint 
 to them that any provision of this act has been violated, accom- 
 panied with reasonable proof of the same, any other person may 
 prosecute therefor in the name of the overseers of the poor of 
 said town. {Laws of 1873, chap. 820.) 
 
 § 31. All incorporated companies and persons in this State 
 engaged in conveying passengers, including especially all rail- 
 road, steamboat and ferry companies, and all kinds of corpora- 
 tions conveying for hire persons or property, shall be and 
 hereby are required to refuse employment to all persons who, 
 on good and sufficient proof, shall be shown to indulge in the 
 intemperate use of intoxicating drinks, and any such company 
 which shall retain in its employ any person or persons who 
 shall on competent proof, be shown to be intoxicated at any 
 period whilst in the active service of said company or person, 
 either as engineer, conductor, fireman, switchtender, commander, 
 pilot, mate or foreman, or be in any way connected with the 
 moving power or management, or whose duty if neglected 
 would diminish the safety and security of life, limb or pro- 
 perty, entrusted thereto, said company or corporation shall be 
 liable to pay a sum of not less than fifty dollars, nor more than 
 one hundred dollars, to the county treasurer in the county 
 where the ofience may be committed and proved, before any 
 Court of competent jurisdiction. 
 
 ^ 32. In any judgment rendered or recovered on any bond to 
 be given under this act, or for any penalty incurred under this 
 act, the person or persons against whom such judgment shall be 
 rendered shall not be entitled, under any execution issued on 
 such judgment, to the liberties of the jail. 
 
776 NEW YORK JUSTICF. 
 
 Every husband, wife, child, parent, guardian, employer or other 
 person who shall be injured in person, or in consequence of the 
 intoxication, habitual or otlierwisc, of any jDerson, shall have a 
 right of action in his or her name against any person or persons 
 who shall, by selling or giving away intoxicating liquors, cause 
 the intoxication, in whole or in part, of such person or persons, 
 and any person or persons owning or renting or permitting the 
 occupation of any building or premises, and having knowledge 
 that intoxicating liquors arc to be sold therein, shall be liable, 
 severally or jointly with the person or persons selling or giving 
 intoxicating liquors aforesaid, for all damages sustained and for 
 exemplary damages ; and all damages recovered by a minor under 
 this act shall be paid either to such minor or to his or her parent, 
 guardian or next friend, as the court shall direct ; and the unlaw- 
 ful sale or giving away of intoxicating liquors shall work a for- 
 feiture of all rights of the lessee or tenant under any lease or 
 contract of rent upon the premises. {Laws of 1878, chwp, 646.) 
 
 In any action arising for violations of the provisions of this 
 act, any justice of the peace in the county where the offense is 
 committed shall have jurisdiction to try and determine the same, 
 if the amount of damages claimed does not exceed two hundred 
 dollars, in which case and where the damages claimed do not 
 exceed five hundred dollars, the Justice of the Peace before 
 whom the action is commenced shall associate with himself any 
 other two Justices of the Peace in the same county, who shall 
 have jurisdiction to try and dete-rmine the same {Id.) 
 
 So much of the law of 1857 as required "the petition of not 
 less than twenty respectable freeholders," asking for the grant of 
 a license, has been so modified that such petition is not now 
 required. 
 
 Section 6 of the Laws of 1857, chapter 628 {see ante, pp. 768 
 and 769), does not apply to the cities of TSTew York and Brooklyn. 
 
 Several of the cities and villages of this State have special 
 statutes specifying the manner of appointment or organization of 
 boards of excise. These special statutes do not abrogate tlie 
 general statute only in so far they conflict or are inconsistent with 
 them. If the special or local statute is directly in conflict with 
 the general statute, tlien the former prevails. Otherwise, they are 
 to be construed together. Reference should fii'st be had to the gen- 
 eral statute, and then ascertain whelher oruot it has been changed 
 by local statute, it being borne in mind that the provisions of the 
 general statute are in force unless modified by the local statute. 
 
EXCISE AND TAVERNS. 777 
 
 § 247. Petition for Innkeeper's License. 
 To the Board of Excise Commissioners of : 
 
 The undersigned respectfully represents that he desires to sell 
 and dispose of strong and spirituous liquors, wines, ales and beer, 
 in quantities less than five gallons at a time*, to be drank on the 
 premises at , and he asks a license for that purpose. 
 
 That he proposes to keep an inn, tavern or hotel thereat ; that 
 he is the only person interested in the business to which the 
 license shall be used. A B. 
 
 Dated , 1885. 
 
 County of 
 
 A B, being duly sworn, says the foregoing petition by hina 
 subscribed is true. A B. 
 
 Sworn, &c. 
 
 § 248. Petition for a Storekeeper's License. 
 
 [As in the last form to the *, and then} on the premises known 
 as , but not to be drank on the said premises, nor in 
 
 the house or shop of the undersigned, or in any out-house or 
 yard or garden appertaining thereto or connected therewith. 
 
 That the undersigned is the only person interested in the busi- 
 ness to authorize which the license shall be used. A B. 
 
 Dated , 1885. 
 
 [Add affidavit.'] 
 
 [For Inn, Tavern or Hotel Keeper's License, see MoCall's 
 Cleeks' Assistant, p. 215, Fourth Edition.] 
 
 § 249. Notice to Dealer not to Sell to an Habitual Drinker. 
 
 To : 
 
 Take notice that complaint has been duly made to me, a Jus- 
 tice of the Peace, in accordance with the provision of chapter 
 628, Laws of 1857, that B D is an habitual drinker of intoxi- 
 cating liquors. You are, therefore, hereby forbidden to sell or 
 give away such liquors to said B D for the term of six months 
 from the service of this notice upon you, under a penalty of 
 fifty dollars and costs of suit for each and every disobedience of 
 this order. J P, Justice, &c. 
 
 Dated , 1885. 
 
778 NEW TORK JUSTICE. 
 
 § 250. Bond for Selling Intoxicating Liquor. 
 
 Know ail men by these presents, that we, 
 
 , of the State of New York, are held and firmly 
 bound unto the People of the State of iSTew York, in the sum of 
 five hundred dollars, to be paid to the said people, for which pay- 
 ment, well and truly to be made, we bind ourselves, our and each 
 of our heirs, executors and administrators, jointly and severally, 
 by these presents. 
 
 Sealed with our seals, and dated the day 
 
 of , one thousand eight hundred and seventy . 
 
 Whereas, the said , 
 is an applicant to the Board of Commissioners of Excise of the 
 
 for a License 
 to sell Strong and Spirituous Liquors, Wines, Ale and Beer, as a 
 storekeeper, pursuant to the provisions of an act entitled " An 
 act to suppress intemperance and regulating the sale of intoxicat- 
 ing liquors," passed April 16, 1857, and the acts passed in addition 
 and subsequent thereto. 
 
 Mow, therefore, the condition of this Obligation is such, that 
 if the said 
 
 during the time he shall keep any store, will not, during the term 
 for which such License shall be granted, suffer his place of business 
 to become disorderly, and will not sell, or suffer to be sold, any 
 Strong or Spirituous Liquors, or "Wines, Ale or Beer, to be drank 
 at said premises, or in his shop, or house, or in any out-house, 
 yard or garden appertaining thereto, and that 
 
 will not suffer any such Liquors sold by virtue 
 of such License to be drank in his shop or house, or in any out- 
 house, yard or garden belonging thereto, then this obligation to 
 be void, else to remain in force. 
 
 Signed, sealed and delivered \ 
 in the presence of ) 
 
 § 251. Acknowledgment of Bond. 
 State of New York, j ^^ . 
 County of j 
 
 I certify, that on this day of , before me 
 
 personally came the above-named and severally 
 
 acknowledged the execution of the above undertaking. 
 
 , County Judge of county. 
 
EXCISE AND TAVERNS. 779 
 
 ^ 253. Approval of Qommissioners Endorsed on the Bond. 
 
 County, ss: 
 We, the undersigned, forming the Board of Commissioners 
 of Excise in and for said county, do hereby approve of the 
 ■'vithin bond as to the form of the same and the sufficiency of 
 the sureties. A B, 
 
 CD, 
 Commissioners. 
 
 § 254. Bond of Inn-Keeper. 
 
 Know all men by these presents, that we 
 
 of county of Albany and State of New 
 
 Tork, are held and firmly bound unto the people of the State 
 of New York, in the penal sum of two hundred and fifty dol- 
 lars, to be paid to the said people; for which payment well and 
 truly to be made, we bind ourselves, our and each of our heirs, 
 executors and administrators, jointly and severally, firmly by 
 these presents. 
 
 Sealed with our seals, dated the day of , one 
 
 thousand eight hundred and sixty- 
 
 Whereas, the said intends keeping an inn, tavern 
 
 or hotel, at , in the said and is an 
 
 applicant to the Board of Commissioners of Excise of the 
 
 for a license to sell strong and spirituous liquors and 
 wines to be drank in the said inn, tavern or hotel, to be kept as 
 aforesaid, pursuant to the provisions of an act entitled "An act 
 to suppress intemperance and to regulate the sale of intoxicating 
 liquors." 
 
 Now, therefore, the condition of this obligation is such, that 
 if the said , during the time that he shall keep any 
 
 inn, tavern or hotel, will not sufier it to be disorderly or suffer 
 any gambling, or keep a gambling table of any description, 
 within the inn, tavern or hotel, so kept by him, or in any out- 
 house, yard or garden belonging thereto, then this obligation 
 to be void; else to remain in force. 
 
 Signed, sealed and delivered ) 
 in presence of ) 
 
 [Add Acknowledgment, Justification of Sureties, and Ap- 
 proval, as in §§ 251, 252, 253.] 
 
 [As to Form of." Book of Minutes of the Board," and as to 
 " Transcript of Minutes " to be filed in the office of the Town 
 Clerk, see McCall's Clerk's Assistant, pp. 217, 218, Second 
 Edition.] 
 
780 NEW YORK JUSTICE. 
 
 CHAPTER XI. 
 
 OF FUGITIVES FROM JUSTICE. 
 
 Br the Constitution of the United States, it is provided, that 
 a person charged in any State with treason, felony, or other 
 crime, who shall flee from justice, and be found in another State 
 shall, on demand of the executive authority of the State from 
 which he fled, be delivered up to be removed to the State hav- 
 ing jurisdiction of tlie crime. (Const. U. 8. Art. 4, sec. 2.) 
 Under this section of the Constitution, a law has been passed in 
 this State, by which certain judicial officers, among whom are 
 Justices of the Peace, are clothed with power to issue process 
 for the apprehension of a person charged in any State or Terri- 
 tory of the United States with treason, felony, or other crime, 
 who shall flee from Justice, and be found within this State. 
 {Crim. Pro., %% 827, 828.) 
 
 The proceedings under this act are similar in all respects 
 to the proceedings under the statute providing for the arrest 
 and commitment of persons guilty of offences within this 
 State, and which liave been fiilly considered in another portion 
 of this work. {Crim,. Pro., part IV ; ante, p. 536, et seq.) 
 Tho wari-ant must be issued and served in the usual maimer, and 
 the fugitive be brought before the Justice, and the examination 
 had, as in other cases. If it appears, from the examination, that 
 the person charged has committed a criminal offence, and is a 
 fugitive from justice, the Justice must, by a warrant reciting the 
 accusation, commit him to the common jail of the county, there 
 to be detained for such time, to be specified in the warrant, as 
 the Justice shall deem reasonable to enable such fugitive to be 
 arrested by virtue of the warrant of the Governor of this State, 
 issued according to the act of Congress, upon the requisition of 
 the executive authority of the State or territory in which the 
 fugitive committed the offence, unless such person shall give bail 
 as hereinafter mentioned, or until he shall be discharged by law. 
 {Code Crim. J'ro., § 880.) The prisoner may give bail, in such 
 sum as a Judge of the Supreme Court shall require, conditioned 
 that he will appear before him, at such time as to him may 
 
FUGITIVES FROM JUSTICE. 781 
 
 seem reasonable, and will deliver himself up to be arrested on 
 the warrant of the Executive of this State. {Crim. Pro., § 831.) 
 
 § 255. Warrant to commit a Fugitive from Justice. 
 
 County, \ 
 Town of . ^ ^® = 
 
 To any constable of said county, and to the keeper of the com- 
 mon jail of the said county, greeting: 
 
 Whereas A B, of , in the county of , did, on the 
 
 day of , 18 , complain on oath before me, J 
 
 H B, a Justice of the Peace of the said county of , of 
 
 one C D, and accuse him, the said C D, of having, on the 
 day of , 18 , committed the crime of [state the 
 
 offence,^ at , in the county of , and State of , 
 
 and of having thereafter fled from the said State of ; 
 
 And whereas, by virtue of a wai'rant of arrest by me duly 
 issued, the said C D was arrested and brought before me this 
 daj', to answer the said chai-ge, and it appears to me from an 
 examination of the said A B, [and others,] on oath, in the pres- 
 ence of the said C D, in regard to said charge, [and from an ex- 
 amination of the said C D,] and from an examination of the 
 whole matter, that there is probable cause to suspect that the 
 said offence has been committed, and that the said C D is guilty 
 thereof, and is a fugitive from justice from the said State of 
 
 ; And M'hereas the said C D has neglected to give bail in 
 the sum of dollars, as required by me, conditioned to 
 
 appear before me on the day of , 18 , and to 
 
 deliver himself up to be arrested upon the warrant of the 
 executive of this State, if one shall be issued to arrest him: 
 These are, therefore, to command you, the said constable, forth- 
 with to take and deliver the said C D into the custody of the 
 keeper of the said jail; and you, the said keeper, are hereby 
 required to receive the said C D into custody in the said jail, 
 and him there safely keep, until the day of , 
 
 18 , unless he shall give the bail above required by me, or 
 until he shall be discharged by law. 
 
 Witness my hand and seal, this day of , 18 . 
 
 J H B, [l. S.J 
 Justice of the Peace. 
 
 § 256. Bond by a Fugitive from Justice. 
 
 Know all men by these presents, that we, A B and C D, 
 are held and firmly bound unto the people of the State of New 
 York, in the sum of dollars; for which payment, well and 
 
782 NEW YORK JUSTICE. 
 
 truly to be made, we bind ourselves, our heirs, executors, and 
 administrators, jointly and severally, firmly by these presents. 
 Sealed with our seals, and dated the day of , 
 
 18 .* 
 
 Whereas the above bounden C D has been aiTested, and this 
 day brought before J H B, a Justice of the Peace of 
 county, charged with being a fugitive from justice from the 
 State of , and with having, on the day of 
 
 , 18 , committed the crime of, [state the crime,] in the 
 town of , in the county of , in the State of 
 
 ; Now, therefore, the condition of this obligation is such, 
 that if the said C D shall personally be and appear before the 
 said J H B, on the day of , 18 , and shall 
 
 deliver himself up to be arrested upon the warrant of the Exec- 
 utive of this State, then this obligation to be void; otherwise, 
 of force. 
 
 Taken, subscribed and acknowledged ) A B. [l. 8.1 
 
 before me, the day of , 18 . J CD. [l. s.j 
 
 J H B, Justice, &c. 
 
 The Justice before whom the jDrisoner has been examined and 
 committed, must immediately give a written notice to the dis- 
 trict attorney of the county, of the name of the prisoner, and 
 the cause of his arrest {Crim. Fro.^ § 832), and must also make a 
 return to the next Court of Sessions of his proceedings in the 
 premises. [Id., § 835.) 
 
 The prisoner is to be discharged from his detention or bail, 
 unless, at or before the expiration of the time designated in the 
 warrant of commitment, or in the condition of the bail bond, he 
 is demanded or arrested by a warrant of the Executive of this 
 State. Id., § 834.) 
 
 Justices of the Peace are also, by an act of Congress, [JI. S 
 Remised Statutes, § 33,) clothed with power to arrest, and imprison 
 or bail, persons charged with any crime or offence against the 
 United States. The provisions of that act are as follows : And 
 be it further enacted, that for any crime or offence against the 
 United States, the offender may, by any Justice or Judge of the 
 United States, or by any Justice of the Peace, or other magistrate of 
 any of the United States M'here he may be found, agreeably to 
 the usual mode of process against offenders in such State, and 
 at the expense of the United States, be ai-rested, imprisoned or 
 
FUGITIVES FROM JUSTICE. (83 
 
 bailed, as tlie case may be, for trial before such Court of the 
 United States as, by law, has cognizance of the offence. And 
 copies of the process shall be i-eturned as speedily as may be 
 into the clerk's ofiSce of such Court, together with the recog- 
 nizances of the witnesses for their appearance to testify in the 
 case. Bail to be given only in the district where the case is 
 triable. (§ 1014.) And, upon all arrests in criminal cases, bail 
 shall be admitted, except where the punishment may be death, 
 and be taken by the officei-s named in section 1014. {id. section 
 1015.) 
 
 Under this act, a Justice of the Peace has power to issue 
 process for the arrest of offenders against the laws of the United 
 States, irrespective of the locality where the offence was com- 
 mitted; and the proceedings subsequent to the arrest are similar 
 to those which ensue upon the arrest of a person charged with 
 an offence against the laws of this State, and which have 
 already been considered in a preceding part of this work. 
 {Ante, ;p. 571, et seq.) The Justice has power to take recogni- 
 zances from the witnesses in the same manner as in cases under 
 the State laws, and may imprison the witnesses if they refuse to 
 give the recognizances. {Ante, pp. 578, 580.) 
 
 There is one difference, however, between the provisions of 
 the act of Congress, above quoted, and those of our own statute, 
 in respect to the authority of Justices to take bail, which is 
 worthy of notice. Under the act of Congress, the Justice may 
 take bail whenever the offence is not punishable with death; 
 while, under our own law, he cannot take bail if the offense is 
 a felony punishable by imprisonment in the State prison for a 
 period exceeding five years. {Crim. Pro., § 557.) 
 
 Copies of the process issued by the Justice, together with the 
 recognizances taken by him under this act, both from the wit- 
 nesses and the prisoner, are to be immediately returned into the 
 clerk's office of the Court of the United States having cognizance 
 of the offence, and they must be taken for the appearance of the 
 prisoner in such Court. The Circuit and District Courts of the 
 United States have concurrent jurisdiction of all crimes and 
 offences cognizable under the authority of the United States, 
 the punishment of which is not capital. "When capital, the Cir- 
 cuit Court alone has jurisdiction. {U. S. Revised Statutes 
 § 1039.) For every offence, therefore, against the laws of the 
 
784 NEW YORK JUSTICE. 
 
 United States, for which the Justice can take bail, he may take ii 
 for the appearance of the prisoner at either the Circuit or District 
 Court. The recognizances, however, should be taken to appear 
 at the next term to be held, of whichever Court it may be. In 
 the Southern District of New York, which includes all that part 
 of the State south of the counties of Albany, Kensselaer, Sche- 
 nectady, Schoharie and Delaware, {U. 8. Remised Statutes, % 
 541,) except Kings, Queens, Suffolk and Richmond, the Courts 
 are held as follows : Circuit Courts in each year on the second 
 Wednesday in January, March, May, October and December, third 
 Wednesday in June, at the City Hall, in the city of New York. 
 District Courts, in the Southern District are held in each year on 
 the first Tuesday of every month, at the same place. In the North- 
 em District, which includes the residue of the State, except the 
 Eastern District, Circuit Courts are held, in each year, at Albany, 
 on the second Tuesday in October, and at Canandaigua, on the 
 third Tuesday in June. The District Courts in the Northern 
 District are held as follows, in each year : At Albany, on the 
 third Tuesday in January ; at Utica, on third Tuesday in March ; 
 at Eochester, on the second Tuesday in May ; at Auburn, on the 
 third Tuesday in November ; at Buffalo, on the third Tuesday in 
 November ; and one term annually, at such time and place within 
 the counties of St. Lawrence, Clinton, or Franklin, as the District 
 Judge appoints. ( U. S. Revised Statutes, § 572.) In the Eastern 
 District of New York which includes the counties of Kings, 
 Queens, Suffolk and Richmond, the Circuit Courts are held on 
 the first Wednesday of each month in Brooklyn ; and the District 
 Courts are held at the same time and in the same city. ( JJ. S. 
 Revised Statutes, id. 572.) The clerk's offices of the Circuit and 
 District Courts of the Southern District are at New York ; of 
 the Circuit Court of the Northern District, at Utica; and of the 
 District Court of that District, at Buffalo. The clerks' offices 
 of the Circuit and District Court of the Eastern District are at 
 Brooklyn. 
 
 Fees. 
 The proceedings for the apprehension of offenders, treated of 
 in this Chapter, are in all respects similar to those under the 
 
GAMING AND LOTTERY TICKETS. 785 
 
 statute of this State, heretofore considered, for the arrest and 
 commitment of persons guilty of offences within this State. 
 The table of fees applicable to those proceedings has already 
 been given. {Ante, j). 677 , et seq.) 
 
 CHAPTER XII. 
 
 OF GAMING AKD LOTTERY TICKETS. 
 
 £jeepmg gambling establishments. A person who keeps a room, 
 shed, tenement, tent, booth, building, float or vessel, or any part 
 thereof, to be used for gambling, or for any purpose, or in any 
 maimer forbidden by this chapter, or being the owner or agent, 
 knowingly lets or permits the same to be so used, is guilty of a 
 misdemeanor. {Penal Code, § 343.) 
 
 Any article or apparatus maintained or kept in violation of the 
 chapter of the Penal Code entitled of " Gaming " is declared a 
 public nuisance. {Penal Code, § 338.) 
 
 It is the duty of a Justice of the Peace, upon proper apph- 
 cation, to cause the person violating the provision of the stat- 
 ute as to gaming to be arrested and brought before him for 
 examination. 
 
 Gambling implements to be seized. A person who is required 
 or authorized to arrest any person for a violation of the provisions 
 of this chapter, is also authorized and required to seize any table, 
 cards, dice or other apparatus or article suitable for gambling 
 purposes, found in the possession or under the control of the 
 person so arrested, and to deliver the same to, the magistrate 
 before whom the person arrested is required to be taken. 
 {Penal Code, § 345.) 
 
 Suoh im/pleTTients to be destroyed. The magistrate to whom 
 anything suitable for gambling purposes is delivered pursuant to 
 the last section, must, upon the examination of the defendant, or 
 if such examination is delayed or prevented, without awaiting 
 such examination, determine the character of the thing so 
 delivered to him, and whether it was actually employed by the 
 
786 NEW YORK JUSTICE. 
 
 defendant in violation of the provisions of this chapter ; and if 
 he finds that it is ot a character suitable for gambling purposes, 
 and that it has been used by the defendant in violation of this 
 chapter, he must cause it to be destroyed, or to be delivered to 
 the district attorney of the county in which the defendant is 
 liable to indictment or trial, as the interests of justice may, in 
 his opinion, require. {Penal Code, § 346.) 
 
 Upon the conviction of the defendant, the district attorney 
 must cause to be destroyed everything suitable for gambling pur- 
 poses, in respect whereof the defendant stands convicted, and 
 which remains in the possession or under the control of the 
 district attorney. {Penal Code, § 347.) 
 
 Fees. 
 
 The fees allowed by law for services imder this statute are as 
 follows: 
 
 To Justices.] An oath or affirmation, ten cents ; 
 
 A warrant of seizure and arrest, twenty-lBve cents ; 
 
 Drawing, copying and certifying and filing a recognizance, 
 twenty-five cents ; 
 
 Taking and certifying the acknowledgment of any instrument 
 which is required to be acknowledged before a Justice, twenty- 
 five cents ; 
 
 A warrant of commitment, twenty-five cents. {Code, § 3322.) 
 
 To Constables. '\ Serving a warrant, fifty cents ; 
 
 Arresting and committing any person pursuant to process, one 
 dollar. 
 
 Mileage, going and returning, for each mile, ten cents, {id. 
 % 3323.) 
 
HABITUAL DRUNKAKDS. 
 
 787 
 
 CHAPTER XIII. 
 
 OF HABITUAL DRUNEAEDS. 
 
 Whenevee the overseers of the poor of any city or town dis- 
 cover any person to be an habitual drunkard, they must, by 
 writing under their hands, designate and describe such drunkard, 
 and, by a written notice signed by them, require every merchant, 
 distiller, shop-keepei', grocer, tavern-keeper, or other dealer in 
 spirituous liquors, and every other person residing within the 
 city or town where the drunkard resides, or in any other city or 
 town near to or adjoining such city or town, not to give or sell, 
 under any pretence, any spirituous liquors to such drunkard. 
 If, after the personal service of such notice, any such person 
 knowingly gives, or sells, in any manner whatever, spirituous 
 liquors to any such drunkard, except by the personal direction, 
 or on the written certificate, of some physician regularly licensed 
 to practice according to the laws of this State, stating that such 
 liquor is necessary for the preservation or recovery of the health 
 of such drunkard, he forfeits for every offence, the sum of ten 
 dollars, for the use of the poor of the town where the drunkard 
 resides. (1 R. 8. 637, % 1, 2; Laws of 1840, cha;p. 229, § 3.) 
 Every person thus notified is liable to this forfeiture, whenever 
 his clerk, or agent, or any member of his family, violates the 
 statute, by knowingly giving or selling to an habitual drunkard 
 any spirituous liquors, {id. § 2.) 
 
 Where the parent or guardian of a minor under sixteen years 
 of age, or the master of a servant or apprentice, has been desig- 
 nated a^ an habitual drunkard, no person licensed to sell strong 
 or spirituous liquors oi wines, can, without the consent of the 
 overseers of the poor of the city or town where such minor or 
 apprentice or servant resides, sell to such minor or apprentice or 
 servant any such liquors or wines, under a penalty of five dollars, 
 to be recovered by the overseers of the poor. {Laws of 1840, 
 cha;p. 229.) 
 
788 NEW TOKK JUSTICE. 
 
 /,\''-- 
 
 § 257. Notice designating Habitual Drunkard, <&c. 
 Town of 
 
 County, 
 We, the undersigned. Overseers of the Poor of said town, 
 having discovered A B, of said town, to be an habitual drunk- 
 ard, do hereby designate him as such habitual drunkard, and 
 describe him as follows: [description:^ And every merchant, 
 distiller, shop-keeper, grocer, tavern-keeper, or other dealer in 
 spirituous liquors, and every other person residing within the 
 said town, or in any city or town near to or adjoining said town, 
 is required not to give or sell, under any pretence, any spirit- 
 uous liquors to the said A B. 
 Dated at , this day of , 18 . 
 
 CD, 
 E F, 
 (Overseers of the Poor. 
 
 Any person so designated by the overseers of the poor as an 
 habitual drunkard, may apply to any Justice of the Peace of 
 the city or town in which he resides, for process to summon a 
 jury to try and determine such fact of drunkenness. On such 
 application, the Justice must immediately give a written notice 
 thereof to the overseers of the poor, specifying the time and 
 place where the parties are to meet for the trial of such fact; 
 and must issue a venire to a constable, to summon a jury of 
 twelve persons competent to serve on juries, to appear at the 
 said time and place, for the purpose of trying the said fact. (1 
 E. S. 637, §§ 4, 5.) 
 
 § 258. Notice to Overseers hy Justice. 
 To C D and E F, Overseers of the Poor of the town of : 
 
 You are hereby notified that A B, who has been designated 
 by you as an habitual drunkard, has applied to me for a process 
 to summon a jury to try and determine the fact of such drunk- 
 enness; and that I have fixed upon the day of 
 instant, at o'clock in the noon, at my office in said town, 
 as the time and place for such trial. 
 
 Dated , this day of , 18 . 
 
 G H, Justice of the Peace. 
 
 \ 259. Venire. 
 County, ss: 
 To any constable of the town of , in said county, greeting: 
 
 You are hereby commanded, in the name of the people of 
 
HABITUAL DRUNKARDS. 789 
 
 the State of New York, to summon a jury of twelve persons, 
 competent to serve on juries, to appear at my office, in , 
 
 aforesaid, on the day of instant, at o'clock in the 
 
 noon, to try the fact, whether A B, of said town, is an 
 habitual drunkard, he having been designated as such by the 
 Overseers of the Poor of the said town; and you will have then 
 there a panel of the names of the jurors you shall so summon, 
 and this precept. 
 
 Witness my hand, this day of , 18 . 
 
 G H, justice of the Peace. 
 
 The jury are to be summoned, and returned, and six of them 
 to be ballotted for, and sworn well and truly to try the fact 
 of the alleged drunkenness, in the same manner as for the trial 
 of issues in actions brought before a Justice of the Peace; and 
 witnesses are to be summoned, and their attendance and testi- 
 mony enforced, and they are to be sworn and examined before 
 the jury, in like manner as in such actions. (1 B. S. 637, § 5.) 
 
 ^ 260. Juror's Oath. 
 
 You do swear that you will well and truly try the fact of the 
 alleged habitual drunkenness of A B, and a true verdict give, 
 according to evidence. 
 
 § 261. Oath to Witness. 
 
 You do swear, that the evidence you shall give, touching the 
 fact of the habitual drunkenness of A B, shall be the truth, the 
 whole truth, and nothing but the truth. 
 
 The jury must hear the proofs and allegations ojQFered on both 
 sides, and proceed, in all respects as in trials at law, to render 
 their verdict. The Justice must enter the verdict in a book to 
 be kept by him for that purpose. (1 R. S. 637, § 6.) This 
 verdict, or an attested copy of it, is presumptive evidence of the 
 fact of drunkenness as thereby found, in any action between the 
 overseers of the poor and any person prosecuted by them for 
 the penalty above imposed, (id. § 7.) 
 
 If the jury, by their verdict, find the person demanding the 
 trial to be an habitual drunkard, the Justice must enter judg- 
 ment against him, and award execution for the costs of the over- 
 seers of the poor in attending the trial, in the same manner as 
 in civil actions, (id. ^8.) 
 
790 NEW TORK JUSTICE, 
 
 § 262. Execution against the Drunkard. 
 
 County, ss: 
 To any constable of said county, greeting: 
 
 Whereas A B of , in said county, was designated and 
 
 described by C D and E F, Overseers of the Poor of said town, 
 as an habitual drunkard; and, by the verdict of a jury duly 
 empanneled, drawn and sworn, before me, the undersigned Jus- 
 tice, upon the application of the said A B,* it is found that he 
 is an habitual drunkard; whereupon, I have rendered judgment 
 against the said A B, for the costs of the said Overseers in 
 attending the trial, amounting to the sum of dollars: 
 
 You are therefore hereby commanded, in the name of the Peo- 
 ple of the State of New York, to levy the said costs of the goods 
 and chattels of the said A B, (except such goods and chattels 
 as are exempt by law from execution,) and bring the money 
 which you shall collect, sixty days from the date hereof, before 
 me, at my office in , to render to said Overseers; [7/" 
 
 the drunkard is a male person, add here: And if no such goods 
 and chattels, or not sufficient to satisfy this execution, can be 
 found, you are further required to take the body of the said A 
 B, and convey him to the common jail of said county, there to 
 remain until this execution shall be satisfied and paid.] 
 
 Witness my hand, this day of , 18 . 
 
 G H, Justice, &c. 
 
 If it is found that the person charged is not an habitual 
 drunkard, the Justice must enter judgment and award execution 
 for the costs of such persons against the overseers, unless it ap- 
 pears that the overseers acted in good faith, and had reasonable 
 cause to believe the person charged to be an habitual drunkard, 
 in which case no costs can be awarded against them, but each 
 party must pay their own costs. (1 R. 8. 637, § 9.) 
 
 § 263. Execution against the Overseers. 
 
 County, ss: 
 To any constable of said county, greeting: 
 
 Whereas, A B, &c., [as in § 262, to the*, and then add:'\ it is 
 found that he is not an habitual drunkard; and, inasmuch as it 
 appeared to me that the said Overseers of the Poor did not act 
 in good faith, and had not reasonable cause to believe the said 
 A B to bean habitual drunkard, I have entered judgment against 
 the said C D and E F, Overseers, for the costs of the said A B, 
 amounting to the sum of dollars: You are therefore 
 
HABITUAL DEUNKAEDS. 791 
 
 hereby commanded, in the name of the People of the State of 
 New York, to levy the said costs, &c., [as in § 262, to the end, 
 including the imprisonment clause, and varying as requisite.] 
 
 If the overseers become satisfied that the drunkard has re- 
 formed, they may revoke and annul any notice given by them 
 or any of their predecessors. (1 R. S. 637, § 11.) 
 
 ^ 264. Revocation by the Overseers, where a Drunkard reforms. 
 
 Town of , ) 
 
 County, \ 
 
 Being satisfied that A B, respecting whose drunkenness a no- 
 tice has heretofore been given by us, \or, by C D and E F, Over- 
 seers of the Poor of said town,] has reformed and become tem- 
 perate, we do hereby revoke and annul the said notice. 
 
 Dated, &c., \as in § 257.] 
 
 Where there are two overseers of the poor in a town, they 
 must both act in these proceedings. 
 
 Fees. 
 
 The fees allowed by law for services under this statute are as 
 follows: 
 
 To Jktstices.] Every subpoena, twenty-five cents ; 
 
 Administering an oath or affirmation, ten cents ; 
 
 A precept to notify a jury, fifty cents ; 
 
 Empaneling and swearing a jury, twenty-five cents ; 
 
 Hearing the matter concerning which the jury is summoned, 
 fifty cents ; 
 
 Eeceiving and entering their verdict, twenty-five cents ; 
 
 An execution, twenty-five cents. {Code, § 3322.) 
 
 To Jurors.] Each juror, twenty-five cents, {id. § 3326.) 
 
 To Constahles.] Summoning a jury, ten cents each ; and for 
 each mile actually and necessarily traveled, going from and return- 
 ing to his place of residence, ten cents ; 
 
 For arresting and committing any person pursuant to process, 
 one dollar ; 
 
 For subpoenaing each witness, not exceeding four, twenty-five 
 cents ; 
 
 Attending such jury, when required, fifty cents, {id. § 3323.) 
 
792 NEW YORK JUSTICE. 
 
 For serving a precept or otter mandate, by which the proceed- 
 ing is commenced, twenty-five cents ; 
 
 The above fees to constables are the same as those allowed in 
 special proceedings. 
 
 To Witnesses.] Each witness, for each day's attendance, twenty- 
 five cents. 
 
 CHAPTER XIV. 
 
 OF HAWKEES AND PEDLERS. 
 
 The statute prohibits every person from traveling through 
 the State, and peddling any goods, wares, and merchandise, of 
 the growth, produce, or manufacture of any foreign country, 
 other than family groceries and provisions, unless he shall have 
 obtained a license as a hawker and peddler, as therein directed. 
 {Zaws of 1880, chap. 72.) Every person so trading without 
 license, or trading contrary to the terms of his license, forfeits, 
 for each offence, the sum of twenty-five dollars, for the use of 
 the poor of the town in which the ofEence was committed. (1 
 H. S. 576, § 6.) If the hawker or peddler has a license, which he 
 refuses to produce, on demand, to any officer or citizen, he forfeits, 
 for each offence, the sum of ten dollars, to the overseers of the 
 poor of the town in which the demand was made, for the use of 
 the poor ; and if, after notice, he refuses or neglects to pay the 
 last named penalty, he must be committed by the Justice, before 
 whom the conviction is had, to the jail of the county where 
 the offence was committed, for the term of one month, (id. 
 
 §7.) 
 
 The proceedings upon a trial for a violation of this statute, are 
 the same as in other cases, and the commitment may be in the 
 following form : 
 
HAWKERS AND PEDLEES. 793 
 
 § 265. Commitment of a Hawker or Pedler, for refusing to pay 
 the Penalty for not showing his License. 
 
 County, ) 
 
 Town of 5 ®^- 
 
 To any constable of said county, and to the keeper of the com- 
 mon jail of the said county, greeting: 
 
 Whereas, complaint on oath has this day been made before 
 me, J H B, a Justice of the Peace of the said county, by O P 
 and Q R, Overseers of the Poor of the said town, that C D, 
 [state the offence, specifying the facts of the refusal to produce 
 license i\ And whereas, the said C D was duly convicted before 
 me of tne said oifence, and was thereupon adjudged by me to 
 forfeit the sum of ten dollars to the Overseers of the Poor of 
 the said town, for the use of the poor therein; And whereas, 
 the said C D, although duly notified of the said conviction, 
 has refused and neglected to pay the amount so forfeited: 
 These are therefore to command you, the said constable, forth- 
 with to take the said C D, and deliver him to the keeper of the 
 said jail; and you, the said keeper, are hereby required to 
 receive the said C D into your custody in said jail, and him 
 there safely keep for the term of one month. 
 
 Given under my hand, this day of , 18 . 
 
 J H B, Justice of the Peace. 
 
 Any citizen may apprehend and detain any person who is 
 found trading as a hawker or pedler without a license, or con- 
 trary to the terms of his license, or who refuses to produce his 
 license when demanded, and convey him before any Justice of 
 the Peace in the toM'n or county in which he shall be appre- 
 hended. (1 R. 3. 576, § 8.) By a subsequent act, it is made 
 the duty of the overseers of the poor to enforce the provis- 
 ions of this statute in the manner therein prescribed, whenever 
 any violation thereof within their respective towns comes to their 
 knowledge. {Laws of 1840, chap. 70, § 3.) 
 
 It is the duty of the Justice, if a sufficient license to authorize 
 euch trading be not produced to him, and the fact of trading be 
 proved, either by the confession of the person apprehended, or 
 the oath of competent witnesses, to convict the offender of such 
 offence against the statute as is confessed or proved; and to issue 
 his warrant on each conviction, directed to some constable of 
 the counly in which the conviction is had, commanding him to 
 cause the sum of twenty-five dollars, with costs not to exceed 
 
794 NEW YORK JUSTICE. 
 
 five dollars, to be foi*thwith levied, by distress and sale, at pub- 
 lic vendue, of the goods, wares, and merchandise of the offender. 
 (1 E. JS. 576, § 9.) 
 
 ^ 266. Warrant to collect a Penalty from a Hawker or Pedler. 
 
 County, ss: 
 To any constable of said county, greeting: 
 
 Whereas A B has been this day, upon competent testimony, 
 \or, upon his own confession,] duly convicted before me, J H B, 
 a justice of the Peace of the said county of \here insert the 
 
 offence, the date, and the articles sold,'\ for which offence he was 
 adjudged by me to forfeit the sum of twenty-five dollars; And 
 whereas, the cost of his conviction were fixed by me at \not ex- 
 ceeding Jive] dollars; which forfeiture and costs, the said A B, 
 although duly notified thereof, has not paid: These are therefore 
 to command you to cause the said sum of twenty-five dollars, 
 and the said sum of dollars, costs, to be forthwith levied by 
 distress and sale, at public vendue, of the goods, wares, and 
 merchandise of the said A B, and to bring the moneys so col- 
 lected before me at my office in the town of , in said 
 county. 
 
 Given under my hand, this day of , 18 . 
 
 J H B, Justice of the Peace. 
 
 The moneys collected by virtue of this warrant, exclusive of 
 costs, are to be paid by the Justice to the overseers of the poor 
 of the town in which the offence was committed, (id.) 
 
 In cases of prosecutions under this statute, for the recovery 
 of the penalties thereby given, no costs are to be allowed to the 
 defendant, if it appears that, before the commencement of the 
 Ijrosecution, he refused to produce his license, or to disclose his 
 name when lawfully required; nor, in Such case, is he entitled 
 to maintain any action against the person prosecuting him, or 
 the constable or other persons by whom he may have been ap- 
 prehended, or the Justice by whom any warrant or other pro- 
 cess may have been issued against him, or before whom he may 
 have been tried, for any of their acts in so prosecuting, appre- 
 hending, or trying him. (1 B. S. 576, § 10.) Every person 
 who is sued for instituting any proceedings under this statute, 
 or for doing any matter or thing pursuant to its provisions, 
 may plead the general issue, and give the special matter in evi- 
 dence; and, if the plaintiff fails in establishing his case, the 
 defendant is entitled to recover treble costs, (id. § 12.) 
 
COLLECTION OF HIGHWAY FINES. 795 
 
 No suit or prosecution for the recovery of the penalties im- 
 posed by this statute can be maintained, unless it appears to be 
 brought within sixty days after the commission of the offence 
 charged. (1 B. S. 576, § 11.) 
 
 Fees. 
 
 The fees allowed by law for services under this statute are the 
 same as are allowed in special proceedings for Hke services. 
 
 The following services, however, seem to be provided for by 
 the fee bill in special proceedings : 
 
 To Justices.'] A warrant of commitment, twenty-five cents. 
 {Code, § 3322.) 
 
 To Constables.] Arresting and committing any person pursuant 
 to any process, one dollar ; 
 
 For serving a mandate or precept by which the special proceed- 
 ing is commenced, twenty-five cents ; 
 
 Mileage, going and returning, for each mile, ten cents, {id. 
 % 3323.) 
 
 CHAPTER XV. 
 
 OF HIGHWAYS AND EOADS. 
 
 It is proposed to consider, in this Chapter, only those provi- 
 sions of the statutes relative to highways, roads and bridges, which 
 regulate the powers and duties of Justices of the Peace. A con- 
 sideration of the powei-s and duties appertaining to the ofllces 
 of overseers and commissioners of highways would be foreign 
 to the scope of this work. 
 
 1. Collection of Fines foe not "Working on Highways. 
 
 The fine for a refusal or neglect to appear and work, when 
 notified by an overseer of highways, is twelve and a half cents 
 for every hour any person or his substitute may be in default. 
 Every person or substitute, remaining idle, or not working faith- 
 fully, or hindering others from work, is liable to be fined twelve 
 and one-half cents per hour each day. If a person, required to 
 
796 HEW YORK JUSTICE. 
 
 furnish a team, carriage, man or implements, neglects or refuses 
 to comply, he may be fined three dollars for each day, of eight 
 houi-s and three dollars and seventy-five cents for each day of ten 
 hours, for wholly omitting to comply with the requisition; and 
 one dollar for each day of eight hours, and one dollar and twenty- 
 five cents for each day of ten hours, for omitting to furnish a 
 cart, wagon or plough, and refusing to furnish a pair of horses or 
 oxen, one dollar for each day of eight hours, and one dollar and 
 twenty-five cents for each day of ten hours ; and the same sum 
 for neglecting to furnish a man. Every overseer of highways is 
 required to make complaint, on oath, to one of the Justices of 
 the Peace of the town, within six days after any person assessed 
 and notified is guilty of any refusal and neglect, for which a pen- 
 alty or fine is prescribed, unless some satisfactory excuse be ren- 
 dered. (1 B. S., 510, §§ 38 to 41, as amended 1880, chap. 308.) 
 
 § 267. Gomplaint against a Person for refusing to Work. 
 County, 1 gg. 
 Town of , 5 ' 
 
 I, O P, Overseer of Highways for road district number , 
 in said town, hereby make complaint on oath to G H, a Justice 
 of the Peace of said town, that I gave Richard Roe, who resides 
 in said district, and is assessed to work on highways therein, 
 twenty-four hours' previous notice, to appear with a shovel, on 
 the day of instant, at 8 o'clock, A. M., at the 
 
 dwelling house of E F, for the purpose of working on the 
 highways in said district, under my direction as such Overseer; 
 and that the said Richard Roe neglected to appear, either in 
 person, or by an able bodied man as a substitute, and has also 
 neglected to pay the commutation money for said work, [or, 
 appeared, pursuant to notice, but worked only hours, and 
 
 then departed; or, appeared, pursuant to notice, but remained 
 idle, or, did not work faithfully, or, hindered others from work- 
 ing;] and has not rendered any satisfactory excuse to me for 
 such neglect, [or, conduct.] O P, Overseer. 
 
 Sworn to before me, this ) 
 day of , 18 , 3 
 
 G H, Justice of the Peace. 
 
 \ 268. Gomplaint against a person for not fwnishing a Team. 
 
 County, ) gg. 
 Town of , 5 ' 
 
 I, O P, Overseer of Highways for road district number , 
 in said town, hereby make complaint to G H, a Justice of the 
 
COLLECTION OF HIGHWAY FINES, 797 
 
 Peace of said town, that I gave to John Jones, who resides in 
 said district, and is assessed to work days on the highways 
 
 therein, and has a cart, [or, wagon, or, plough,] with a pair of 
 horses, [or, oxen,] and a man to manage them, and who has not 
 commuted for his said assessment, twenty-four hours' previous 
 notice, to furnish, on the day of , 18 , at eight o'clock, 
 A. M., at the house of E F, in said district, a wagon with horses, 
 [or, a cart with a yoke of oxen,] and a man to manage them, for 
 the purpose of working one day on the road in said district, 
 under my direction as such Overseer; and the said Richard Roe 
 has neglected to furnish such wagon and horses, [or, cart and 
 oxen,] and a man to manage them, and has also neglected to pay 
 the commutation money for said work, and has not rendered any 
 satisfactory excuse to me for such neglect. 
 Sworn, &c., [as in § 267.] 
 
 Any other Form of complaint, if required, may very easily 
 be prepared from either of the foregoing Forms. 
 
 The overseer is the judge of the delinquency of any party. 
 
 The Justice to whom any complaint is made, must forthwith 
 issue a summons, directed to any constable of the town, requir- 
 ing him to summon the delinquent to appear forthwith before 
 him, at some place to be specified in the summons, to show 
 cause why he should not be fined according to law for such re- 
 fusal or neglect; which summons must be served personally, oi 
 by leaving a copy at his present abode. {Bowton vs JVeilson, 
 3 Johns. 474; Freeman vs. Cornwall, 10 id. 470; 1 R. S. 510, 
 §42.) 
 
 § 269. Summons for refusing to Work. 
 
 Town of , ? gg. 
 
 County, ) 
 To any constable of said town, greeting: 
 
 Whereas, complaint on oath has been made before me, G H, 
 a Justice of the Peace of said town, by O P, Overseer of lEgh- 
 ways in road district number in said town, that Richard 
 
 Roe, who resides in said district, and is assessed for highway 
 labor, and has been duly notified to perform such worli, has 
 neo-lected to appear in pursuance of such notice, either in per- 
 son, or by an able bodied substitute, and perform such labor, 
 [or, as in § 267:] You are therefore hereby commanded, in the 
 name of the people of the State of New York, to summon the 
 said Richard Roe forthwith to appear before me, at my office in 
 
798 NEW TOKK JUSTICE. 
 
 said town, to show cause why he should not be fined according 
 to law, for such refusal or neglect, as in said complaint alleged. 
 Given under my hand, at , this day of , 
 
 18 . G H, Justice of the Peace. 
 
 A summons against a corporation may be issued for any num- 
 ber of penalties incurred previous thereto, and such process may 
 be served in the manner provided for the service of a writ or 
 summons issued out of a Court of Eecord against a corporation. 
 {Laws of 1837, chap. 431, § 4^ ante,p. 173.) 
 
 As this proceeding is a summary one, the officer serving the 
 summons should use reasonable diligence to find the pei-son 
 proceeded against, in order that he may make a personal service. 
 If the defendant does not appear, the Justice must, upon 
 proof of service of the summons, impose the fine as a matter 
 of course. 
 
 § 270. Return of Constable. 
 
 Personally served, [or, served by leaving a copy at the per- 
 sonal abode of the within named Richard Roe.] June 1st, 18 . 
 
 R F, Constable. 
 
 If, upon the return of the summons, no sufficient cause is 
 shown to the contrary, the Justice must impose such fine as is 
 provided for the ofience complained of, and forthwith issue a 
 warrant, under his hand and seal, directed to any constable of 
 the town where the delinquent resides, commanding him to levy 
 such fine, with the costs of the proceedings, of the goods and 
 ';hattels of such delinquent. (1 R. 8. 510, § 43.) 
 
 § 271. Conviction endorsed on the Complaint. 
 
 fown of ' i • 
 
 County, 5 
 The within named Richard Roe, having been duly summoned 
 to appear before me G H, the Justice within named, to show 
 cause why a fine should not be imposed upon him for the ofience 
 set forth in the within complaint, and no sufficient cause having 
 been shown by the said Richard Roe to the contrary, I do im- 
 pose a fine of dollars, \or, as the case may 5e,] upon 
 the said Richard Roe, for the said ofience, and do fix the costs 
 ,of this proceeding against him at dollars, and cents. 
 
COLLECTION OF HIGHWAY FINES. 799 
 
 riH^ 
 
 ^ 272. Warrant to collect a Fine. 
 
 Town of 
 
 County, ^ 
 To any constable of said town, greeting: 
 
 Whereas, complaint was made to me, G H, a Justice of the 
 Peace of said town, by O P, Overseer of Highways for road dis- 
 trict number , in said town, that Eichard Eoe, who was 
 assessed, &c.; [recite, as in the complaint;] Whereupon a sum- 
 mons was issued by me, requiring the said Richard Roe to appear 
 before me at my office in , aforesaid, forthwith to show 
 cause why he should not be fined for such neglect, [or, refusal, 
 or, as the case may he-\ which summons was duly served and 
 returned to me; and the said Richard Roe not having shown 
 any sufficient cause to the contrary, I have imposed a fine of 
 dollars on him for his offiiuce, complained of as aforesaid, 
 and fixed the costs of the proceedings on said complaint at 
 dollars and cents: You are therefore hereby commanded 
 to levy the said fine and costs, of the goods and chattels of the 
 said Richard Eoe, and bring the said moneys before me without 
 •delay. 
 
 Witness my hand and seal, this day of , 18 . 
 
 G H. Justice, [l. s.] 
 
 The question, whether the complainant is an overseer of high- 
 ways of the town, is a jurisdictional fact, and may be inquired 
 into in an action of trespass against him for taking property on 
 such a complaint. {Wallcer vs. Mosely, 5 Denio, 102.) 
 
 No action will lie against a Justice or constable, for obeying 
 the requirements of this statute. They are mere ministerial 
 officers, having no judicial or discretionary power, and are, 
 therefore, not responsible for issuing or executing process di- 
 rected by the authority of persons having jurisdiction over the 
 ■subject matter. {Bouton vs. Neilson, 3 Johns. 474; Beach vs. 
 Furman, 9 id. 229.) 
 
 The constable to whom the warrant is directed must forthwith 
 collect the fine, and pay it over to the Justice by whom the war- 
 rant was issued, who must pay it over to the overseer who en- 
 tered the complaint. {1 R. 8. bll,^ 44.) The warrant is as 
 summary as the other proceedings, and no property is exempt 
 from seizure under it. 
 
 The penalties collected from corporations are to be paid over 
 
800 NEW YORK JUSTICE. 
 
 by the constable to the commissioners of highways of the town to 
 be set off against the assessment. {Laws of 1880, chap. 308.) 
 
 2. Re-Assessment of Damages for Laying out Highways. 
 
 Any person conceiving himself aggrieved by, or the commis- 
 sioner or commissioners of highways who are dissatisfied with, 
 any assessment made for the laying out, altering or discontiEU- 
 ing any road or highway, in whole or in part, may, within 
 twenty days after the filing of the assessment, signify the same 
 by a notice in writing, which is to be served on the town clerk, 
 and on the opposite party, that is, the persons for whom the 
 assessments were made, or the commissioner or commissioners 
 of highways, as the case may be. This notice must ask for a 
 juiy to re-assess the damages, and must specify a time, not less 
 than ten nor more than twenty days from the filing of the 
 assessment, when the jury will be drawn at the clerk's office of 
 an adjoining town of the same county, by the town clerk thereof, 
 and must be served upon the opposite party within three days 
 after its service on the town clerk. It may be served personally, 
 or left at the dwelling house of the party, with some person iu 
 chai'ge thereof; or, if there is no such person, or the house is 
 closed, then by fixing the same iipon the outer door of the 
 house. {Laws of 1847, chap. 455, § 3.) Three days' notice of 
 the time and place of the drawing of the jury must also be 
 given to the clerk of the adjoining town, who, at the appointed 
 day and place, must deposit in a box the names of all such per- 
 sons, then residents of his town, whose names are on the last 
 list filed in his office of those selected and returned as jurors in 
 Courts of Eecord, as are not interested in the lands through 
 which the road is located, nor of kin to either or anj^ of the 
 parties. He must then draw from the box the names of twelve 
 persons, and make a certificate of their names, and of the pur- 
 poses for which they wei'e drawn, and deliver the same to the 
 party first asking for the re-assessmeut. {id. § 4.) 
 
 The party receiving the certificate must, within twenty-four 
 hours thereafter, deliver the same to a Justice of the Peace of 
 the town wherein the damages are to be assessed. The Justice 
 receiving the certificate must immediately issue a summons to 
 one of the constables of his town, commanding him to summon 
 the persons named in the certificate. The summons must also 
 
RE-ASSESSMENT OF HIGHWAY DAMAGES. 801 
 
 specify a time and place at which the persons summoned are to 
 meet; but no such meeting can be had within twenty days from 
 the time of filing the assessment of damages in the town clerk's 
 office by the commissioner or commissioners of highways. 
 {Laws of 1847, chap. 455, § 5.) 
 
 % 273. Summons by the Justice. 
 
 County, ) 
 Town of , 5 ®^- 
 
 To any constable of the town of , in said county, greet- 
 
 ing: 
 
 You are hereby commanded to summon E B, M T, O R, &c., 
 &c., [name all the jwors drawn,^ jurors regularly drawn by 
 R P, Town Clerk of the town of , to re-assess the dam- 
 
 ages for laying out \or, as the case may 6e,] the highway [describe 
 the highway, as in the certificate of drawing,^ to meet at the 
 house of O P, in the town of , aforesaid, on the 
 
 day of next, \or, instant,] at o'clock in the 
 
 noon of that day, for the purpose above specified. 
 And have you then there this precept. 
 
 Given under my hand this day of 18 . 
 
 G H, Justice of the Peace. 
 
 At the time and place mentioned in the summons, the Justice 
 must draw, by lot, six of the persons summoned, who must be 
 free from all legal exceptions. The persons so drawn consti- 
 tute a jury to re-assess the damages, and must be sworn by the 
 Justice well and truly to determine and re-assess such damages 
 as shall be submitted to their consideration, {id. § 6.) 
 
 § 274. Oath to the Jurors. 
 
 You will well and truly determine and re-assess such dam- 
 ages as shall be submitted to your consideration; so help you 
 God. 
 
 After they are sworn, the jurors must view the premises, and 
 hear the parties, and such witnesses as they may offer. The 
 witnesses must be sworn, in presence of the jury, by the Jus- 
 tices, {Laws of 1847, chap. 455, § 6,) and the oath to be admin- 
 istered to them may be in the following form: 
 
 § 275. Oath to Witnesses. 
 The evidence you shall give upon this re-assessment of dam- 
 ages for laying out \or, as the case mag be] the highway in ques- 
 51 
 
802 NEW YOBK JUSTICE. 
 
 tion, shall be the truth, the whole truth, and nothing but the 
 truth; So help you God. [Vary, when necessary/, as in § 43 and 
 § 44, ante, pp. 295, 296.] 
 
 The Justice has no authority to control or interfere with the 
 deliberations or investigations of the jury. His duty is perform- 
 ed when he has complied with the requirements of the statute. 
 
 The jury are to deliver their verdict in writing, which the 
 Justice must certify; and it is then to be delivered to the com- 
 missioners of highways of the town, (id.) The verdict is 
 final, (id.) 
 
 ^ 276. Verdict of the Jury. 
 
 \ \ ''■■ 
 
 County, 
 Town of 
 
 We, the undersigned, the jurors drawn, summoned and sworn 
 to re-assess the damages for laying out, \or, as the case may be,] 
 the highway, [desc7'ibe the highway,'] in pursuance of the order 
 of E F, Commissioner of Highways in and for the town of , 
 bearing date the day of , 18 , having viewed the 
 
 premises, and heard the parties, and such witnesses as were 
 offered before us, do hereby re-assess the damages aforesaid, as 
 follows; To A B, the sum of dollars, for the damages siis- 
 tained by him by reason of the laying out, [or, as the case may 
 be,] the said highway; to C D, the sum of, &c., [specify all the 
 parties to whom damages may be awarded.] 
 
 In witness whereof, we have hereunto set our hands, this 
 day of , 18 . E B, ) 
 
 M T, } Jurors. 
 OE,J 
 &c., &c., 
 
 § 277. Certificate of the Justice. 
 
 County, ) gg. 
 Town of , 3 ■ 
 
 I, G H, one of the Justices of the Peace of the said town, do 
 certify that the above is the verdict of the jury summoned by 
 my summons, and drawn and sworn by me to determine and 
 re-assess the damages for the laying out [or, as the case may be] 
 the highway mentioned in the said verdict. 
 
 Given under my hand, this day of , 18 . 
 
 G H, Justice. 
 
removal of encroachments from highways. 803 
 
 4, Removal op Obstructions and Encroachments from 
 
 Highways. 
 
 Whoever obstructs any highway, or fills up or places any 
 obstructions in any ditch constructed for draining the water 
 from any highway, is liable to forfeit, for every such offence, 
 _the sum of five dollars. (1 R. 8. 521, § 102.) 
 
 The above provision relates only to obstructions of highways 
 or public roads, and not to obstructions of private roads. {Fow- 
 ler vs. Lansing, 9 Johns. 349.) A plea of title is not a bar to 
 an action for the penalty. {ParJcer vs. Van Houten, 7 Wend. 
 145; Fleet vs. Youngs, id. 291.) 
 
 Any one who sustains special and particular damages or in- 
 jury by reason of the obstruction of a highway, may maintain 
 an action against the party causing the obstruction. {Hay vs. 
 The Oohoes Go. 3 Barb. 42.) 
 
 Anything that disturbs the servitude or easement of way of a 
 public road, is an obstruction. All persons, in the prosecution 
 of their lawful business, have the right to use a highway for 
 such purpose, but they cannot obstruct it unnecessarily or un- 
 reasonably. The piling of lumber, stones, bricks, or saw-logs; 
 making excavations; blasting rocks; unloading wagons or drays; 
 aud the stopping of stages unnecessarily or unreasonably; are 
 all obstructions, for which the persons causing them are liable. 
 {id.; Wetmore vs. Tracy, 14 Wem,d. 250.) 
 
 The process issued to compel the appearance of the defendant 
 in an action to recover the penalty given by the statute for the 
 obstruction of a highway, must be endorsed as follows: 
 
 "According to the provisions of the statute concerning the 
 obstruction of highways and encroachments thereon, 1 Eevised 
 Statutes, Part I, Chapter XVI., Title 1, Article 5, \ 102." 
 {Avery vs. Sla/ih, 17 Wmd. 85; 2 iJ. 8. 482, \ 7.) 
 
 Whoever injures any highway, by obstructing or diverting 
 any creek, water-course, or sluice, or by drawing logs or timber 
 on the surface of any road or bridge, or by any other act, for- 
 feits, for every such offence, treble damages. (1 id. 526, \ 130; 
 Dygert vs. 8chenck, 23 Wend. 446.) 
 
 In every case where a highway has been laid out, and the 
 same is encroached upon by fences, erected by any occupant of 
 
804 NEW YORK JUSTICE. 
 
 the land through which such highway runs, the commissioners 
 of highways of the town must, if in their opinion it be deemed 
 necessary, order such fences to be removed, so that such high- 
 way may be of tlie breadth originally intended. The commis- 
 sioners making the order, must cause the same to be redu(!ed to 
 writing, and signed. They must also give notice in writing, to 
 the occupant of the land, to remove such fences within sixt/' 
 days. Every such order and notice must specify the breadth of 
 the road originally intended, the extent of the encroachment, 
 and the place or places in which the same is. {Laws o/" 1 878, chap. 
 245, § 1.) The description of the encroachment in the order and 
 notice should be full and precise, and the extent of the encroach- 
 ment be specified, so that the party served with the notice may 
 be enabled to comply with the order. {Mott vs. Qom. of High- 
 ways of Rush, 2 Hill, 472.) Where there is more than one 
 commissioner in a town, all must meet and deliberate on the 
 subject, and a majority may make the order. {Spicer vs. Blade, 
 9 Johns. 359; Fitch vs. Corns, of Kirkland, 22 Wend. 132; 1 
 R. S. 525, § 125; hd see Tucker vs. Rankin, 15 Barb. 471.) 
 If the order is not signed by all the commissioners, it should 
 appear that all met and deliberated upon the subject of the 
 order, or were duly notified to attend a meeting of the commis- 
 sioners for the purpose of deliberating thereon, (id.) 
 
 The commissioners have no right to open a road, or to direct 
 it to be opened, until after the sixty days' notice has been given 
 to the owner to remove his fences; {Kelley vs. Horton, 2 Cow. 
 424;) and, if sued for opening such road, they must show actual 
 notice. (Case vs. lliompson, 6 Wend. 634.) 
 
 If the removal of the encroachment, as required by the order 
 and notice, be not made within sixty days after the service of 
 the notice, the occupant to whom the same may be given forfeits 
 the sum of fifty cents for every day, after the expiration of that 
 time, during which the fences continue unremoved; and the 
 commissioners of highways may remove or cause to be removed 
 such encroachment, and the occupant of the premises must pay 
 to the commissioners of highways all reasonable charges therefor, 
 to be collected by suit in Justices' Court and applied to improving 
 the roads, &c. (1 R. S. 522, § 104 ; Laios of 1878, chap. 245, § 2 ; 
 ante, pp. 798, 799.) This provision does not do away with the com- 
 
REMOVAL OF ENCEOACHMENTS FEOM HIGHWAIS. 805 
 
 inon law remedy of abatement of a nuisance by the act of indi- 
 viduals, or abolish the remedy ]3j indictment; the remedy under 
 the statute is only cumulative. ( Wetmore vs. Tracy, 14 Wend. 
 250.) 
 
 If the occupant to whom the notice to remove an encroach- 
 ment is given, denies such encroachment within five days, the 
 commissioners, or some one of them, must apply to some Jus- 
 tice of the Peace of the county, for a precept directed to some 
 constable of the town, to summon twelve freeholders thereof, to 
 meet at a certain day and place, to be specified in such precept, 
 and not less than four days after the issuing thereof, to inquire 
 into the premises. The constable to whom such precept may be 
 directed, must give at least three days' notice to the commis- 
 sioners of highways of the town, and to the occupant of the 
 land, of the time and place at which such freeholders are to meet. 
 (1 R. S. 522, § 105; Laws of 1840, chap. 300, § 2.) The com- 
 plaint may be made by one commissioner. (^Bronson vs. Mann, 
 13 Johns. 460.) The notice to the commissioners and occupant 
 may be given by the constable verbally, or it may be in writing. 
 
 \ 278. Precept to summon Freeholders, in case of an Encroach- 
 ment. 
 County, 
 
 Town of J 
 
 To any Constable of the said town, greeting: 
 
 You are hereby commanded to summon twelve freeholders of 
 the said town of , to meet at the house of O P, in said 
 
 town, on the day of instant, at o'clock 
 
 in the noon, to inquire whether any encroachment has 
 
 been made, and by whom, on the highway, running by, [or, 
 through the land now occupied by C D, in said town: and to 
 give at least three days' notice to E F, the Commissioner of 
 Hio-hways of said town, and to C D, of the time and place at 
 which the said fi-eeholders are to meet; and have you then 
 there the names of the freeholders summoned by you, and this 
 precept. 
 
 Given under my hand, this day of , 18 . 
 
 G H, Justice of the Peace. 
 
 The Justice should not annex to this precept a list of the 
 names of persons to be summoned. {Mott vs. The Commis- 
 sioners of Highways of Rush, 2 Hill, 472.) 
 
 On the return of the precept, the Justice who issued it shall 
 
806 NEW YORK JUSTICE. 
 
 preside at the trial, in the same manner as upon the trial of an 
 issue in a civil action commenced before him; six of the jurors 
 summoned shall be drawn and impaneled in the same manner 
 as upon trial by jury in civil actions before him, and he shall 
 have the power, and it shall be his duty to decide as to the 
 competency of jurors, the competency and admissibility of 
 evidence, and all other questions which may arise before him, 
 in the same manner and with the like effect as upon a jury trial 
 in civil actions before him; and such Justice shall adjust and 
 determine the costs of such inquiry, and in case the jury shall 
 find an encroachment, he shall render and docket a judgment 
 to that effect, and for such costs against the person or persons 
 who shall have denied such encroachment; in case the jury 
 find no encroachment, he shall render and docket a judgment 
 to that effect against the commissioner or commissioners prose- 
 cuting the proceedings, and also for such costs, together with 
 the damages, if any, which may have been fixed by the jury, 
 and payment thereof shall be enforced by such Justice as in 
 other cases of judgments rendered by him. In case there 
 should be an appeal, it shall be the duty of such Justice, in his 
 return to such appeal, to embrace copies of all the papers 
 made and served in the proceeding prior to issuing the precept 
 for such jury, and all the evidence and proceedings before him, 
 together with the finding of the jury and judgment entered 
 thereon. All the provisions of title eleven, chapters third and 
 fifth of the Code of Procedure are hereby extended to such 
 appeals, so far as the same are applicable thereto. {Laws of 
 1862, cha;p. 243, p. 440.) 
 
 ^ 279. Oath to Jurors. 
 
 You, and each of you, do solemnly swear, that you will well 
 and truly inquire whether any encroachment has been made, 
 and by whom, on the highway now in question. 
 
 § 280. Oath to Witness. 
 
 You do swear, that the evidence you shall give in relation to 
 the encroachment on the highwaj' now in question shall be the 
 truth, the whole truth, and nothing but the truth. 
 
 If the jury find that any encroachment has been made, they 
 must make and subscribe a certificate in writing, stating the 
 
REMOVAL OF ENCROACHMENTS FROM HIGHWAYS. 807 
 
 particulars of the encroachment, and by whom it is made. 
 This certificate should state, clearly and precisely, the particu- 
 lars of the encroachment, so that the occupant may be able to 
 obey the order without any mistake. {Sj^icer vs. Sladc, 9 
 Johns. 359; J^itch vs. Commissioners of Kirkland, 22 Wend. 
 132; Mott vs. Oommissio7iers of Rush, 2 Hill, 472.) 
 
 § 281. Certificate of Jury. 
 
 County, ) 
 Town of , p®- 
 
 We, the undersigned, freeholders of said town, having been 
 summoned and assembled, on the day of the date hereof, at the 
 house of O P, in said town, pursuant to a precept issued on the 
 day of ,18 , by G H, a Justice of the Peace 
 
 of the said town, and having been duly sworn by said Justice, 
 on the application of E F, the Commissioner \or, A B, C D and 
 E F, the Commissioners] of Highways in said town, to inquire 
 "whether any such encroachment on the public highway in said 
 town, as is specified in the order of said Commissioners, dated 
 the day of , 18 , has been made, and by whom; 
 
 and having heard the proofs and allegations produced and sub- 
 mitted, do certify,* that such encroachment has been made by 
 C D, the present occupant, [or, by E T, the former occupant;] 
 And we hereby further certify, that the particulars of such 
 encroachment are as follows, to wit: That such encroachment 
 commences on the north line of said road, [insert the descrip- 
 tion,^ and that the rail fence along the land now in the occupa- 
 tion of the said C D, is upon and in the public highway, and is 
 an encroachment thereon. 
 
 In witness whereof, we have hereunto subscribed our names, 
 this day of , 18 . ST, 
 
 MN, 
 
 PQ, 
 
 <fec., Jurors. 
 
 The finding of the jury is conclusive evidence of the encroach- 
 ment. {Bronson vs. Mann, 13 Johns. 460.) The certificate must 
 be filed in the office of the town clerk. (1 R. 8. 522, ^ 107.) 
 
 The occupant of the land, whether the encroachment shall 
 have been made by him, or by any former occupant, miwt 
 remove his fences within sixty days after the filing of the cer- 
 tificate. If he does not remove them, he is liable to forftlt 
 fifty cents for every day after the expiration of the sixty dajs, 
 
808 NEW YOKK JUSTICE. 
 
 that the encroachment remains. (1 R. 8. 522 §§ 104, 107.) But 
 he cannot be required to remove them, except between the fii'st 
 day of April and the first day of November, {id. § 109.) The 
 occupant must also, virithin ten days, pay the costs of the inquiry. 
 {id. % 107.) The Justice has power to fix the amount of the 
 costs; and his act in doing so is a judicial one, for which he 
 cannot be held responsible in a civil suit. {Voorhees vs. Mar- 
 tin, 12 Barb. 508.) If the costs are not paid within that time, 
 the Justice must issue a warrant to collect them. (1 R. 8. 522, 
 § 107.) The warrant must be under the hand and seal of the 
 Justice, and be directed to some constable of the town where 
 the occupant resides, commanding him to levy the costs of the 
 proceeding, of the goods and chattels of the occupant, {id. 
 510, \ 43.) 
 
 § 282. Warrant to collect Costs of Proceedings upon an En- 
 croachment. 
 
 The People of the State of New York to any constable of the 
 town of , in the county of : 
 
 Whereas, E F, the Commissioner of Highways of the said town, 
 did, on the day of , 18 , make and subscribe an 
 
 order or certificate for the removal of a certain fence, as an 
 encroachment upon the highway running through land in the 
 said town, in the occupation of C D, specifying the breadth 
 of the road, and the extent and place of the encroachment; 
 And whereas, said encroachment having been denied by said 
 occupaut, a jury of twelve freeholders was, upon the applica- 
 tion of said Commissioner, by a precept issued by me, duly 
 summoned to inquire into the premises; and the said jury, 
 being duly assembled and sworn, after due notice to said occu- 
 pant, as required by law, and having heard the proofs and alle- 
 gations produced and submitted by the parties respectively, 
 certified in writing, that an encroachment had been made by 
 C D, the occupant of said land; And whei-eas, the cost of said 
 inquiry amount to dollars and cents, which remain 
 
 unpaid: You are, therefore, commanded to levy the said costs, 
 of the goods and chattels of the said C D, and bring the same 
 before me without delay. 
 
 Witness my hand and seal, the day of , 18 . 
 
 G H, Justice, [l. s.J 
 
 If the jury find that no encroachment has been made, they 
 must so certify; and they must also ascertain and certify the 
 
REMOVAL OF ENCROACHMENTS FROM HIGHWAYS. 809 
 
 damages which the then occupant has sustained by reason of 
 the proceedings, which, together with the costs, must be paid 
 by the Commissioners. (1 B. S. 522, § 108.) 
 
 § 283. Certificate where no Encroachment is found. 
 
 County, ) 
 
 Town of , p®- 
 
 We, the undersigned, [as in § 281, to the*, and then add:'\ 
 that no such encroachment has been made on the said highway; 
 and we have ascertained and do certify the damages of C D, the 
 occupant of the land through [or, by] which the said highway 
 passes, by reason of the proceedings of the said Commissioners 
 against him, to be dollars. 
 
 In witness, &c., \as in \ 281.J 
 
 If the jury disagree, another precept may be issued by the 
 Justice, and another jurj' called. {Fitch vs. Commissioners of 
 Kirkland, 22 Wend. 132.) 
 
 Fees. 
 The fees for services under these statutes are as follows: 
 To Justices.] For a precept to summon a jury, twenty-live 
 cents ; 
 
 Eor empaneling and swearing a jury, twenty-five cents; 
 
 For swearing a wicness, ten cents ; 
 
 For an execution or warrant, to collect costs, twenty-five cents. 
 
 {Code, § 3322.) 
 
 To Constables.] For serving a summons, twenty-five cents ; 
 
 For serving an execution, or levying any fine or penalty pur- 
 suant to any warrant, five cents for every dollar collected to the 
 amount of fifty dollars ; and two and a half cents for every dol- 
 lar collected over fifty dollars ; 
 
 For every mile, going and returning, when serving a summons, 
 warrant, or execution, ten cents, to be computed from the place 
 of abode of the defendant, or where he may be foimd,.to the 
 place where the precept is returnable. 
 
 For summoning a jury to re-assess the damages for laying 
 out altering or discontinuing a road or highway, or to assess the 
 damao-es in proceedings relative to highways, two dollars, and in 
 any other case, ten cents for each juror summoned and ten cents 
 per mile, going and returning. {Code, § 3323.) 
 
810 NEW YORK JUSTICE. 
 
 To Jnrors. Each juror, attending and sei-ving on a jury to 
 re-assess the damages for laying out, altering or discontinuing a 
 highway, or to determine the necessity of, and assess the damages 
 for laying out or altering a public road, twenty-five cents, to be 
 paid by the applicant. {Id.) 
 
 The Justice is to receive two dollars for drawing the jury, and 
 the constable ten cents for each juror summoned and ten cents 
 for each mile going from and returning to his residence, to be 
 paid by the applicant. {Id^ 
 
 CHAPTER XYL 
 
 OF LANDLORD AND TENANT. 
 
 The proceedings for the recovery of the possession of real 
 property have been so modified by the law of 1880 that we print 
 the entire statute, embracing title II, chapter XYII of the Code 
 of Civil Procedure. 
 
 § 2231. In either of the following cases, a tenant or lessee at 
 will, or at sufferance, or for part of a year, or for one or more 
 years, of real property, including a specific or undivided portion, 
 of a house or other dwelling, and his assigns, undertenants, or 
 legal representatives, may be removed therefrom, as prescribed in 
 this title : 
 
 1. Where he holds over and continues in possession of the 
 demised premises, or any portion thereof, after the expiration of 
 his term, without the permission of the landlord. 
 
 2. Where he holds over, without the like permission, after a 
 default in the payment of rent, pursuant to the agreement under 
 which the demised premises are held, and a demand of the rent 
 has been made, or at least three days' notice in writing, requiring, 
 in the alternative, the payment of the rent or the possession of 
 the premises, has been served in behalf of the person entitled to 
 the rent, upon the person owing it, as prescribed in this title for 
 the service of a precept. 
 
 3. Where in any city in this State he holds over and continues 
 in possession of the demised premises, or any portion thereof, 
 after default in the payment, for sixty days after the same shall 
 be payable, of any taxes or assessments levied on such demised 
 
LANDLORD AND TENANT. Sll 
 
 premises which he has agreed in -w riting to pay pursuant to the 
 agreement under which the demised premises are held, and a 
 demand for the payment of such taxes or aesessments has been 
 made, or at least three days' notice in writing, requiring, in the 
 alternative, the payment thereof and of any interest and penalty 
 thereon, or the possession of the premises, has been served, in 
 behalf of the landlord, upon the lessee, as prescribed in this title, 
 for the service of a precept. An acceptance of any rent by the 
 lessor or his legal representatives shall not be construed as a waiver 
 of the agreement of the lessee to pay taxes or assessments, so aa 
 to preclude the lessor from the benefits of this chapter. 
 
 4. Where he, being in possession under a lease for a term of 
 three years or less, has, during the term, taken the benefit of an 
 insolvent act, or has been adjudicated a bankrupt, under a bank- 
 rupt law of the United States. 
 
 5. Where the demised premises, or any part thereof , are used or 
 occupied as a bawdy-house or house of assignation for lewd persons, 
 or for any illegal trade or manufacture, or other illegal business. 
 
 § 2232. In either of the following cases, a person, who holds 
 over and continues in possession of real property, after notice to 
 quit the same has been given, as prescribed in section 2236 of this 
 act, and his assigns, tenants, or legal representatives, may be 
 removed therefrom, as prescribed in this title : 
 
 1. Where the property has been sold by virtue of an execution 
 against him, or a person under whom he claims, and a title under 
 the sale has been perfected. 
 
 2. Where the property has been duly sold upon the foreclosure, 
 by proceedings taken as prescribed in title ninth of this chapter, 
 of a mortgage executed by him, or a person under whom he 
 claims, and the title under the foreclosure has been duly perfected. 
 
 3. Where he occupies or holds the property, under an agree- 
 ment with the owner to occupy and cultivate it upon shares, or 
 for a share of the crops, and the time, fixed in the agreement for 
 his occupancy, has expired. 
 
 4. Where he, or the person to whom he has succeeded, has 
 intruded into, or squatted upon, a parcel of land, in a city or 
 incorporated village, without the permission of the person enti- 
 tled to the possession thereof, and the occupancy, thus commenced 
 has continued without permission from the latter ; or after a per- 
 mission given by him has been revoked, and notice of the revo- 
 cation given to the person or persons to be removed. 
 
812 NEW YORK JUSTICE. 
 
 § 2233. An entry shall not be made into real property, but in 
 a case where entry is given by law ; and in such a case only in a 
 peaceable manner, not with strong hand, rior with multitude of 
 people. A person who makes a forcible entry forbidden by this 
 section, or who, having peaceably entered upon real property, 
 holds the possession thereof by force, and his assigns, under- 
 tenants, and legal representatives, may be removed therefrom, as 
 prescribed in tliis title. 
 
 § 2234. Application for the removal of a person from real 
 property, as prescribed in this title, may be made to the county 
 judge or special county judge of the county, or a justice of the 
 peace of the city or town, or the mayor or recorder of the city, 
 wherein the real property, or a portion thereof, is situated. 
 Application may also be made, if the property, or a portion 
 thereof, is situated in the New York city, to the district court of 
 the district within which the property is situated ; or if such court 
 be for any reason disqualified, to an adjoining district court ; if in 
 Brooklyn, to a police justice of that city ; in Albany or Troy, 
 to the justices' court ; in Yonkers, to the city judge ; in Roches- 
 ter or Buffalo, to the municipal court. Where the property is 
 situated in an incorporated village consisting of two or more 
 towns, application may be made to a justice of the peace of either 
 town. 
 
 § 2235. The application may bo made by the landlord or lessor 
 of the demised premises ; the purchaser upon the execution or 
 foreclosure sale ; the person forcibly put out or kept out ; the 
 person with whom, as owner, the agreement was made, or the 
 owner of the property occupied under an agreement, to cultivate 
 the property upon shares, or for a share of the crops ; or the 
 person lawfully entitled to the possession of the property intruded 
 into or squatted upon, as the case requires ; or by the legal repre- 
 sentative, agent, or assignee of the landlord, purchaser, or other 
 person, so entitled to apply. The applicant must present to the 
 justice, a written petition, verified in like manner as a verified 
 complaint in an action brought in the supreme court, describing 
 the premises of which the possession is claimed, and the interest 
 therein of the petitioner, or the person whom he represents, stat- 
 ing the facts, which, according to the provisions of this title, 
 authorize the application by the petitioner, and the removal of 
 the person in possession ; naming, or otherwise intelligibly desig- 
 
LANDLORD AND TENANT. 813 
 
 Hating, the person or persons against whom the special proceed- 
 ing is instituted, and, if there are two or more such persons, 
 and some are undertenants or assigns, specifying who are princi- 
 pals or tenants, and who are undertenants or assigns ; and pray- 
 ing for a final order to remove him or them accordingly. 
 
 § 2236. Where the person to be removed is a tenant at will, or 
 at sufferance, the petition must state the facts, showing that the 
 tenancy has been terminated, by giving notice as required by 
 law. "Where the application is made in a case specified in section 
 2232 of this act, the petition nmst state that a notice, in behalf 
 of the applicant, requiring all persons occupying the property to 
 quit the same, by a day therein specified, has been either served 
 personally upon the person or persons to be removed, or affixed 
 conspicuously upon the property, at least ten days before the 
 day specified therein. 
 
 § 2237. An owner or tenant of real property, in the imme- 
 diate neighborhood of other demised real property, which is used 
 or occupiea as a bawdy-house, or house of assignation for lewd 
 persons, may serve personally upon the owner or landlord of the 
 premises, so used or occupied, or upon his agent, a written notice, 
 requiring the owner or landlord to make an application for the 
 removal of the person so using or occupying the same. If the 
 owner or landlord, or his agent, does not make such an applica- 
 tion, within five days thereafter ; or, having made it, does not in 
 good faith diligently prosecute it, the person giving the notice 
 may make such an application, stating in his petition, the facts so 
 entitling him to make it. Such an application has the same effect, 
 except as otherwise expressly prescribed in this title, as if the 
 applicant was the landlord or lessor of the premises. 
 
 § 2238. The Judge or Justice, to whom a petition is presented, 
 as prescribed in either of the foregoing sections of this title, must 
 thereupon issue a precept, directed to the person or persons desig- 
 nated in the petition as being in possession of the property, and 
 requiring him or them forthwith to remove from the property, 
 describing it, or to show cause, before him, at a time and place 
 specified in the precept, why possession of the property should 
 not be delivered to the petitioner, or, in the case specified in the 
 last section, to the owner or landlord. The precept must be 
 returnable, not less than three nor more than five days after it is 
 issued; except that, where the proceeding is taken, upon the 
 
314 NEW YORK JUSTICE. 
 
 ground that a tenant continues in possession of demised premises, 
 after the expiration of his term, without the permission of his 
 landlord, and the application is made on the daj of the expira- 
 tion of the lease, or on the next day thereafter, the precept may, 
 in the discretion of the Judge or Justice, be made returnable on 
 the day on which it is issued, at any time after twelve o'clock, 
 noon, and before six o'clock in the afternoon. 
 
 § 2239. In the city of New York, where the application is 
 made to a District Court, the petition must be filed with, and the 
 precept must be issued by, the clerk of the Court ; and the pre- 
 cept nmst be made returnable before the Court, at the place 
 designated, pursuant to law, for holding the Court ; and all sub- 
 sequent proceedings in the cause must be had at that place, 
 except as otherwise prescribed in section 2246 of this act. If, 
 upon the return of the precept or upon an adjourned day, the 
 Justice is unable, by reason of absence from the court room or 
 sickness, to hear the cause, or it is shown by affidavit that he is 
 for any reason disqualified to sit in the cause, or is a necessary 
 and material witness for either party, a Justice of any other district 
 Court of the city may act in his place at the same court room. 
 
 § 2240. The precept must be served as follows : 
 
 1. By delivering to the person to whom it is directed ; or, if it 
 is directed to a corporation, to an officer of the corporation, upon 
 whom a summons, issued out of the Supreme Court, in an action 
 against the corporation, might be served, a copy of the precept, 
 and at the same time showing him the original. 
 
 2. If the person, to whom the precept is directed, resides in 
 the city or town in which the property is situated, but is absent 
 from his dwelling-house, service may be made by delivering a 
 copy thereof, at his dwelling house, to a person of suitable age 
 and discretion, who resides there ; or, if no such person can, with 
 reasonable diligence, be found there upon whom to make service, 
 then by delivering a copy of the precept, at the property sought 
 to be recovered, either to some person of suitable age and discre- 
 tion residing there, or if no such person can be found there, to 
 any person of suitable age and discretion employed there. 
 
 3. Where service cannot, with reasonable diligence, be made, 
 as prescribed in either of the foregoing subdivisions of this sec- 
 tion, by affixing a copy of the precept upon a conspicuous part 
 of the property. 
 
LANDLOKD AND TENANT. 815 
 
 If the precept is returnable on the day on which it is issued, it 
 must be served at least two hours before the hour at which it is 
 returnable ; in every other case, it must be served at least two 
 days before the day on which it is returnable. 
 
 § 2241. A person, to whom a copy of a precept, directed to 
 another, is delivered, as prescribed in this title, must, without any 
 avoidable delay, deliver it to the person to whom it is directed, if 
 he can be found within the same town or city ; or, if he cannot 
 be so found, to his agent therein ; and if neither can be so found, 
 after the exercise of reasonable diligence, before the time when 
 the precept is returnable, to the Judge or Justice who issued the 
 same, at the time of the return thereof, with a written statement 
 indorsed thereupon, that he has been unable, after the exercise of 
 reasonable diligence, to find the person to whom the precept is 
 directed, or his agent, within the town or city. A person, who 
 willfully violates any provision of this section, is guilty of a mis- 
 demeanor; and, if he is a tenant upon the property, forfeits to 
 his landlord the value of three years' rent of the premises occu- 
 pied by him. A copy of this section must be indorsed upon each 
 copy of a precept, served otherwise than personally upon the per- 
 son to whom it is directed. 
 
 § 2242. Where the case is within section 2237 of this act, the 
 precept must be directed to and served upon the owner or land- 
 lord, or his agent, and also upon the tenant or occupant of the 
 property. Either or both of them may, upon the return day, 
 appear and show cause why the tenant or occupant should not be 
 removed from the property. 
 
 § 2243. At the time when the precept is returnable, the peti- 
 tioner must, unless the adverse party appears, make due proof of 
 the service thereof, showing the time, and the place and manner 
 of service ; and unless service was made personally upon the 
 adverse party, or by affixing a copy of the precept, the name of 
 the person to whom a copy of the precept was delivered, if his 
 name can be ascertained with reasonable diligence. "Where ser- 
 vice is made by a sheriff, constable, or marshal, it may be proved 
 by his certificate, stating the facts. 
 
 § 2244. At the time when the precept is returnable, without 
 waiting as prescribed in an action before a justice of the peace, 
 or in a district court of the city of New York, the person to 
 -whom it is directed, or his landlord, or any person in possession 
 
816 NEW YORK JUSTICE. 
 
 or claiming possession of the premises, or a part thereof, may file 
 with the Judge or Justice who issued tlie precept, or witli tlie clerk 
 of the Court, a written answer, verified in like manner as a verified 
 answer in an action in the Supreme Court, denying generally the 
 allegations, or specifically any material allegation of tlie petition. 
 
 § •2-24:5. Where the application is founded upon an allegation 
 of forcible entry or forcible holding out, the petitioner must 
 allege and prove tha.t he was peaceably in actual possession of the 
 property, at the time of a forcible entry, or in constructive pos- 
 session, at the time of a forcible holding out ; and the adverse 
 party must either deny the forcible entry or the forcible holding 
 out, or allege in his defence that he, or his ancestor, or those 
 whose interest he claims, had been in quiet possession of the 
 property for three years together next before the alleged forcible 
 entry or detainer ; and that his interest is not ended or determined 
 at the time of the trial. 
 
 § 2246. In a district court of the city of IS'ew York, at the 
 time of joining issue, the Justice sitting in the cause may, in his 
 discretion, upon motion of either party, or, if no justice is- present, 
 the clerk may, by consent of both parties, make an order transfer- 
 ring the cause for trial to a district court of an adjoining district, 
 which thereupon has the same jurisdiction and power, at its own 
 court-house, as if the property was situated within its district. 
 
 § 224T. The issues joined by the petition and answer must be tried 
 by the Judge or Justice, unless either party to such proceedings 
 shall at the time designated in such precept for showing cause 
 deuiand a jury, and at the time of such demand pay to such 
 Judge or Justice the necessary costs and expenses of obtaining 
 such jury. If a jury be demanded and such costs and expenses 
 be paid, the Judge or Justice with whom such petition shall be 
 filed shall nominate twelve reputable persons qualified to serve as 
 jurors in courts of record, and shall issue his precept directed to 
 the sheriff or one of the constables of the county, or any constable 
 or marshal of the city or town, commanding him to summon the 
 persons so nominated to appear before such Judge or Justice at 
 such time or place as he shall therein appoint, not more than three 
 days from the date thereof, for the purpose of trying the said 
 matters in difference. Six of the persons so summoned shall be 
 drawn in like manner as jurors in Justices' Courts, and shall be 
 sworn by such Judge or Justice well and truly to hear, try and 
 determine the matters in differencie between the parties After 
 hearing the allegations and proofs of the parties, the said jury 
 shall be kept together until they agree on their verdict by the 
 sheriff or one of his deputies, or a constable, or by some proper 
 person appointed by the Judge or Justice for that purpose, who 
 shall be sworn to keep such jury as is usual in like cases of courts 
 of record. If such jury cannot a^ree after being kept together 
 for such time as sucli Judge or Justice shall deem reasonable, he 
 
LANDLOKD AND TENANT. 817 
 
 may discharge them and nomuiate a new jury and issue a new 
 precept in manner aforesaid. 
 
 § 2248. At the time when issue is joined, the Judge or Justice 
 may, in his discretion, at the request of either party, and upon 
 proof to his satisfaction by affidavit or orally, that an adjourn- 
 ment is necessary, to enable the applicant to procure his necessary 
 witnesses, or by consent of all the parties who appear, adjourn 
 the trial of the issue, but not more than ten days ; except by 
 consent of all parties. 
 
 § 2249. If sufficient cause is not shown upon the return of the 
 precept, or if the verdict of the jury, or the decision of the Judge 
 or Justice, upon a trial without a jury, is in favor of the petitioner ; 
 the Judge or Justice must make a final order, awarding to the 
 petitioner the delivery of the possession of the property, except 
 that, where the case is within section 2237 of this act, the final 
 order must direcc the removal of the occupant. In either case, 
 the final order must award to the petitioner the costs of the special 
 proceeding. If the verdict or decision is in favor of the person, 
 answering, the Judge or Justice must make a final order accord- 
 ingly, and awarding to him the costs of the special proceedmg. 
 
 § 2250. Costs, when allowed, and the fees of officers, except 
 where a fee is specially given in chapter 21 of this act, must be 
 at the rate allowed by law in an action in a Justice's Court, and 
 are limited in like manner, unless the application is founded 
 upon an allegation of forcible entry or forcible holding out, in 
 which case the Judge or Justice may award to the successful 
 party a fixed sum as costs, not exceeding fifty dollars, in addition 
 to his disbui'sements. If the final oi-der is made by a county 
 judge, or a special county judge, or by a mayor or recorder, an 
 execution to collect the costs may be issued thereupon, as if it was 
 a judgment of a Justice of the Peace of the same city or 
 county ; and for that purpose the officer takes the place of a 
 Justice of the Peace. In every other case an execution may be 
 issued to collect the costs awarded thereby, as if the final order 
 was a judgment, rendered in the court of which the Judge or 
 Justice is the presiding officer. 
 
 § 2251. Where the final order is in favor of the petitioner, the 
 Judge or Justice must thereupon issue a warrant, under his 
 hand, directed to the sheriff of the county, or to any constable or 
 marshal of the city or town in which the property, or a portion 
 thereof, is situated, or if it is not situated in a city to any con- 
 stable of any town in the county, describing the property, and 
 commanding the officer to remove all persons therefrom, and also, 
 except where the caae is within section 2237 of this act, to put 
 the petitioner into the full possession thereof. 
 
 § 2252. The officer to whom the warrant is directed and 
 delivered, must execute it, according to the command thereof, 
 between the hours of sunrise and sunset. 
 52 
 
818 NEW YORK JUSTICE. 
 
 § 2253. The issuing of a warrant for the removal of a tenant 
 from demised premises, cancels the agreement for the use of the 
 premises, if any, under which the person removed held them 
 and annuls accordingly the relation of landlord and tenant, excep' 
 that it does not prevent a landlord from ]-ecovering, by action, 
 any sum of money which was, at the time when the precept was 
 issued, payable by the terms of the agreement, as rent for the 
 premises, or the reasonable value of the use and occupation 
 thereof, to the time when the warrant was issued, for any period 
 of time, with respect to which the agreement does not make any 
 special provision for payment of rent. 
 
 § 2254. The party, against whom a final order is made, requiring 
 the delivery of possession to the petitioner, may, at any time 
 before a warrant is issued, stay the issuing thereof ; and also stay 
 an execution to collect the costs, as follows : 
 
 1. Where the final order establishes that a lessee or tenant holds 
 over, after a default in the payment of rent or of taxes and assess- 
 ments, he may effect a stay, by payment of the rent due, or of 
 such taxes or assessments, and interest and penalty if any thereon 
 due, and the costs of the special proceeding, or by delivering to 
 the Judge or Justice, or the clerk of the Court, his undertaking 
 to the petitioner, in such a sum and with such sureties as the 
 Judge or Justice approves, to the effect that he will pay the rent, 
 or such taxes or assessments and interest and penalty and costs, 
 within ten days, at the expiration of which time a warrant may 
 issue, unless he produces to the Judge or Justice satisfactory evi- 
 dence of the payment. 
 
 2. Where the final order establishes that a lessee or tenant has 
 taken the benefit of an insolvent act, or has been adjudicated a 
 bankrupt, he may effect a stay by paying the costs of the special 
 proceeding, and delivering to the Judge or Justice, or the clerk 
 of the Court, his undertaking to the petitioner, in such a sum and 
 with such sureties as the Judge or Justice approves, to the effect 
 that he will pay the rent of the premises as it has become, or 
 thereafter becomes due. 
 
 3. Where the final order establishes that the person, against 
 whom it is made, continues in possession of »3al property, which 
 has been sold by virtue of an execution against his property, he 
 may effect a stay by paying the costs of the special proceeding, 
 and delivering to the Judge or Justice, or the clerk of the Court, 
 an affidavit that he claims the possession of the property by 
 
LANDLORD AND TENANT. 819 
 
 virtue of a right or title acquired after the sale, or as guardian or 
 trustee for another, together with his undertaking to the peti- 
 tioner, in such a sum and with such sureties as the Judge or Jus- 
 tice approves, to the effect that he will pay any costs and damages 
 which may be recovered against him, in an action of ejectment 
 to recover the property, brought against him by the petitioner 
 within six months thereafter ; and that he will not commit any 
 waste upon or injury to the property, during his occupation 
 thereof. 
 
 § 2255. Where an undertaking is given, in a case specified in 
 subdivision first of the last section, the Judge or Justice must 
 deliver it to the person against whom the final order was made, 
 upon his producing the evidence of payment mentioned in that 
 subdivision. If he does not produce such evidence within ten 
 days, the Judge or Justice must deliver it to the petitioner. In 
 every other ease specified in the last section, the Judge or Justice 
 m^ust deliver the undertaking to the petitioner, immediately after 
 his approval thereof. 
 
 § 2256. "Where the special proceeding is founded upon an alle- 
 gation that a lessee holds over, after a default in the payment of 
 lent, and the unexpired term of the lease, under which the prem- 
 ises are held, exceeds five years, at the time when the warrant is 
 issued, the lessee, his executor, administrator or assignee may, at 
 any time within one year after the execution of the warrant, pay 
 or tender to the petitioner, his heir, executor, administrator or 
 assignee, or if, within five days before the expiration of the year, 
 he cannot, with reasonable diligence, be found within the city or 
 town, wherein the property, or a portion thereof, is situated, then 
 to the Judge or Justice who issued the warrant, or his successor 
 in office, all rent in arrear at the time of the payment or tender, 
 with interest thereupon, and the costs and charges incurred by 
 the petitioner. Thereupon the person, making the payment or 
 tender, shall be entitled to the possession of the demised premises, 
 under the lease, and may hold and enjoy the same, according to 
 the terms of the original demise, except as otherwise prescribed 
 in the next section but one. 
 
 § 2257. In a case specified in the last section, a judgment 
 creditor of the lessee, whose judgment was docketed in the county, 
 before the precept was issued, or a mortgagee of the lease, whose 
 mortgage was duly recorded, in the county, before the precept 
 
820 NEW YORK JUSTICE. 
 
 was issued, may, at any time before the expiration of one year 
 after the execution of the warrant, unless a redemption has been 
 made as prescribed in the last section, file with the Judge or Jus- 
 tice who issued the warrant, or with his successor in office, a 
 notice, specifying his interest and the sum due to him, describing 
 the premises, and stating that it is his intention to redeem, as pre- 
 scribed in this section. If a redemption is not made by the 
 lessee, his executor, administrator or assignee within a year after 
 the execution of the warrant, the person so filing a notice, or, if 
 two or more persons have filed such notices, the one who holds 
 the first lien, may, at any time before two o'clock of the day, not 
 a Sunday or a public holiday, next succeeding the last day of the 
 year, redeem for his own benefit, in like manner as the lessee, his 
 executor, administrator or assignee might have so redeemed. 
 Where two or more judgment creditors or mortgagees have 
 filed such notices, the holder of the second lien may so redeem, at 
 any time before two o'clock of the day, not a Sunday or a public 
 holiday, next succeeding that in which the holder of the first lien 
 might have redeemed ; and the holder of the third and each sub- 
 sequent lien, may redeem, in like manner, at any time before two 
 o'clock of the day, not a Sunday or a public holiday, next suc- 
 ceeding that in which his predecessor might have redeemed. 
 But a second or subsequent redemption is not valid, unless the 
 person redeeming pays or tenders to each of his predecessors who 
 has redeemed, the sum paid by him to redeem, and also the sum 
 due upon his judgment or mortgage ; or deposits those sums with 
 the Judge or Justice, for the benefit of his predecessor or 
 predecessors. 
 
 § 2258. Where a redemption is made, as prescribed in either 
 of the last two sections, the rights of the person redeeming are 
 subject to a lease, if any, executed by the petitioner, since the 
 warrant was issued, so far that the new lessee, his assigns, under- 
 tenants, or other representatives, may, upon complying with the 
 terms of the lease, hold the premises so leased until twelve o'clock 
 noon, of the first day of May, next succeeding the redemption. 
 And, in all other respects, the person so redeeming, his assigns 
 and representatives, succeed to all the rights and liabilities of the 
 petitioner, under such a lease. 
 
 § 2259. The person redeeming, as prescribed in the last three 
 sections, or the owner of the property so redeemed, may present 
 
LANDLOEB AND TENANT. 821 
 
 to the Judge or Justice who issued the warrant, or to his suc- 
 cessor in office, a petition duly veriiied, setting forth the facts of 
 the redemption, and 'praying for an order establishing the rights 
 and liabilities of the parties upon the redemption. Whereupon 
 the Judge or Justice must make an order, requiring the other 
 party to the redemption to show cause before him, at a time and 
 place therein specified, why the prayer of the petition should 
 not be granted. The order to show cause must be made return- 
 able, not less than two nor more than ten days after it is granted, 
 and it must be served at least two days before it is returnable. 
 Upon the return thereof, the Judge or Justice must hear the 
 allegations and proofs of the parties, and must make such a final 
 order as justice requires. The costs and expenses must be paid 
 by the petitioner. The final order, or a certified copy thereof, 
 may be recorded in like manner as a deed. A person, other than 
 the lessee, who redeems as prescribed in the last three sections, 
 succeeds to all the duties and liabilities of the lessee, accruing 
 after the redemption, as if he was named as lessee in the lease. 
 
 § 2260. An appeal may be taken from a final order, made as 
 prescribed in this title, to the same Court, within the same time, 
 and in the same manner, as where an appeal is taken from a 
 judgment rendered in the court, of which the Judge or Justice 
 is the presiding officer, and with like effect, except as otherwise 
 prescribed in the next two sections. 
 
 § 2261. The issuing or execution of the warrant cannot be 
 stayed by such an appeal, or by the giving of an undertaking 
 thereupon, otherwise than as prescribed in the next section. An 
 appeal cannot be taken to the Court of Appeals from a final 
 determination of the General Term of the Supreme Court or of 
 a Superior City Court, upon such an appeal, unless the latter 
 court, by an order made at the General Term where the final 
 order is made, or the next General Term tlureafter, allows it to 
 be taken. 
 
 § 2262. Where an appeal is taken from a final order, awarding 
 delivery of possession to the petitioner, which establishes that a 
 lessee or tenant holds over, after a default in the payment of rent, 
 -the issuing and execution of the warrant may, except in the city 
 and county of New York, be stayed by the order of the county 
 Judge. Such an order can be made only upon the appellant's 
 giving the security required to perfect the appeal, and to stay the 
 
822 NEW YORK JUSTICE. 
 
 execution of the order appealed from, and also an undertaking 
 to the petitioner, in a sum, and with sureties, approved by the 
 county Judge, to the effect that if, upon the appeal, a final deter- 
 mination is rendered against the appellant, he will pay all rent 
 accruing or to accrue upon the premises, or, if there is no lease 
 thereof, the value of the use and occupation of the premises, sub- 
 sequent to the institution of the special proceeding. 
 
 § 2263. If the final order is reversed upon the appeal, the 
 appellate court may award restitution to the party injured, with 
 costs ; and it may make any order, or issue any other mandate, 
 necessary to carry its determination into effect. The person dis- 
 possessed may also maintain an action, to recover the damages 
 which he has sustained by the dispossession. 
 
 § 2264. This title does not impair the rights of a landlord, 
 lessor, or tenant, in a case not therein provided for. "Where a 
 special statutory provision confers a right to take proceedings, in 
 the manner heretofore prescribed by law, for the summary 
 removal of a person in possession of real property, the proceed- 
 ings thereunder must be taken as prescribed in this title. A final 
 order, made in a special proceeding, taken as prescribed in this 
 title, is not a bar to an action of ejectment, to recover the 
 property affected thereby. 
 
 § 2265. Where a petition is presented, as prescribed in this 
 title, the proceedings thereupon before the final order, and, if the 
 final order awards delivery of the possession to the petitioner, the 
 issuing or execution of the warrant thereupon, cannot be stayed 
 or suspended by any Court or Judge, except in one of the follow- 
 ing methods : 
 
 1. By an order made, or an undertaking filed, upon an appeal 
 in a case and in the manner specially prescribed for that purpose 
 in this title. 
 
 2. By an injunction order, granted in an action against the 
 petitioner. Such an injunction shall not be granted before the 
 final order in the special proceeding, except in a case where an 
 injunction would be granted to stay the proceedings, in an action 
 of ejectment, brought by the petitioner, and upon the like terms; 
 or after the final order, except in a case where an injunction 
 would be granted to stay the execution of the final judgment in 
 such an action, and upon the like terms. 
 
 In all cases where the right of re-entry is reserved and given 
 
LANDLORD AND TENANT. 823 
 
 to a grantor, or lessor, in any grant or lease, in default of a suffi- 
 ciency of goods and chattels whereon to distrain, such re-entry 
 may be made at any time after default in the payment of the 
 rent, provided fifteen day's notice in writing of the intention to 
 re-enter, be given by the grantor or lessor, his heirs or assigns, 
 to the grantee or lessee, his heirs, executors, admiristrators, or 
 assigns ; and this, notwithstanding there be a sufficiency of goods 
 and chattels to satisfy the rent, provided the same were taken in 
 distress. The notice may be served personally on such grantee 
 or lessee, or by leaving it at his dwelling-house on the premises. 
 If no person of suitable age is found the notice may be posted in 
 a conspicuous place on the premises. (See Code, § 1505.) 
 
 § 284. Notice of Intention to re-enter. 
 To CD: 
 
 You are hereby notified, that I shall re-enter the premises 
 known as , in the of , now occupied by 
 
 you under a demise from me, on the day of next : 
 
 you having made default in the payment of the rent for the same. 
 
 A B. 
 Dated this day of , 18 . 
 
 The statute {Code, § 2231, subs. 1, 2, 3) applies only where the 
 conventional relation of landlord and tenant exists, and not where 
 it is created by operation of law. (1 Wend. 134; 5 id. 281; 9 
 id. 227; 4 JDen. 185. See 15 Wend. 236; Burnett vs. Sanhner, 
 16 Ba/rh. 621.) If a tenant for a year holds over, the landlord 
 may remove him summarily without any notice to quit. {Allen 
 vs. Yaquish, 21 Wend. 628.) So of a tenant for life who holds 
 over after the determination of the life estate. {Livingston vs. 
 Tanner, 14 N. Y. 64 ; Torrey vs. Torrey, id. 430.) 
 
 In proceedings under this provision {svh. 2) it must be made 
 to appear not only that such holding over is without the permis- 
 sion of the landlord, {Prouty vs. Prouty, 5 Ilow. Pr. 81,) but 
 that the tenant holds the premises under the agreement pursuant 
 to which the rent is claimed to be due at the time the proceedings 
 are instituted. If a tenant is then holding under some new agree- 
 ment with the landlord, he cannot be dispossessed under the statute 
 on the ground that he is in default in the payment of rent under 
 a prior agreement. {Burnett vs. Scribner 16 Barb., 621.) 
 
824 NEW YOBK JUSTICE. 
 
 § 286. Notice requwvng Payment of the Rent or the Possession 
 
 of the Premises. 
 To D : 
 
 There is now due to me upon your lease of the premises 
 
 'describe them,'] the sum of dollars, being one quarter's 
 
 or, year's] rent, and you are hereby required to pay the same 
 
 within three days from the service of this notice, or to deliver 
 
 up the possession of the said premises to me. 
 
 Dated this day of , 18 . A B. 
 
 This demand may be made of the tenant in possession, and the 
 notice may be served upon him, though he is not the lessee or 
 assignee. {Sogers vs. I/ynds, 14: 'W^end. 172.) "Where two tenants 
 hold jointly, a demand of rent upon one of them is sufficient to 
 maintain the proceedings. {Oeisler et al. vs. Aoosta, 5 Seld. 227.) 
 
 The application for process, under subdivision 1 of section 2232, 
 may be made by any person in whom the title is at the time of the 
 application. The remedy is not limited to the purchaser at the 
 sale. If the defendant in the execution be in the actual occupa- 
 tion of the premises, the proceedings may be properly instituted 
 against him, and they may be had against a tenant in common, 
 before partition. {Brown vs. Betts, 13 Wend. 29.) 
 
 Proceedings under this subdivision may also be had against the 
 servant or agent of the debtor, or against a third person who has 
 entered into possession under title derived from the debtor, sub- 
 sequent to the attaching of the lien of the judgment under which 
 the property was sold. The fact that the third person entered 
 under a title so subsequently acquired, must be alleged in the affi- 
 davit. {HaUenheck et al. vs. Garner, 20 "Wend. 22.) 
 
 The application here provided for should make out a plain case, 
 and should show, among other things, that the person intended 
 to be removed is in the occupation of the premises, {Smith vs. 
 Huestis, Hill <& Denio Supp. 236,) together with his relation to 
 the landlord. {Eill vs. StocJcvng, 6 Hill, 315 ; Deuel vs. Rust, 
 24 Barh. 438.) If the proceeding is under the second subdivi- 
 sion above cited, the affidavit should also show of whom the 
 demand was made, or on whom the notice was served. {Rogers 
 vs. Lynds, 14 'Wend. 172.) But a notice is not necessary, if a 
 demand was properly made, {id.) If the applicant claims on a 
 holding over by a tenant of his after the expiration of a lease, the 
 affidavit should show that the applicant was the owner, or entitled 
 
LANDLORD AND TENANT. 825 
 
 to the possession of the premises, at the time of giving the lease. 
 {Buck vs. Binninger, 3 Ba/rb. 391.) If the affidavit is made by 
 an agent, the fact of the agency must be distinctly sworn to ; 
 {Ex parte Bk. of Monroe, 7 Hill, 1T7 ; Cunningham vs. Ooelet, 
 4 Den. Yl ; ) but no excuse need be given why it is not made by 
 the landlord himself. {Simpson vs. Bhinelanders, 20 Wend. 103.) 
 The affidavit should not be uncertain nor contradictory. It must 
 distinctly show which of the persons proceeded against is the 
 tenant, and which are under-tenants; and it should also allege 
 how the defendants are in possession in order that the officer, 
 before whom the proceedings are had, may judge whether they 
 come within the statutory description. ( Wiggin vs. Woodruff et al., 
 16 Ba/)'l. 474.) 
 
 § 286. Petition to Recover Leased Premises. 
 
 To S. T., Esq., one of the Justices of the Peace of the town 
 of , county of 
 
 The petition of A. B., in said town, respectfully shows that he 
 leased to C D the premises known as 
 
 in said town, for the term of three years from the first day of 
 April, 1879, at the yearly rent of four hundred dollars, payable 
 quarterly ; that the said C D entered and occupied, but has 
 neglected to pay the rent falling due on the first day of April, 1880, 
 although your petitioner has demanded the same \or, that the 
 term for which the said premises were leased has expired, and the 
 said C D is holding over after his tenancy has terminated ; m% 
 that C D, in violation of good order and good morals, has used 
 and is using said premises for a bawdy-house or house of assig- 
 nation, and for lewd purposes or for an illegal trade, to wit, the 
 sale of lottery tickets, in violation of the statute]. 
 
 Wherefore, your petitioner prays for an order to remove the 
 said C D and all persons claiming under him from the said 
 premises. A B. 
 
 County of , ss : 
 
 A B, the above-named petitioner, beiug sworn, says the fore- 
 going petition is true of his own knowledge, except as to the 
 matters therein alleged to be stated on information and belief, 
 and as to those matters he believes it to be true. 
 
 AB. 
 
 Sworn before me, &c. 
 
 The summons should be directed to all the parties proceeded 
 against, by name. (6 Hill, 314; 4 Ben. 185 ; Deuel vs. Rust, 
 24 Barb. 438.) If the direction is left blank, the proceedings 
 
826 NEW YORK JUSTICE. 
 
 will be defective, though service is made upon the proper party. 
 {Otmnrngham vs. Ooelet, 4 Den. 71.) It should describe the 
 premises, and require the defendant forthwith to remove from 
 the same, or show cause why possession of said premises should 
 not be delivered to the applicant. {Deuel vs. Rvst, 24 Bourb. 
 438.) 
 
 § 287. Precept under Subdivision 1, Section 2231, to remove 
 Tenant holding over after Expiration of Lease. 
 
 To CD, of : 
 
 Whereas A B, of said of , has made oath in 
 
 writing, and presented the same to me, that on or about the 
 
 day of , he rented unto you, the said C D, the 
 
 house and lot known as number , in street, in said 
 
 , for the term of from the day of 
 
 then next ensuing ; and that you hold over and continue in pos- 
 session of the said premises after the expiration of the aforesaid 
 term therein, without the permission of the said landlord : 
 Therefore, in the name of the People of the State of New York, 
 you are hereby summoned and required, forthwith to remove 
 from the said premises, or show cause before me, at my office, 
 in , on the day of , at o'clock in the noon, 
 
 why possession of the said premises should not be delivered to 
 the said landlord. 
 
 Witness my hand, the day of 18 . 
 
 S T, Justice of the Peace. 
 
 § 288. Precept under Section 2236, vn a case &f Tenan<yy at 
 Will, or at Sufferance, terminated iy Notice. 
 
 In the name of the People of the State of New York. 
 To C D, of : 
 
 Whereas, A B has made oath in writing, and presented the 
 same to me, that since the day of , in the year 
 
 , you have held and occupied the house and lot in 
 the _ of , in ^ ^ street, where you now reside, 
 
 as his tenant, and at his will, without any certain time ao-reed 
 on for the termination of said tenancy ; and that he caused a 
 notice in writing to be served on you in due form of law, on 
 the day of last past, requiring you to remove 
 
 from said premises within one mouth from the day of the service 
 thereof ; and that the same time hath expired ; but that you hold 
 over and continue in possession of said premises after the expira- 
 tion of said time, without the permission of the said landlord : 
 
 Therefore you are hereby summoned and required forthwith to 
 remove from the said premises, or show cause before me, at my 
 
REMOVAL OF A TENANT. 827 
 
 office, in the town of , in said county, on the day 
 
 of instant, at o'clock in the noon, why possession of 
 
 the said premises should not be delivered to the said landlord. 
 Witness, &c. [as in § 287.] 
 
 § 289. Precept imder Subdivision 2, Section 2231, to remove 
 Tenant for Non-payment of Rent. 
 
 In the name of the People of the State of New York. 
 To C. D. : 
 
 Whereas A B, of the of , in the county of 
 
 , has made oath that you are justly indebted to him in 
 the sum of one hundred dollars, due the day of , 
 
 18 , for rent of the house and lot known as number , 
 
 in street, in aforesaid ; that he has demanded 
 
 from you the said rent, and that default has been made in the 
 payment thereof pursuant to the agreement under which the 
 premises were let ; and that you hold over and continue in pos- 
 session of the same, without the permission of the said landlord, 
 after default in the payment of the rent, as aforesaid ; Therefore, 
 you are hereby summoned and required, forthwith to remove 
 from the said premises, or show cause before me, at my office in 
 , on the day of , 18 , at o'clock 
 
 in the noon, why possession of the said premises should 
 
 not be delivered to the said landlord. 
 
 Witness, &c., {as in § 287.] 
 
 Forms of summonses under subdivisions 3 and 4 of section 
 2231 can be easily framed from the foregoing Forms. 
 
 § 290. Affidavit of service of Summons. 
 County, ss : 
 K F, of said county, being duly sworn, says that on the 
 day of instant, he personally served the within summons 
 
 upon C D, the tenant therein named, by delivering a true copy 
 thereof to him in person, and at the same time showing him the 
 said original summons. 
 
 Sworn, &c., [as in § 267.] E F. 
 
 If the tenant is absent, the affidavit of service must state that 
 he was absent from his last or usual place of residence. {Cam, 
 eron vs. McDonald, 1 Sill, 512.) 
 
828 NEW YOKK JUSTICE. 
 
 § 291. Answer. 
 
 In the Matter of the Petition of A B 
 for the removal of C D from certain 
 premises, under chapter 17 of the 
 Code of Civil Procedure. 
 
 Before 8. T., 
 A JusUoe of the Peace. 
 
 C D, in this, his answer to the petition of the said A B, denies 
 each and every allegation stated and set forth in said petition (or 
 he denies that" he has neglected and refused to pay the rent fall 
 ing due on the day of , as stated in said peti- 
 
 tion and says that he has paid in full all the rent that has accrued 
 for said premises, or he denies that said premises are used for a 
 bawdy-house, or house of assignation or for lewd purposes, but 
 claims and insists that said premises are used for a dwelling-house 
 only, and not for any improper purpose and use). C D. 
 
 Affidavit to Answer. 
 County ot , ss. : 
 
 C D, being sworn, says that the foregoing answer by him sub- 
 scribed is true to his own knowledge, except as to the matters 
 therein stated to be alleged on information and belief, and as to 
 those matters he believes it to be true. C D. 
 
 Sworn to before me this 1 
 day of , 1880. ( 
 
 § 292. Warrant under Subdivision 1, § 2231, to put in Possession, 
 where Tenant holds over after Expiration of Lease. 
 
 The People of the State of New York to the sheriff of the county 
 of [or, to any one of the constables, or marshals, of the 
 
 city of , or, of the town of , in the county 
 
 of , greeting : 
 
 "Whereas, A B, of the of , in said coimty, 
 
 made oath in writing, and presented the same to me, that 
 on or about the day of , 18 , he rented unto C D, 
 
 of , the house and lot known as number in street, 
 
 in said , for the term of from the day of 
 
 then next ensuing, and that the said C D held over and 
 continued in possession of said premises, after the expiration of 
 the aforesaid term therein, without the permission of the said 
 landlord. Whereupon I issued a summons, requiring the said 
 tenant forthwith to remove from the said premises, or show cause 
 before me at a certain time now past, why the possession ot the 
 said premises should not be delivered to the landlord ; * and no 
 
EEMOVAli OF A TENANT. 829 
 
 Bufficient cause having been shown to the contrary, and I, being 
 satisfied, by due proof, of the service of the said summons, did 
 render judgment in the said matter in favor of the said A B, 
 against the said C D, and that the said premises should be 
 delivered to the said A B, as the landlord, and did enter the said 
 judgment in my docket, and did include in said judgment the 
 sum of dollars as the costs of such proceedings to the said 
 
 A B ; I do, therefore, in the name of the people of the State of 
 New York, command you to remove all persons from the said 
 premises, and to put the said A B in full possession thereof. 
 And you are further commanded to collect the said sum of 
 dollars costs, of the goods and chattels of the said C D. 
 Witness, &c., [as in § 292.] 
 
 § 293. Warrant under § 2236, to remove the tenant in case of 
 Tenancy at Will, or at sufferance, terminated hy Notice. 
 
 The People of the State of !N"ew York to the sheriff of the county 
 
 of , [or, as in § 292,] greeting : 
 
 Whereas, A B made oath in writing, and presented the same 
 to me, that since the day of , in the year , D, 
 
 of , had held and occupied the house and lot in the 
 
 of , in street, where he then resided, as his tenant 
 
 and at his will, without any certain time agreed on for the term- 
 ination of said tenancy ; and that he caused a notice in writing 
 to be served on him, the said tenant, in due form of law, on the 
 day of last, requiring him to remove from said 
 
 premises within one month from the day of the service thereof ; 
 and that the said time had expired, but that the said tenant held 
 over and continued in possession of said premises after the expira- 
 tion of said time, without the permission of said landlord. 
 Whereupon I issued a summons, requiring the said tenant to 
 remove from said premises, or show cause before me, at a certain 
 time now past, why the landlord should not be put in possession 
 of said premises ; * And, due proof of the service of said sum- 
 mons having been made to me, and no good cause against the 
 landlord's application having been shown, or any way appearing, 
 I did [as in § %^2,from the * to the end.] 
 
 Witness, &c., [as in § 287.] 
 
 § 294. Warrant under Subdivision 2, § 2231, to put vn possession, 
 in Default of the Payment of Bent. 
 
 The People of the State of E"ew York to the sheriff, &c., [as in 
 §292,] greeting: . ^, . . 
 
 Whereas, A B, of , m said county, made oath m writ- 
 
 ing, and presented the same to me, that C D was justly indebted 
 to him in the sum of one hundred dollars, for rent of the house 
 
830 NEW YORK JU8TI0B. 
 
 and lot known as number , in street, in 
 
 aforesaid ; that he demanded tlie said rent from the said C D, 
 who had made default in the payment thereof pursuant to the 
 agreement under which the premises were let ; and that the said 
 CD held over and continued in possession of the same without 
 the permission of the said landlord, after such default. "Where- 
 upon I issued a summons requiring the said tenant forthwith to 
 remove from the said premises, or show cause before me, at a cer- 
 tain time now past, why the possession of the said premises should 
 not be delivered to the landlord ; * And, no good cause having 
 been shown or any way appearing to the contrary, and due proof 
 of the service of such summons naving been made to me, I did 
 [as in § 2'd%froin the * to the end.] 
 Witness, &c., [as in § 287.] 
 
 § 295. Reiv/rn of Officer to Wa/rramt. 
 
 Pursuant to the command of the above warrant, I have this 
 day put A B, therein named, in fuU possession of the premises 
 therein mentioned. 
 
 Dated this day of , 18 . 
 
 H C, Constable, [or, Marshal,] of, &c. 
 
 § 296. Notice to Obtain Trial hy Jury. 
 
 In the Matter of the Petition of A B, 
 for the removal of C D from certain 
 premises under chapter 17 of the 
 Code of Civil Procedure. 
 
 Before ST, 
 A Justice of the Peace. 
 
 Gents. — Take notice that I demand that the issues joined in 
 this proceeding be tried by a jury August, 24, 1880. 
 
 Yours, &c., 
 CD. 
 To A B, jjlaintiff. 
 
 S T, Justice of the Pen -o. 
 
 ■"J 
 
 In order to form the jury, the Justice must issue his precept, 
 directed to the sheriff or one of the constables of the county, or 
 any constable or marshal of the city or town, commanding him to 
 summon the twelve persons nominated by him, qualified to serve 
 as jurors in courts of record, to appear before the Justice at such 
 time and place as he shall therein appoint, for the purpose of 
 trying the matters in difference. {Code, § 2247; Farrington vs. 
 Morgan, 20 Wend., 208.) 
 
REMOVAL or A TENANT. 831 
 
 § 297. Precept for a Jury. 
 
 The People of the State of New York to the Sheriff, &c., [or, as 
 in § 292,] greeting : 
 
 Whereas, on the day of , 18 , A B, of , 
 
 made oath, in writing, and presented the same to me, stating that, 
 &c., \as in § 292, § 293, or § 294, as the case m,ay he, to the *, 
 and then add ;] And whereas, tlie said C D hath filed an affida- 
 vit with me, denying the aforesaid faats and allegations : You 
 are, therefoi-e, hereby commanded, in the name of the people of 
 the State of New York, to summon twelve reputable persons, 
 qualified to serve as jurors in Courts of Record, and nominated 
 by me for the purpose, to appear before me, at, &c., on, &c., 
 \not more than three days from the date of the precept^ for 
 the purpose of trying the matters in difference between the said 
 A B and C D. 
 
 "Witness, &c., \as in § 287.] 
 
 Six of the persons so summoned are to be drawn in like man- 
 ner as jurors in Justices' Courts, {Ante p. 289,) and sworn by the 
 Justice, well and truly to hear, try, and determine the matters in 
 difference between the parties. {Code, § 2995.) 
 
 § 298. Oath to Jurors. 
 
 You, and each of you, do swear, that you will well and truly 
 hear, try, and determine the matters in difference, now depending 
 before me, between A B and C D, the parties to this proceeding, 
 and a true verdict given therein according to evidence ; so help 
 you God. 
 
 After hearing the allegations and proofs of the parties, the 
 jury are to be kept together, until they agree upon their v^erdict, 
 by the sheriff, or one of his deputies, or a constable, or by some 
 proper person appointed by the Justice for that purpose. The 
 oath to keep the jury must be the same as is administered in like 
 cases in Courts of Record. 
 
 § 299. Officer's Oath to keep Jury, after Evidence given. 
 
 You do swear, that you will well and faithfully keep, in some 
 private and convenient place, this jury committed to your charge, 
 without meat or drink, water excepted. You shall not suffer any 
 person to speak to them, nor speak to them yourself, unless to 
 ask them if they have agreed upon their verdict, until they have 
 agreed on their verdict, or are sooner discharged by me; So help 
 you God. 
 
832 NEW TOEK JUSTICE. 
 
 If the jury cannot agree, after being kept together for a reasoli- 
 able time, they may be discharged, and a new precept issued', 
 and so, also, if there is a default in the number of jurors on the 
 return of the first precept. {Roach vs. Cosme, 9 Wend. 227.) 
 At the request of either party, the proceedings may be adjourned, 
 not exceeding ten days, if the delay is necessary to procure the 
 attendance of witnesses. {Code, § 2248.) The Justice must issue 
 subpoenas, and compel the witnesses to appear and testify, in the 
 same manner as in other cases. 
 
 If the decision of the Justice or the verdict of the jury is in 
 favor of the claimant, the Justice must issue his warrant to the 
 sherifE or to any constable of the county in which the premises 
 are situated commanding the officer to put the claimant in posses- 
 sion, unless the proceedings are under Code, section 2237. The 
 justice must also enter in his docket the finding of the jury, and 
 render judgment therefor, and include in such judgment costs of 
 such proceedings to the prevailing party, at the same rate of fees 
 allowed by law in civil actions before Justices, and limited in 
 like manner, and the order awarding costs may be docketed and 
 execution issued for the collection of such costs, {id., § 2250 ; 
 Partridge vs. Ford, 5 Hoio. 21.) 
 
 The Forms of warrants before given can be easily adapted to 
 the case of a trial by jury, by omitting the sentence in the latter 
 part of each, which states that no sufficient cause to the contrary 
 has been shown, and reciting instead the summoning and verdict 
 of the jury, the rendition of judgment, and a direction, in the 
 usual form, to levy and collect the costs. 
 
 The officer to whom the warrant is directed and delivered is 
 required by statute to execute its commands between the hours 
 of sunrise and sunset. {Code, § 2252.) 
 
 The issuing of the warrant cancels and annuls both the lease 
 and the relation of landlord and tenant, {id. § 2253.) This pro- 
 vision, however, does not operate to annul the lease from its date, 
 but only from the time of the default for which the warrant is 
 issued. {Hinsdale vs. White, 6 Hill, 507.) 
 
 (2.) Staying Proceedings. 
 At any time before the warrant is actually issued, the tenant, 
 in case of a proceeding on account of the non-payment of rent, 
 may stay the proceedings, either by paying the rent due, and the 
 
REMOVAL OF A TENANT. 833 
 
 costs and charges of the proceedings, or by giving security, 
 satisfactory to the Justice, for their payment, in ten days, to the 
 person entitled to such rent. {Code, % 2254.) And in case 
 the person giving such security shall not, within ten days, pro- 
 duce to the magistrate satisfactory evidence of the payment of 
 the rent and costs, the warrant may at any time thereafter be 
 issued. (*(?.) 
 
 § 300. Undertaking under Code, section 2254, subdivision 1, to 
 stay Proceedings. 
 
 Whereas, certain proceedings have been had, at the instance 
 of A B, against C D, before S T, one of the Justices of the 
 Peace of the County of , under the provisions of the 
 
 statute authorizing the summary removal of a tenant for the 
 non-payment of rent, and the costs and charges of the said pro- 
 ceedings have been fixed by the said Justice at dollars : 
 Now, therefore, we, E F and M N, do undertake pursuant to 
 statute iu the penalty of dollars that the said C D shall, 
 within ten days from the date hereof, pay to the said A B the 
 said costs and charges * and the sum of dollars, rent due 
 him for the use and occupation of [describe the premises']. 
 
 C D. [l. s.] 
 
 Sealed and delivered. E F. [l. s.] 
 
 MK [l. s.] 
 
 When the application to the Justice is founded upon the fact 
 that the tenant or lessee has taken the benefit of an insolvent act, 
 or has been adjudicated a bankrupt, the proceedings may be 
 stayed at any time before the warrant is issued, by paying the 
 costs, and giving security, satisfactory to the Justice for the pay- 
 ment of the rent, to the person entitled to such rent, as it shall 
 become due. 
 
 § 301. Approval endorsed on the wndertakvng. 
 I hereby approve of the form and sufficiency of the within 
 undertaking. 
 
 S T, Justice^ etc. 
 
 § 302. Becwriinj under Subdivision %for Rent to become due, to 
 stay Proceednngs. 
 
 [As in § 300 to the end, and then add :] And that the said C D 
 shall punctually pay all rent accruing or to accrue to the said A 
 
834 NEW TOEK JUSTICE. 
 
 B, upon the said premises, when and as the same shall become 
 due and payable. 
 
 CD. [l. S.J 
 Sealed and delivered. E F. [l. s.] 
 
 M N. [l. 8.] 
 
 When the application is founded upon an alleged sale by 
 execution of the premises occupied by the defendant in the exe- 
 cution, the occupant may stay the proceedings at any time 
 before the warrant of removal is issued, by paying the costs of 
 the proceedings, filing with the Justice an affidavit that he 
 claims the possession of the premises by virtue of some right or 
 title acquired after they were sold, or as guardian or trustee for 
 another person, and executing an undertaking to the applicant for 
 the warrant, in such a penalty and with such sureties as the Justice 
 may approve, conditioned to pay all the costs and damages which 
 may be recovered against him in any action of ejectment that may 
 be brought by the applicant within six months, for the recovery 
 of the possession of the premises, and to pay the value of the use 
 and occupation of the premises, and also conditioned not to com- 
 mit any waste or injury to such premises during his occupation. 
 
 § 303. Affidavit wnder Svhdvoision 3, to stay Proceedings. 
 
 County, ss : 
 
 C D, being sworn, says, that he claims, in his own right, [or, 
 as trustee or guardian of E F,] the possession of the following 
 premises, namely, [describe them] which are claimed by A B as 
 purchaser under an execution, by virtue of the following right 
 or title acquired by him in such premises, that is to say : [state 
 the pariioula/rs of such right or title.] 
 
 Sworn, &c. 
 
 § 304. Undertaking wn,der Subdivision 3, to stay Proceedings. 
 
 [As in § 301, to the *, and then add :] And that the said C D 
 will pay all costs and damages that may be recovered against him 
 in any action of ejectment to recover the property that may be 
 brought by A B against him, the said C D, within six months 
 from the date hereof, for the recovery of the possession of 
 [describe the premises^ and shall not commit any waste or injury 
 to such premises during his occupation thereof. 
 
 C D. [l. s.J 
 Sealed and delivered. E F. [l. s.] 
 
 M N. [l. s.] 
 
REMOVAL OF A TENANT. 835 
 
 (3.) Appeal to County Court. 
 
 The proceedings may also be removed, by appeal to tbe Coimty 
 Oourt, in the same manner, with the like effect, and upon like 
 security, as on appeals in civil actions. But, if the tenant desires 
 to stay the issuing of the warrant or execution, he must give, in 
 addition to the security required on appeal, security to pay the 
 rent accruing or to accrue upon the premises, or if there is no 
 lease thereof, the value of the use and occupation of the premises 
 eubsequeat to the institution of the special proceeding. The 
 appeal will not be good, unless such security is given and approved 
 by the County Judge at the time of allowing such appeal. {Code, 
 § 2262.) But the Court will allow him to amend his appeal by 
 filing security afterwards. {Briggs vs. Swales, 29 How. 201.) 
 
 No allowance of the appeal itself is now necessary. In addition 
 to this, in case of an appeal by the tenant, in order to stay the 
 issuing of the warrant or execution, security must also be given 
 for the payment of all rent accruing or to accrue upon the prem- 
 ises subsequent to the application to the Justice. {Deuel vs. 
 Bust, 24 Barb. 438.) 
 
 § 305. Notice of Appeal. 
 In the matter of~) 
 
 _ Summary proceedings to recover possession of 
 land, before S T, Esq., Justice of the Peace. 
 
 A B, landlord 
 
 against 
 
 C D, tenant. 
 
 Sir : Please take notice that C D, above named, appeals from 
 the judgment rendered against him by S T, Esq., Justice of the 
 Peace, aforesaid, on the day of last, of which 
 
 a copy is herewith served on you, to the County Oourt of the 
 county of 
 
 "" CD. 
 
 Dated , 18 . 
 
 To A B, and to S T, Esq., Justice. 
 
 The notice of the appeal must be served on the opposite party, 
 within twenty days after the rendition of the judgment, and also 
 on the Justice. If the party be a resident of the city or county, 
 the service may be personal, or by leaving the notice at his resi- 
 dence, with some person of suitable age and discretion ; if not a 
 resident, the service may be on the attorney or agent, if any, who 
 is a resident of the city or county, who appeared for him on the 
 trial ; if he had no attorney, then by giving it to the clerk of the 
 appellate Court. 
 
836 NEW YORK JUSTICE. 
 
 § 306. Undertakvng on Appeal. 
 
 In the matter ofl o j • j. 
 
 A Tf 1 ^1 ,^ Summary proceedings to recover possession 
 A a, landlord, ^^ ^^^^ ^^^^^^^ g rj, ^ j^^^f^^ ^^ ^j^^ 
 
 agavnst V p^^^^ ' ' ^' 
 
 C D, tenant. J 
 
 C D, above named, having appealed to the County Court oi 
 
 county, from the judgment rendered against him in this 
 
 proceeding, [describe the judgment f\ Now, therefore, in order to 
 
 stay the execution of the said juagment, and in consideration 
 
 thereof, we, L M and N 0, as sureties, undertake, jointly and 
 
 severally, that if judgment be rendered against the said C D, on 
 
 the said appeal, and execution thereon be returned unsatisfied in 
 
 whole or in part, we will pay the amount unsatisfied : And we 
 
 do further imdertake, jointly and severally, that the said C D 
 
 shall punctually pay all rent accruing or to accrue upon said 
 
 premises, or the value of the use and occupation of the premises, 
 
 subsequent to the application to the Justice, and that, in default 
 
 thereof, we will pay the same. 
 
 Witness our hands, this day of , 18 , 
 
 LM. 
 
 NO. 
 
 I approve of the above undertaking, and of the sureties therein 
 mentioned. G H, Coimty Judge. 
 
 § 307. Order staying Proceedings. 
 County Court. 
 A B, respondent ~| 
 against V 
 
 C D, appellant. J 
 
 The defendant herein having appealed from the judgment of 
 S T, a Justice of the Peace, rendered in certain proceedings to 
 recover possession of land on the day of , and having 
 
 given the security required by the statute : Let all proceedings a 
 to the issuing or execution of the warrant be stayed until the 
 hearing and decision of the court upon the said appeal. 
 
 August 25, 1880. 
 
 J Cj County Judge of the county of 
 
MAERIAGES. 8 3 7 
 
 CHAPTER XVII. 
 
 OF MAREIAGES. 
 
 Justices of the Peace are enumerated in the statute, among 
 those officers and persons by whom marriages may be solem- 
 nized. (2 B. S. 140, §§ 8, 10.) 
 
 The two essential requisites to the validity of the marriage 
 contract are capability and consent, {id. 138, § 1.) Both the 
 civil and the common law have fixed the age at which parties 
 are capable of contracting marriages, at fourteen years in males, 
 and twelve in females; (2 Kent's Qomm. 78;) founded upon the 
 presumption, that the parties have, at that age, attained suffi- 
 cient discretion to understand the nature of the contract. Mar- 
 riage before that age is voidable at the election of either party, 
 on arriving at the age of consent, (id.) A former statute in 
 New York fixed the ages of consent at seventeen in males, and 
 fourteen in females. (2 R. 8. 1st edit. 138, § 2.) Thiis pro- 
 vision, however, was repealed in 1830, within four months after 
 it took effect, {Laws of 1830, chap. 330, § 24.) leaving the com- 
 mon law in force. 
 
 The consent of both parties is absolutely essential to a valid 
 contract of marriage; {Bishop on Marriage and Divorce, § 63;) 
 and it must be given by each party voluntarily. If it is 
 obtained by coercion, duress or fraud, the marriage will be void 
 from the time its nullity shall be declared by a Court of com- 
 petent authority. (2 Kenfs Comm. 11; 2 B. 8. 139, ^ 4.) 
 This mutual consent is of the essence of marriage; it constitutes 
 of itself, and without the addition of any ceremonies, a perfect 
 marriage according to natural law, {Bishop on Marriage and 
 Divorce, § 63,) and according to the laws of this State. (2 Kenfs 
 Comm. 87; 2 R. S. 139, § 9.) It must, however, contemplate a 
 present marriage, in contradistinction to a mere contract to be 
 executed in the future, or, as the law expresses it, it must be 
 per verba de prcesenti. {Cheney vs. Arnold, 15 JVew York B. 
 34:5.) When so contracted, the marriage is valid and binding, 
 (Fenfon vs. Beed, 4 John. 52; 8tarr vs. Peck, 1 Hill, 270,- 
 
838 NEW YOKK JUSTICE. 
 
 Rose vs. Clark, 8 Paige, 574,) even though it is not foUoweil 
 up by cohabitation. {Bisliop on Marriage and Divorce, § 67/ 
 Jackson vs. Winne, 7 Wend. 47.) The consent of parents is 
 not necessary. (2 Kenfs Oomm. 85.) 
 
 It is apprehended that the Justice will find but little difficulty 
 in ascertaining the consent of the parties to the marriage, expe- 
 rience having demonstrated that willingness rather than reluc- 
 tance is manifested by them. But, in ascertaining the age of 
 the parties, especially of the female, he will have a more diffi- 
 cult and perhaps a more delicate task to perform. If he is of 
 the opinion that ^ither of the parties is not of marriageable age, 
 he should require legal proof to establish the age. (2 R. 8^ 
 140, § 10.) 
 
 The Justice is also required to ascertain, and enter in a book 
 to be kept for that purpose, the Christian names and surnames- 
 of the parties, their ages, and their respective places of birth 
 and residence, and also the names and places of residence of two 
 attesting witnesses, if there are two present. If but one witness 
 is present, his name and place of residence must be ascertained. 
 If either of the parties is not personally known to the Justice, 
 he must require proof of identity, which proof he may require 
 Tinder oath which he may administer. {Laws 1873, chap. 25.) 
 Solemnization of a marriage, where either of the parties is, within 
 the knowledge of the Justice, under the age of legal consent, or 
 a lunatic, or an idiot, or to which, within his knowledge, any 
 legal impediment exists, is a misdemeanor, punishable by fine or 
 imprisonment, or both. (2 R. S., 140, § 12.) 
 
 No particular form of ceremony is necessary to solemnize a 
 marriage, except that the parties must solemnly declare, in the 
 presence of the Justice, and of at least one witness, that they 
 take each other as husband and wife. {id. § 9 ; Van Tuyl vs. Va.n 
 Tuyl, 57 Barl). 235.) A Form, however, is inserted here for the 
 benefit of tliose (either Justices or parties) who are going through 
 the ceremony for the first time. 
 
 ^312. Form of Mamage. 
 
 The officer performing the ceremony will direct the parties to 
 join hands, and then say: "By this act of joining hands, you do 
 take each other as husband and wife, and solemnly promise and 
 engage, in the presence of these witnesses, to love and honor, 
 comfort and cherish each other, as such, so long as you both 
 
MARRIAGES. 839 
 
 shall live: Therefore, in accordance with the laws of the State 
 of New York, I do hereby pronounce you husband and wife." 
 
 At the request of either party, the Justice is required to fur- 
 nish a certificate, specifying: 1. The names and places of resi- 
 dence of the parties married, that they were known to him, or 
 were satisfactorily proved by the oath of the parties themselves, 
 or of a person known to him, to be the persons described in the 
 certificate, and that he ascertained that they were of sufficient age 
 to contract marriage ; 2. The name and place of residence of the 
 attesting witness or witnesses ; 3. The time and place of mar- 
 riage ; and 4. That after due inquiry made there appeared no 
 legal impediment to the marriage. The certificate must be signed 
 by the Justice. (2 B. S., 140, § 13 ; Laws of 1873, chap. 25.) 
 
 § 313. Mamage Certificate. 
 
 County, ) 
 Town of , 5 ®®- 
 
 I do hereby certify, that on the day of , instant, 
 
 \oi\ last past,] at the house of E F, in said town of , A B, 
 
 of, &c., and E D, of, &c., were, with their mutual consent, law- 
 fully joined together in holy matrimony, which was solemnized 
 b}' me, in the presence of M P, of, &c., and R F, of, &c., attests 
 ing witnesses: and I do further certify, that the said A B and 
 E D are known to me \or, were satisfactorily proved, by the 
 oath of E F, known to me,] to be the persons described in this 
 certificate; that I ascertained, previous to the solemnization of 
 the said marriage, that the said parties were of sufficient age to 
 contract the same; and that, after due inquiry by me made, 
 there appeared no lawful impediment to such marriage. 
 
 Given under my hand, this day of , 18 . 
 
 G H, Justice, &c. 
 
 Ministers and priests are also required to furnish similar cer- 
 tificates, which, when certified by a Justice, according to the 
 following form, are entitled to be filed and recorded in the office 
 of the clerk of the city or town where the marriage took place, 
 or where either of the parties resides. The certificate of the Jus- 
 tice must be endorsed upon or annexed to the marriage certifi- 
 cate of the minister or priest, {id.) 
 
840 NEW YORK JUSTICE. 
 
 § 314. Justice^ s Gertificate. 
 
 CouDty, \ 
 Town of , 5 ®®- 
 
 I do hereby certfy, that G H, Kector of, &c., by whom the 
 foregoing [o?', within] certificate is signed, is personally known 
 to me, and has acknowledged the execution of said certificate 
 in my presence, this day of , 18 ; [or, that 
 
 on the day of , 18 , personally came before 
 
 me, M P, to me known, who, being by me duly sworn, did 
 depose and say, that he was well acquainted with G H, Rector 
 of, &c., and knew him to be the same person who executed the 
 foregoing [or, annexed, or, within] certificate: and that he was 
 present and saw the said G H execute the same.] 
 
 S T, Justice, &c. 
 
 Fees. 
 
 The fee for performing the marriage ceremony, not being 
 regulated by statute, depends entirely upon the liberality of the 
 groom and the value of the services rendered. 
 
 CHAPTER XVIII. 
 
 OF PARENTS ABSCONDING. 
 
 When the father, or mother being a widow or living sepa- 
 rate from her husband, absconds from the children, or a husband 
 from his wife leaving any of them chargeable, or likely to 
 become chargeable, upon the public, the overseers of the poor of 
 the town, or the commissioners of charities, may apply to any two 
 Justices of the Peace of any county in which any estate, real or 
 personal, of the parent or husband absconding may be situated, 
 for a warrant to seize the same. {Crim: Fro., § 921.) Upon 
 due proof of these facts the Justices must issue their warrant 
 authorizing the overseers to take and seize the goods, chattels, 
 effects, things in action, and the lands and tenements of the 
 person so absconding. (M) 
 
PARENTS ABSCONDING. 841 
 
 ^ 315. Warrant to seize the Goods of an Absconding Father, 
 Husband, or Mother. 
 County, ss: 
 To C D and E F, Overseers of the Poor of the town of , 
 
 in said County: 
 
 It appearing to us, two of the Justices of the Peace of said 
 county, as well by the application and representation to us made 
 by you, the said Overseers, as upon due proof of the facts 
 before us made, that A B, late of said town, has absconded 
 from his wife, \or, children,] leaving the said wife, [or, children,] 
 chargeable [or, likely to become chargeable] to the public for 
 support; and that the said A B has some estate, real or personal, 
 in said county, whereby the public may be wholly or in part 
 indemnified against said charge: We, therefore, in the name of 
 the People of the State of New York, authorize you, the said 
 Overseers of the Poor, to take and seize the goods, chattels, 
 effects, things in action, and the lands and tenements of the 
 said A B, wherever the same may be found in said county: 
 And you will, immediately upon such seizure, make an inven- 
 tory of the property by you taken, and return the same, together 
 with your proceedings, to the next Court of Sessions of sai'l 
 county. 
 
 Given under our hands, at the town of , this 
 
 By virtue of this warrant, the overseers may take the property 
 wherever it can be found in the same county; and they are 
 vested with all the right and title to it, which the person ab- 
 sconding had at the time of his or her departure. All sales and 
 transfers made by him or her, after the warrant is issued, of any 
 personal property left in the county, whether in payment of an 
 antecedent debt, or for a new consideration, are absolutely void. 
 The overseers must immediately make an inventory of the prop- 
 erty taken, and return it, with their proceedings, to the next 
 Court of Sessions, by which the warrant and seizure may be 
 discharged or affirmed. {Grim. Pro., § 922.) 
 
 If the person against whom the warrant was issued retiirn 
 and support his wife and children, or give security, approved 
 by any two Justices of the town, to the overseers of the poor 
 of the town, that the wife or children so abandoned shall not 
 become or tliereafter be chargeable to the town or county, then 
 
842 NEW YORK JUSTICE. 
 
 the warrant must be discharged by an order of the Justices, and 
 the property taken be restored to him. ( Crim. Fro., § 924.) 
 
 § 3 16. Bond to be given by Party where Property has been seized. 
 
 Know all men by these presents: That we, A B and L M, 
 both of the town of , in the county of , are held 
 
 and firmly bound unto C D and E F, Overseers of the Poor of 
 the town of , in the sum of dollars, for the pay- 
 
 ment whereof to the said Overseers, or their successors in office, 
 we bind ourselves, our heirs, executors and administrators, 
 jointly and severally, firmly by these presents. Sealed with 
 our seals, and dated at , this day of , 18 .* 
 
 Whereas the said Overseers of the Poor lately seized the 
 property of the said A B, under a Avarrant issued by G H and 
 S T, two Justices of the Peace of the county of , upon 
 
 due proof, to them given, that the said A B had aljsconded from 
 his wife, \or, children,] leaving her, [or, them,] chargeable [or, 
 likely to become chargeable,] upon the public for support; 
 And the said A B haying returned, and being desirous of hav- 
 ing his property so taken restored to him: Now, the condition 
 of this obligation is such, that if the said wife, [or, children,] so 
 abandoned, shall not become or hereafter be chargeable to the 
 said town or county, then this obligation to be void; otherwise, 
 of force. A B. [l. s.] 
 
 L M. [l. s.] 
 Sealed and delivered in the presence of us, two of the Justices 
 
 of the town of , by whom the said bond and sureties 
 
 are approved. G H, ? ^ , . 
 
 Q m r tJ ustices. 
 
 § 317. Order to discharge the Warrant, and to restore the 
 
 Property. 
 
 County, ss: 
 To C D and E F, Overseers of the Poor of the town of , 
 
 in said county: 
 Whereas, by a warrant to you directed, bearing date the 
 
 day of I 18 , you were authorized to seize the 
 
 goods, chattels, efiects, things in action, and the lands and tene- 
 ments of A B, upon proof that he had absconded from his wife 
 [or, children,] leaving her [or, them] chargeable to the public 
 for support: And whereas, the said A B has returned, and now 
 supports his wife, [or, children,] so abandoned, [or, has given 
 security ajDproved by us, to the Overseers of the Poor of the 
 said town, that his said wife [or, shildren] shall not become, oi 
 hereafter be, chargeable to the said town, or to the said county:] 
 
PAWN-BROKEES. 843 
 
 We do, therefore, hereby discharge the said warrant issued against 
 the said A B, and direct the property taken by virtue thereof to 
 to be restored to him. 
 
 Given, &c., [as in § 315.] 
 
 Fees. 
 The only fees allowed under this statute are one of twenty-five 
 cents to the Justice for drawing a bond, {Code, § 3322,) and one 
 of twelve cents for administering an oath. {id. § 3298.) 
 
 CHAPTER XIX. 
 
 OF PAWN-BROKEES. 
 
 Whenever any person makes oath before a Justice of the 
 Peace, or Police Justice, that any property belonging to him 
 has been embezzled, or taken without his consent, and that he 
 has reason to believe and suspect, and does suspect, that such 
 property has been pledged with some pawn-broker, the Justice, 
 if satisfied with the correctness of the suspicions, must issue his 
 warrant, directed to some constable of the city or place, com- 
 manding him to search for the property so embezzled or taken, 
 and to seize and bring it before him. (For Forms of complaint 
 and warrant, see ante, p. 532.) The constable to whom the 
 warrant is directed and delivered, has the same power to pro- 
 ceed thereon as in the case of a search warrant issued upon a 
 charge of larceny. (1 H. S. 711, §§ 10, 11; ante, pp. 531, 
 533.) 
 
 The property, when brought before the Justice, is to be 
 delivered to the claimant, upon his executing a bond, with such 
 surety as the Justice shall approve, to the person from whose 
 possession it was taken, in a penal sum equal to double the value 
 of the property claimed, conditioned to pay on demand all dam- 
 ao-es that shall be recovered against him in any suit that may be 
 brouo-ht, within thirty days from the date thereof, by the pawn- 
 
844 NEW YORK JUSTICE. 
 
 broker from whose possession the property was taken. (1 R. 
 S. 711, ^§ 12, 13.) 
 
 § 318. Bond of Claimant. 
 
 Know all men by these presents, that we, A B and C D, both 
 of in the county of , are held and firmly bound 
 
 unto E F, of , in the county of , in &c., \as in 
 
 § 315, to the*, the 'penalty to be double the value of the property 
 claim.ed, and then add:^ Whereas certain property, namely, 
 [describe it,^ has been taken from the possession of the said E 
 F, by virtue of a warrant issued by G H, a Justice of the Peace 
 of said county, dated the day of , 18 ; 
 
 And whereas the said A B claims that the said property 
 belongs to him, and was embezzled from him, [or, taken from 
 him, without his consent,] and was pledged with the said E F, 
 as a pawn-broker; And whereas the said A B desires to have 
 the said property delivered to him: Now, the condition of this 
 obligation is such, that if the said A B shall, on demand, pay 
 all damages that shall be recovered against him in any suit that 
 may be brought, within thirty days from the date hereof, by the 
 said E F, then this obligation to be void; otherwise, of force. 
 
 A B, [l. s.l 
 C D, [l. s.] 
 Sealed and delivered in my presence, by whom the said bond 
 and surety are approved. G H, 
 
 Justice of the Peace. 
 
 If this bond is not given within twenty-four hours, the Jus- 
 tice must deliver the property to the person from whose posses- 
 sion it was taken. (1 R. 8. 711, \ 12.) 
 
 Fees. 
 
 The fees allowed by law for services under the foregoing 
 statute, are as follows: 
 
 To Justices.'] Administering an oath or affirmation, twelve 
 cents. {Code, § 3298.) 
 
 Drawing a bond, twenty-five cents, {id. 3322.) 
 
 To Constables.] Serving a warrant, fifty cents ; 
 
 Mileage, going and returning, for each mile, ten cents. {j,d. 
 % 3333.) 
 
UNCLAIMED BAGGAGE. 845 
 
 CHAPTER XX. 
 
 OF UNCLAIMED BAGGAGE. 
 
 It is the duty of the proprietors of the several lines of stages, 
 canal boats, steamboats, taverns and inns, within this State, 
 who have any unclaimed baggage in their custody, to enter, 
 in a book to be kept for that purpose, a description thereof, 
 and the time when it was left. If the name and residence 
 of the owner can be ascertained, he is to be notified by mail 
 of the whereabouts of his baggage. If his name and resi- 
 dence cannot be ascertained, it is the duty of the person in 
 whose possession the baggage may be, to make out a correct 
 description of all such property as shall have been unclaimed 
 for thirty davs, (stating the time the same came into his pos- 
 session,) aud forward it to the editor of the State paper, by 
 whom it is to be published once a week for three weeks suc- 
 cessively, commencing on the first Mondays of July, October, 
 January and April, in each year. (Laws of 1837, chap. 300, 
 hh 1, 2.) 
 
 In case the property remains unclaimed for sixty days after 
 the publication, it is the duty of the person or company having 
 possession thereof, to apply to a magistrate of the town or 
 city in which the property is retained, in whose presence aud 
 under whose direction it must be opened and examined, and an 
 inventory thereof taken by him; and, if the name and resid- 
 ence of the owner are ascertained by the examination, it is the 
 duty of the magistrate forthwith to direct a notice thereof to 
 the owner, by mail. If the property remains unclaimed for 
 three months after the examination, it is the further duty of the 
 person or company having possession thereof, again to apply 
 to a magistrate, and if he deems the property of suflScient 
 value, he must cause the same to be sold at public auction 
 giving six days' previous notice of the time and place of the 
 sale. From the proceeds of the sale, he must pay the charges 
 and expenses legally incurred in respect to the said property, 
 or a ratable proportion thereof to each claimant, if insufficient 
 
846 NEW YORK JUSTICE. 
 
 for the payment of the whole amount; and the balance of the 
 proceeds of the sale, if any, the said magistrate must immedi- 
 ately pay to the overseers of the poor of said town or city, for 
 the use of the poor thereof; and the overseers must make an 
 entry of the amount, and of the time of receiving the same, 
 upon their official records, and it is subject at any time within 
 seven years thereafter, to be reclaimed by, and refunded to, 
 the owner of the property, his heirs or assigns, on satisfactory 
 proof of ownership. {Lawn of 1837, chap. 300, § 3.) 
 
 The person making the entry of unclaimed property as 
 above specified, is entitled to twelve and a half cents for each 
 trunk, box, bale, package or bundle so entered, and has a lien 
 on the property until payment is made; and, in case any addi- 
 tional expense is incurred for printing, the lien continues until 
 payment is made for the additional expense. 
 
 In case any person neglects or refuses to comply with the 
 provisions of this statute, he forfeits the sum of five dollars 
 for each and every trunk, box or bundle of baggage so neg- 
 lected as above specified, to the benefit of any person who will 
 sue for the same, in his own name, in an action of debt, in any 
 Court having cognizance thereof. [Laws of 1837, cJiap. 300, 
 ^§4,5.)_ . . . ' 
 
 Unclaimed freight or baggage left with a railroad or other 
 incorporated transportation company to be disposed of in a 
 different manner. {See Laws of 1884, chap. 444.) 
 
 CHAPTER XXI. 
 
 OF MISCELLANEOUS POWERS. 
 
 There are a few provisions scattered through the statutes, 
 relative to the powers and duties of Justices of the Peace, the 
 brevity of which did not seem to require their consideration in 
 distinct chapters; and, as there was no subject to which they 
 appropriately belonged, they have all been aggregated in this 
 Chapter. 
 
DEPOSITIONS TO BE USED IN OTHER STATES. 847 
 
 1. Arbiteatoes. 
 
 Justices of the Peace are authorized to administer oaths to 
 arbitrators, but the arbitrators issue subpoenas to compel the 
 attendance of witnesses before such arbitrators. The subpoenas 
 are to be issued in the same manner, and with the like effect, and 
 the witnesses are subject to the same penalties for disobedience 
 as in cases of trials in Courts of record. {Civil Pro., §§ 842, 
 «54 and 2370.) 
 
 J^ees. 
 
 The fee for administering the oath is twelve cents. {Code, 
 I 3298.) 
 
 The fees for subpoenas, and for subsequent proceedings, are the 
 same as in civil actions in Courts of record. 
 
 2. Depositions to be used in other States. 
 
 The statute provides that if, upon application to any Justice 
 of the Peace of any town in this State, it shall satisfactorily 
 appear, upon affidavit or otherwise, to the Justice to whom such 
 application is made, that a suit is pending in any Court in any 
 other State of the United States ; and that any person residing 
 in the town in which such application is made, is a material wit- 
 ness for either party to such suit ; and that, according to the 
 practice of the Court in which such suit is pending, the deposi- 
 tion of a witness taken before a Justice of the Peace in this 
 State, will be received on the trial or hearing of such suit, such 
 Justice shall issue his summons, requiring such witness to appear 
 oefore him, at a place within the town in which such witness 
 resides, at some reasonable time, to testify in such suit. {Coda 
 of Civil Fro., § 918.) 
 
 The Justice before whom such witness appears must take down 
 Lis testimony in writing, and certify and transmit the same to 
 the Court before which such suit is pending, in such manner as 
 the practice of the Court may require. {Id., § 919.) 
 
 If any person refuses or neglects to appear at the time aad 
 place mentioned in the summons issued in accordance with the 
 statute, or if, on his appearance, he refuses to testify, he is liable 
 ±0 the same penalties as would be incurred for a like offense on 
 
848 NEW YOUK JUSTICE. 
 
 the trial of an action in a Justice's Court. {Code of Civil Pro., 
 § 920 ; ante, p. 276, et seq.) 
 
 To Justices. A summons, twenty-five cents. {Civil Pro., 
 § 3322.) 
 
 No particular fees are prescribed for taking testimony imder 
 the above statute. 
 
 To Constoibles. Serving a summons, twenty-five cents. {Civil 
 Pro., § 3823.) 
 
 To witnesses. Every witness who appears and testifies, as 
 required by this statute, is entitled to receive from the party, at 
 whose instance he shall have been summoned, fifty cents for each 
 day lie gives his attendance. {Code of Civil Pro., § 3327.) 
 
 3. Firemen. 
 
 The supervisors and Justices of the Peace for the time being 
 of any town in this State, may appoint, in writing, any number 
 of the inhabitants of the said town, not exceeding forty, to each 
 tire engine which may be procured for the extinguishment of 
 tires in the said town. The persons so appointed become fire- 
 men of the said town; but no such company can be formed 
 pursuant to this statute, in any incorporated city or village. 
 All vacancies which may at any time happen in such companies, 
 by death, resignation, or otherwise, are to be filled by the super- 
 visors and Justices. {Laws of 1832, chap. 222; Laws of 1845, 
 chap. 244.) 
 
 Fees. 
 
 There are no fees prescribed for these services. 
 
 4. Firing of Woods. 
 Whenever the woods in any town are on fire, it is the duty 
 of the Justices of the Peace, the supervisor, and commissioners 
 of highways, of the town, to order such and so many of the 
 inhabitants of the town, liable to work on the highways, and 
 residing near the vicinity of the fire, as they may severally deem 
 necessary, to repair to the place where the tire is prevailino-, 
 and there to assist in extinguishing it, or in arresting its pro- 
 gress. If any person so ordered refuses or neglects to comply 
 with the order, he forfeits the sum of fifty dollars, and is also 
 
JUSTICES OF SESSIONS. 849 
 
 deemed guilty of a misdemeanor, and, on conviction, may be 
 punished by a fine, not exceeding one hundred dollars, or by 
 imprisonment, not exceeding sixty days, or by both such fine 
 and imprisonment. The forfeiture, when recovered, is to be 
 applied as a reward to such person or persons as the officers 
 above mentioned, or a majority of them, deem best entitled 
 thereto, for superior exertions in extinguishing or stopping the 
 progress of the fire. (1 R. 8. 697, §§ 2, 3, 4.) 
 
 Fees. 
 No fees are prescribed for services under this statute. 
 
 5. FOECIBLE EnTET AND DETAINER. 
 
 Every Justice of the Peace has the like powers and authority 
 under article one, title ten, chapter eight, part three of the Revised 
 Statutes, "as to forcible entry and detainer," under title two, 
 chapter seventeen of the Code of Civil Procedure, which he for- 
 merly had. 
 
 Fees. 
 
 The fees in this matter are the same as in special proceedings. 
 {See Civ. Pro, § 3322.) 
 
 6. Justices of Sessions. 
 The Constitution provides {Constitution in force Jan., 1882, 
 Art. Yl , see. 15) that two Justices of the Peace shall be designated 
 according to law, to hold, with the County Judge, Courts of Ses- 
 sions. It is accordingly provided by statute that two Justices 
 shall be designated by annual election. {Laws of 1847, chap. 
 280, § 40, am,d chap. 470, § 34.) 
 
 Fees. 
 For every day's attendance in holding the Courts of Oyer and 
 Terminer and Sessions in any county, the Justices of Sessions 
 are entitled to receive the sum of three dollars each, and five 
 cents per mile in going and returning from Court ; such com- 
 pensation to be a county charge, and to be paid by the county 
 treasurer, on the production of the certificate of the clerk of the 
 Court, specifying the number of days such Justices have attended, 
 and the distance they have traveled respectively ; and but one 
 allowance for travel can. be made for any term of the Court. 
 {Laws of 1847, chwp. 277, § 6; 1859, chap. 496.) 
 
850 NEW YORK justicIeJ;. 
 
 \ . 
 
 The Justices of Sessions in and for the ' ^county of Orange, are 
 entitled to receive the sum of three doUai "S per day each, foi 
 their services, to be audited by the board of supervisors of that 
 county, and paid as other county charges are j, laid. (Laws of 
 1848, chap. 241.) "'•- . 
 
 7. Limited Partnerships. 
 
 Justices of the Peace are authorized to take the acknowledg- 
 ment of certificates made by persons forming limited partner- 
 ships. (Laws of 1837, chap. 129.) 
 
 The fee for such acknowledgment is twenty-five cents. {Oiv, 
 
 Pro., § 3298.) 
 
 8. Racing. 
 
 All racing or trial of speed between horses or other animals 
 for any bet, stake or reward, except such as is allowed by epeciaJ 
 laws, is a public nuisance ; and every person acting or aiding 
 therein, or making or being interested in any such bet, stake or 
 reward, is guilty of a misdemeanor ; and in addition to the pen- 
 alty prescribed therefor, he forfeits to the people of this State, all 
 title or interest in any animal used with his privity in such race 
 or trial of speed, and in any sum of money or other property 
 betted or staked upon the result thereof. (P. C, § 352.) 
 
 It is the duty of all officers concerned in the administration of 
 justice to attend at the place where they know or are informed 
 that any race is about to be run contrary to the provisions of law, 
 and there to give notice of the illegality of such contemplated race, 
 and endeavor to prevent it, by dispersing the persons collected, 
 and by all other means in their power. Upon information 
 laid before a Justice of the Peace, he may issue warrants for 
 the immediate apprehension of the offenders, to the end that 
 they may be compelled to enter into recognizances, with sufficient 
 sureties for their appearance at the Court of Sessions to answer 
 for their ofEenses. 
 
BACIN6. 851 
 
 § 319. Warrant to apprehend Persons engaged in Racing. 
 
 County of : 
 
 In the name of the People of the State of New York, 
 
 To any Peace officer in this State (or, in the county of ) ; 
 
 Information, upon oath, having been this day laid before me, 
 that the crime of {designating it) has been committed and 
 
 accusing C D thereof ; 
 
 You are therefore commanded forthwith to arrest the above- 
 named C D and bring him before me at , or in case of 
 my absence or inability to act, before the nearest and most accessi- 
 ble magistrate in this county. 
 
 Dated at , this day of , 1885. 
 
 E F, Justice of the Peace. 
 
 § 320. Recognizance or Undertaking. 
 
 An order having been made on the day of , 1885, 
 
 fey A B, a Justice of the Peace, of the town of , that 
 
 C D be held to answer the charge of , upon which he has 
 
 been duly admitted to bail in the sum of dollars. 
 
 We, C E, of {stating his place of residence and occupa- 
 
 tion), and E F and Gr E. {stating place of residence cmd occupa- 
 tion), surety or sureties, hereby undertake, jointly and severally, 
 that the above-named D shall appear and answer the charge 
 above-mentioned, in whatever coitrt it may be prosecuted ; and 
 shall at all times render himself amenable to the orders and pro- 
 cess of the court, and if convicted shall appear for judgment and 
 render himself in execution therefor ; or if he fail to perform 
 either of these conditions that he will pay to the People of the 
 State of New York the sum of dollars. C I) [l. s." 
 
 E F [l. s.; 
 
 Taken, subscribed, and acknowledged, the day of , 
 
 before me. J HB, Justice of the Peace. 
 
 Fees. 
 
 The fees allowed by law for services under this statute are as 
 follows : 
 
 To Justices. For issuing a warrant of arrest, twenty-five cents. 
 
 For indorsing warrant from another county, twenty-five cents. 
 
 For administering an oath or affirmation, ten cents. 
 
 For drawing an information, twenty-five cents. 
 
 For each day's necessary attendance upon the hearing or exam- 
 ination of the accused, one dollar. 
 
 For every necessary adjournment of the hearing or examination, 
 twenty-five cents. 
 
 For warrant of commitment, twenty-five cents. 
 
852 NEW TOEK JUSTICE. 
 
 For a subpoena, including all names inserted therein, twenty- 
 five cents. 
 
 For each copy subpoena, for service, ten cents. 
 
 For filing each paper required by law, five cents perjolio of 
 one hundred words. 
 
 For each order or certificate required by law, twenty-five cents. 
 
 For drawing an undertaking of bail, twenty-five cents. 
 
 For taking and certifying the acknowledgment of any instru- 
 ment which is required to be acknowledged before a justice, 
 twenty-five cents. {Laws o/'1884, cho/p. 188.) 
 
 To Constables. Serving a warrant, seventy-five cents. 
 
 Mileage, going and returning, for each mile, ten cents ; keeping 
 a prisoner, one dollar per day. {Laws of 1877, chap. 89.) 
 
 9. Removal of Constables. 
 
 If any constable has collected any money on execution, and a 
 recovery therefor has been had against his sureties, upon a com- 
 plaint thereof being made to any three Justices of the same 
 town, they must summon such constable to appear before them, 
 to show cause why he should not be removed from his office. 
 (id. 272, § 268.) This summons may be made out by two of 
 such Justices, upon a meeting of all three, (id. 555, § 27.) 
 
 If such complaint be established to the satisfaction of such 
 Justices, or of any two of them, after a hearing of the parties, 
 or after the refusal or neglect of the constable to appear upon 
 such summons, they must, by an instrument under their hands, 
 remove such constable from his office, assigning therein the 
 reason of such removal, and must file the same in the office of 
 the town clerk, who must forthwith cause a certified copy 
 thereof to be served on such constable, (2 B. S. 272, § 269.) 
 
 Upon the service of a copy of such instrument, certified by 
 the town clerk, on the constable named therein, such constable 
 will cease to have any power or authority as such, and his 
 office will be deemed vacant, (id. 273, § 270.) 
 
 Fees. 
 No fees are prescribed for services under this statute. 
 
 10. Town Auditors. 
 
 The supervisors, town clerk and Justice of the Peace, or any 
 two of them constitute a board of two auditors, for the purpose of 
 
TOWN AUDITOES. 853 
 
 auditing and allowing the accounts of all charges and claims pay- 
 able by their respective towns. {Laws of 1840, chap. 305, § 1.) 
 The board must meet annually for this purpose, at the place of 
 holding the last town meeting, on the last Thursday preceding 
 the annual meeting of the board of supervisors of the county. 
 {Laws of 1844, chap. 228.) 
 
 The board of town auditors shall, in addition to the authority 
 now invested in such board, have the exclusive power, and it 
 shall be their duty, at their annual meeting, to audit the 
 accounts of Justices of the Peace and Constables, for fees in 
 criminal cases, which are by law chargeable to any such town, 
 and the amount thereof shall be included in their certificate. 
 {Laws of 1866, chap. 832.) 
 
 The board must make two certificates, to be signed by a 
 majority, specifying the name of the person in whose name the 
 account is drawn, the nature of the demand, and the amount 
 allowed. One of these certificates is to be delivered to the 
 town clerk, to be kept by him on file for inspection, and the 
 other is to be delivered to the supervisor, to be by him laid 
 before the board of supervisors at their annual meeting. {Laws 
 of 1840, chap. 305, § 3.) 
 
 No account can be audited by the board of town auditors for 
 any services or disbursements, unless it is made out in items, and 
 accompanied by an affidavit of the claimant, (to be filed with it,) 
 that the items of the account are correct, and that the disburse 
 ments and services charged have in fact been made or rendered 
 or are necessary to be made or rendered at that session of the 
 board, and that no part of the account has been paid or satisfied 
 The chairman of the board may administer the oath to the claim- 
 ant. {Laws of 1845, chap. 180, § 24; Laws of 1847, chap. 490, 
 § 2.) Notwithstanding the verification of the account, the board 
 may require further proof of its accuracy. {Laws of 1845, chap. 
 180, § 25.) No town officer can be allowed axij per diem com- 
 pensation for his services, unless expressly provided by law, 
 {id. § 23.) 
 
 It is also the duty of the board to make annually brief ab 
 stracts of the names of all persons who have pi-esented accounts 
 to be audited, with the amount claimed by each, and the amount 
 finally audited. The abstracts are to be delivered to the clerk 
 
854 NEW YORK JUSTICE. 
 
 of the board of supervisors, and printed with the other statements 
 required to be printed by him. [Laws of 1847, chwp. 455, § 24.) 
 
 § 321. Affidavit to attach to an Account. 
 
 County, ss; 
 
 E F, of said county, being duly sworn, says, that the items 
 for services and disbursements mentioned in the foregoing 
 account by him presented [or, claimed,] are in all respects cor- 
 rect; that such disbursements and services have in fact been 
 made or rendered, or are necessary to be made or rendered at 
 this session of the Board; and that no part thereof has been 
 paid or satisfied. 
 
 Sworn to, this day of , ? E F. 
 
 18 , before me, 5 
 
 A B, Chairman of the Board of Town Auditors of 
 
 § 322. Oertijicate of Town Auditors. 
 
 County, ? g. 
 Town of , ) ■ 
 
 We, the undersigned, composing the Board of Town Auditors 
 of said town, do hereby certify, that we have this day audited 
 and allowed to E F, Commissioner of Highways of said town, 
 by whom the foregoing account has been presented to us, the 
 sum of dollars, as and for his services as such Commis- 
 
 sioner, [insert, and the disbursements necessarily paid out by 
 him in the execution of his duties, if necessary,] up to, and 
 including, the day of , instant; and that we find a 
 
 balance of dollars and cents, to be due by the said 
 
 E F, to the town of ; [or as the balance rrmy 6e.] 
 
 Dated at , the day of , 18 . 
 
 A B, Supervisor. 
 C D, Town Clerk. 
 GH, 
 
 &c., &c., f'^"'*^*^"'- 
 
 \ 323. Abstract of Claims audited by the Tovon Auditors. 
 
 Abstract of the names of all persons who presented accounts 
 to be audited, to the Board of Town Auditors of the town of 
 , on the day of , 18 , with the amounts 
 
 claimed by each, and the amounts finally audited. 
 
VACANCIES IN TOWN OFFICES. 
 
 800 
 
 Names. 
 
 Title of Office, or nature of claim of services. 
 
 Amount Amount- 
 claimed, audited 
 
 John Brown 
 
 
 $50 SO 
 60 90 
 78 00 
 
 $10 50 
 
 John Doe 
 
 James Thompson 
 
 Town Superintendent of Common Schools 
 
 60 00 
 78 00 
 
 &Q>, &G.f 
 
 Ac, &B. 
 
 Total 
 
 
 
 
 
 Dated 
 
 the 
 
 Town of ; ss: 
 
 We do hereby certify that the foregoing abstract is correct. 
 "" ■ ' ' ' day of , 18 . 
 
 DEL, Supervisor. 
 
 S G, Town Clerk. 
 
 HF, 
 
 ST, 
 
 &c., &c., Justice of the Peace. 
 
 Fees. 
 
 The fees to auditors for their service under this act is three 
 dollars per day, not exceeding three days. 
 
 11. Town Meetings. 
 
 It is the duty of the Justices of the Peace of each town to 
 attend every town meeting held therein; and such of them as 
 are present must preside, and see that the meeting is orderly 
 and regularly conducted. The Justices so presiding have the 
 like authority to preserve order, to enforce obedience, and to 
 commit for disorderly conduct, as is possessed by a board of 
 inspectors at a general election. (1 R. S. 342, §§ 11, 12.) And 
 they may make a parol order for the removal of any disorderly 
 person who disturbs the business of the meeting; an order in 
 writing is not necessary. (Parsons vs. Brainard, 17 Wend. 572.) 
 
 Fees. 
 
 For every day's attendance, each Justice is entitled to two 
 dollars. {Lmjos of 1S70, clmp. 242.) 
 
 12. Vacancies in Town Offices. 
 If any town neglects, at its annual town meeting, to choose 
 any of its town officers, it is lawful for any three Justices of the 
 Peace of the town, by warrant under their hands and seals, to 
 appoint such officers. (1 R. B. 347, \ 31.) 
 
856 NEW YORK JUSTICE. 
 
 ^ 324. Warrant apj)omtmff Town Officers. 
 
 State of New York, 1 
 
 County, [ 
 
 Town of J 
 
 The said town having neglected, at its last annual town meet- 
 ing, to choose a town superintendent of common schools, the 
 undersigned. Justices of the Peace of the said town, pursuant 
 to section 31, of article 3, of title 3, of chapter 11, of part 1, 
 of the Revised Statutes of the said State, hereby appoint A B 
 of said town to be superintendent of common schools of said 
 town. 
 
 Given under our respective hands and seals, at afore- 
 
 said, this day of , 18 . 
 
 [^Signatures of Justices.] [l. 8.] 
 
 The Justices must file this warrant with the town clerk, who 
 is to give notice to the person appointed. (1 id. 347, § 32.) 
 
 Any three Justices may also, for good cause shown, accept 
 the resignation of any town officer of their town. If accepted, 
 by them, notice must be given to the town clerk, (id. § 33.) 
 
 § 325. Notice of Acceptance of Resignation. 
 
 State of New York, \ 
 
 County, \ ss: 
 Town of , j 
 
 To the town clerk of the said town: 
 
 You are hereby notified, that we, the undersigned. Justices 
 of the Peace of the said town, have, for good cause shown, 
 accepted the resignation of A B [the office] of said town. 
 Dated at , this day of , 18 . 
 
 [Signatures of Justices.] 
 
 Vacancies in all town offices, (except the offices of supervisor, 
 overseer of the poor, collector, assessor, commissioner of hio-h- 
 ways, and overseer of highways,) occurring by death, resigna- 
 tion, removal, incapacity, or refusal to serve, may be supplied 
 by warrant in the manner pointed out. {id. 348, § 36.) 
 
 A vacancy in the office of assessor, occasioned by either of the 
 above causes, may be supplied, until the next succeeding annual 
 town meeting, by an appointment in writing, under the hands 
 of two Justices of the Peace of the town. {Laws of 1845, chap, 
 180, §§ 2, 4.) 
 
VACANCIES IN TOWN OFFICES. 857 
 
 If any person chosen or appointed to the office of collector of 
 any town or ward, refuses to serve, or dies, resigns, or removes 
 out of his town or ward, before he has entered upon or com- 
 pleted the duties of his office, or is disabled from completing 
 the same by reason of sickness, or any other cause, the super- 
 visor and two Justices of such town or ward have power to ap- 
 point a new collector. (1 R. 8. 399, § 11.) 
 
 A vacancy in the office of commissioner oj highways is sup- 
 plied by an appointment in writing, under the hands of any 
 three Justices of the Peace, or two Justices and the supervisor 
 of the town. {Laws of 1847. chap. 455, § 2, jj. 581.) 
 
 A vacancy in the office of overseer of highways is filled by the 
 commissioners of highways. (1 R. 8. 504, § 14.) 
 
 In case of a vacancy in the office of inspector of election in 
 any town, or if any inspector shall be absent, or shall have 
 ceased to be a resident of such district, or shall be unable to 
 attend and hold any election in his district, the supervisor or 
 tovm clerk and Justices of the Peace in such town, must meet 
 at such time and place as shall be appointed by the supervisor, 
 or in case of his absence or inability or a vacancy in his office, 
 by the town clerk, and must designate and appoint so many 
 electors of such election district, as shall be necessary to supply 
 such vacancy, to be inspectors of election for such district, 
 and must file a certificate of such appointment in the office of 
 the town clerk; and the persons thus appointed will be inspec- 
 tors of such election for such district. {Laws of 1842, chap. 
 130, title 3, § 22.) 
 
 When a vacancy occurs in the office of overseer of the poor, 
 or supervisor, occasioned by refusal to serve, or death, resigna- 
 tion, removal, or incapacity, it is the duty of the town clerk, 
 within eight days thereafter, to call a special town meeting for 
 the purpose of filling the same. {Laws of 1830, chap. 320, § 2.) 
 If the electors do not, within fifteen days after the vacancy 
 occurs, supply it, by an election at town meeting, three Justices 
 of the Peace of the town may appoint a person to fill it, by a 
 warrant under their hands and seals, in the same manner as in 
 a case where there has been a neglect to elect. (1 R. 8, 348, 
 ^35.) 
 
 If the electors of a town make no election at the regular towi? 
 meeting, they cannot make an election at a subsequent meeting 
 
858 NEW YORK JUSTICE. 
 
 though held within fifteen days; and the three Justices may 
 supply the vacancy without waiting the fifteen days. [Wildy 
 vs. Washburn, 16 Johnson 49.) If the annual meeting failed to 
 elect a supervisor, it is competent for the three Justices to 
 appoint a suitable person, who is entitled to hold the office, 
 notwithstanding a person was elected as supervisor at a special 
 town meeting. The provision providing for a special election, 
 relates to cases where officers have been duly elected or ap- 
 pointed, and the offices have subsequently been vacated by 
 refusal to serve, &c. {People vs. Van Home, 18 Wend. 515.) 
 
 Whenever a vacancy occurs in any town office which Justices 
 are authorized to fill, and there are less than three Justices in 
 the town, the requisite number may be made up by calling in 
 one or more Justices from an adjoining town; and the three 
 Justices so associated have the same power to fill a vacancy, as 
 if they were respectively Justices of the town in which the 
 vacancy occurred. [Laws of 1830, chap. 320, § 3.) 
 
 If the Justices fail to supply the vacancy for thirty days, the 
 town clerk must call a special town meeting to elect officers to 
 fill the vacancy. {Laws of 1874, chap. 543.) 
 
 The supervisor may appoint some suitable person to be town 
 auditor in case of a vacancy. {Laws of 1875, chap. 180.) 
 
 12. Justice to Act as Coronee. 
 
 Any Justice of the Peace, in each of the several towns and 
 cities of this State, is hereby authorized and empowered, in case 
 the attendance of a coroner cannot be procured within twelve 
 hours after the discovery of a dead body, upon which an inquest 
 is'now required by law to be held, to hold an inquest thereon in 
 the same manner and with the like force and efiEect as coroners. 
 
 In all cases in which the cause of death is not apparent, it shall 
 be the duty of the Justice to associate with himself a regularly 
 licensed physician, to make a suitable examination for the dis- 
 covery of said cause. 
 
 Each and every Justice of the Peace, who shall hold inquests 
 by virtue of this act, shall receive the same fees as are now 
 allowed by law to coroners. {Laws of 1864, chap. 379.) 
 
INDEX. 
 
 ABANDONING CHILD, paob. 
 
 information for 54fi 
 
 punishment for 583 
 
 ASATSaiBNT, 
 
 pleas in, in civil actions, abolished 158 
 
 [See PUas.} 
 
 ABOucnoN, 
 
 information for 545 
 
 punishment for 609 
 
 Abortion, 
 
 information for 553 
 
 punishment for 609 
 
 Abscondino Parents, 
 
 [See Parents^ Absconding.'] 
 
 Absbnoe, 
 
 evidence of, of subscribing vyitneases.. 413 
 
 ACCBPTANCB, 
 
 by purchaser, necessary 48 
 
 not a bar to an action for damages. ... 60 
 Accessories, 
 
 information against, after the fact 542 
 
 ACCOMPLIOKS, 
 
 testimony of, may be taken 573 
 
 Account Books, 
 
 [See Shop-Books.'] 
 Accounts, 
 
 amount of, cognizable by justices 27, 38 
 
 no interest on unliquidated 72 
 
 statute of limitations as to actions 
 
 upon 133, 144 
 
 court may require, to be exhibited 209 
 
 actions on 210 
 
 defence founded on 210 
 
 over $400 not within jurisdiction of 
 justice 238 
 
 ACKNOWLEDGMBNT, 
 
 by partners, after dissolution 106 
 
 to take case out of statute of limita- 
 tions 141,144,422 
 
 of authority to act as attorney 205 
 
 of instruments in New York and else- 
 where 391 to 399 
 
 of instruments generally 406 
 
 of certificates of limited partnerships.. 850 
 
 fees therefor 850 
 
 and proof of conveyances, <&c., 
 
 who may take 688 
 
 requisite, to entitle instrument to be 
 
 recorded 688 
 
 party making, most be known 688 
 
 statement by subscribing witness 688 
 
 enbscriblDg witness must be known... . 689 
 
 who may prove identity of grantor 689 
 
 married women formerly to be examined 
 ftpart 689 
 
 Aoknowleoqment, page, 
 
 private examinations, unnecessary now. 689 
 erasures and interlineations to be noted 689 
 
 certificate of. to be indorsed 689 
 
 contents of such certificate 690 
 
 meaning of term " conveyances " 690 
 
 satiafactiou of judgment 691 
 
 forms for 691 to 699 
 
 [See Conveyances, and Evidence.] 
 Acquittal, 
 
 of one of several defendants 281 
 
 ACTIONB, 
 
 civil, where to be tried by jnstices... 21, 34 
 for penalties, where not to be tried by 
 
 them 24 
 
 definition of 2& 
 
 what causes of, cognizable in justices* 
 
 courts 26 
 
 what not cognizable in such courts 27 
 
 on indivisible contracts 38 
 
 on accounts 33 
 
 venue in, for injuries to real property. . 35 
 venue in, for personal property dis- 
 trained 35 
 
 venue in, for penalties 35, 123 
 
 venue in, against public officers 35 
 
 by warrant, in favor of non-residents. . . 35 
 
 bj' and against non-residents 36 
 
 in justices' courts, where to be brought, 36 
 by and against town and county offi- 
 cers 36, 158 
 
 on contracts 39 
 
 for breach of warranty 55 
 
 by pawnors 61 
 
 for money paid, laid out, &c 61, 62 
 
 for use and occupation of lands 63 
 
 on guaranties of notes 72 
 
 on illegal contracts ,... 77 
 
 for horses hired on Sunday 81 
 
 for false recommendation as to credit . . 84 
 
 for false affirmation as to character 85 
 
 for fraud in sale of horses 85 to 87 
 
 death of party after verdict 95 
 
 by executors and administrators 94, 151 
 
 by and against corporations 95, 145 
 
 by and against counties and towns 97 
 
 between partners 106 
 
 for injuries lo the person no 
 
 for injuries to real property 110, 113 
 
 for injuries to personal property 104 
 
 for trespass 110 to 114 
 
 for injuries by domestic animals... 116,117 
 
 for penalties and forfeitures 119 to 125 
 
 for cutting down trees 119 
 
 practice in, in name of people 119 
 
860 
 
 INDEX. 
 
 AoriONS, PAGE. 
 
 practice in, under various town charters, ISO 
 
 compromise of, for penalties 122 
 
 proceee in, for ppimltu^s... 133 
 
 complaint in, for penalties 123 
 
 in wliich canal boats may be detained., 124 
 
 jurore, &c.. in, for penalties 124 
 
 under mechanics' lien law 128, 133 
 
 times of commencing civil 136 to 145 
 
 on judgments 139,456 
 
 when commenced 139 
 
 attempts to commence 140 
 
 now, on reversal of judgments 141 
 
 parties to civil 145 to 156 
 
 by and against public officers and 
 
 bodies 145, 146 
 
 against counties 147 
 
 against towns 147,149 
 
 on contracts in behalf of towns 147 
 
 by foreign corporations 147 to 151 
 
 by and against joint-stock associations, 148 
 
 by and against banks 148 
 
 maliciously instituted 151 
 
 to be prosecuted by real party 151 
 
 by assignees 151 
 
 by and against married women 151 
 
 by infants 153, 154 
 
 plaintiff may conduct, in person 152, 279 
 
 do not abate by death, &c 154 
 
 substitution of creditor for defendant in, 155 
 
 how commenced 156 to 173 
 
 when commenced without process 156 
 
 when commenced by warrant 153 
 
 when commenced by summons 156 
 
 when commenced by attachment 165 
 
 against supervisors 156 
 
 when continued by warrant 165 
 
 parties to, when exempted from arrest. 176 
 hearing of, when commenced by attach- 
 ment 188 
 
 parties may defend i u person 902, 279 
 
 by and against idiots and lunatics 204 
 
 on accounts, and instruments for the 
 
 payment of money 310 
 
 what causes of, may he united 212 
 
 complaint in, for violation of statute. . . 213 
 
 on demands brought for suit 220 
 
 plea of former 222 
 
 on due-bills 228 
 
 may be arrested by a tender 231 
 
 lender after, brought 231 
 
 payment by defendant in, on bonds 232 
 
 in what, set-off allowable 233 
 
 flGt-off in, by personal representatives., 237 
 on demands which might have been set- 
 off 237 
 
 8et-off in, for tort 238 
 
 Bet-off in, for breach of warranty 238 
 
 eet-off in, against personal representa- 
 tives 238 
 
 in what, recoupment allowed 240 
 
 to be discontinued on plea of title 243 
 
 and to be brought in supreme court, 244, 245 
 
 adjournments of 248 to 260 
 
 on bonds on adjournments 253 
 
 Against defaulting witnesses' 275 : 
 
 Actions, page. 
 
 jurors in, for penalties, &c 286 
 
 challenges in civil 290 
 
 formal proceedings on trial of 293 to 308 
 
 parties to, competent as witnesses 365 
 
 examination of parties to 367 to 372 
 
 on canal contractors' bonds 395 
 
 evidence in particular 4l6 to 439 
 
 costs ill civil 465 to 472 
 
 for issuing execution on satisfied judg- 
 ment 476 
 
 against bidders refusing to take prop- 
 erty 489 
 
 for detaining defendant in jail 495 
 
 for not rotnri.inK execution 496 
 
 statute of limitations as to criminal — 524 
 
 for violation of excise law 766 
 
 by and against hawkers and pedlers — 793 
 
 for proceedings under highway act 799 
 
 for obstructing highways 803 
 
 ADJOtrnNMENT, 
 
 in consequence of amendment 218 
 
 when for more than ninety days 257 
 
 not good, when justice absent 257 
 
 Illegal, a discontinuance 257 
 
 examples of, irregular 257 to 259 
 
 irregularity of, may be waived 259 
 
 general rulis as to 260 
 
 commifsion may be issued after 262 
 
 till return of attachment 273 
 
 when witness refuses to testify 279, 297 
 
 on motion of defendant^ 
 
 on warrant 250, 252 
 
 when witness refuses to swear or 
 
 testify 251, 256 
 
 on arrest' 230 
 
 for how long 251, 256 
 
 when not allowed 251, 256 
 
 when to be granted 251, 253 
 
 steps to secure 252 
 
 on issuing commission 251 
 
 oaih to materiality of witness 251, 253 
 
 security for 254 
 
 bond on, where body execution can issue 255 
 
 Adjournment, 
 
 bond on, where such execution cannot 
 
 issue 255 
 
 second, when 256 
 
 new bond not necessary 256 
 
 third, when 257 
 
 testimony of witness need not be stated 257 
 
 when for more than ninety days 257 
 
 on m/.tion of justice. 
 
 for eight days 248 
 
 not allowed on warrant 248 
 
 on summons aud attachment 248 
 
 must be on return of process 248 
 
 not allowed a second time 248 
 
 when irregular 249 
 
 on motion of plaintiff 
 
 on return of process 249 
 
 on joinder of issue without process 249 
 
 affidavit for 250 
 
 for how long.. , 251 
 
 not allowed a second time 250 
 
 on warrant in favor of non-resident,.,. 250 
 
INDEX. 
 
 861 
 
 AOTIOKB, PA OB, 
 
 when witness refuses to swearer testify 251 
 
 on arrest , 250 
 
 when not allowed 251 
 
 on isBuing commiBsion 351 
 
 of Marine Court, in New York 253 
 
 when for more than ninety days 357 
 
 AuinNiSTRATonp, 
 
 cannot be sued in justicci'* courts . . 28, S6 
 
 are personal representativoi 94 
 
 to collect debts due their intestate 94 
 
 letters to 95 
 
 actions by 95 
 
 letters to, evidence 95 
 
 statute of limitations as to 141 
 
 may ene in justices' courts 145 
 
 Bet-off in actions by 238 
 
 set-off in actions against 238 
 
 admissions by one of several 344 
 
 when, may assign apprentices' indent- 
 ures 705 
 
 AD3IISSI0NS, 
 
 by agents 100, 336 
 
 [See Evidence.] 
 
 Appro ATIT8, 
 
 for body execution 163 
 
 for warrant. . 161 
 
 for attachment 165 to 172 
 
 for long attachment, under Revised 
 
 Statutes 170 
 
 for long attachment, under non-impris- 
 onment act 171 
 
 for short attachment, against dou- 
 
 resident 171 
 
 that justice is a material witness 208 
 
 of service of notice of application for 
 
 commission 263 
 
 of service of notices generally 283 
 
 fx parte, not to be given in evidence .... 294 
 
 in what form to be taken 396 
 
 who to take, in other states and coun- 
 tries 386 
 
 by printers, of publication 405 
 
 on confession of judgment 452 
 
 to procure discharge from imprison- 
 ment 495 
 
 to accompany account of fees 679 
 
 justices may take 700 
 
 oath to deponent 701 
 
 fee for taking 701 
 
 to authorize removal of tenant 825 
 
 by tenant, to obtain trial by jury 824 
 
 by town ofBcers to accounts 854 
 
 on application to sell liquor 777 
 
 for personal property 198 
 
 of claim by third person 201 
 
 on appeal , 670 
 
 Afpirmation, 
 
 of witnesses 396 
 
 AFPBAT6, 
 
 justices have power to quell 525 
 
 persons engaged in, may be arrested 
 
 without process 535 
 
 information for making 553 
 
 AOBKOT, 
 
 evidence of. 416 
 
 Aqentb, page. 
 their liability for money of their prin- 
 cipals 62 
 
 of corporations 96 
 
 who may appoint 97 
 
 who may be appointed 98 
 
 same agent cannot act for both pajties. 98 
 
 cannot delegate powers 98 
 
 how appointed 93 
 
 when acts of, bind principals 98 to 103 
 
 general 98, 99 
 
 special 99 
 
 powers of general 99 
 
 warranty by 100 
 
 when personally liable 100, 103 
 
 admissions, declarations, &c., of 100 
 
 liable for fraud 101 
 
 may sell on credit 101 
 
 their liability for so doing 101 
 
 when liable for conversion 102 
 
 must account 102 
 
 must pursue their authority 103 
 
 tenderto 230 
 
 when admission of, bind principals . ,. 335 
 competent witnesses against principals. 367 
 evidence of authority of 416 
 
 AOFlBBMBNTB, 
 
 void by statute of frauds 4fl to 50 
 
 form of, to answer for debt of another. . 44 
 in consideration of marriage. ... 40 to 46 
 
 to pa}' for appointment to office ; 79 
 
 against public policy 77, 79 
 
 not to bid at auctions 79, 80 
 
 Albant, 
 
 three justices of the peace in 12 
 
 the time and manner of their election.. 12 
 
 justices' courts in 13, 21 
 
 jurisdiction of siich court 30 
 
 jurisdiction of aldermen of 119 
 
 fees of constables, Jtc, in 472 
 
 special sessions in 653 
 
 Aliens, 
 
 incompetent as jurors 266 
 
 depositions of, evidence 388 
 
 Allegant, 
 
 jurors in county of 285 
 
 Alms-Hotjsr, 
 
 keepers of, exempt ftom jury duty 287 
 
 AMBAS^iADORS, 
 
 exemption of, and their servants, from 
 arrest 178 
 
 Amendment, 
 
 after demurrer , 213 
 
 powers of justice respecting 218 
 
 when, inay be made 218 
 
 costs on 218 
 
 by inserting true name 219 
 
 of pleadings generally 300 
 
 of justices' return 503 
 
 Animals, 
 
 actions for injuries by domestic 116 
 
 cruelty to 631 
 
 information for cruelty to 553 
 
 Answer, 
 
 may be oral or in writing 210 
 
 demurrer to 210, 211 
 
862 
 
 INDEX. 
 
 &NSWBB, PAGE. 
 
 permitted after demurrer 214 
 
 contents of 216 
 
 objections to be taken by 217 
 
 no reply to 317 
 
 plea to the jurisdiction 220 to 222 
 
 plea of former action ... 382 
 
 plea of payment 323 
 
 plea of tender 223 to 233 
 
 must contain notice of eet-off 236 
 
 must contain notice of recoupment.... 240 
 
 pleaof title 243 
 
 in such case, must be written 243 
 
 form of, setting up title ... 243 
 
 in supreme court, must be the same .... 245 
 Antwerp, 
 
 competency of justices, jurors, &c., in. 386 
 Appeals, 
 
 from justices' courts 497 
 
 costs and fees on 607 
 
 criminal, 
 appeal to court of sessions from judg- 
 ment of special sessions 667 
 
 new trial may be granted 667, 669 
 
 who may appeal 668 
 
 when ana Tiow taken, 
 
 notice of 497 to 511 
 
 notice must state grounds of 499 
 
 notice of, on whom to be served 499 
 
 costs and fees of justice to be paid 500 
 
 time for, cannot be enlarged 501 
 
 when notice to be served 501 
 
 form of notice 601 
 
 notice must be stamped 501 
 
 stay of execution on, 
 
 security to be given 502 
 
 form of security 502 
 
 undertaking to be approved 503 
 
 Appeals, 
 
 effect of delivery of undertaking 503 
 
 to whom undertaking to be delivered.. 503 
 notice of filing undertaking to be given. 503 
 return to, 
 
 within what time to be made 503 
 
 when justice has removed 604 
 
 amendment of, may be ordered 604 
 
 form of 604 
 
 to be annexed to judgment 606 
 
 proceedings in appellate court, 
 
 amendments may be granted on terms.. 508 
 
 witnesses may be examined 507 
 
 appeal, when to be heard 506 
 
 notice of argument to be given 506 
 
 appeal, when to be dismissed 506 
 
 judgment to be reversed, on default of 
 
 respondent 506 
 
 appeal to be heard on original papers.. 506 
 
 judgment, how to be given 506 
 
 new trial may be ordered 607 
 
 restoration may be ordered 509 
 
 costs, how to be awarded 509, 511 
 
 In criminal cases, 
 judgment of special sessioni reviewable 
 
 only on appeal 667 
 
 for what causes allowed 667 
 
 how taken 667 
 
 Affbalb, page. 
 
 how allowed 667 
 
 discharge of defendant upon under- 
 taking 667 
 
 undertaking, how filed 668 
 
 delivery of affidavit and allowance 668 
 
 return, when and how made 66S 
 
 compelling return 668 
 
 ordering further return 668 
 
 how brought to argument 668 
 
 if not argued to be dipmlssed 668 
 
 return served on district attorney 669 
 
 if brought to hearing must be argued. . 609 
 
 to be heard on original return 669 
 
 what judgment rendered 069 
 
 judgment to be entered 669 
 
 order for affirmance 669 
 
 order of reversal 669 
 
 new trial 669 
 
 how judgment carried Into effect 670 
 
 defendant may appeal to supreme court 670 
 
 judgment of supreme court final 670 
 
 affidavit on appeal 670 
 
 indorsement on affidavit 671 
 
 undertaking, on appeal 671 
 
 indorsement on undertaking 672 
 
 recognizance on appeal 672 
 
 [See Bastards and Landlord and Tenants.^ 
 
 Appellant, 
 
 [See Appe(U.'\ 
 
 Appointment, 
 
 of guardian for infant plaintiff 153 
 
 Apprentices, 
 
 who may be 702 
 
 binding of, when valid 702 
 
 must execute indentures 7(^ 
 
 indentures, iJ/imra/acie evidence of age 704 
 money paid or agreed for to be Inserted 
 
 In iadeuturea 704 
 
 contents of indentures 702 
 
 tobe instructed 702 
 
 infants from beyond the sea may be . . ,704 
 continuing beyond term of indentures, 705 
 absenting themselves to serve doable 
 
 time 705 
 
 refusing to serve, may be arrested 703 
 
 complaints- by masters against . . - 705 
 
 complaints by, against masters 704 
 
 indentures of, when to be assigned 705 
 
 employed by third persons 705 
 
 forms 706 to 716 
 
 selling liquor to 770 
 
 liquor not to be sold to, of habitual 
 drunkards 787 
 
 ARBITRATOKd, 
 
 justices may administer oaths to 847 
 
 and compel witnesses to attend before, 847 
 fees therefor 847 
 
 Army, 
 
 exemption of officers and soldiers in, 
 
 from arrest 177 
 
 acknowledgments by, in Mexico 393 
 
 Abbbbt, 
 under civil process, 
 plaintiff to be notified of defendant's. . . 160 
 what constitutes igi 
 
INDEX. 
 
 863 
 
 ■*^™™''. PAOE. 
 
 Of defendant, in his dwelling 175 
 
 who exempt from 176 to 178 
 
 after escape 178, 190 
 
 irregularly made, void 190 
 
 UTidir criminal process^ 
 
 who liable to 537 
 
 [See Constables, and Warrants.] 
 
 Abbon, 
 
 informations for, in all the degrees 548 
 
 in the first degree 584 
 
 in the second degree 584 
 
 in the third degree 584 
 
 punishment of 564 
 
 Abbatjlt and Battery, 
 
 civil actions for, cannot he tried hy 
 
 justices S7 
 
 actions for, abate hy death 95 
 
 actions for, when to be commenced 138 
 
 information for 54il 
 
 warrant for 563 
 
 Assault, 
 
 information for 545, 540, 547 
 
 in first degree 584 
 
 in second degree 609 
 
 in third degree, triable hy Special 
 Sessions 630 
 
 ASSEBBOBS, 
 
 vacancy in office of , how filled 856 
 
 AsSlONEii, 
 
 action hy 151 
 
 ASBIONIUENT, 
 
 of debt, transfers chattel mortgage 55 
 
 date of, 2>i'imafacie evidence 339 
 
 ASSIQNOB. 
 
 examination of, as witness 371, 373 
 
 Associations, 
 
 actions by and against joint-stock, 148 to 151 
 
 ASSITMPSIT, 
 
 terra abolished 416 
 
 definition of, hy Code, substituted 417 
 
 [See Contracts and Evidence.] 
 
 Abtlum, Lunatic, 
 
 [See Lunatics.] 
 
 Attachment, 
 
 to issue to county of justice 35 
 
 when issued 156 
 
 to he filled up 159 
 
 need not to be sealed 159 
 
 to be in name of people 159 
 
 to be in English 159 
 
 service of 181 to 188 
 
 duration of lien created by 185 
 
 justice to wait one hour after return of, 206 
 judgment on, when presumptive evi- 
 dence of indebtedness 836 
 
 adjournment hy justice on 248 
 
 when allowed against witness 372 
 
 how executed 873 
 
 costs of *''^ 
 
 costs on, to he paid by offender 466 
 
 levy in actions commenced by 486 
 
 forjnof 1™ 
 
 statute authorizing 164, 181 
 
 to he applied for in writing 165 
 
 ^Hiriavit for 161, 165, 168 
 
 Attachment, page. 
 
 undertaking for 173 
 
 contents of 166 
 
 computation of time on 167 
 
 may he amended 167 
 
 when proper 167 
 
 nature of demands authorizing 164 
 
 affidavit for 164 
 
 sureties for 165 
 
 executed, how 165 
 
 approval of justice on bond on 173 
 
 claim of third party under 167 
 
 how executed 167 
 
 judgment, how satisfied 168 
 
 defendant may vacate 167 
 
 affidavit, contain what 169 
 
 bond of defendant 166 
 
 judgment on defendant's bond 166 
 
 affidavit on removal of property 171 
 
 may amend 169 
 
 affidavit for, against non-resident 171 
 
 Attempt, 
 
 punishment for, to commit ofi'ense 610 
 
 punishment for, to induce perjury 610 
 
 Attobney -General, 
 
 when to commence actions for penalties, 138 
 
 Attobney, 
 
 liable for money of client 63 
 
 corporation may appear hy 153, 2U4 
 
 infant cannot appear hy 153, 203 
 
 when exempted from arrest 176 
 
 lunatic, when to appear by 204 
 
 constable, when not to act as 205 
 
 authority to appear by 205 
 
 clerk cannot act as 205 
 
 may make a tender 225 
 
 admission hy, binds client 348 
 
 cannot he a witness against client 351 
 
 may he bail, in a criminal case 626 
 
 may acknowledge satisfaction of judg- 
 ment 691 
 
 Aububs, 
 
 one justice of the peace in 4 
 
 officers in prison at, exempt from jury 
 
 duty 387 
 
 Aububn Guabds, 
 
 exempted from jury duty 887 
 
 Auctioneeb, 
 
 memorandum of sales hy 49 
 
 Auction, 
 
 memorandum of sales at 49 
 
 agreements not to bid at 79 
 
 agents, when hound as purchasers at. . . 103 
 
 Augusta, 
 
 jurors in town of 285 
 
 BAGGAGE, 
 
 [See Vhclalmed Bat/gage.] 
 
 Bail, 
 
 when exempted from arrest 177 
 
 who may take 608 
 
 meaning of term 633 
 
 who may offer 623 
 
 justice to judge of sufficiency of 624 
 
 by what standard ((24 
 
 excessive, not to be required 624 
 
864 
 
 INDEX. 
 
 Bail, pagb. 
 
 justice refusing to take, liable 634 
 
 justices may take, for offenses against 
 
 U. S 624 
 
 may be taken for adjourned examina- 
 tion 6*25 
 
 by whom to be given 625 
 
 what is sufficient 625 
 
 minors cannot be 626 
 
 married women cannot be 626 
 
 attorneyfl may be 626 
 
 may be given at any time before convic- 
 tion 628 
 
 justices cannot take acknowledgment 
 
 of, in supreme court 688 
 
 offenses for which justices cannot take bail^ 
 
 abandonment of child 583 
 
 admini=itering poison 583 
 
 accessories before the fact 583 
 
 aiding prisoners to escape 583 
 
 arson 584 
 
 assault in first degree 585 
 
 attempts to commit crime 585 
 
 bill, altering 585 
 
 bribery 585- 588 
 
 burglary in first and second degree 588 
 
 possessing burglars instruments 588 
 
 canals, willful injuries to 580 
 
 conspiracies against peace 589 
 
 dueling 589 
 
 false evidence 589 
 
 falsely certifjing records 590 
 
 falsifyino; the public accounts 590 
 
 falsely personating another 500 
 
 false pretenses .• 590 
 
 false Instruments, ofl'ering to be filed... 591 
 
 felonies, punishment not fixed 591 
 
 presenting false bills 591 
 
 forgery in first and second degrees 591 
 
 uttering, etc.. forged instruments 594 
 
 heir, production of pretended 595 
 
 substituting one child for another 595 
 
 incest 595 
 
 crime against nature 596 
 
 kidnapping 596 
 
 larceny. 596 
 
 murder 583 
 
 obtaining money by fraudulent draft. . . 597 
 
 legislature, preventing meeting of 597 
 
 legislature, compelling 598 
 
 maiming 598 
 
 manslaughter in first and second de- 
 grees 598 
 
 rape 600 
 
 robbery in fij-st degree 601 
 
 treason 583 
 
 offenses for which justices can tak4 bail. 
 
 abduction 609 
 
 abortion 609 
 
 assault in second degree 609 
 
 false auditing and paying claims 610 
 
 bigamy 611 
 
 delivering false bills to collector 611 
 
 blackmail 611 
 
 body stealing 612 
 
 receiving stolen body 612 
 
 Bail, page* 
 
 opening grave 613 
 
 burglary in third degree 613 
 
 compounding crimes 613 
 
 county treasurer, malfeasance of 613 
 
 destroying elecTion returns 613 
 
 false ruinory. as to public funds 614 
 
 false pretenses 614 
 
 obtaining property for charitable pur- 
 poses 614, 620 
 
 forgery in third degree 614 
 
 falsely indicating person as officer 616 
 
 common gambler, etc, 616 
 
 gunpowder, keeping unlawfully of . , . . 617 
 
 explosion injuring building 617 
 
 iujurying highway boundary, etc 617 
 
 presenting false pioofs of loss 618 
 
 destroying property insured 618 
 
 grand larceny in second degree 618 
 
 lottery, contriving of, drawing, etc 619 
 
 medical prescriptions 619 
 
 masctuerades, allowing to beheld 619 
 
 mock auction 619 
 
 advertising counterfeit money 620 
 
 injuries, etc , to public record 620 
 
 riot 621 
 
 sal t works, in j uries to 631 
 
 seduction under promise of marriage . . 621 
 
 stolen property, receiving 622 
 
 snioide, attempting 622 
 
 trespass on property 622 
 
 vpssel, des'.ruction of 622 
 
 woman coucealing birth of issue 623 
 
 recognizance on giving bail^ 
 
 cause of taking, must appear 626 
 
 should st'ite authority of magistrate.. . . 626 
 
 binds to three things 626 
 
 form of condition of 627 
 
 must be in writing , 627 
 
 must be signed and sealed 627 
 
 form of 637 
 
 to what court to be certified 627 
 
 [See Fugitims from Justice^ Eecogziz- 
 ance^ and United Stat€S.'\ 
 
 Bailee, 
 
 definition of term 57 
 
 duties and liabilities ot 58, 61 
 
 lien of, for services 60 
 
 constable, of goods attached 182 
 
 debtor, of things tendered 225 
 
 cannot dispute bailor's title 351 
 
 Bailment, 
 
 definition of term 57 
 
 diftercnt classes of 57 
 
 liability of parties to 58 to 61 
 
 Bailor, 
 
 definition of term 57 
 
 Baltimore, 
 
 proof of conveyances in 392 
 
 Bank Kills, 
 
 payments in 75 
 
 tender of, when good 227 
 
 payment in counterfeit 337 
 
 payment in worthless 237 
 
 information for altering or counter- 
 feiting 550 
 
INDEX. 
 
 865 
 
 are private corporations 96 
 
 limitation of actions by and against, 
 
 141, 148 
 copy certificates of incorporation of, 
 
 evidence 393 
 
 Bastards, 
 
 who are deemed 716 
 
 application to be made to justices con- 
 cerning 717 
 
 form of such application 717 
 
 father of, to be ascertained 717 
 
 warrant to bo issued for father of 717 
 
 forms of examination of mother of... 717 
 
 form of warrant 718 
 
 amount of father's bond to be endorsed, 718 
 
 form of such endorsement 718 
 
 endorsement by justice in a foreiga 
 
 county ,719 
 
 father of, where to be taken in foreign 
 
 county 719 
 
 bond to be given by fathur in foreign 
 
 county 720 
 
 form of such bond 720 
 
 fact of taking bond to be certified on 
 
 warrant 781 
 
 form for such certificate 721 
 
 father of, when to be taken before j nstice 
 
 issuing warrant 721 
 
 mother of, to be examined in presence 
 
 of father 721 
 
 competency of mother wheu a married 
 
 woman 782 
 
 witneFses maj' be examined 722 
 
 subpoena for witnesses 722 
 
 examination may be adjourned 722 
 
 bond on such adjournment 722 
 
 father of, to be determined 723 
 
 when reputed father to be discharged, 
 
 723, 726 
 when order of filiation to be made. ... 723 
 
 contents of order of filiation 723 
 
 form of such order 733 
 
 justices cannot set aside order legally 
 
 made 724 
 
 reputed father t() give bond 724 
 
 contents of such bond 725 
 
 form of bond on order of filiation 725 
 
 ■when putative father to be committed.. 726 
 
 warrant to commit putative father 737 
 
 father, by whom detained during ex- 
 
 amiuation 727 
 
 father of, notcntitled to jailliberties... 727 
 proceedings when bond is returned from 
 
 foreign county 727 
 
 mother may be compelled to disclose 
 
 father's name 728 
 
 on refusal, she may be committed 728 
 
 warrant in such case 728 
 
 when mother to be charged with support 
 
 of child 729 
 
 summons where mother has property in 
 
 her own right 729 
 
 order to compel mother to pay for sup- 
 port of child 730 
 
 when mother to be commmed 730 
 
 55 
 
 Bastards, paob. 
 
 warrant for that pnrpose 731 
 
 bond by mother to appear at sessions . 731 
 
 weekly allowance may be reduced 732 
 
 order for that purpose 732 
 
 appeal to court of sessions 732 
 
 father to be discharged on marriage or 
 
 miscarriage of mother 733 
 
 sessions may biud father over 734 
 
 bonds to be signed 734 
 
 property of parents of, running away, 
 
 may be seized 734 
 
 warrant for that purpose 735 
 
 when property to be restored 735 
 
 bond for that purpose 735 
 
 order to restore property 736 
 
 penalty for not delivering bond taken 
 
 out qf county 736 
 
 proceedings where justice who issued 
 
 warrant is absent 737 
 
 fees for services under statute relat- 
 ing to 737 
 
 Bath, 
 
 number of justices in 4 
 
 Battkkt, 
 
 j ustices cannot try civil actions for .... 27 
 [See Assault and Battery.'] 
 
 Beekmantown, 
 
 has five justices 4 
 
 Bees, 
 
 injuriesby 117 
 
 Bkqgars and Vaghants, 
 
 who are 738 
 
 to be taken before a justice 738 
 
 record of conviction to be made 739 
 
 where to be committed 740 
 
 form of record of conviction 740 
 
 record, where to be fi,led 740 
 
 persons painted and disguised, esteemed 
 
 as 741 
 
 children begging alms, to be committed 
 
 as 740 
 
 warrant for that purpose 741 
 
 fees for services under statute relat- 
 ing to 742 
 
 Bigamy, 
 
 information for 552 
 
 what is 611 
 
 punishment for 611 
 
 Bill, 
 
 altering 585 
 
 Bills of Particulabs, 
 
 under mechanics' lien law 130 to 135 
 
 blackmail 611 
 
 Body, 
 
 stealing 612 
 
 recovering stolen 612 
 
 BoAKD or EXOISB, 
 
 [See Exdse and Taverns.] 
 
 Bolivia, 
 
 what coins of, a legal tender 227 
 
 B0ND8, 
 
 justices to file 10 
 
 actions on, in justices' courts 27 
 
 obligee may sue, when penalty of, is 
 over $200 33 
 
INDEX. 
 
 BOKDS, PAGE. 
 
 in actions against canal boats 124 
 
 to procure attachment 165 to 169 
 
 statute couceniing. required b/ law 165 
 
 may be amended by court 166 
 
 form of, on all attaclimenta 172 
 
 to prevent removal of attached prop- 
 erty 183 to 1^6 
 
 by claimants of property attached, 183 to 186 
 
 penalty of, in last two cases 184 
 
 not to be bought for suit 220 
 
 payment by defendant in actions on . , . 232 
 of defendant, on adjournment. . . 252 to 255 
 
 actions on such bonds 254-255 
 
 transcript of canal contractors' evidence, 389 
 
 penalty in, security for actual debt 440 
 
 to indemnify constable selling on exe- 
 cution 487 
 
 for sale of liquor 778 
 
 of inn-keeper 779 
 
 [See Attachments, Parents Absconding, 
 and Undertakings.'] 
 
 Books of Acooxint, 
 
 [Sec 8hqp Sooks.} 
 
 Bbibebt, 
 
 statute, definition of 585 
 
 punishment of 585 
 
 Bbidqe Coupanies, 
 
 are private corporations 96 
 
 copies certificates of incorporation of, 
 evidence 399 
 
 Bbokbb, 
 
 who is a 49 
 
 Beook Haven, 
 
 has eight justices 4 
 
 Beookltn, 
 
 special sessions in 633, 657 
 
 Buffalo, 
 
 four justices in 4 
 
 recovery of penalties 121 
 
 Building AsaociATtoNs, 
 
 copies certificates of incorporation of, 
 evidence 398 
 
 Buedkn of Pboof, 
 
 on party claiming under chattel mort- 
 gage 51 
 
 on whom it rests, generally 327 to 329 
 
 rights of party holding 327 
 
 howshifted 327-328 
 
 exceptions to rule determining 328 
 
 on plea of infancy 421 
 
 on plea of statute of limitations 432 
 
 on plea of payment 424 
 
 on waiver of demand, and of notice of 
 
 non-payment 430 
 
 that note was without consideration ... 431 
 
 on refusal to pay. after tender 432 
 
 [See Evidence.} 
 
 BUBGLABT, 
 
 information for 548 
 
 what is, in the first degree 588 
 
 what is, in the second degree 588 
 
 punishment of, in the first and second 
 
 degrees B88 
 
 what is, in the third degree 612 
 
 punishment of, in the third degree 613 
 
 Buying Stolen Property, page. 
 punishment for 622 
 
 CAMDEN, 
 
 recovery of penalties 120 
 
 Canal Boats. 
 
 warrant to seize, when to be issued 124 
 
 Canal Companies, 
 
 are private corporations 96 
 
 Canal Contractors, 
 
 actions on bonds of 390 
 
 evidence in such actions 390 
 
 Canal Maps, 
 
 originals and transcripts of, evidence.. 389 
 
 Canals, 
 
 officers of, exempted from arrest 177 
 
 and from jury duty 286 
 
 maps of, evidence 389 
 
 willful injury to 589 
 
 Canal Collector, 
 
 delivering false bill of lading to 611 
 
 Canton, 
 
 number of justices in 4 
 
 Carthage, 
 
 recovery of penalties 120 
 
 Cattaraugus County, 
 
 jurors in 285 
 
 Certificates, 
 
 of election of justices B 
 
 of drawing, of jn.-tices 6 
 
 of such drawing, evidence 7 
 
 false, as to character 84 
 
 of discharge of mechanics' liens 135 
 
 form of, to documentary evidence 389 
 
 of authority of commissioners of deeds, 395 
 
 by county clerks, to proof of deeds 395 
 
 to transcript of records 396 
 
 lo copy of justices' docket 461 
 
 lorm of, to copies by public officers 
 
 generally 462 
 
 of acknowledgment of conveyances 638 
 
 by justice, on re-assessment of high- 
 way damages 802 
 
 of encroachment on highway 807 
 
 of no encroachment 809 
 
 of town auditors 854 
 
 evidence^ 
 
 of service in fire companies 400 
 
 of loan commissioners 401 
 
 of loss of papers 403 
 
 of marriage 403 
 
 of redemption of real estate 406 
 
 by revisers of statutes 406 
 
 of secretary of state, to laws 406 
 
 of unpaid taxes 407 
 
 of incorporation of villages 407 
 
 of clerks of villages 407 
 
 by notaries public, of protest 430 
 
 of conviction, 
 
 at special sessions 648 
 
 disturbance of religious meetings 750 
 
 observance of Sunday 752 
 
 [See Marriages^ and Minutes of Conviction,'] 
 [See Landlord and Tenant.'] 
 
 Challenges, 
 
 on account of liability to pay taxes 996 
 
INDEX. 
 
 867 
 
 Challbnobb, page. 
 
 when to be made 200 
 
 two peremptory, in civil actions 290 
 
 to tlie array 290 
 
 to the polls 291 
 
 principal, how tried 292 
 
 to favor, how tried 292 
 
 in crimiual actions 638 
 
 Champlain, 
 
 has five justiceB 4 
 
 Chakactkr, 
 
 presumed to be good 321 
 
 evidence of good, not admissible in 
 
 actions for fraud 327 
 
 [See Evidence.} 
 
 Chattel Mortoagks, 
 
 statutory regulations concerning.. 50 to 55 
 
 essential requisites of, valid 51 
 
 proof necessary to sustain 51 
 
 validity of, a question for the jury 52 
 
 originals or copies to be filed 52 
 
 copiL's of, to be filed yearly 52 
 
 instruments in the nature of 54 
 
 when statute inapplicable to 54 
 
 English law in relation to 54 
 
 pass, by assignment of debt 55 
 
 title to articles covered by 55 
 
 difference between, and pledges 60 
 
 certified copies of, evidence 390 
 
 levy, after forfeiture under 480 
 
 Chattel Notes, 
 
 when and where payable 234 
 
 necessity of demand of payment of 224 
 
 CHATTaLS, 
 
 tales and mortgage of 50 
 
 title to, in mortgagee 55 
 
 title to, warranted by vendor 55 
 
 limitation of actions for injuries to 138 
 
 personal, subject to attachment 182 
 
 Chautauqua County, 
 
 jurors in 285 
 
 Children, 
 
 information fur abandoning 546 
 
 punishment for abandoning 583 
 
 substitution of 595 
 
 I_See Contracts, Infants, MiTiors, and Parents 
 ami Children.} 
 
 Child-Stbamng, 
 
 information for 545 
 
 Church Ks, 
 
 pews in, real estate 64 
 
 pews in, exempt from sale on ezecu- 
 tion 491 
 
 Circuit Courts of the United States, 
 
 records and proceedings of, how proved, 388 
 
 criminal jurisdiction of 783 
 
 terms of 784 
 
 clerks' offices of 784 
 
 [See Evidence.} 
 
 Circumstantial Evidence, 
 
 [See Evidence.} 
 
 Civil Actions, 
 
 definition of 26 
 
 [See Actione.} 
 
 GOiHOES, 
 
 recovery of penalties .. . ,. 121 I 
 
 Coins, page. 
 what a legal tender 2S7 
 
 Collateral Undertakings, 
 
 must be in writing 43 
 
 Collection, 
 
 guaranty of 42, 44 
 
 Collector, 
 
 vacancy in the office of, how filled 855 
 
 Commissioners of Deeds, 
 
 certificate of secretary of state as to 
 authority of, in other states 394 
 
 CoMMissioNKns OP Excise, 
 
 [See Excice and Taverns.} 
 
 Commissioners for Draining Swamps, 
 
 how appointed 757 
 
 order appointing 758 
 
 oath to 758 
 
 duty of 758 
 
 inquisition by 759 
 
 Commissioners of Highways, 
 
 execution against 476 
 
 vacancy in the office of, how filled 857 
 
 [Kee Highways and Roads.} 
 
 Commissioners to take Testimony, 
 
 may compel attendance of witnesses... 269 
 
 return of, on commission 269 
 
 fees of 471 
 
 Commissions, 
 
 statute regulating 261 
 
 notice of application 'or 261 
 
 when granted without notice 262 
 
 service of notice for 262 
 
 preliminary steps to issuing 263 
 
 oath to, necessity of 264 
 
 form of 265 
 
 form of interrogatories in 265 
 
 justice to direct return of 267 
 
 statute as to execution and return of. . . 266 
 nturn upon 269 
 
 Commitments, 
 
 of apprentice refusing to serve 710 
 
 of apprentice for misdemeanor 710 
 
 of a hawker or pedler 793 
 
 criminal, 
 
 for contempts, when 625 
 
 when justice to make 582 
 
 to what officer to be made 601 
 
 warrant of, 
 
 for contempt 529 
 
 in criminal cases, lo be carefully drawn, 602 
 
 to be in writing and signed, &c ^ 602 
 
 prisoner may be detained to prepare... 602 
 
 to be in the name of people 603 
 
 prisoner, how to be described in 603 
 
 to state a charge on oath 603 
 
 must state the crime charged 603 
 
 must point out officer 604 
 
 conclusion of 604 
 
 to whom to be directed 604 
 
 how to be executed 605 
 
 copy of, to be delivered to jailer 605 
 
 form of 606 
 
 [See Bail, and Warrants.} 
 
 Common Carriers, 
 
 liability of , 69 
 
 evidence by plaintiff, In actions against, 41£ 
 
868 
 
 INDEX. 
 
 CoaiHON CATtBIERS, FAOE. 
 
 evidence by, in actions against 419 
 
 measure of damages in actions against, 448 
 Common Law, 
 
 of other states and countries, how 
 
 proved 384 
 
 [See JEfvicience.] 
 
 COMPELLINQ TO MaIIRY, 
 
 punishment for 600 
 
 Complainants, 
 
 criminal, 
 
 liability of, for mailing complaint 538 
 
 who may be 539 
 
 oath to 539 
 
 statement of, should be in writing 540 
 
 to sign and swear to complaint &40 
 
 examination of, and witness 572 
 
 forms of examination 576 
 
 may be recognized to appear 578 
 
 Complaints, 
 
 civil, 
 
 bad, if claiming over $200 32 
 
 in actions for cutting down trees 119 
 
 in actions for penalties ISO to 125 
 
 supplemental, to continue actions 155 
 
 amendment of 158 
 
 oral or written 210 
 
 against corporations 210 
 
 may contain several counts 211 
 
 contents of 912 
 
 causes of action that may be united in, 212 
 causes of action to be separately stated 
 
 in 213 
 
 for violation of statute 213 
 
 need not correspond with summons S13 
 
 demurrer to 213 
 
 answer to 216 
 
 for real property, in supreme court 245 
 
 criminal, 
 
 to obtain a search warrant 532 
 
 for commission of crimes 537 
 
 who may make 537 
 
 to be on oath, and filed 638,540 
 
 should be in writing 640 
 
 forms of 540 to 555 
 
 to be signed and s\Yoru to 554 
 
 plea to 634 
 
 judgment on malicious G50 
 
 contents of, for violation of excise law, 762 
 against n person for refusing to work 
 
 on a highway 796 
 
 for neglecting to furnish a team for 
 
 that purpose 796 
 
 conviction to be endorsed on 798 
 
 Compounding OrrENsEs, 
 
 punishment for 613 
 
 COMPBOMISK OF OrPENSEB, 
 
 when allowed 665 
 
 manner of effecting 665 
 
 when not allowed 665 
 
 forms for 666 
 
 COMFTROLLEn, 
 
 copies papers in office of, evidence 404 
 
 Computation ob* Time, 
 
 under statute of IlmltationB 142 
 
 Computation of Time, paob. 
 
 ou summons 159 
 
 on short sumraone 164 
 
 on attachments 16T 
 
 on serving summons 173 
 
 "year" 524 
 
 "month'* 584 
 
 CoirOKALMENT, 
 
 effect of, on contracts 88 
 
 Conditions Precedent, 
 
 performance of, how pleaded 211 
 
 Confession, 
 
 not evidence of execution of specialty, 331 
 [See Evidence'] 
 CoNPEasioN OF Judgment, 
 
 by partners 104 
 
 [See Judgm.ents.l 
 
 CONGKESS, 
 
 exemption of members of, from arrost, 178 
 Consent, 
 
 form of guardian's 153 to 204 
 
 by plaintiff, to defendant's escape ... . 179 
 
 CONSE<jUENTIAL DaMAGUIS, 
 
 from trespasses on lands 1 12 
 
 Consideration, 
 
 guaranty must express 4C 
 
 seal imports 42, 45 
 
 "for value received" expresses.... 42, 45 
 
 guaranty expressing past, void 43 
 
 promissory note imports 67 
 
 what sufficient for promissory notes ... 67 
 
 of notes, inquirable into 68, 431 
 
 and its failure may be shown 68 
 
 of contracts 77 
 
 effect of illegality of 80 
 
 paid when recoverable by infants 98 
 
 parol evidence to explain 358 
 
 when want of, must be pleaded 358 
 
 CONEPIRiCY, 
 
 against peace 589 
 
 Constables, 
 dvil, 
 liable for money collected on execution, 62 
 actions against, when to be commenced, 139 
 
 summons to be directed to 157 
 
 tonotify plaintiff of defendant's arrest, 162 
 
 service of summons by 173 
 
 to make return on summons 174 
 
 form of such return by 174 
 
 service of warrant by 174 to 181 
 
 need not show warrant 175 
 
 but should state substa nee 175 
 
 when, may break open doors 175 
 
 arrest bj', after escape 17B 
 
 liable for escape 179 
 
 may plead recaption 179 
 
 punishable for taking reward from 
 
 prisoner 179 to 181 
 
 not to charge prisoner for food 179 
 
 when may make such charge 180 
 
 not to be paid for liquors furnished 181 
 
 not to take chamber rent 181 
 
 conveying prisoner through different 
 
 counties 181 
 
 to make return on warrant 181 
 
 service of attachment by 181 to IBS 
 
IlTDEX. 
 
 869 
 
 Constables, page. 
 
 to make inventory 183, 186 
 
 to serve copies process and inven- 
 tory 183, 186 
 
 liability of, for property attached.. 183, 1S6 
 may take bonds for property attached. . 183 
 
 may administer oath to surety 184 
 
 penalty of bond to 184 
 
 to approve surety in bond 185 
 
 form of approval by 185 
 
 how to fix value of property 185 
 
 may take receipt for property 186 
 
 to return copy inventory 187 
 
 within what time to execute attach- 
 ment . 187 
 
 to make return on attachment 187 
 
 liable for false return 187 
 
 return of not found '' 188 
 
 cannot act by deputy 189 
 
 may serve summons in their own favor, 189 
 maliciously executing process, liable... 189 
 
 when protected in serving process 190 
 
 to deliver cnpy of process 191 
 
 to make and sign return on process 191 
 
 when to order out power of county 191 
 
 when not to act as attorneys 204 
 
 how long to detain defendants arrested, 207 
 when lo take him before another justice, 2U9 
 
 not to buy demands for suit 220 
 
 may serve subpcenas 271 
 
 return of, on subpoena 273 
 
 service of attachment against witness 
 
 hy 273 
 
 venire to be delivered to 283 
 
 oath ou objection to 283 
 
 when, cannot serve venire 283 
 
 how to execute venii-e 283 
 
 to make list of persons summoned 284 
 
 return of, on venire 284 
 
 oath to, retiring with jury 301 
 
 fees of, in civil action 470 
 
 fees of, in Albany 472 
 
 liabilities of sureties of 496 
 
 [See Executions.'] 
 ■criminal, 
 
 to ascertain regularity of process 563 
 
 when protected 563 
 
 arrest by 563 
 
 arresting wrong persons, trespassers... 564 
 
 may command assistance 563, 568 
 
 service of process by, when accnsv'd is 
 
 in jail 564 
 
 may break open doors 564 
 
 their duty when prisoner escapes 565 
 
 before whom to take prisoner 568 
 
 may carry prisoner through different 
 
 counties 568 
 
 protected, while so doing, from civil 
 
 arrest 568 
 
 may detain prisoner to find justice 568 
 
 to whom to deliver warrant 568 
 
 punishment of, neglecting to execute 
 
 mitiiTmis 605 
 
 to deliver mittimus to jailer 605 ; 
 
 fees of, for an arrest 606 i 
 
 fees of, for taking prisoner to jail 606 I 
 
 CONSTABLEB, PAGE. 
 
 oath to, on retiring with jury 645 
 
 punishment of , refusing to execute war- 
 rant of commitment 649 
 
 fees of^ in criminal cases 681 
 
 special, 
 fees of, under statute relating to ap- 
 prentices 716 
 
 fees of, under bastardy statute 737 
 
 fees of, in proceeding against beggars 
 
 and vagrants 742 
 
 fees of, in proceedings against disorderly 
 
 persons 748 
 
 fees of, in proceedings against fugitives 
 
 from justice 784 
 
 fees of, under statute relative to gaming, 786 
 fees of, on trials of habitual drunkards, 791 
 fees of, in proceedings against hawkers 
 
 and pedlers. 795 
 
 service of summons by, to collect high- 
 way fines 797 
 
 return by, on such summons 798 
 
 not liable lo an action for serving sum- 
 mons 799 
 
 to whom to pay fines 799 
 
 fees of, under highway act 809 
 
 powers of, under warrant against pawn- 
 brokers 843 
 
 fees of, for serving such warrant 844 
 
 fees of, for summoning witnesses to give 
 
 deposition 848 
 
 fees nf, for arresting persons engaged in 
 
 racing 852 
 
 removal of, 
 
 by three justices 852 
 
 summons for that purpose 852 
 
 certificate of 852 
 
 fees therufor 853 
 
 Contempts op Court, 
 
 when justice may commit for 535 
 
 punishment for 527 
 
 warrant of arrest for 527 
 
 record of conviction for 528 
 
 warrant of commitment for 529 
 
 commitments for, in Marine Court, in 
 New York 529 
 
 C0NTRACTf>, 
 
 actions on, cognizable in justices' courts 37 
 
 actions on, indivisible 32 
 
 what are 37 
 
 parol 37 
 
 simple, how made 37 
 
 what are valid 37, 38 
 
 elements of complete 38 
 
 express 38 
 
 implied 38 
 
 executory 39 
 
 executed 39 
 
 who may make 39 
 
 of sale 89 
 
 when void by the statute of frauds. 39 to 50 
 
 of sale, when complete 63 
 
 relating to lands..'. 63 
 
 of makers and endorsers of notes 69 
 
 tain ted with usury, void 74 
 
 in restraint of trade 78 
 
870 
 
 INDEX. 
 
 C0MTRAOT8, PAaE. 
 
 in restraint of marriage 78 
 
 founded on illegal consideration 80 
 
 made on Sunday 80 
 
 in contemplation of marriage 83 
 
 by minors, for their services 93 
 
 by infants, when void or voidable 93 
 
 by agents of corporations 96 
 
 by corporations 96 
 
 liability of agents upon 103 
 
 by agents, when void 103 
 
 of partnership 103 
 
 actions upon sealed, wben to be com- 
 menced 138 
 
 and when, upon simple 138 
 
 statute of limitations on joint 143 
 
 actions on, in behalf of towns 146 
 
 complaint in actions arising on 212 
 
 set-oflf, in actions on assigned 233 
 
 recoupment, in actions on 240 
 
 evidence in actions on 416 to 418 
 
 express, how proved 416 
 
 implied, how proved 417 
 
 consideration of simple, must be shown, 417 
 
 several plaintiffs must prove joint 418 
 
 [See Damages. Emdence^ Fraudulent 
 Contracts^ Illegal Contracts, and Jrtr 
 siruments.] 
 
 COHTEKSION. 
 
 liability of agents for 102 
 
 what is a 437 
 
 CONTEYANCES, 
 
 in trust, when void as to creditors 49 
 
 records and transcripts of, evidence 395 
 
 certificate by county clerk of, proof of. . 395 
 
 of lanas without the State , . 396 
 
 copies of lost, may be recorded 396 
 
 acknowledgment and proof of, 
 
 in this fc'tate. 392 
 
 in any other State 392 to 395 
 
 in Europe 392 
 
 in North and South America 392 
 
 in France 392 
 
 in Russia 392 
 
 in Great Britain and Ireland 392 
 
 in Philadelphia 392 
 
 in Baltimore 892 
 
 in Upper and Lower Canada 892 
 
 by officers and soldiers in Mexico 393 
 
 in the territories of the United States. . 393 
 commissioners of deeds in other 
 
 states 393, 394 
 
 by married women in other states 395 
 
 Conviction, 
 
 minute of, of witnesses 277 
 
 certificate of, at special sessions 648, 649 
 
 Coroners, 
 
 actions against, when to commence 139 
 
 CoBPr>nA7io»s, 
 
 may sue and be sued in justices' 
 
 courts 35,36, 95 
 
 what are 95 
 
 pecaliarities of OC 
 
 how divided 06 
 
 incidents to . gg 
 
 liabilities of 96 
 
 CORPOBATIONS, PAGE. 
 
 contracts by 96 
 
 counties are 97 
 
 powers of counties s% 97 
 
 liable as trespassers 112 
 
 penalties imposed by by-laws of 132 
 
 statute of limitations as to 141 
 
 existence of, when to be proved 147 
 
 actions by foreign 147 
 
 may appear by attorney 151, 202, 203 
 
 summons, how seiVed on 173 
 
 complaints in action against 210 
 
 mistake in name of 216 
 
 admissions by members of 348 
 
 certificates of incorporation of, evi- 
 dence 399 
 
 proof of incorporation, when 399 
 
 seals of, may be on paper 400 
 
 liable for highway fines 795, 798 
 
 Corporators, 
 
 admissions by 348 
 
 competent as witneeses 363 
 
 COBTS, 
 
 under mechanics' lien law 134, 136 
 
 security for, by foreign corporations. .. 148 
 security for, by non-resident plaintiff's. 148 
 
 defendants, when entitled to 148 
 
 guardian of infant defendant, not liable 
 
 for 202 
 
 when justice ia a material witness 20B 
 
 on amendment 218 
 
 on recovery beyond tender 230 
 
 on recovery leas than tender 331, 233 
 
 when set-off is allowed 236, 237 
 
 on plea of title perfectoi! 344 
 
 in supreme court, on plea of title 245 
 
 on attachment against witness 373 
 
 of venire 284 
 
 recoverable by indorsers, sureties, &c.. 446 
 
 not to exceed five dollars 465 
 
 when may exceed that amount 465 
 
 af losing party, not to be inserted in 
 
 judgment 465 
 
 of venire abide event 466 
 
 erroneously given, may be recovered... 466 
 
 party in interest, liable ft-r 466 
 
 to be paid on attachment 466 
 
 double, when allowed 466 
 
 treble, to officers of the militia 466 
 
 on recovery of double or treble damages 467 
 double and treble belong to derend- 
 
 ant 467 
 
 what are treble 467 
 
 security for, when to be given 467 
 
 in civil actions 468 to 472- 
 
 to be paid on appeal 501 
 
 how to be awarded on appeal 509 
 
 to appellant, on reversal 5K) 
 
 to respondent, on affirmance 510 
 
 on appeals generally 609 
 
 on trials by habitual drunkards 790 
 
 In actions by and against hawkers and 
 
 pedlers 754 
 
 in proceedings upon a highway en- 
 croachment 809 
 
 COUHTER-OLAIU JJJ 
 
INDEX. 
 
 871 
 
 COUNTEKI'KITING, PA6B. 
 
 information for 550 
 
 [See Forgery.'] 
 Counties, 
 
 actions, local, to 1)6 tried in 35 
 
 actions by and against oflacers of 36, 146 
 
 are corporations 96 
 
 may tue and be sued 97 
 
 may purchase and hold lands 97 
 
 may make contracts 97 
 
 may hold personal pro'^erty 97 
 
 may control corporate property 97 
 
 actions by and against 97, 147 
 
 powers of,, by whom exercised 97 
 
 prisoners may be conveyed through 
 
 different -. 181 
 
 power of, when to be ordered out 191 
 
 execution against officers of 474 
 
 CouNTT Clerks, 
 
 to reciird certificate of justices' drawing 7 
 oath of justice, to be deposited with. . . 10 
 
 justices' bonds, to be filed with 10 
 
 to give notice, if the?e are omitted 10 
 
 to keep mechanics' lien docket 130 
 
 forms of certificates by, to documentary 
 
 evidence 389 
 
 certificates by, to proof of deeds 395 
 
 certificates by. to transcripts of records. 396 
 copies of papers and records in offices 
 
 of, ev idence 400 
 
 notice of appeal to be served on 499 
 
 [See Executions and Lunatics.] 
 County Courts, 
 
 jurisdiction of, under mechanics' lien 
 
 law 13t tol34 
 
 when justice's judgment, a judgment 
 
 of 455 to 459 
 
 may order amendment of justice's re- 
 turn 503 
 
 [See Appeals.'] 
 County Jails, 
 
 prisoners to be committed to 601 
 
 keepers of, to receive prisoners 605 
 
 constable to deliver copy mittimus to 
 
 jailer 605 
 
 fee of keeper of, for receiving prisoners 606 
 County Judges, 
 
 nominated justices formerly 3 
 
 may appoint guardians for infant plain- 
 tiffs 153 
 
 may appoint guardians for infant de- 
 fendant? 202 
 
 to approve undertaking on appeal 503 
 
 [See Cmtniy Courts.] 
 County Tbbasubebs, 
 
 malfeasance of 613 
 
 to sue for fines unpaid 649 
 
 COUBT, 
 
 money may be paid into 232 
 
 what admitted by eo doing 343 
 
 COUBT OF SBSSIONS, 
 
 jurisdiction of 580 
 
 appeal to, in bastardy cases 732 
 
 may bind over putative father 734 
 
 justices of, how and when chosen .... 849 
 their fees 849 
 
 COURTH, PAeE. 
 
 exemption of officers of, from arrest. .. 177 
 per&ons attending, exempt from arrest. 177 
 
 jurisdiction of criminal 579 
 
 not to be opened on Sunday 646 
 
 to be adjourned over Sunday 646 
 
 to sentence juvenile delinquents to 
 
 House of Refuge 650 
 
 [See Circuit Court of the 'United States, 
 and District Court of the United States.] 
 
 Courts of Special Sessions, 
 
 [See Special Sessions.] 
 
 Ceedit, 
 
 actions for false recommendation as to, P7 
 agents may sell on, , 96 
 
 Creditors, 
 
 conveyances in trust, void as to 52 
 
 of mortgagors of chattela 51 
 
 to notify pawnor to redeem 61 
 
 substitution of, for defendants 155 
 
 delivery to 223 
 
 Crimes, 
 
 jurisdiction of justices over 523 
 
 statute of limitations as to 524 
 
 what, bailable by a justice of the su- 
 preme court 609 
 
 wtiat, bailable by a county judge 609 
 
 what, by justices of the peace 609 
 
 punishable with deaths 
 
 murder in first degree 582 
 
 treason 583 
 
 punishable by over five years' imprisonment^ 
 
 abandonment of child 583 
 
 administering poison . 683 
 
 accessories before the fact 583 
 
 aiding prisoners to escape 583 
 
 arson 584 
 
 af sault in first degree 585 
 
 attempts to commit crime 585 
 
 bill, altering 585 
 
 bribery 585-588 
 
 burglary 588 
 
 possessing burglars' instruments, etc. . . 588 
 
 canals, willful injuries to the 589 
 
 conspiracies against peace 589 
 
 dueling 589 
 
 false evidence 589, 590 
 
 falsely certifying records, etc 590 
 
 falsifying the public accounts 590 
 
 falsely personating another 590 
 
 false pretenses 590 
 
 false instruments offering to be filed. . . 591 
 felonies, punishment when not fixed ... 591 
 
 presenting false bills 591 
 
 forgery in first degree 591 
 
 forgery in second degree 593 
 
 uttering, etc., forged instruments 594 
 
 heir, production of pretended 595 
 
 substituting one child for another 595 
 
 incest 595 
 
 crime against nature 596 
 
 kidnapping 596 
 
 larceny 596 
 
 obtaining money by fraudulent draft. . . 597 
 
 legislature, preventing meeting of 597 
 
 legislaturef compelling 598 
 
872 
 
 INDEX. 
 
 Cbxues, page. 
 
 maiming 598 
 
 manslaughter in flrst degree 598 
 
 manslaughter in second dej^ree 699 
 
 rape 6'i0 
 
 robbery in first degree 601 
 
 punishable by less than Jive years' imprison- 
 ment. 
 
 abduction 609 
 
 abortion 609 
 
 assault in second degree 609 
 
 false auditing and paying claims 610 
 
 bigamy 611 
 
 delivering false bill to canal collector... 611 
 
 blackmail 611 
 
 body stealiDg 612 
 
 receiving stoleu body 612 
 
 opening grave 612 
 
 burglary in third degree 612 
 
 compounding crimes 613 
 
 county treasurer, malfeasance of 613 
 
 destroying election returns 613 
 
 false rumors as to public funds 614 
 
 false pretenses, obtaining property by. . 614 
 obtaining property for charitable pur- 
 poses 614, 620 
 
 forgery in third degree 614 
 
 falsely indicating perstm as officer 616 
 
 common gambler, etc, 616 
 
 gunpowder, keeping unlawfully 617 
 
 explosion, damaging building by 617 
 
 injuring highway boundary, etc 617 
 
 presenting false proofs of loss 618 
 
 destroying property insured 618 
 
 grand larceny in second degree 618 
 
 lottery, contriving, drawing of, etc 619 
 
 medical prescriptions 619 
 
 masquerades, allowing to be held 619 
 
 mock auctions 619 
 
 advertising counterfeit money 620 
 
 injury, etc., to public record 620 
 
 riot 631 
 
 salt works, iuj uries to 621 
 
 seduction under promise of marriage.. 621 
 
 stolen property, receiving .,, 622 
 
 suicide, attempting 622 
 
 trespass on property 6i2 
 
 vessel, destruction of 632 
 
 woman concealing birth of issue 623 
 
 triable by a court of special sessions, 
 petit larceny, charged as first offense. . . 630 
 
 assault in third degree 630 
 
 racing animals near courts 630 
 
 severing produce from freehold 630 
 
 selling poisons not labeled 630 
 
 removing, etc., monuments 630 
 
 destroying mile-stones 630 
 
 destroying toll-gate 630 
 
 intoxication of engineer or conductor.. 630 
 
 setting up lotteries 630 
 
 running horses 630 
 
 making or selling slung shot 630 
 
 disclosing finding of indictment 630 
 
 bringing to or carrying letters from State 
 
 prison 630 
 
 destroying mlU-dam 030 
 
 Cbimeb, faqb, 
 
 injuring telegraph 630 
 
 counterfeiting trade-mark 620 
 
 malicious trecpass 630 
 
 injuring cnuals 630 
 
 defacing, etc, marks 631 
 
 setting fire to wood or fallow land 631 
 
 defacing logging marks 631 
 
 frequenting public gathering 631 
 
 taking oysters of another 631 
 
 removing property to defraud credit- 
 ors 631 
 
 driving carriage for running horses — 631 
 
 cruelly to animals 631 
 
 cheating at games 631 
 
 winning or losing twenty-five dollars,. , 631 
 Belling liquors in court-house or jail — 631 
 
 wanton or malicious mischief 631 
 
 violating exci se laws 631 
 
 selling liquor to Indians 631 
 
 Crime against nature, 
 
 punishment for 596 
 
 Criminal Actions, 
 
 definition of 26 
 
 [See Crimes and Special Sessions.l 
 
 Criminal Con vers ation, 
 
 actions for, when to be commenced — 138 
 
 Cross Interrogatories, 
 
 [See Commissions and Interrogatories. "l 
 
 Cumbrous Articles, 
 
 delivery of 47, 433 
 
 CtTRTEST, 
 
 estate by 89 
 
 DAMAGES, 
 
 actions for, cognizable in justice's 
 
 courts 26, 27, 28 
 
 acceptance, not a bar to action for 60 
 
 incase of trespasses on lands Ill 
 
 under mechanics' lien law 132 
 
 recoupment of, after action brought . . . 2\0 
 
 when, may be recouped 241 
 
 recoverable from defaulting witness 275 
 
 must be proved 328 
 
 evidence in actions for 420 
 
 general remarks concerning 439 
 
 special, must be averred 441 
 
 for not returning execution 496 
 
 against common, carriers and factors, 
 
 measure of, for non-delivery 447 
 
 interest, not recoverable as 448 
 
 for selling at less than stated price 449 
 
 breach of emir act, 
 
 where written contract is broken 444 
 
 cases in which they have been given . . . 444 
 
 profits, when recoverable as 444 
 
 for loss of employment 444 
 
 measure of, when no proof of price... 445 
 
 breach qf warranty, 
 
 measure of 445 
 
 of quality 445 
 
 of soundness 446 
 
 general, 
 
 what are 439 
 
 need not bo averred 439 
 
 excessive verdict for, may be reduced.. 440 
 
INDEX. 
 
 873 
 
 Damages, page. 
 
 principle upon which they are given... 441 
 
 in actions for wrongs 444 
 
 liquidatedt 
 
 what are 440 
 
 penalty, not esteemed, as 440 
 
 are in full of breach 441 
 
 /o?' non-delive?'i/ of property, 
 
 when con sideration ia paid 447 
 
 when consideration is unpaid 447 
 
 evidence of market value to show 448 
 
 [See Highways and Boade.} 
 
 Dates, 
 
 may be rebutted 61 
 
 Days of Grace, 
 
 on promissory notes -. 67 
 
 how computed 67 
 
 interest for 74 
 
 Deadly Weapons, 
 
 punishment for assaults with 588 
 
 Death, 
 
 does not afiect rights to real property.. 137 
 
 when actions do not abate by 154 
 
 evidence of, of Bubecribing witness 294 
 
 presumption of 3^17 
 
 [See C7^imes.'] 
 
 Debtobs, 
 
 joint, in different counties, how sued.. 158 
 
 delivery by 223 
 
 discharged by tender 225 
 
 [See B^endants.} 
 
 Debts, 
 
 agreements to answer for, of another, 
 
 40, 41 
 assignment of, passes chattel mortgage, 55 
 
 wife not liable for her husband's 87 
 
 due to wife, formerly belonged to 
 
 husband 88 
 
 husband, when liable for wife's 90 
 
 collectible by personal representatives, 94 
 
 Deceit, 
 
 in sale of horses 85, 86 
 
 in sale of sheep by agent 100 
 
 Declarations, 
 
 by agents 100, 335 
 
 of deceased persona 338 
 
 dying, 
 
 inadmissible as evidence 339 
 
 justices may take 530 
 
 how to be taken 530 
 
 DBCREErt, 
 
 actions on, within what time to be 
 
 commenced 137 
 
 records and exemplifications of evi- 
 dence 397 
 
 Deeds, 
 
 contract by 37 
 
 of gift, iu trust, void 50 
 
 evidence to vary 357 
 
 forms for acknowledgment and proof 
 
 of .' 69U0 699 
 
 [See Conveyances, Evidence and Instruments.] 
 Detenbe, 
 
 how pleaded 216 
 
 how received 218 
 
 Defendants, page. 
 
 residence of, to give jurisdiction 35 
 
 actions against non-resident 35 
 
 when actions commenced against 140 
 
 when entitled to security for costs 148 
 
 who may be made 154 
 
 creditor, how substituted for... .; 154 
 
 when, may disregard summons 157 
 
 may be sued by fictitious names 158 
 
 warrant against non-resident 1 60 
 
 plaintiff, to be notified of arrest of 162 
 
 summons and attachment against non- 
 resident 163 
 
 attachment against 165 
 
 short attachment against 169 
 
 service of summons on 173 
 
 arrest of, by warrant 174 to 181 
 
 arrest of, after escape 178 
 
 rights of, as prisoners 180 
 
 copies attachmeut and inventory to be 
 
 served on 181, 186 
 
 infant, must appear by guardian 302 
 
 guardians of infant, how appointed, 
 
 202, 203 
 failing to appear on return of process, 
 
 205, 206 
 
 detention of, when arrested 207 
 
 how to procure testimony of justice . . . 208 
 
 when to demur 313 
 
 rights of, in actions on demands bought 
 
 for suit 220 
 
 payment by, in actions on bonds 231 
 
 may pay money into court 232 
 
 set-off by 236 to 240 
 
 to give notice of set-off 237 
 
 judgment for, on set-off 236 
 
 set-off by, against executors, &c 237 
 
 neglecting to set off demand 237 
 
 recoupment by 240 to 243 
 
 may set up title 243 
 
 undertaking by, setting up title 244 
 
 answer by, iu supreme court 245 
 
 adjournment by, on warrant 249 
 
 adjuurnment on motion of 252 to 257 
 
 acquittal of one of several 281 
 
 statement of defense by 300 
 
 examination of witnesses by 300 
 
 when must plead want of consideration, 358 
 
 may call plaintiff to prove usury 364 
 
 and to prove that demand was bought 
 
 for suit 365 
 
 judgment for, after trial 453 
 
 double costs, when allowed to 466 
 
 treble costs, when allowed to 467 
 
 double and treble costs belong to 467 
 
 when to bo discharged from imprison- 
 ment 494, 495 
 
 evidence bi, 
 
 as common carrieis 419 
 
 in mitigation of dama/ee 420 
 
 of infancy 421 
 
 when infanta, to rebut proof of neces- 
 saries 421 
 
 to avoid plea of statute of limitations.. 432 
 
 in answer to proof of partnership 423 
 
 pleading payment 424 
 
874 
 
 INDEX. 
 
 Dbtendants, page. 
 
 in actions on nutes 431 
 
 of a tender 432 
 
 in actions of trespass 434 
 
 in actions of trcspasa on the case 435 
 
 in actions of trover 438 
 
 [See AdJoi^mmentsA 
 
 DSFIHITIOIIS, 
 
 jurisdiction 17 
 
 action 26 
 
 criminal action 26 
 
 civil action 26 
 
 contract 87 
 
 express contract 38 
 
 implied contract 38 
 
 executed contract 38 
 
 executory contract 39 
 
 exchange 39 
 
 contract of sale 39 
 
 vendor 39 
 
 vendee 39 
 
 broker 49 
 
 bailment 57 
 
 bailor 57 
 
 bailee 57 
 
 deposit 58 
 
 mandate 58 
 
 pledge 58, 61 
 
 pawn 58 
 
 hiring 58 
 
 promissory note 65 
 
 payee 66 
 
 endorser 66 
 
 endorsement 68 
 
 misrepresentation 82 
 
 concealment 88 
 
 executors 94 
 
 administrator? 94 
 
 corporations 95 
 
 general agent 99 
 
 special agent 100 
 
 partnership 103 
 
 mutual accounts 143 
 
 negligent escape 178 
 
 voluntary escape 178 
 
 mesne process 178 
 
 chatttlB personal 182 
 
 recoupment 240 
 
 subpcena duces tecum 271 
 
 trial 279 
 
 challecge to the array 290 
 
 challenge to the polls 291 
 
 of various kinds of evidence 307 
 
 probability 3J0 
 
 presumption 311 
 
 surplusage 326 
 
 primary evidence 331 
 
 hearsay evidence 333 
 
 general character 960 
 
 sworn copies. .": 392 
 
 special property. 436 
 
 conversion 437 
 
 liqaidated damages 440 
 
 vindictive damages 441 
 
 general damages 442 
 
 interlocutory judgment 450 
 
 Bepikitions, page. 
 
 flnal judgment 450 
 
 judgment 460 
 
 ball 623 
 
 Delivery, 
 
 of cumbrous articles 47 
 
 of goods generally 47 
 
 essential to validity of transf'jr 49 
 
 common carriers liable until 5^ 
 
 of pledg.s 60 
 
 on a contract of sale 223 
 
 on a contract to pay a debt 223 
 
 Deuand, 
 
 need not be made on factor 102 
 
 of payment of chattel note 224 
 
 Demands, 
 
 not to be bought for suit 220 
 
 passed upon by a jury, extinguished... 222 
 and cannot be recovered in another suit, ^ 
 
 what, maybe setoff 23^3 to 237 
 
 which might have been set off 237 
 
 Deuisad Frehisiss, 
 
 [See Landlord and Tenant.} 
 
 DaMURRBB, 
 
 civil, 
 
 may be oral or in writing 209 
 
 whnn allowable 214 
 
 by defendant at3 
 
 by plaintiff 21S 
 
 amendment after 214 
 
 form of, to complaint 215 
 
 form of, to answer 215 
 
 [See Fleadinge.} 
 
 Defoht, 
 
 definition of 56 
 
 Deposition B, 
 
 of witness, before commissioner 266 
 
 of aliens, evidence 388 
 
 in perpetuam I'H memoriam 400 
 
 to be used in other states. 
 
 when justices to take 847 
 
 how taken 847 
 
 witnesses how compelled to give 847 
 
 fees 848 
 
 Deputy, 
 
 justices cannot act by 159 
 
 must show warrant 175 
 
 constables cannot act by 189 
 
 justices may appoint, to serve process. . 189 
 
 Deserted PREMibEs, 
 
 {See Landlord and Tenant.'] 
 
 DiBCONTIN U ANOB, 
 
 plaintiff failing to appear 205 
 
 justice failing to appear a06 
 
 when justice is a material witness 208 
 
 refusal to amend pleading 214 
 
 when set-off allowed 233 to 239 
 
 on plea of title 243 
 
 illegal adjournment 257 
 
 DioouiBBD Persons, 
 
 [See Beggars and Vagrants,] 
 
 DiSORDRRLT PERSONS, 
 
 who are 742 
 
 to be arrested 743 
 
 warrant to arrest 744 
 
 to be bound over for good behavior 748 
 
INDEX. 
 
 875 
 
 3lEOIU>I3aLY FeBF;0N9, PAGE. 
 
 when to be committed 744 
 
 record of conviction o( 745 
 
 warrant to commit 745 
 
 when euch warrant protects officer. . . 746 
 gaming, a breach of recognizance of . . . 745 
 warrant to commit, after recovery on 
 
 recognizance of 746 
 
 may be discharged on giving sureties.. 747 
 
 form for puch discharge 747 
 
 fees for services under statute relative 
 to 748 
 
 Disqualification, 
 
 of justice 21 to 25 
 
 consanguinity and affinity 280 
 
 [See Jurors.'] 
 
 DiBTRiOT Attorneys, 
 
 when to commence actions for penalties, 138 
 to be notified of arrest of fugitives from 
 
 justice 783 
 
 must receive copy recnrn 666 
 
 District Courts, in New York, 
 
 by whom held 12, 21 
 
 clerk of, by whom appointed 12 
 
 compeneatiou of officers of 12 
 
 jurisdiction of 21, 29 
 
 adjournment of actions in 256 
 
 powers of justices of, as to forcible entry 
 and detainer 849 
 
 DiSTllICT COUaTS OF TDE UNITED STATES, 
 
 records and proceedings of, how proved, 388 
 
 criminal jurisdiction of 783 
 
 territorial jurisdiction of, in Southern 
 
 district 783 
 
 terms of, in that district 784 
 
 territorial jurisdiction of, in Northern 
 
 district 784 
 
 terms of, in that district 734 
 
 territorial jurisdiction of, in Eastern 
 
 district 784 
 
 terms of. in that district 784 
 
 clerks' offices of 784 
 
 DlSTBlOTS, 
 
 judicial, in New York 12 
 
 I>ISTUE.BANCE OF RELIGIOUS MeETINSB, 
 
 information for 554 
 
 is a misdemeanor 748 
 
 definition of offense 748 
 
 warrant of arrest for 749 
 
 record of conviction for 749 
 
 conviction is final 750 
 
 certificate of conviction 750 
 
 judgment, how executed 750 
 
 Dockets, 
 
 of mechanics' Hens 130 
 
 justices to enter pleadings in 210 
 
 verdict of jury to be entered in 304 
 
 transcript of justices', in adjoining 
 
 states, evidence 387 
 
 justice to enter judgment in 456 
 
 statute concerning 459 
 
 form of entries in 459 
 
 evidence 462 
 
 transcript of, evidence 462 
 
 jnstices may ewear to 463 
 
 contents of lost, how proved 464 
 
 DooUMrNTARY EVIDBNOB, PAGB. 
 
 form of certificate to 389 
 
 [See Evidence.] 
 
 Dogs, 
 
 when may be killed 117 
 
 justices to order dangerous, killed 756 
 
 order to kill dangerous 756 
 
 penal ty for not killing 757 
 
 persons harboring, deemed owner 757 
 
 fees 757 
 
 Doors, 
 
 when may be broken open 175, 533, 565 
 
 Double Coutb, 
 
 [See Costs, and Defendants.] 
 
 Draining SwAsirp, 
 
 owner of swamps, to apply to county 
 
 judge 757 
 
 order for commissioners 757 
 
 its form 758 
 
 justice to swear commissioners 758 
 
 map to be delivered 759 
 
 commissioners to examine premises..., 759 
 
 and note alterations on map 759 
 
 and assess and certify damages 759 
 
 form of inquisition by 759 
 
 when owner may open ditches 760 
 
 penalty for obstructing ditches 760 
 
 appeal in 760 
 
 fees 760 
 
 Dram'ino, 
 
 of justices, in new towns 6 
 
 Druneardf, 
 
 [See Hdbitital Drunkards.] 
 
 Due Bills, 
 
 place of payment of 228 
 
 rights of parties to 228 
 
 Duelling, 
 
 defined and punished 589 
 
 duels, challenges, etc., of 589 
 
 Dutchess County, 
 
 mechanics' lien law in 123 to 136 
 
 ELECTIONS, 
 
 first, of justices 4 
 
 of justices, under constitution of 1846.*. 4 
 
 certificate of justices' 5 
 
 of justices, in new towns 5 
 
 of two or more justices 8 
 
 of Justices of Marine Court, in New 
 
 York : 12 
 
 of Justices of District Courts, in New 
 
 York 12 
 
 of Justices in Albany 12, 13 
 
 of Justices in Hudson 13 
 
 of Justices in Troy 13 
 
 civil process not to be served on day of, 190 
 voters at, not exempt from criminal 
 
 arrest 537 
 
 vacancy in office of Inspector of, how 
 
 filled 857 
 
 Elbctoro, 
 
 justices must be 4 
 
 to designate term of office of justice. . . 8 
 
 election returns, destroying of 613 
 
 Ellisbubqh, 
 
 has five justices 4 
 
876 
 
 INDEX. 
 
 £!l2IIra, page. 
 special session in 658 
 
 E:iBEZZLEU1INT, 
 
 information for B51 
 
 ENCHOACHMENTfl, 
 
 [See Jlighioays and Eoads,} 
 
 Endohseeh, 
 
 who are 66 
 
 recovery by 68 
 
 Endokbbmbnt, 
 
 of proce!-8 generally 122 
 
 of process, under old excise law 764 
 
 of process, in actions for obstructing 
 
 highways 803 
 
 of promissory note3, 
 
 in blank 65 
 
 in full 66 
 
 restrictive 66 
 
 transferring note without 66 
 
 on back or face of note 66 
 
 subscribing witness to 67 
 
 without recourse 67 
 
 contracts by 69 
 
 striking out 428 
 
 ENSOBSEBf!, 
 
 who are 66 
 
 transfers by 66 
 
 how exempted from liability 66 
 
 liable for amount received 68 
 
 their contract 69 
 
 demand and notice to charge 69 
 
 notice to when and how given 69 
 
 guaran tors not considered as 72 
 
 may demand note on tender 296 
 
 England, 
 
 justices first nominated in 1 
 
 justices in, how appointed 1 
 
 jurisdiction of justice in 2 
 
 law as to chattel mortgages in 53 
 
 [See Conveyanctfs.] 
 
 EyTRres, 
 
 in partnership books 106 
 
 official, when admissible in evidenee. .. 335 
 
 by persons since deceased 338 
 
 in bankrupts' books, of creditors' debts, 346 
 refreshing: memory of witness, by in- 
 
 Bpection of 373 
 
 [See iShop-books.] 
 Erie Countt, 
 
 jurors in 285 
 
 ESOAPIE, 
 
 civU, 
 actions for, when to be commenced. ... 138 
 
 negligent 178 
 
 voluntary 178 
 
 arrest after 178, 190 
 
 officer liable for 179 
 
 consent by plaintiff to 179 
 
 criminal, 
 
 after arrest on criminal process 565 
 
 punishment for aiding prisoners to 588 
 
 i^STATica. 
 
 in Ian ds, how conveyed 63 
 
 by curtesy 89 
 
 BUXOPE, 
 
 proof of conveyances made in 39t 
 
 Etidekce, paob. 
 
 certificate of drawing of justices 8 
 
 of validity of chattel mortgages 51, 54 
 
 in actions for goods sold 62 
 
 in actions for non-delivery 63 
 
 parol, to explain dates 67 
 
 possession, of title to notes 68 
 
 in actions on promissory notes 71 
 
 to prove fraud in contracts 62 
 
 letters te/«taraentary, &c 95 
 
 of partnership 106 
 
 entries in partnership books 106 
 
 of possession of highway Ill 
 
 of incorporation, when necessary 147 
 
 of authority to act as attorney 204 
 
 knowledgeof justice, not 204, 208 
 
 parol, of issues in former suit 223 
 
 date of aasignmeni. 2)rima facie 239 
 
 of service of subpwna 272 
 
 of service of venire 284 
 
 of employment in ealt manufactories. , . 286 
 
 of employment in lunatic asy'um 387 
 
 of membership in fire company in Au- 
 burn state prison 287 
 
 of service in the militia 288 
 
 ex parM affidavits not to be given in 294 
 
 plaintiff, when to introduce 294 
 
 of death or absence of subscribing wit- 
 ness 294 
 
 defendant, when to introduce 300 
 
 nature and principles of 307 
 
 competent 307 
 
 satisfactory 307 
 
 things judicially noticed without... 308, 384 
 
 various kinds of 309 
 
 relative value of direct and circumstan- 
 tial 323 
 
 admissibility of, a question for the court, 325 
 sufficiency of, a question for the jury . 325 
 
 objections to, must be specific 325 
 
 must be relevant 325 
 
 if not, inadmissible 326 
 
 none required, of surplusage 326 
 
 of knowledge or intent 326 
 
 relevancy of, must be shown 326 
 
 on whom burden of proof rests. . . 327 to 329 
 
 in reply 327 
 
 of substance of issue, will suffice 829 
 
 effect of variance between, and plead- 
 ing 330 to 333 
 
 the best must be produced 333 
 
 inplruments of, Uow divided 359 
 
 to show incompetency of witnesses 360 
 
 of conviction for felony 360 
 
 of market value 448 
 
 effect of judgment as, where defendant 
 
 did not appear 453 
 
 transcript, prima facie, of judgment. . . 458 
 rales of, applicable to criminal cases ... 644 
 certificate of couvioLiou at special ses- 
 sions 648 
 
 admissions, 
 
 adraisaibie against party 343 
 
 by whom they may be made 343 to 349 
 
 by one of several parties 344 
 
 by one, where Interest Is joint 344 
 
INDEX. 
 
 877 
 
 EnDENCE, PAGE. 
 
 by one partner 344 
 
 by one tenant in common 344 
 
 by one executor or administrator 344 
 
 when party acted in different capacity. . 345 
 
 by partifs in interest 345 
 
 of a cestui que truet 345 
 
 sheriff bound by deputy's 346 
 
 of strangers to actions 34fi 
 
 by third persons who have been referred 
 
 to 346 to 349 
 
 by one party, if the other will pwear 346 
 
 when husband bound by wife's 34S 
 
 of principal, against surety 348 
 
 client bound by attorney's 348 
 
 of vendors of personal property 348 
 
 of corporators 348 
 
 any one may prove 349 
 
 time and circumstances of 349 
 
 direct and indirect 349 
 
 Implied, from acts 349 
 
 examples of such 349 
 
 the whole, must be given in evidence. . . 350 
 
 conclusiveness of 351 
 
 by paying money into court 351 
 
 by tenant's paying rent 351 
 
 not acted upon, not conclusive 351 
 
 by receipt, may be explained 352 
 
 documentary^ generaUy. 
 
 depositions of aliens 388 
 
 letters of attorney 388 
 
 form of certificates to 3S9 
 
 canal maps and tr.j nscripts 389 
 
 transcripts of canal contractors' bonds.. 390 
 
 copies chattel mortgages 390 
 
 proceedings of common council of New 
 
 York 390 
 
 instruments duly proved and acknowl- 
 edged 391 
 
 transcripts of n^cords of conveyances... 396 
 
 conveyances of lands in oth er states 396 
 
 copies records of deeds in office of sec- 
 retary of state 397 
 
 records and exemplifications of judg- 
 ment records and decrees 397 
 
 certificates of incorporation of corpo- 
 rations 398 
 
 of incorporation 399 
 
 Beals of coi-porations 400 
 
 copies of papers and records in county 
 
 clerk's offices 400 
 
 depositions inperpetuamreimemoriam^ 400 
 
 insolvent's discharge 401 
 
 certificates as to services of firemen 400 
 
 legislative papers 401 
 
 papers and field notes of land companies, 401 
 
 certificates of loan commissioners 401 
 
 certificates of lost papers 403 
 
 marriage certificates 403 
 
 notary's certificates 403 
 
 copies papers deposited in the offices of 
 
 the state government 404 
 
 transfer books of plank and turnpike 
 
 road companies 405 
 
 printers' affidavits of publication 405 
 
 certificates of redemption of real estate, 406 
 
 Etihenoe, page. 
 
 certified copies of laws 406 
 
 certificates of unpaid taxes 407 
 
 papers in offices of town clerks 407 
 
 record of appointment of trustees of ab- 
 sconding debtor 407 
 
 certificates of incorporation of villages. 407 
 
 wills 407 
 
 leases on unpaid taxes in villages 407 
 
 written instruments proved or acknowl- 
 edged 408 
 
 exclud(idfr<m. public policy, 
 communications of attorney and counsel 353 
 
 wife against husband 352 
 
 communications to religious advisers. . . 353 
 communications to physicians and sur- 
 geons .• 553 
 
 Tiearsay^ 
 
 definition of 333 
 
 meaning of rule, "hearsay not evidence" 334 
 when information from third persons is 
 
 not 335 
 
 declarations, being part of res gestae, not, 336 
 
 official entries, when not 336 
 
 as to pedigree 338 
 
 exceptions of rule excluding 333 to 342 
 
 matters of public or general interest 338 
 
 ancient documents 338 
 
 declarations of deceased persons 338 
 
 entries by deceased persons 339 
 
 dying declarations S39 
 
 testimony of deceased witnesses 340 
 
 parole to vary wntten instruments^ 
 
 general rule excludes 355 
 
 effect of this rule 355 
 
 to whom the rule applies 355 
 
 when instrument is in foreign language, 356 
 
 wheu iustrumcut U illegible 350 
 
 when instrument is incomplete 356 
 
 admissible, to show fraud or illegality.. 357 
 admissible, to show variance of simple 
 
 contracts 357 
 
 admissible, to explain consideration of 
 
 written contracts 358 
 
 of usage 359 
 
 particular acti&iis, 
 
 agency 416 
 
 assumpsit 416 
 
 commou carriers 418 
 
 damages 420 
 
 infancy 421 
 
 limitations 422 
 
 partnership 423 
 
 payment 424 
 
 promissory notes 425 
 
 tender 432 
 
 trespass 433 
 
 trespass on the case 435 
 
 trover 436 
 
 presumptive, 
 
 divisions of 311 
 
 ■fr hen conclusive 312 
 
 examples of 312 to 323 
 
 of death . . . , 314 
 
 of inability to commit rape 317 
 
 when disputable 317 
 
878 
 
 INDEX. 
 
 EriliKNCB, PAGB. 
 
 ofimiocence 318, 320 
 
 of nifllice 318 
 
 pppseesion, of ownership 319 
 
 arising from possession 319 
 
 judgment on attacliraent 236, 453 
 
 entries in justice's docket 464 
 
 Private writings^ 
 
 production of 408 
 
 proof of loss of 408 
 
 secondary evidence of 409 
 
 compulsory inspection of 409 
 
 notice to produce 409 
 
 mode of proving 411 
 
 admission of genuineness of 411 
 
 proof of, when not attested 411 
 
 proof of, by subscribing witness 411 
 
 proof of handwriting of party to 412 
 
 shop-books 413 
 
 proceedings befote Justices. 
 
 justice's docket, before hinifelf 461 
 
 transcript of such docket 462 
 
 such docket and transcript conclusive., 4*12 
 
 and cannot bu contradicted by parol 462 
 
 after justice's death 463 
 
 when docket is lost 4G5 
 
 public documents, 
 
 written laws of other states and govern- 
 ments 383 
 
 common law of other states and govern- 
 ments 383 
 
 laws of this slate 3S4 
 
 Revised Statutes 384, 40fi 
 
 Constitution IT. S 384 
 
 acts of Congress 384 
 
 journals of the legislature 384 
 
 records aud judicial writings, 
 
 how proved 385 
 
 seals to exemplified copies, judicially 
 
 noticed 385 
 
 how proved, under act of Congress 385 
 
 by sworn copies 385 
 
 affidavits taken iu other states and 
 
 countries 385 
 
 of f(jreign courts 385 
 
 copies of, of foreign courts 386 
 
 of justices' courts in adjoining states . 386 
 of the courts of the United States . ... 386 
 in the departments of the federal gov 
 ernment 388 
 
 statute of frauds, 
 
 contracts relating to lands 353 
 
 leases for more than a year 353 
 
 contracts not to be performed within a 
 
 year 354 
 
 promises to answer for another's debt, 354 
 contracts in consideration of marriage, 354 
 
 contracts of sale, over $50 354 
 
 what written, must contain 854 
 
 the heat must be p7'otif«cet/, 
 
 primary and secondary 830 
 
 of execution of instruments 331 
 
 secondary, of instruments 331 
 
 confession Is not, of execution of spe- 
 cialty 331 
 
 instrument must be produced 333 
 
 EVIDBNOE, PAGE. 
 
 written agreements, of themselves — 332 
 
 letters must be produced ^^ 
 
 of authority of public officers 333 
 
 [See Burden of Proof, Conveyartces and 
 WiPncs8€8.'\ 
 Excise awd Taverns, 
 
 board of commissioners in towns T63 
 
 board of excise, when to meet "764 
 
 act of majority, valid '^^3 
 
 minutes of meeting, to be kept and filed, 766 
 
 powers of board "^^ 
 
 what sum to be charged for license — 765 
 
 might grant tavern licenaes 766 
 
 not to charge therefor '''67 
 
 board to sign licenses 767 
 
 duration of licenses 767 
 
 board must assemble to grant licenses, 768 
 
 board had a discretionary power 768 
 
 bond to be given for license to drink on 
 
 premises.. 
 
 768 
 
 penalty and conaition of such bond — 768 
 
 contents of grocer's license 769 
 
 grocer to give bond 769 
 
 condition of such bond 769 
 
 his bond to be filed 773 
 
 penalties, how recovered 771 
 
 who to prosecute bonds 771 
 
 process in actions for penalties, to be 
 
 endorsed 761 
 
 furm of such indorsement 761 
 
 complaint for penalty 771 
 
 evidence, in actions for penalties 762 
 
 rule as to bringing actions for penal- 
 ties 762 
 
 provisions of the Revised Statutes re- 
 pealed 762 
 
 board of commissioners in cities 764 
 
 when to meet 765 
 
 to keep minutes 766 
 
 duration of license 767 
 
 compensation of commissioners 767 
 
 licenses, to whom granted 768 
 
 bond 768 
 
 duty of inn-keepers 769 
 
 no credit to be given 769 
 
 selling to apprentices. Indians, Ac 770 
 
 proceodings for violation of the law ... 770 
 duties of constables, magistrates, &c... 770 
 
 habitual drunkards 772 
 
 Sunday and election day 773 
 
 penalties, how recovered 773 
 
 bond to be filed 773 
 
 proceedings on breach of bond 774 
 
 conviction to be reported to court of 
 
 sessions 774 
 
 revocation of license 774 
 
 damages recoverable, on unlawful sales, 774 
 
 adulteration of liquors 775 
 
 any person may prosecute, when 775 
 
 common carriers not to employ intem- 
 perate drinkers 775 
 
 liberties of the jail 775 
 
 husband, wife, child or parent claim 
 
 damages 775 
 
 sale forfeits lease, when 775 
 
INDEX. 
 
 879 
 
 Excise and Tavsrss, page. 
 
 petition for imi-keoperV license 777 
 
 petition for store-keeper's license 777 
 
 noticp to denier 777 
 
 l)ond foreelling 778 
 
 acknowledG;raent of bond 778 
 
 justification of sureties 779 
 
 approval of commissioners 779 
 
 bond of inn keeper 779 
 
 book of minutes, form of 779 
 
 Executed Contracts, 
 
 [See Contracts.'] 
 Executions, 
 
 in actions in name of people 121 
 
 growing wheat may be sold on 128 
 
 under mechanicsMieu law 132 
 
 to be filled up 159 
 
 need not be sealed 159 
 
 to be signed by justice 159 
 
 to be in name of people 159 
 
 to be in English 159 
 
 when to isipue against body 160 
 
 oa judgment on set-ofi". 236 
 
 on such judgment, against executors .. 237 
 
 to enforce adjournment bonds 254 
 
 against defaulting witness 278 
 
 justice cannot issue, after transcript 
 
 filed in county clerk's office 459 
 
 first levy, entitled to preference 487 
 
 property bound for delivery of 487 
 
 Imjyrisonmeni under.^ 
 
 when 494 
 
 when defendant to be dischargeed from, 495 
 
 affidavit to procure discharge from 495 
 
 judgment not released by discharge 
 
 from 495 
 
 issuing of, 
 
 when to be issued 473 
 
 when to be maderetnrnable 473 
 
 to issue against body 474 
 
 to direct collections of interest 474 
 
 formal requisites of 474 
 
 cannot be amended after it has been 
 
 executed 475 
 
 when to issue against towi. i count}'- 
 
 officers 475 
 
 endorsement of. when all tlie defend- 
 ants did not appear 475 
 
 when county is divided 476 
 
 in actions for violation of statutes as to 
 
 fisheries 477 
 
 after return of one unsatisfied 477 
 
 after judgment is paid 477 
 
 time of receiving must be endorsed 479 
 
 what is a levy 479 
 
 must be actual 480 
 
 breaking open doors to make 480 
 
 time of, to be endorsed 481 
 
 must be during life-time of esecutiou . . 481 
 after expiration of constable's office ... 481 
 
 does not extinguish judgment 481 
 
 under one, inures to junior execution., 483 
 remains good as to debtor, though dor- 
 mant as to junior executions 483 
 
 officer liable for wanton levy 485 
 
 Executions, pagb. 
 officer making, acquires special prop- 
 erty 484 
 
 on gold and silver coin as money 485 
 
 ban k bills may be taken on 485 
 
 promissory notes cannot be taken on,. 485 
 after forfeiture under a chattel mort- 
 gage 485 
 
 when all the defendants did not appear, 487 
 
 inactions commenced by attachment .. 437 
 
 title of purchaser before, protected 487 
 
 trespass, when made on property of 
 
 stranger , 487 
 
 title to property taken on, how determ- 
 ined 487 
 
 property exempt from, 
 
 by Revised Statut-s 491 
 
 decisions under Revised Statutes.. 491, 493 
 
 by act of 1842 492 
 
 decisions uuder act of 1842 492, 494 
 
 exemption, a pursonal privilege 494 
 
 on judgments docketed in county cou?'t, 
 
 justices cannot issue 459 
 
 to be issued by county clerk to sheriff.. 478 
 
 provisions of statute regulating 478 
 
 renewing, 
 
 when 477 
 
 duration of renewal 477 
 
 efl'ect of, when execution satisfied 477 
 
 when, after levy 477 
 
 after expiration of justice's office 478 
 
 return of, 
 
 liability of officer neglecting 496 
 
 S'jle, 
 
 notice of, to be given 434 
 
 notice for, how long 484 
 
 contents of nf>tice of 484 
 
 what may be «oM on 484 
 
 when property is not removed 48fi 
 
 after indemnity tendered 487 
 
 bond to indemnify officer making 488 
 
 property must be present at 438 
 
 and be sold to. highest bidder 4S8 
 
 when bid at, may be retracted 489 
 
 to be postponed for want of bidders. . . 489 
 
 adjournment of, diPcretionary 489 
 
 memorandum necessary, when over $.)0, 490 
 
 form of such memorandum 490 
 
 officer cannot purchase at 490 
 
 fecial, 
 in favor of^ and against habitual drunk- 
 ards 790 
 
 8tay of, on appeal, 
 
 security to be given for 502 
 
 form of such security 502 
 
 security to be approved 503 
 
 recognizance, in criminal cases 671 
 
 EXHCUTORS, 
 
 cannot be sued in justices' courts .. 28, 36 
 
 ai e personal representatives 94 
 
 to collect debts due testator 94 
 
 actions by 94 
 
 letters to, evidence 95 
 
 statute of limitations as to 141 
 
 may sue in justices' courts 145 
 
 tender to aeo 
 
880 
 
 INDEX 
 
 BXEOUTORS, PAGE. 
 
 set-off in actions by and against 233 
 
 aclmissions by one of several 344 
 
 may assign indentures of apprentice- 
 ship 404 
 
 ExEcuTOHT Contracts, 
 
 [See Contracts.'] 
 Exemption, 
 
 from arrest 175 to 178 
 
 from serving on juries 286 to 289 
 
 [See Execution.'] 
 Express Contracts, 
 
 [See Contracts.l 
 
 FACTOR, 
 
 demand need not be made upon 102 
 
 measure of damages in actions against, 449 
 [See Agents.] 
 False Imprxsonmbnt, 
 
 justices cannot try civil actions for 27 
 
 actions for, abate by death 95 
 
 actions for, vehen to be commenced. . . 139 
 Falsely PsRsoNATiHa Others, 
 
 puni?hment for 590 
 
 False Pretenses and Tokens, 
 
 information for obtaining property 
 
 by 550 
 
 punishment for 590, 614 
 
 Federal Courts, 
 
 [See Circuit Courts of the United States, 
 and District Courts of the United 
 States.] 
 Fees, 
 civil, 
 
 for sei-vlng a subpoena ' 471 
 
 may be demanded in advance 472 
 
 taking illegal, a misdemeanor 472 
 
 civU actions generally, 
 
 of commissioners 471 
 
 of constables 470 
 
 of jurors 4T1 
 
 of justices 459, 468, 501, 507 
 
 of witnesses S72, 470 
 
 criminal, 
 
 bywhompaid 679 
 
 accounts for, when to be audited 679 
 
 affidavit tu accompany account for 679 
 
 criminal proceedings generally, 
 
 of constables 606, 681 
 
 of justices 680 
 
 of sheriffs 606 
 
 special sessions^ 
 
 of justices 680 
 
 ackno wledgments, 
 
 of justices 699 
 
 affidavits and oatJbs^ 
 
 of justices 700 
 
 ajiprentices, 
 
 of justices 716 
 
 of constables 716 
 
 arbitrators, 
 
 of justices . 847 
 
 bastards, 
 
 of constables 737 
 
 of justices 737 
 
 of witcesBes 738 
 
 Fees, FAas. 
 
 beggars and vagrants^ 
 
 of constables 742 
 
 of justices 742 
 
 of witnesses 742 
 
 deposUior^ to be used in other states^ 
 
 of constables 848 
 
 of justices 848 
 
 of witnesses 843 
 
 disorderly persons, 
 
 of constables 74ft 
 
 of justices 748 
 
 of witnesses 743 
 
 disturbance of religious meetings, 
 
 of constables 755 
 
 of justices 7t5 
 
 dogs, 
 of justices 757 
 
 draining swamps, 
 of commissioners 760 
 
 excise and taverns^ 
 of board of commissioners 767 
 
 Jiremen, 
 
 ol justices 848 
 
 firing of woods^ 
 
 of justices 819 
 
 forcible entry and detainer, 
 
 of justices 8^ 
 
 fu . itives from justice^ 
 
 of constables 784 
 
 of justices 784 
 
 gaming and lotUry tickets, 
 
 of constables 786 
 
 of j ustices 7S6 
 
 habitual drunkards, 
 
 of constables 791 
 
 of jurors 791 
 
 of justices . 791 
 
 of wituessos 792 
 
 hawkers and pedlers, 
 
 of constables 795 
 
 of justices 795 
 
 highways,, 
 
 of constables 809 
 
 of jurors 810 
 
 of justices 809 
 
 jiistices of sessions, 
 
 generally 849 
 
 in thi! county of Orange 850 
 
 landlord and tenant, 
 of justices , 817 
 
 Umited partnerships, 
 of justices 850 
 
 marriages, 
 of justices 840 
 
 observance of Sunday, 
 
 of constables 755 
 
 of justices Too 
 
 parents ab'iconding, 
 
 of justices 845 
 
 pawii-b7'okers, 
 
 of constables , 844 
 
 of justices 844 
 
 profMhe cu?'slng and swearing, 
 
 of constables 755 
 
 of justices 755 
 
INDEX. 
 
 881 
 
 Fbbs, fagd. 
 
 r<x<kng, 
 
 of constables 852 
 
 of jnsticep 862 
 
 removal of constables^ 
 
 of justices 852 
 
 town auditors, 
 
 of justices 855 
 
 town meetings^ 
 
 of justices 855 
 
 undaiTned baggage^ 
 
 of justices 846 
 
 Felonies, 
 
 conviction for, disqualiaes as a witness, 3fi0 
 
 evidence of conviction for 361 
 
 punishment for aaeanUs with intent to 
 
 commit 610 
 
 punibhment when not fixed by statute, 591 
 [See Crimes artd Penalties.'] 
 Feualgs, 
 
 arrestof 177 
 
 not exempt from criminal arrest 537 
 
 a [See Married Women.} 
 
 FSNCBS, 
 
 defects in, defense in trespass Ill, 119 
 
 purpose of 119 
 
 cannot be taken on execution against 
 
 tenant 485 
 
 removal of, encroaching on highway. . . 804 
 Fines, 
 
 justices punishable by 10 
 
 for neglecting to fill up process 159 
 
 for suing out process against ambassa- 
 dors 177 
 
 for serving Jews and Seventh Day Bap- 
 tists on Saturday 190 
 
 for refusing to assist in the execution of 
 
 process 191 
 
 for non-attendance of witnesses 275 
 
 for contempt of court 525 
 
 [See Special Sessions and Highways and 
 Jioads.l 
 Fibbxen, 
 
 exemption of, from jury duty 287 
 
 evidence of service of 400 
 
 in towns, how appointed 848 
 
 vacancies among, how filled 848 
 
 Firing op Woods, 
 
 who may be ordered to extinguish fire 
 
 in woods 848 
 
 who may make such order 848 
 
 penalty for ref usinsr to obey such order, 848 
 disposition of penalty, when collected, 849 
 Fixtures, 
 
 general rale, as to 135 
 
 classification of, as to tenant 126 
 
 what are 126, 127 
 
 what are not 126 to 128 
 
 FOBOIBLB BNTBT AND DBTAINEB, 
 
 powers of justices, under statute rela- 
 tive to 849 
 
 FOBBIGN COBPOftATIONS, 
 
 actions by 147 
 
 to give security for costs 148 
 
 FoHffEITtTRBS, 
 
 husband liable for wife's 90 , 
 
 56 
 
 Forfeitures, page. 
 
 actions for 119 
 
 recovered, where to be paid 121 
 
 venue in actions to recover 122 
 
 given to persons who will sue 122 
 
 actions for, when commenced 122 
 
 compromise of actions for 122 
 
 process in actions lor 122 
 
 pleadings in actions for 123 
 
 double or treble value, how assessed 124 
 
 actions for, when to be commenced 138 
 
 jurors in actions for 286 
 
 Fokgert, 
 
 information for 549 
 
 in the first degree 591 
 
 in the second degree 593 
 
 punishment of, in the first and second 
 
 degrees 595 
 
 in the third degree 614 
 
 uttering of forged instruments is 594 
 
 Forms, 
 
 certificate of the election of a Justice 
 
 of the Peace 5 
 
 supervisor's notice of drawing 6 
 
 certificate of the drawing 7 
 
 oath of office 9 
 
 civU, 
 consent to be guardian for infant plain- 
 tiff 153 
 
 description of particular character of 
 
 plaintiff ;. 157 
 
 affidavit for a long attachmeni under 
 
 the Revised Statutes 170 
 
 affidavit for a long attachment under 
 
 the non-imprisonment act 171 
 
 affidavit for short attachment against a 
 
 non-resident 171 
 
 bond on all attachments, long and 
 
 short 172 
 
 approval of Justice on the bond 172 
 
 returns on summons 174 
 
 return on warrant 181 
 
 summons in actions for claims and de- 
 livery of personal property 197 
 
 affidavit on 198 
 
 notice to constables 198 
 
 undertaking , 188 
 
 notification of trial 199 
 
 approval on 199 
 
 return of constable 199 
 
 return of constable under § 12 200 
 
 notice of exception to sureties 200 
 
 undertaking for return of property 200 
 
 affidavit of claim by third person 301 
 
 undertaking to constable by third 
 
 person 301 
 
 affidavit of snreties 201 
 
 entry in justice's docket 201 
 
 consent to be guardian for Infant de- 
 fendant 204 
 
 demurrer to complaint 215 
 
 demurrer to answer 215 
 
 offer for judgment 216 
 
 acceptance of offer 216 
 
 answer, setting up plea of title 243 
 
 undertaking, on plea of title 244 
 
882 
 
 INDEX. 
 
 Forms, r^os. 
 bond for defendant on adjournment 
 where he can be imprisoned on execu- 
 tion 253 
 
 bond for defendant on adjournment 
 where he cannot be imprisoned on exe- 
 cution ^5 
 
 affidavit of service of notice 263 
 
 commission 265 
 
 interrogatories and croeB-interrogatories 266 
 return to be eudorued on commiseion. . , 369 
 
 subpoena 270 
 
 minute of conviction of defaulting wit- 
 ness 277 
 
 execution against him, for flue and costs, 278 
 
 oath of witness, upon the Gospels 295 
 
 the same not on the Gospels 295 
 
 affirmation of witness 396 
 
 warrant of commitment against witness 
 
 who refuBcgi to testify 298 
 
 confession of judffment 452 
 
 affidavit where the confession is for a 
 
 sum exceeding fifty dollars 452 
 
 entry in justice's docket 460 
 
 renewal of execution 477 
 
 bond to indemnify constable 488 
 
 memorandum of sale of goods or chat- 
 tels 490 
 
 notice of appeal, in a civil action 501 
 
 nndertaking 502 
 
 justice's return 503 
 
 •criminal^ 
 
 warrant of arrest for contempt of court, 537 
 
 record of conviction therefor 528 
 
 warrant of commitment therefor 529 
 
 complaint to obtain a search warrant. . . 533 
 
 search warrant 532 
 
 oath of complainant, or of witness on 
 
 complaint 539 
 
 information for assault 540 
 
 Information for grand or petit larceny. . 540 
 
 information for murder 641 
 
 information for murder by poisoning. . . 541 
 information for murder by stabbing. . . . 541 
 Information for murder by shooting ... 541 
 information for murder by cutting 
 
 throat 542 
 
 information against an accessory after 
 
 the fact 542 
 
 information for arson in the first degree, 543 
 information for arson in the second 
 
 degree 542 
 
 information for arson in the third degree, 543 
 Information for setting fire to a crop of 
 
 grain growing 543 
 
 information for manslaughter, in killing 
 
 another with an aie 543 
 
 information for manslaughter, in kill- 
 ing an unborn child, by kicking its 
 
 mother 543 
 
 information for manslaughter, in killing 
 an unborn child, by administorlng 
 
 drugs, &c., to its mother 544 
 
 information for rape 544 
 
 information for rape on female under 
 ten years of age 544 
 
 Forms, pagb. 
 
 information for aspault, with intent to 
 
 commit a rape 544 
 
 information for forcible abduction of 
 a women, with intent to compel her 
 
 to marry, or prostitute herself 545 
 
 information for taking a female under 
 sixteen years of age from her parent 
 
 or guardian 545 
 
 information for mayhem or maiming. . . 545 
 
 information for child stealing. 545 
 
 information for abandoning child 546 
 
 information for shooting at, or attempt- 
 ing to shoot at, with intent to kill, 
 
 rob or maim 546 
 
 information for assault with deadly 
 
 weapon, with intent to kill 546 
 
 information for poisoning food 547 
 
 information for poisoning well 547 
 
 informatiim for assault, with intent to 
 
 rob or commit burglary 547 
 
 information for burglary 547 
 
 information for felony and burglary tn 
 
 shop 548 
 
 information for burglary in entering 
 
 store 548 
 
 information for constructive burglary.. 548 
 
 information for forgery 549 
 
 information for passing, or offering to 
 
 pass, counterfeit bank notes 549 
 
 information for altering or counterfeit- 
 ing bank notes 550 
 
 information for obtaining property by 
 a false token, cr by falsely person- 
 ating another 550 
 
 information for obtaining money, or 
 
 property, by false pretenses , . 550 
 
 information for robbery 551 
 
 information for embezzlement 551 
 
 information for receiving stolen goods, 551 
 
 information for perjury 551 
 
 information for bigamy 552 
 
 information for marrying the wife of 
 
 another 552 
 
 information for malicious mischief 552 
 
 information for malicious trespass, or 
 
 for girdling trees 553 
 
 information for procuring abortion 553 
 
 information for making an affray 553 
 
 information for cruelty to animals 553 
 
 information for a rout or riot 553 
 
 inform.ation for selling unwholesome 
 
 food 554 
 
 information for disturbing a religious 
 
 meeting 554 
 
 general form of warrant in a criminal 
 
 case 561 
 
 form of backing or endorsing a warrant, 567 
 warrant of commitment for further 
 
 examination 571 
 
 prisoner's statement 576 
 
 warrant of commitment of a" witness 
 who refuses to enter into a recogni- 
 zance 573 
 
 recognizance by a witness to give evi- 
 dence 530 
 
INDEX. 
 
 883 
 
 Forms, pagk. 
 recognizance by a witness, -vrith sure- 
 ties 581 
 
 warrant of coramitmout 606 
 
 recognizance or undertaking 627 
 
 warrant to liberate a prisoner 628 
 
 warrant of commitment of prisoner to 
 
 await trial 637 
 
 order to sheriff to bring up prisoner 
 
 for trial 637 
 
 venire or order 641 
 
 subpoena 644 
 
 oath to witness 644 
 
 constable's oath, on retiring with jury, 645 
 
 minutes of proceedings on trial 647 
 
 certificate of conviction at special 
 
 sessions 648 
 
 certificate of commitment, on conviction 
 
 at special sessions 649 
 
 form of undertaking 651 
 
 acknowledgment of satisfaction. 666 
 
 order superseding the commitment of a 
 
 ■prisoner 666 
 
 order discharging the recognizances of 
 
 the prisoner and the witnesses 666 
 
 affidavit on appeal 670 
 
 endorstment on 671 
 
 undertaking on appeal 671 
 
 endorsement on the undertaking 670 
 
 recognizance on appeal to county 
 
 sessions 672 
 
 complaint to obtain surety of the peace, 674 
 
 peace warrant 675 
 
 undertaking to keep the peace 675 
 
 commitment for not finding sureties... 676 
 warrant to discharge prisoner on finding 
 
 sureties 677 
 
 affidavit to accompany account for fefls 
 
 in criminal cases 679 
 
 ipecial acknowledgments, 
 certificate of acknowledgment of a con- 
 veyance by a party known to the 
 
 officer 691 
 
 by a party, where his identity is proved 
 
 to the officer , 692 
 
 by husband and wife, both known to 
 
 the officer 698 
 
 by husband and wife, both proved to 
 
 the officer 692 
 
 by husband and wife — husband known, 
 
 and wife proved, to the officer 693 
 
 by two husbands and their wives, all 
 
 known to the officer 693 
 
 by wife, in separate certificate 693 
 
 by two or more parties 694 
 
 by one of several parties 694 
 
 by an attorney 6Q4 
 
 by an executor, or trustee 694 
 
 certificate of proof by subscribing wit- 
 ness known to the-officer 694 
 
 by subscribing witness, where his 
 
 identity is proved to the officer 695 
 
 by subscribing witness — grantors re- 
 siding in another state 695 
 
 the same, by subscribing witness proved 
 to the officer 695 
 
 FORKS , PAOB. 
 
 by subscribing witness as to the hus- 
 band, and acknowledgment by the 
 wife, both being known to the officer, 696 
 
 by subscribing witness as to the hus- 
 band and acknowledgment by the 
 wife, both proved to tho officer 696 
 
 by subscribing witness to deed execu- 
 ted by an attorney 696 
 
 proof of deed by a religious corpora- 
 tion 697 
 
 satisfaction of mortgage, and acknowl- 
 edgment, by individual known to tlie 
 officer 697 
 
 certificate of satisfaction of a mortgage, 
 to be written thereon 698 
 
 satisfaction of a mortgage, by an execu- 
 tor, administiator or trustee 698 
 
 satisfaction of a judgment in a jus- 
 tice's court, where a transcript is filed 
 in the county clerk's ofldce 698 
 
 satisfaction of a judgment in a court of 
 
 record 890 
 
 oath to be administered to a subscribing 
 witness 699 
 
 oath to a witness, proving the identity 
 of the parties, or of the subscribing 
 
 witness, to a conveyance 699 
 
 q^davitsand oaths, 
 
 oath to a deponent 701 
 
 apprentices^ 
 
 apprentice's indenture 706, 707 
 
 consent by father or mother 708 
 
 justice's certificate, where the father 
 does not give the consent 708 
 
 consent of guardian 703 
 
 consent by the overseer of the poor 
 or two justices of the peace of the 
 town, or the county judge of the 
 county where the infant resides 700 
 
 complaint by master against apprea- 
 tice for refusing to serve 7C9 
 
 warrant on the foregoing complaint 709 
 
 commitment of an apprentice refusing 
 to serve 710 
 
 complaint concerning any misdemeanor 
 or ill-behavior of an apprentice 710 
 
 warrant on the foregoing complaint ... 711 
 
 commitment of an apprentice on the 
 foregoing complaint 711 
 
 discharge of the apprentice from his 
 service, and of the master from his 
 obligations 712 
 
 complaint by an apprentice for the 
 cruelty or misusage of his master, or 
 hls»refusal to furnish him with neces- 
 sary provisions or clothing 7U8 
 
 summons on the foregoing complaint. . 718 
 
 discharge of an apprentice on the fore- 
 going complaint -. 713 
 
 complaint by an apprentice against his 
 master, where money has been paid, 
 or agreed to be paid 713 
 
 summons on the foregoing complaint.. 714 
 
 recognizance of master and surety on 
 the foregoing complaint 714 
 
8S4 
 
 INDEX. 
 
 FOBMH, PAGE. 
 
 complaint by master against apprentice 
 refusing to serve, where money has 
 
 been paid or agreed to be paid 715 
 
 summons on foregoing complaint 715 
 
 recognizance of apprectice and surety 
 
 on the foregoing complaint 715 
 
 bastards, 
 application of a superintendent, or over- 
 seer of the poor, in a case of bae- 
 
 Urdy 717 
 
 examination of the mother before birth 717 
 
 examination after birth 716 
 
 warrant to apprehend reputed father. . . 718 
 indorsement on a warrant of arrest to 
 
 be executed in a foreign county 718 
 
 indorsement by a justice in a foreign 
 
 county 719 
 
 bond to be taken by the justice before 
 
 whom the reputed father is carried... 730 
 certificate to be indorsed on warrant. .. 721 
 
 subpoena in a case of bastardy 723 
 
 bond on adjournment 722 
 
 order of filiation 723 
 
 bond on order of filiation . . , 725 
 
 warrant to commit putative father 727 
 
 warrant to commit a mother who refuses 
 
 to disclose the name of the father 728 
 
 summons where the mother has property 
 
 in her own right 729 
 
 order to compel the mother to pay for 
 
 the support of the child 730 
 
 warrant to commit the mother 731 
 
 bond by the mother of a bastard to ap- 
 pear at the next court of sessions 731 
 
 order reducing the sum to be paid by 
 the father or mother of a bastard 
 
 child 733 
 
 warrant to discharge putative father... 733 
 waiTant to seize the property of ab- 
 sconding father of bastard 735 
 
 bond to be given by party where prop- 
 erty has been seized 735 
 
 order to discharge the warrant, and to 
 
 restore the property 736 
 
 beggars and vagrants^ 
 record of the conviction of a vagrant.. 740 
 warrant to commit a child to the connty 
 
 poor-house 741 
 
 disorderly persons, 
 warrant to arrest a disorderly person. . . 744 
 
 recognizance of a disorderly person 744 
 
 record of the conviction of a disorderly 
 
 person 745 
 
 warrant to commit a disorderly person. 745 
 warrant to commit a disorderly person, 
 after a recovery upon his recogni- 
 zance 746 
 
 discharge of a disorderly person, to be 
 
 gran ted by a:iy two j astices 747 
 
 disiurba/nce qf religious meetings, tfic, 
 warrant to arrest a person for the dis- 
 turbance of a religious meeting, &c.. 749 
 record of conviction for disturbing a 
 
 religious meeting, &c 749 
 
 certificate of such conviction 750 
 
 FOBMS, FASK. 
 
 warrant to seize goods forfeited by 
 
 being exposed to sale on Sunday 754 
 
 dogs^ 
 
 order to kill a dangerous dog. 756 
 
 drainijig swamps^ 
 
 order appointing commissioners 758 
 
 oath to the commissioners 758 
 
 inquisition 759 
 
 &aclae and taverns, 
 
 petition for inn-keeper's license 777 
 
 petition for store-keeper's license 777 
 
 notice to dealer 777 
 
 bond for selling liquor 778 
 
 acknowledgment of bond 778 
 
 bond of Inn-keeper 779 
 
 fugitives from justice, 
 
 warrant to commit a fugitive from jus- 
 tice 781 
 
 bond by a fugitive from justice 781 
 
 TM^itual druTikafds, 
 notice designating habitual drunkard, 
 
 &c 788 
 
 notice to overseers by justice 788 
 
 venire for a jury to try the fact of habit- 
 
 nal drunkenness 788- 
 
 juror's oath 789 
 
 oath to witness 789 
 
 execution against the drunkard 790 
 
 execution against the overseers 790 
 
 revocation by the overseers where a 
 
 drunkard reforms 791 
 
 hawkers andpedlers, 
 commitment of a hawker or pedler for 
 refusing to pay the penalty for not 
 
 showing his license 793 
 
 warrant to collect a penalty from a 
 
 hawker or pedler 794 
 
 highways and roads, 
 complaint againtt a person for refusing 
 
 to work on a hie-hway 796 
 
 complaint against a person for not fur- 
 
 uishiog a team 796 
 
 summons for refusing to work on a 
 
 highway 797 
 
 return of constable on serving sum- 
 mons 798 
 
 conviction indorsed on the complaint.. 798 
 warrant to collect a fine for not working 
 
 on a highway 799 
 
 summons for a j ury to reassess highway 
 
 damages 801 
 
 oath to the jurors 801 
 
 oath to witnesses 801 
 
 verdict of the jury 802 
 
 certificate of the justice 802 
 
 precept to summon a jury, in case of an 
 
 encroachment on a highway 805 
 
 oath to jurors 806 
 
 oath to witnesses ^6 
 
 certificate of the jury 807 
 
 warrant to collect costs of proceedings, 
 upon an encroachment on a high- 
 way. 808 
 
 certificate where no encroachment is 
 found 809 
 
INDEX. 
 
 885 
 
 FOBWB, PAGE. 
 
 landlord and tenant, 
 petition and aflldavit to recover posBes- 
 
 sion 825 
 
 undertaking on appeal 836 
 
 notice to landlord of the appeal 835 
 
 notice of intention to re-enter demised 
 
 premises 823 
 
 notice requiring payment of rent, or 
 
 possession of demised premises 824 
 
 petition to authorize the summary re- 
 moval of a tenant 835 
 
 precept to remove tenant holding over 
 
 after expiration of lease 826 
 
 precept in a cas^e of tenancy at will, 
 or at sufferance, terminated by no- 
 tice 826 
 
 precept to remove tenant for nonpay- 
 
 ment of rent 827 
 
 affidavit of service of summons 827 
 
 answer 828 
 
 affidavit to answer 828 
 
 warrant to put in possession, where 
 tenant holds over after expiration of 
 
 lease 828 
 
 warrant to remove the tenant in a case 
 of tenancy at will, or at sufferance, 
 
 terminated by notice 829 
 
 warrant to put in possession, on default 
 
 of payment of rent 829 
 
 return of officer to warrant 830 
 
 notice to obtain trial by jury, in pro- 
 ceedings to remi)ve a tenant 830 
 
 precept for a jury 831 
 
 oath to jurors,, „ 831 
 
 officer's oath to keep jury, after evi- 
 dence given 831 
 
 undertaking to stay proceeding, on a 
 
 warrant for non-payment of rent 833 
 
 approval of undertaking 833 
 
 security for rent, to stay proceediags .. 833 
 
 affidavit to stay proceedings 834 
 
 affidavit for appeal to county court in 
 
 proceeding to remove a tenant 834 
 
 undertaking to stay proceedings 834 
 
 notice of appeal 835 
 
 undertaking on appeal 836 
 
 order stayi ug proceedings 837 
 
 vutrriages, 
 
 form of marriage , 838 
 
 marriage certificate 839 
 
 justice's certificate 840 
 
 parents absconding, 
 warrant to seize the goods of an ab- 
 sconding father, husband or mother., 841 
 bond to be given by party, where prop- 
 erty has been seized 843 
 
 order to discharge the warrant, and to 
 
 restore the property 842 
 
 pawnl)roker8, 
 
 bond of claimant of property pledged 
 
 with a pawnbroker 844 
 
 racing, 
 warrant to apprehend persons engaged 
 
 in racing 851 
 
 recognizance by person apprehended.. 831 
 
 Forms, pagb. 
 
 town auditors, 
 
 affidavit to attach to an account 854 
 
 certificate of town auditors 854 
 
 abstract of claims audited by the town 
 
 auditors 854 
 
 vacancies In town offices, 
 
 warrant appointing town officers 856 
 
 notice of acceptance of resignation of 
 town officer 856 
 
 Fort Ann, 
 
 has five justices 4 
 
 FoaT Plain, 
 
 competency of justices, jurors, &c., in. 286 
 
 France, 
 
 jurisdiction of justices in 2 
 
 what coins of, a legal tender 227 
 
 proof of conveyances made in 391 
 
 Franklin County, 
 
 jurors in 365 
 
 Fratti), 
 
 actions for, in justices' courts 27 
 
 damages should be given for 83 
 
 may be shown by parol 357 
 
 [See Fraudulent Contracts.] 
 
 Fratjditlent Contracts, 
 
 not binding 82 
 
 what misrepresentation constitutes — 82 
 
 evidence of 83 
 
 effect of performing 82 
 
 may be rescinded 83 
 
 when concealment will make 88 
 
 damages on 83 
 
 false recommendations 84 
 
 false affirmations 84 
 
 deceit in the sale of horses 85 
 
 deceit in the sale of sheep 100 
 
 Freeholders, 
 
 first process against 156 
 
 summons aud warrant against 163 
 
 Fruit, 
 
 contracts for the sale of 64 
 
 Fugitives prom Justiok, 
 
 may be arrested by justices 523, 780 
 
 provisions of U. S. constitution con- 
 cerning 780 
 
 proceedings to arrest 780 
 
 when to be committed 780 
 
 may give ball 780 
 
 warrant to commit 781 
 
 bond by 781 
 
 when to be discharged 782 
 
 GAMING AND LOTTERY TICKETS, 
 keeping gambling estalishment a mis- 
 demeanor 785 
 
 implements to be seized and destroyed, 785 
 fees 786 
 
 Gambler, 
 
 common, etc 616 
 
 Gas Companies, 
 
 copies certificates of incorporation of, 
 evidence 396 
 
 General Issue, 
 
 obsolete - 216 
 
886 
 
 INDEX. 
 
 Genbbee County^ page. 
 jurors in 285 
 
 GOVERNOB, 
 
 to select justices of the peace 3 
 
 Grain, 
 
 complaint for firing growing 542 
 
 punishment for severing, from the 
 soil 621 
 
 Gband Larceny, 
 
 information for 540 
 
 warrant for 562 
 
 what is 596, 618 
 
 punishment for 597, 618 
 
 Granville, 
 
 numher of justices in 4 
 
 Grass, 
 
 contract for sale of 64 
 
 when tenants may mortgage 128 
 
 when it may be taken on execution . . . 485 
 
 Grates, 
 
 punishment for violating 612, 623 
 
 Great Britain, 
 
 what coins of, a legal tender 827 
 
 proof of conveyances made in 392 
 
 Guarantors, 
 
 action against 72 
 
 evidence of actions against, of notes... 431 
 
 Guaranty, 
 
 must express consideration 42 
 
 void expressing past consideration 43 
 
 of collection 43, 44 
 
 actions on 73 
 
 Guardians, 
 
 of lunatics 204 
 
 tf infant defendants^ 
 
 how appointed 203 
 
 not liable for costs 202 
 
 form of consent by 204 
 
 e^ infant plaintiffs, 
 
 how appointed 153 
 
 must consent in writing 153 
 
 their consent to be filed 153 
 
 when to be appointed 153 
 
 form of consent by 153 
 
 Gunpowder, 
 
 keeping unlawfully 617 
 
 explosion, damaging building 617 
 
 HABEAS CORPUS, 
 
 for witness in jail 294 
 
 propriety of commitment for contempt 
 
 cannot be inquired into on 527 
 
 Habitual Dbunkabdb, 
 
 overseers of the poor to designate 787 
 
 penalty for furnishing liquors to 787 
 
 liquor not to be furnished to children 
 
 or apprentices of 787 
 
 notice designating 788 
 
 may apply to jury to try fact 788 
 
 notice of such application to be given 
 
 to overseers 788 
 
 venire to issue for jury 788 
 
 form of notice to overseers 788 
 
 form of venire 789 
 
 witness, how summoned 789 
 
 oaths to jurors and witnesses 789 
 
 Habitual Brunkaiids, page. 
 
 verdict of jury, pret'umptive evidence. . 789^ 
 when judgment to be entered against.. 78& 
 
 execution Jigainst 790 
 
 judgment, when verdict is in favor of. . 790 
 
 costs in such case 7iK) 
 
 execution against oversc'TP 790 
 
 notice against, may bfi revoked 791 
 
 form of such revocation 791 
 
 both overseers must proceed against . , . 791 
 fees 791 
 
 Hand-Writing, 
 
 how proved 413 
 
 Hanovkr, 
 
 has five justices 4 
 
 Harmony, 
 
 has five justices 4 
 
 Haweers and Pkdlers, 
 
 liable to penalty for selling without 
 
 license , 792 
 
 and for not showing license 792 
 
 form of commitment of 793 
 
 who may apprehend and detain 793 
 
 duty of overseers to do so 793 
 
 when to be convicted 793 
 
 warrant against 794 
 
 when not entitled to costs 794 
 
 actions by 794 
 
 actions against, when to be commenced, 795 
 fees 795 
 
 Hearsay Evidence, 
 
 [See Evidence."] 
 
 Hector, 
 
 has five justices 4 
 
 Heir, 
 
 production of pretended 595 
 
 Highways, 
 
 who entitled to possession of Ill 
 
 evidence of possession to centre of 111 
 
 actions for trespass upon Ill 
 
 vacancy in office of commissioner of, 
 
 how filled 85T 
 
 vacancy in office of overseer of, how 
 filled 857 
 
 Highways and Roads, 
 collection of fines for not working on, 
 
 fine for refusal or neglect to work 795 
 
 fine for hindering others 795 
 
 fine for neglecting to furnish a team, &c. 796 
 
 overseers of, to make complaint 79& 
 
 corporations, liable to be fined 796 
 
 complaints for neglect to work, &c 79fr 
 
 overseer, judge of delinquency 797 
 
 justice, to summon party refusing to 
 
 work . 79T 
 
 form of summons 797 
 
 such summons, how served 797 
 
 such summons, against corporation 798 
 
 return of constable on summons 798- 
 
 fine, when to be imposed' 798 
 
 when warrant to Issue 798 
 
 conviction endorsed on complaint 79S 
 
 warrant for 799 
 
 authority of overseer, a jurisdictional 
 
 fact 799 
 
 officer, not liable to action 79^ 
 
INDEX. 
 
 887 
 
 Highways and Koads, paob. 
 
 to whom fine to be paid 800 
 
 rfi-assessmeni of damages for laying out^ 
 
 Appeal, how taken 800 
 
 jurorp, how summoned 800 
 
 jury, how drawn and sworn 801 
 
 witnesses, to be sworn 801 
 
 jnry, to view premises 801 
 
 and to deliver verdict in writing 802 
 
 verdict, to whom to be delivered 803 
 
 verdict final 802 
 
 rftnoval of obstructions and encroachments, 
 
 penalty for obstructing 803 
 
 plea of title, not a bar to action for 803 
 
 who may maintain action for penalty. . . 803 
 
 what is an obstruction 803 
 
 process, to be endorsed 803 
 
 penalty for injuring 803 
 
 penalty for obstructing water-course... 803 
 
 fences, how removed 804 
 
 contents of order to remove fences 804 
 
 penalty for not removing fences 804 
 
 proceedings, when encroachment is 
 
 denied 80.'i 
 
 jury, how summoned 805 
 
 oaths to jurors and witnesses 806 
 
 duty of jury 806 
 
 to certify fact of encroachment 806 
 
 form of certificate 807 
 
 finding of jury conclusive 807 
 
 certificate, where to be filed 807 
 
 occupant, when to remove fences 808 
 
 occupant to pay costs 808 
 
 costs may be collected by warrant 808 
 
 certificate of jury, when no encroach- 
 ment is found 809 
 
 costs in such cases 809 
 
 fees, for all proceedings 809 
 
 Hiking. 
 
 definition of 58 
 
 liabilities of bailees 60 
 
 of horses on Sunday 80 
 
 Holland Land Compant, 
 
 papers and field notes of, evidence 401 
 
 HOUEK, 
 
 recovery of penalties 120 
 
 HOKSES, 
 
 actions for use of, on Sunday 80 
 
 fraud in sale of 84 
 
 recoupment in actions for use of 241 
 
 House op Refuge, 
 
 juvenile delinquents to be sent to. . . . 650 
 
 Husband and Wipe, 
 
 statutes relative to 87 
 
 estate by curtesy h9 
 
 chattels real, and debts due to latter .... 90 
 
 debts of latter before coverture 90 
 
 liability of former for necessaries 90 
 
 adultery of either 90 
 
 liability of former for acts of latter 90 
 
 wife may act as agent 97 
 
 actions by, against, and between 151 
 
 presumptions of survivorship 313 
 
 former, when bound by admissions of 
 
 latter 348 
 
 latter cannot be witness against former, 352 
 
 Husband and Wipe, paob. 
 
 incompetent, as witnesses for and 
 
 against each other 3G1 
 
 hu^band. competent to prove marriage, 367 
 Husbands, 
 
 [See Susband and W'fe ] 
 
 IDIOTS, 
 
 cannot appoint ageni 97 
 
 to sue and be sued in their own names, 204 
 
 tender on behalf of 225 
 
 incompetent as jurors 286 
 
 incompetent as witnesses 360 
 
 Illegal Contracts, 
 
 what are 77 
 
 actions not maintainable on 77 
 
 examples of 77 
 
 in restraint of marriage and trade 77 
 
 [See Contracts, and Fraudulent 
 Contracts.] 
 Implied Contbaots, 
 
 [See Contracts.] 
 Imprisonment, 
 
 justices punishable by 10 
 
 for neglecting to fill np process 159 
 
 for suing out process against ambas- 
 sadors 177 
 
 for taking reward from prisoner 179 
 
 for serving process on Jews and Seventh 
 
 Day Baptists on Saturday 190 
 
 refusing to assist in execution of pro- 
 cess 191 
 
 of defaulting witnesses 277 
 
 for contempt of court 526 
 
 [See Crimes, and EScecutwns,] 
 Incest, 
 
 what is 596 
 
 punishment for 596 
 
 Indentures, 
 
 [See Apprentices.] 
 Indians, 
 civil, 
 when competent as witnesses for them- 
 selves 364 
 
 criminal, 
 punishment for giving liquor to 631 
 
 701 
 
 10 
 93 
 
 children of, when not to be bound 
 
 apprentices 
 
 Indictment, 
 
 justice's title to office, may be ques- 
 tioned by 
 
 Inpangt, 
 
 personal privilege 
 
 cannot be pleaded by another 
 
 cannot be assigned for error 
 
 a disability under statute of limita- 
 tions 137, 
 
 how proved 
 
 Infants, 
 civil, 
 
 age of majority 
 
 acts of, void and voidable 
 
 must give notice of disaffirmance 
 
 liability of, for necessaries 
 
 cannot recover consideration paid 
 
 140 
 421 
 
888 
 
 INDEX. 
 
 Infants, paoe. 
 
 must pay back consideration received. . 93 
 
 can hold property 94 
 
 liability of, for wrongs 94 
 
 ineligible to office 94 
 
 may receive pay, when 94 
 
 when they may act by agents 97 
 
 may act as agents 97 
 
 may be partners 403 
 
 cannot appear by attorney 1B3, SOS 
 
 actions by 153 
 
 must appear by guardian 153, 202 
 
 guardians of infant plaintiffs 153 
 
 gnaraians of infant defendants 202, 205 
 
 recoupment in actions by 241 
 
 presumptions of law in respect to 317 
 
 burden of proof on, as to infancy. . 339, 421 
 
 when competent as witnesses 357 
 
 criminal, 
 
 competent to testify as to crimes 539 
 
 may be required to And sureties for 
 
 appearance 579 
 
 cannot become sureties 626 
 
 Intobhatiok, 
 
 [See Complaint..] 
 
 Injubizs, 
 clvU, 
 actions for, by personal representatives, 94 
 
 by neglect of roads 97 
 
 to the person 110 
 
 to real property 110 to 114 
 
 to personal property 114 to 119 
 
 to domestic animals 116, 117 
 
 actions for, when to be commenced 138 
 
 tender in actions for 329 
 
 plaintiff seeking to recover for, must 
 
 be free from fault 444 
 
 damages for 443 
 
 cHminal, 
 
 to highway boundary, &c 617 
 
 to railroads 600 
 
 iNN-KSEPBR, 
 
 disqualification of justices who are 22 
 
 Imnooenoe, 
 
 presumption of 318, 320 
 
 [See Svldence.] 
 
 Insanity, 
 
 a disability under statute of limita- 
 tions 137, 140 
 
 disqualifies a juror 286 
 
 must be proved 3-23 
 
 Insolvent's Disoraroe, 
 
 evidence, how far 401 
 
 Inspection, 
 
 of private writings 409 
 
 Inspector of Elbotionb, 
 
 vacancy in office of, how filled 857 
 
 Instbumentb, 
 
 in the nature of chattel mortgages 54 
 
 actions or defense on, for payment of 
 
 money 310 
 
 proof of execution of 330 
 
 must he given in evidence 330 
 
 constrnction of 856 
 
 consideration of negotiable, when In- 
 qulrable into 366 
 
 Inbtbtimbnts, page. 
 
 proved or acknowledged evidence 408 
 
 [See Conveyances, Evidence, and Sub- 
 scribing WUnesies.] 
 Ihscbance Companies, 
 
 are private corporations 96 
 
 INSUBANCB POLIOT, 
 
 presenting false proof of loss 618 
 
 ISSUBBD PbOPBBTT, 
 
 destroying 618 
 
 Intebebt, 
 
 disqualification on account of 22, 24 
 
 computation of, on notes 73 
 
 Icgalrateof 72 
 
 when allowable 73 
 
 customers, when bound to pay 72 
 
 usage as to 73 
 
 rule as to computation of 73 
 
 to be demanded on balance of account, 73 
 
 when barred by receipt of debt 73 
 
 mistakes in computings 75 
 
 after tender 231 
 
 not recoverable against common carriers 448 
 
 judgments bear 474 
 
 executions, to direct the collection of,, 474 
 
 Interbogatoribs, 
 
 parties may agree upon 265 
 
 general, must be answered 265 
 
 form of direct and cross 266 
 
 justice may settle 267 
 
 form of assent to, by parties 267 
 
 [See CoTnmiseions.'] 
 
 Inventory, 
 
 constables to make, of property attached 
 
 182, 186 
 of property levied on 481 
 
 Ireland, 
 
 proof of conveyances made in 392 
 
 Issue, 
 o/fact, 
 
 to be decided before issue of law 214 
 
 when it arises 279 
 
 trial, the examination of 279 
 
 sufficient, if substance of, is proved 329 
 
 LSee Joinder of Issue.] 
 
 JAILS, 
 
 keepers and employees in, exempt from 
 
 jury duty 387 
 
 witnesses in, how brought out 294 
 
 fathers of bastards not entitled to lib- 
 erties of 727 
 
 [See County Jails. 
 
 Jefferson County, 
 
 jurors in 285 
 
 Jews, 
 
 civil process not to be served on, on 
 
 Saturday 190 
 
 when exempt from jury duty 287 
 
 Joinder of IsstrB, 
 
 when to be made 209 
 
 must be before adjournment 309 
 
 money may be paid into court after 232 
 
 notice of set-off to be given on 336 
 
 Joint-Stock Associations, 
 
 actions by and against 147, ISO 
 
INDEX. 
 
 889 
 
 JnOSKEKTS, FAQE. 
 
 Civil, 
 rule Of pleading Of inferior courts.. 18, 19 
 
 void for want cff jurisdiction 18, 86 
 
 void, by reason of interest, &c S3 to 25 
 
 actions on iusticee' 87 
 
 by confession, to be entered by j ustices, 27 
 transcripts of, of courts in New Torl£, 
 
 may be filed 80 
 
 confession of, does not confer juris- 
 diction 36 
 
 confession of, by partners 105 
 
 payment of, in actions for penalties . . . 134 
 
 under meclianics' lien law 133 
 
 transcript of such, to be filed 133 
 
 actions on, witMn what time to be com- 
 menced 138 
 
 actions on, when to be brought 139 
 
 new actions, on reversal of 141 
 
 of nonsuit, plaintiff not appearing 206 
 
 of discontinuance, when 907, 814 
 
 how pleaded 211 
 
 offer for 216 
 
 acceptance of offer 216 
 
 former, must be pleaded 222 
 
 on attachment, when presumptive evi- 
 dence of indebtedness 236, 454 
 
 on set-off 886, 237 
 
 on set-off, against executors, etc 237 
 
 after irregular adjournment 259 
 
 not to be entered on Sunday 305 
 
 when not to be given for variance 805 
 
 of justices in aiijoiuing states, how 
 
 proved 367 
 
 record and exemplification of, evidence, 397 
 
 different kinds of 450 
 
 interlocutory 450 
 
 final 450 
 
 definition of 450 
 
 when to be rendered 463, 454 
 
 when to be entered in docket 454, 455 
 
 cannot be altered after entry 455 
 
 cannot be had by default 455 
 
 revival of 459 
 
 cannot be kept alive to cover new de- 
 mands 459 
 
 payment on, discharge pro tanto 459 
 
 of justices, cannot be impeached collat- 
 erally 462 
 
 of justices, how proved 463 
 
 justices 10 keep index of 464 
 
 to be rendered with costs 465 
 
 costs of losing party, not to be inserted 
 
 in 465 
 
 bear interest from date 474 
 
 not extinguished by levy 482 
 
 good, after imprisonment of defendant, 496 
 
 execution on 473 to 497 
 
 stay of execution on 502 
 
 on appeal, how to be given 604 
 
 return on appeal, to be annexed to 507 
 
 ^fttr trial, 
 
 tor defendant 453 
 
 forplaintiff 453 
 
 against joint defendant, not appearing. 463 
 when to be rendered 454 
 
 JrCQMEKTS, PAGE. 
 
 confession of, 
 
 justices may take 450 
 
 statute concerning 451 
 
 defendant must appear, to authorize... 451 
 
 examples of, void 451 
 
 several, on one demand 452 
 
 form of 458 
 
 when to be on afldavit 452 
 
 form of afildavit on 452 
 
 nonsuit, 
 when to be rendered ; 463 
 
 transcript of justice's, 
 may be filed and docketed in county 
 
 clerk's office 455 
 
 when lien of, commences 465 
 
 amount of. to be a lien on real property. 456 
 
 former provisions concerning 456 
 
 duration of lien of 457 
 
 in New York 445 
 
 must correspond with judgment 456 
 
 contents of 458 
 
 prima fade evidence of judgment 458 
 
 may be given after expiration of office. . . 456 
 justice cannot issue execution after fil- 
 ing of 458 
 
 criminal, 
 when complaint was malicious 650 
 
 reversal of, 
 on appeal to court of sessions from judg- 
 ment of special sessions 667 to 673 
 
 satisfaction of, 
 justices may take acknowledgraeats . . . 688 
 
 by parties and attorneys 639 
 
 forms for 693 
 
 [See Evidence^ 
 
 JUBIBDIOTION, 
 
 Of justices generally 2 
 
 (AM, 
 
 definition of terra 17 
 
 distinction between courts of general 
 
 and special ig 
 
 of the latter, must be shown 18 
 
 judgments void for want of 19, 36 
 
 can always be inquired into 19 
 
 of inferior courts, never presumed 19 
 
 consent will not give, as to subject- 
 matter. ,, 20 
 
 once gained, cannot be lost 20 
 
 when acquired, proceedings valid 20 
 
 of justices' courts, conferred by statute, 20 
 
 how acquired as to parties 20 
 
 territorial, of justices 21, 84 
 
 justices acting beyond, trespassers 24 
 
 offlcerprotected, unless want of, appears 25 
 want of, must be total, to avoid pro- 
 ceedings 25, 35 
 
 want of, may always be shown 26 
 
 when justices not obliged to exercise.. 25 
 
 civil, of justices 26, 87 
 
 of marine court 88, 29 
 
 of district courts 29, 30 
 
 of justices' courts in cities 29 
 
 territorial, of justices 34 
 
 of the person 35 
 
 confession of judgment does not confer, 36 
 
890 
 
 INDEX. 
 
 Jurisdiction, page. 
 
 of aciione for penalties, Ac 119 
 
 in actions under mechanics* lien laws, 
 
 131 to 33 
 when it may be conferred by consent. . . a07 
 
 plea to 320 to 222 
 
 plea to, when waived 320 
 
 coDPent will not give, of question of title, 247 
 of actioiis on canal contractors' bonds. . 390 
 justice's transcript must show 462 
 
 criminal, 
 
 of jut^tices 590 
 
 co-cxtensive with hounds of county 531 
 
 of courts of sessions 580, 667 
 
 of courts of oyer and terminer 580 
 
 of courts of special sessions 629 
 
 criminal, of United States courts 784 
 
 territorial, of those courts 784 
 
 Jtibors, 
 
 clvU, 
 
 in actions for penalties 123 
 
 how summoned 982 
 
 venire for 282 
 
 punishment of defaulting 284 
 
 qualifications and exemptions of 285 
 
 challenges to 290 
 
 oath to 29» 
 
 fees of, in civil actions 471 
 
 crtmindl, 
 
 punishment for corrupting 613 
 
 punishment of, accepting bribes 618 
 
 not entitled to fees 643 
 
 oath to 643 
 
 epecial, 
 may be fined for non-attendance 668 
 
 habitual drunkards, 
 
 how summoned 786 
 
 their duty 789 
 
 oath to 789 
 
 fees 791 
 
 highways and roads^ 
 how summoned, to reassess damages. . . 801 
 
 oath to, in such case 801 
 
 verdict of, in such case 802 
 
 how summoned, when encroachment is 
 
 denied 805 
 
 oath to, in such case 806 
 
 certificate b}', m such case 807 
 
 fees 809 
 
 landlord and tenant, 
 
 trial by 816 
 
 precept for, in such case 831 
 
 oath to, in such case 831 
 
 [See Disorderly Persons, and Jurj/.] 
 
 JJTRY, 
 
 dvU, 
 demands passed upon by, extinguished, 222 
 
 verdict of, when conclusive 222 
 
 question of tender, for the 325 
 
 trial by, when to be demanded. .. 280 to 281 
 
 venire for 281 
 
 drawing 269 
 
 challenging 290 
 
 swearing 293 
 
 statement of action to S93 
 
 statement of defense to 300 
 
 URT, PAGE. 
 
 i-ummlngup to 300 
 
 charging 801, 325 
 
 retiring of 801 
 
 delivery of verdict by 30i 
 
 disagreeing, new venire to issue 304 
 
 may be sent back 304 
 
 may be discharged on Sunday 305 
 
 may be polled 303 
 
 not to infer bad character of defendant, 321 
 to determine sufflciency of evidence — 325 
 criminal, 
 
 how summoned 641 
 
 court has no authority to try by less 
 
 than six 642 
 
 not entitled to fees 643 
 
 challenges to 643 
 
 oath to 643 
 
 special, 
 punishment of officer refusing to take 
 
 charge of 684 
 
 [See Jurors.] 
 Justices, 
 
 of marine court in New York 12 
 
 of district courts in New York 12 
 
 Justices* Courts, 
 
 marine court in New York 12 
 
 in Albany 12, 21 
 
 in Troy 13, 21 
 
 in Hudson 13, 21 
 
 their jurisdiction limited 17 
 
 and niui>t be shown IS 
 
 jurisdiction of, how created 2Q 
 
 take nothing by implication 20 
 
 powersof,iu cities 21 
 
 jurisdiction of parties, how acquired by, 20 
 
 causes of action, cognizable in 26, 27 
 
 actions not coenizable in 27 
 
 jurisdiction of, in cities 29 
 
 jurisdiction of. as to amount 30 
 
 territorial jurisdiction of 34 
 
 their jurisdiction of the person 35 
 
 actions In, when to be brought 34 
 
 no reply in 217 
 
 may amend pleadings 218 
 
 appeals from 497 
 
 Justices of the Peace, 
 
 how formerly nominated 1 
 
 how appointed in England 1 
 
 jurisdiction of, in England 3 
 
 jurisdiction of, in Franco 2 
 
 their appointment In colony of New 
 
 York 2 
 
 their jurisdiction in that colony 2, 3 
 
 their appointment under constitntion of 
 
 1777 3 
 
 number of, in towns, when first limited, 3 
 selection of, under constitution of 1821, 3 
 
 term of office of 3, 
 
 made elective, In 1826 
 
 elected, under constitution of 1846 
 
 one to be elected annually 
 
 qualifications of 
 
 in Hector 
 
 in Potsdam n, 
 
 in Ellluburgh 
 
INDEX. 
 
 891 
 
 Justices of the Peace, page. 
 
 in Lenox 4 
 
 inCharaplain 4 
 
 in Beekmiintowu 4 
 
 in Harmony 4 
 
 in Hanover 4 
 
 in Schodack 4 
 
 in Fort Ann 4 
 
 in Brookhaven 4 
 
 in Buffalo 4 
 
 in Schenectady 4 
 
 in Ulica 4 
 
 in Rochester 4 
 
 in Auburn 4 
 
 in Syracuse 4 
 
 in Oswego 4 
 
 certificate of election of 5 
 
 to be notified of election 5 
 
 election of, in new towns 5 
 
 notice of drawing of 5, fi 
 
 classification of. in new towns 6 
 
 retain oflBce, when town divided 7 
 
 their ofllcial term cannot be shortened. . 7 
 
 holds a judicial office 8 
 
 elected for regular term 8 
 
 electors, to designate otficial term of 8 
 
 classification of 8 
 
 elected to fill vacancy 9 
 
 when to enter on duties of office 9 
 
 vacancies in office of, how filled 9 
 
 to take oath of cffice 9 
 
 to deposit oath in county clerk's office, 10 
 
 when and where to file bonds 10 
 
 effect of neglecting to file oath or bond, 10 
 acting without taking oath or filing 
 
 bond, guilty of misdemeanor 10 
 
 but their acts valid a* lo the public 10 
 
 their title to office, how questioned 10 
 
 when office of, becomes vacant 10, 11 
 
 to whom to present resignation 11 
 
 may be removed 11 
 
 in Albany 12 
 
 election of, in that city 12, 13 
 
 in Troy 13 
 
 in Hudson 13 
 
 civil, 
 
 their jurisdiction, generally 17 
 
 trespassers, when acting without juris- 
 diction 20, 260 
 
 where to reside 21, 34 
 
 territorial jurisdiction of 21, 34 
 
 process of, where to be served and re- 
 turned ai, 35 
 
 process of, when void , 21 
 
 how disqualified 22, 23 
 
 interested or related 22 to 25, 280 
 
 cannot sit in their own causes 24 
 
 when not to try actions for penalties. . . 24 
 isBuinff process without proof, tres- 
 passers 25 
 
 when acts of, voidable 26, 32 
 
 when not obliged to act 26 
 
 civil jurisdiction of 26, 27 
 
 may enter judgment by coDfession 27 
 
 actions not cognizable by 27 
 
 amount of judgments to be rendered by, 31 
 
 Justices of the Peace, page. 
 their jurisdiction of actions on judg- 
 ments 32 
 
 their jurisdiction of matters of account, 33 
 their subpoenas run to adjoining county, 35 
 
 where to issue process 35 
 
 their jurisdiction of the person 35 
 
 can try actions by and against corpora- 
 tions 95 
 
 their jurisdiction in actions for dam- 
 ages 110 
 
 their jurisdiction as to penalties, &c... 109 
 
 when and how to indorse process 122 
 
 canal boats, when to be detained by 124 
 
 have jurisdiction of mechanics' liens .. 131 
 to appoint guardians for infant plain- 
 tiffs 152 
 
 names of, must appear in summons 157 
 
 ' to sign summons 158 
 
 cannot depute official power 159 
 
 their authority to issue long summons.. 159 
 
 when to issue wanant 160 
 
 when to issue body execution. 16© 
 
 when to issue either summons or war- 
 rant 162 
 
 when to issue short summons 163 
 
 when tn iBSue attachment 165 
 
 may amend attachment 167 
 
 when to issue short attachment 168 
 
 issuing attachment without proof, tres- 
 passers 170 
 
 approval uf, on attachment bonds 172 
 
 to approve sureties on claimant's bond, 185 
 when to hear action commenced by at- 
 tachment 188 
 
 may empower deputy to serve process. 189 
 
 may amend clerical mistakes 191 
 
 to appoint guardians for infant defend- 
 ants 202 
 
 to indorse consent of such guardian . .. 203 
 cannot act upon their knowledge or ap- 
 pointment of attorney 204 
 
 to wait one hour after return of pro- 
 cess 206, 260 
 
 failing to appear on return day 207 
 
 their duty on return of warrant 207 
 
 cannot be witnesses before themselves, 20S 
 cannot act on knowledge as evidence. . . 204 
 208, 281 
 proceedings when they are material 
 
 witnesses 208 
 
 may require party to exhibit account . . 209 
 
 to enter pleading in docket, 210 
 
 construction of pleadings by 211 
 
 duty on sustaining demurrer, &c 196 
 
 not to buy demands for suit 220 
 
 no jurisdiction when accounts over $400. 233 
 
 nor of the title to real property 243 
 
 to approve undertaking on plea of title, 213 
 
 duty, when title not disputed 245 
 
 adjournments on motion of 248 
 
 to adjourn on motion of plaintiff. 249 
 
 when to grant adjournment on warrant, 250 
 
 when to commit witness 251, 279, 296 
 
 to approve bond on adjournment 254 
 
 when to Issue commission 261 
 
892 
 
 INDEX. 
 
 JVSTIOBH OF THB PKACE, PAGE, 
 
 have discretion Qf to i»Bning commis- 
 sion 264 
 
 to settle inteiTOgatorles 2H5 
 
 to direct return of commission 267 
 
 may ibsiie subpoenas 270 
 
 wlien to issue attachment against wit- 
 ness ^2 
 
 •when to fine witnesses 275 
 
 to malte minute of conviction of wit- 
 ness 277 
 
 to issue execution on such conviction.. 278 
 to commit witness refusing to testify, 
 
 279, 296 
 
 vphen to try action 280, 884 
 
 cannot have partners 280 
 
 trying causes, to swear witnesses 281 
 
 cannot decide on thi'irown knowledge, 281 
 
 general rules as to trials by 280 
 
 when to issue venire 282 
 
 to whom to deliver venire 282 
 
 when may ipsue venire 282, 289 
 
 when to discharge and excuse jurors, 
 
 287 to 289 
 
 drawing of jury by 289 
 
 to determine principal challenge 290 
 
 cannot challenge panel of jurors 290 
 
 swearing the jury by 293 
 
 to decide upon competency of witness, 294 
 
 swearing witnesses by 295 
 
 to decide upon objections to evidence, 298 
 
 ■when to nonsuit plaintiffs 299 
 
 charging jury by 301, 325 
 
 to swear officer taking charge of jury .. 301 
 
 not to interfere with jury 302 
 
 to enter verdict in docket 304 
 
 to call plaintiff to receive verdict 304 
 
 to issue new venire when jury disagree, 304 
 may send jury back to reconsider ver- 
 dict 304 
 
 may receive verdict on Sunday 305 
 
 ■when, cannot give judgment for vari- 
 ance 
 
 proceedings of, presumed to be regular, 314 
 to determine admissibility of evidence, 325 
 
 may reject irrelevant evidence 336 
 
 may change order of evidence 327 
 
 to exclude as witnesses persons intoxi- 
 cated 360 
 
 transcripts of dockets of, in adjoining 
 
 states, evidence 387 
 
 in adjoining states, may prove dockets, 387 
 can try actions on canal contractor's 
 
 bonds 390 
 
 to enter judgment by confession... 451, 452 
 
 ■when to enter judgment 453, 464 
 
 when to enter judgment in docket 455 
 
 to give transcripts of judgments 455 
 
 to give transcripts of judgments and 
 
 pleadings, on default 458 
 
 their fees, for such transcripts 459 
 
 may certify transcript, after expiration 
 
 of office 458 
 
 cannot issue execution, after transcript 
 
 is filed 459 
 
 what to enter in docket 469 
 
 Justices or the Peace, page. 
 
 form of entries by, in docket 400 
 
 to certify copy of docket 461 
 
 docket of, evidence 402 
 
 transcript of docket of, evidence. ...... 462 
 
 to certify transcript of docket 462 
 
 transcript must show jurisdiction of — 462 
 
 may make oath to docket 463 
 
 proceedings how proved, after death 
 
 of 463 
 
 may Identify pleadings 463 
 
 to file papers and affidavits 463 
 
 to keep index of judgments 464 
 
 removing, where to deposit papers 464 
 
 removed, where to deposit papers 464 
 
 to certify book of minutes 464 
 
 to render judgment with costs 465 
 
 fees of, in civil actions 468 
 
 not allowed fees for advice 472 
 
 receiving illegal fees, guilty of misde- 
 meanor 472 
 
 may demand fees in advance 472 
 
 their duty as to executions 473 
 
 neglecting to pay over money, guilty of 
 
 a misdemeanor 472 
 
 notice of appeal, to be served on 473 
 
 fee of, on return to appeal 499, 502, 508 
 
 to approve undertaking on appeal 503 
 
 when to make return to appeal 501 
 
 form of return by, to appeal 504 
 
 criminalt 
 
 criminal jurisdiction of 520 
 
 must be exercised in r^unty 521 
 
 may arrest fugitives from justice 533 
 
 their authority as conservators of the 
 
 peace 523 
 
 statute of limitations as to jurisdiction 
 
 of 524 
 
 issuing process, act ministerially 536 
 
 liable fur ministerial acts 536 
 
 rule as to liability of 536 
 
 d uty as to criminal complaints 538 
 
 toadd jurat to complaint 554 
 
 ■when justified in issuing warrant 556 
 
 when to issue warrant 556 
 
 how to draw warrant 557 
 
 how to make warrant returnable 557 
 
 to whom to direct warrant 558 
 
 their duty when accused is in jail 564 
 
 when to endorse warrant 566 
 
 not liable for endorsing warrant 566 
 
 genera] directions aa to taking examina- 
 tions by 570 
 
 may commit prisoner for further exam- 
 ination 571 
 
 how to take testimony of prosecution.. 572 
 
 may take testimony of accomplices 573 
 
 not to hold out hope of pardon 573 
 
 how to take examination of prisoner. .. 573 
 
 to caution prisoner 573 
 
 to write down answers of prisoner 573 
 
 to certify examination of prisoner 574 
 
 to exclude witnesses while prisoner is 
 
 examined 574 
 
 may commit prisoner for contempt 577 
 
 when to discharge a prisoner 577 
 
INDEX. 
 
 893 
 
 JUBTIOES 01" THK PEACB, PAGE. 
 
 when to bind over complainant and wit- 
 iiesBee 578 
 
 may commit witness refusing to be 
 bound 578 
 
 where to certify examinations, &c., 
 
 B79 to 581, 627 
 
 how to draw recognizance for a witness, 680 
 
 may be compelled to return recogni- 
 zance, &c 581 
 
 when to commit prisoner 582 
 
 when not'liable for committing prisoner, 606 
 
 wrongfully taking bail, guilty of es- 
 cape 634 
 
 powers of, to bail under acts of Con- 
 gress . .•. 624 
 
 fees of, in criminal cases 680 
 
 to quell afftays and riots 525 
 
 may command assistance to do so 525 
 
 may command arrest of rioters 525 
 
 contempts of courts 
 
 when, may commit for 525 
 
 what punishment to inflict for 527 
 
 may arrest offender 527 
 
 to hear offender in defense 537 
 
 when to convict offender 536 
 
 to make up record of conviction 528 
 
 to file such record 528 
 
 to issue warrant of commitment 526 
 
 dying declarations^ 
 how and when to take 530 
 
 search wari'ant^ 
 
 when to issue 531 
 
 when to authorize search at night 532 
 
 their duty on return of 534 
 
 searching prisonei'S^ 
 their duty as to 534 
 
 stolen property^ 
 
 their duty as to 534 
 
 sm ety of the peace, 
 
 when to issue peace warrants 673 
 
 when to require recognizance to keep 
 
 the peace 675 
 
 when to commit the prisoner 676 
 
 [See BaU^ Commitments, Executiom^ and 
 Special Sessions.] 
 
 special, 
 
 must strictly pursue statute 685 
 
 may demand fees in advance 685 
 
 proceedings before one, how continued 
 before another 686 
 
 acknowledgments, 
 have powers of commissioners of deeds, 688 
 and may take acknowledgment and 
 
 proof of conveyances 688 
 
 and acknowledgment of satisfactioa 
 
 of judgments 691 
 
 but not of bail in supreme court 688 
 
 how to certify acknowledgments 689 
 
 punishment for taking, improperly 690 
 
 cannot take, of wills and notes 691 
 
 fees 699 
 
 (0davits and oaths, 
 
 may take and administer 700 
 
 may administer oaths to town officers., 700 
 
 Justices op the Peace, fagb. 
 
 and to militia officers 700 
 
 fees 701 
 
 Qpprentioea, 
 
 may consent to binding out of 702 
 
 when to issue warrant for 705 
 
 to examine into complaints of masters 
 
 of 705 
 
 to examine into complaints of 705 
 
 fees 716 
 
 arbitrators, 
 
 may administer oaths to 847 
 
 may compel witnesses to attend before, 847 
 
 fees 847 
 
 bastards, 
 application to be made to, concerning. . 716 
 
 to ascertain father of 717 
 
 to issue warrant for father of 718 
 
 to direct amount of bond to be taken 
 
 from father of 719 
 
 in foreign county, to indorse warrant.. 719 
 and 10 take bond from reputed father . . 720 
 and to certify the fact on the warrant , . 721 
 two, to be associated, to examine into 
 
 case 721 
 
 may compel attendance of witnesses. . . 721 
 
 may adjourn examination 723 
 
 duty of, on such examination 722 
 
 when to commit reputed father 726 
 
 penalty to be inserted by, in bonds 726 
 
 duty, when bond is returned from 
 
 foreign county 727 
 
 may compel mother of, to disclose name 
 
 of father 728 
 
 and if she refuses, commit her 728 
 
 when to charge mother with support of 
 
 child 729 
 
 when to commit mother 730 
 
 may reduce amount directed by order to 
 
 be paid 732 
 
 cannot sit in sessions, on appeal 733 
 
 where to iransmit bonds and orders 733 
 
 when to discharge father 733 
 
 endorsing warrant, protected 737 
 
 proceedings when justice issuing war- 
 rant is absent 737 
 
 fees 737 
 
 beggars and vagrants^ 
 
 to be brought before 730 
 
 to make record of conviction of 740 
 
 where to commit 740 
 
 where to file record 740 
 
 to arrest persons in disguise 740 
 
 to commit children begging alms 740 
 
 fees 842 
 
 coroner, 
 
 may act as, when 658 
 
 depositiofks to be used in other states, 
 
 when to take 847 
 
 how to take 847 
 
 may compel witnesses to appear 847 
 
 fees 848 
 
 disorderly persons, 
 
 when to order arrest of 743 
 
 to bind over, for good behavior 743 
 
 to retain recognizances 744 
 
894 
 
 IWDEX 
 
 Justices of the Peace, paok. 
 
 when to make up record of conviction^ 
 
 and commit 745 
 
 duty of, after recovery on recognizance 
 
 of 745 
 
 two, to grant dipcharge of 747 
 
 disturbance of reliffious meitivgB^ observ- 
 ance of dwnday, 
 when to issue warrant for offender. ... 748 
 
 when to issue execution 750 
 
 to file certifical o of conviction 750 
 
 when to commit offender 750 
 
 fees 755 
 
 dogs, 
 
 to order dangerous, killed 756 
 
 f ec8 757 
 
 draining awitmps, 
 
 to appoint commiseionera 757 
 
 to swear commissioners 758 
 
 to file map and inquisition 760 
 
 person aggrieved may appeal 760 
 
 fees 760 
 
 excise and taverns, 
 
 [See Excise and Taverns.'] 
 
 Jiremen, 
 
 and supervisors, to appoint 848 
 
 and fill vacancies 848 
 
 fees 848 
 
 Jiring of woods, 
 
 to order fires in woods to be extln- 
 
 fuisbed 848 
 
 fees 849 
 
 Jora.Ue entry and detainer, 
 
 powers of, under statute relative to 849 
 
 fees 849 
 
 Jugiiives from justice from other states, 
 
 may arrest 780 
 
 when to commit 780 
 
 to notify district attorney of arrest of.. 782 
 and make return to court of sessions... 782 
 gaming and lottery tickets, 
 
 when to issue warrant 785 
 
 whpn to retain property 785 
 
 fees 786 
 
 habitual drunhirds, 
 
 to give notice of application by, for a 
 
 jury 787 
 
 how to conduct trial of 789 
 
 to enter verdict 789 
 
 when to enter judgment against 789 
 
 how to issue execution against 790 
 
 when to enter judgment in favor of 790 
 
 how to issue execution on such judg- 
 ment 790 
 
 fees 791 
 
 hawkers andpedlers, 
 
 when to commit 792 
 
 when to convict 793 
 
 when to issue warrant against 794 
 
 to whom to pay penalty collected from, 704 
 
 feep 795 
 
 highways and roads, 
 to issue summons against party refusing 
 
 work 797 
 
 when to impose fine 798 
 
 and issue warrant 79S 
 
 Justices of thb Peaob, page. 
 
 not liable to action 799 
 
 to whom to pay fine 799 
 
 when to issue summons for jury to re- 
 assess damages 800 
 
 to draw and swear such jury 801 
 
 to swear witnesses 801 
 
 to certify verdict 802 
 
 form of certificate by -j 808 
 
 to issue precept for jury, when encroach- 
 ment is denied 805 
 
 not to annex list of jurors to precept,. 805 
 
 to swear jury and witnesses 806 
 
 when to issue warrant for costs 808 
 
 when to issue second precept 809 
 
 fees *. 809 
 
 landlord and tenant, 
 
 to hear applications 812 
 
 to issue precept 813 
 
 to try issues 816 
 
 must make final order 817 
 
 may award costs 817 
 
 when to issue warrant 832 
 
 to enter decision in docket 832 
 
 to render judgment with costs 832 
 
 fees 817 
 
 limited partnerships^ 
 may take acknowledgment of certifi- 
 cates of 850 
 
 fees 850 
 
 tnarriageSy 
 
 may solemnize . 837 
 
 to ascertain age and Identity of parties to 838 
 
 to keep registry of 833 
 
 solemnizing, improperly, guilty of mis- 
 demeanor 838 
 
 to give certificate of 839 
 
 to certify certificates of, by priests 840 
 
 fees 840 
 
 Offenders against laws of United States. 
 
 may arrest, imprison or bail TO2 
 
 proceedings upon arrest of 783 
 
 when may bail 783 
 
 where to send process and recognizances, 784 
 fees 784 
 
 of sessions, 
 
 how and when chosen 849 
 
 fees 849 
 
 parents absconding, 
 
 to issue warrant to seize property of. . . 840 
 
 when to discharge such warrant 841 
 
 form of an order for that purpose 842 
 
 fees 843 
 
 pawn-broker'S, 
 when to issue warrant to search for 
 
 property pledged with 843 
 
 when to deliver property to 843, 844 
 
 fees 814 
 
 racing, 
 
 to attend and prevent 850 
 
 may arrest and bind over persons en- 
 gaged in 850 
 
 toes 851 
 
 removal of constables, 
 
 power as to 852 
 
 fees 852 
 
INDEX. 
 
 895 
 
 Justices op the Peace, page, 
 
 town auditors, 
 
 [See Town AuditOf'S.] 
 
 town meetings, 
 
 to preside at 855 
 
 powers while presiding 855 
 
 fees 855 
 
 unclaimed baggage^ 
 
 their duty as to 845 
 
 fees 846 
 
 vacancies in town offices, 
 
 three, may fill by warrant generally 855 
 
 number of three, how made up 857 
 
 to file warrant, and give notice to person 
 
 appointed 856 
 
 three, may. accept resignation of town 
 
 ofiicers 856 
 
 to give notice of such acceptance 856 
 
 form of such notice 856 
 
 assessor 856 
 
 collector 857 
 
 commissioner of highways 857 
 
 Inspector of election 857 
 
 overseer of the poor 857 
 
 Bupervisor 857 
 
 XIDNAPPING, 
 
 what is , 
 
 punishment for. 
 
 596 
 
 LAND COMPANIES, 
 
 papers and field-notes of, evidence 401 
 
 Landlord and Tenant, 
 
 tenant may be removed 810 
 
 Ist, where he holds over, without per- 
 mission 810 
 
 2d, where he holds over, after default in 
 
 rent 810 
 
 3d, where he holds over, after default in 
 
 taxes 810 
 
 4th, where he has taken benefit of in- 
 solvent act 811 
 
 5th, where premises used for illegal pur- 
 poses 81 
 
 tenant removed after notice to quit 81 
 
 Ist, where property sold on execution.. 81 
 2d, where property sold on foreclosure, 81 
 
 3d, where he cultivates on shares 81 
 
 4th, where he has squatted on land 81 
 
 forcible entry forbidden 813 
 
 application, how made 812 
 
 petition must state facts 813 
 
 neighbor to bawdy house may apply 813 
 
 justice must issue precept 813, 830 
 
 proceedings in New York city 814 
 
 precept, how served 814 
 
 answer may be filed * . 815 
 
 forcible entry 816 
 
 justice must try issues 816 
 
 jury may be demanded 816 
 
 proceedings on jury trial 816, 831, 832 
 
 justice may adjourn 817 
 
 justice must make final order 817 
 
 costs and fees 817 
 
 justfice must issue warrant 817, 832 
 
 warrant, how executed 817, 832 
 
 Landlord and Tenant, page. 
 
 eff'ect of warrant 818 
 
 warrant, how stayed ... 818, 833 
 
 undertaking to be given 818 
 
 lessee may tender rent 819 
 
 judgment-creditor or mortgagee may 
 
 redeem 819 
 
 effect of redemption 820 
 
 justice must make final order 821 
 
 appeal may be taken 821 
 
 execution, how stayed 831, 822 
 
 if order reversed, restitution to be 
 
 made 822 
 
 order not a bar to ejectment 8'32 
 
 re-entry, how made, when right reserved 822 
 
 notice of intention to re-enter 823 
 
 application of statute 823 
 
 notice requiring payment of rent 824 
 
 proceedings, how taken 824 
 
 petition to recover leased premises 825 
 
 contents of summons 825 
 
 precepts, forms of 836, 837 
 
 affidavit of service 827 
 
 answer, form of 823 
 
 affidavit to answer 823 
 
 warrant, forms of 828, 829 
 
 return of officer 830 
 
 notice to obtain trial by jury 830 
 
 precept for a jury 831 
 
 oath to jurors 631 
 
 officers' oath to keep j ury 831 
 
 undertaking, form of 833, 834 
 
 approval endorsed on undertaking 833 
 
 security to stay proceedings 833 
 
 affidavit to be filed 834 
 
 affidavit, form of 834 
 
 appeal, how taken 835 
 
 notice of appeal 835 
 
 notice, how served 835 
 
 undertaking on appeal 836 
 
 order staying proceedings 836 
 
 Landlords, 
 
 actions by, for rent 65 
 
 manure belongs to 128 
 
 when rails do not belong to 128 
 
 tenants* possession off their possession, 137 
 
 Lands, 
 
 contractB relating to 63 
 
 actions for use and occupation of 65 
 
 question of possession of, not one of 
 
 title 346 
 
 [See Beat Propertj^.} 
 
 Lansingbttrgh, 
 
 special sessions in 660 
 
 Larcbnt, 
 
 information for grand and petit 540 
 
 what is grand 597, 618 
 
 punishment for 597, 618 
 
 petit 639 
 
 Laws, 
 
 of other states, how proved 384 
 
 secretary of state to certify 406 
 
 Leases, 
 
 when required to be written 64 
 
 of unpaid taxes, in villages 407 
 
 [See Evidence and Sealed Instruments.] 
 
896 
 
 INDEX. 
 
 Legiblatubb, page. 
 
 LlQIIlDATBl. DlMAGBS, PAGE. 
 
 cannot shorten term of office of justices 
 
 ■t 
 
 [See Damages.} 
 
 
 exemplion of members from arrest 
 
 178 
 
 Liquors, 
 
 
 copitifi papers presented to, evidence ,. 
 
 401 
 
 penalty for furnishing, to habitual 
 
 not exempted from criminal arrest. .. 
 
 537 
 
 drunkards 
 
 787 
 
 preventing meeting or organization of. 
 
 597 
 
 Livingston Countt, 
 
 
 compelling adjournment of 
 
 compelling to perform or omit official ac 
 
 mi 
 
 jurors in 
 
 Ml 
 
 598 
 
 Loans, 
 
 
 [See Evidence.] 
 
 
 usurious, cannot be recovered back 
 
 75 
 
 Lksox, 
 
 
 commissioners of, 
 
 
 
 4 
 
 certificates of, evidence 
 
 401 
 
 
 985 
 
 executions against 
 
 LoTTEKT Tickets, 
 
 47fi 
 
 Lettkrs, 
 
 
 
 of administi atUm^ 
 
 
 [See Gaming and Lottery Tickets.} 
 
 
 
 H4 
 
 
 
 of aitomey. 
 
 
 proof of conveyances made in 
 
 392 
 
 evidence 
 
 388 
 
 Lunatic Asylum, 
 
 
 testamentary^ 
 
 
 officers of, exempt from jury duty 
 
 287 
 
 by whom issued . 
 
 ■)'! 
 
 [See Lunatics,} 
 
 
 Lbvy, 
 
 
 Lunatics, 
 
 
 [See Execution.} 
 
 
 cannot appoint agent 
 
 97 
 
 Lewis Countt, 
 
 
 to sue and be sued in their own names 
 
 804 
 
 jurors in 
 
 265 
 
 when infanta must appear by guardian 
 
 204 
 
 Liability, 
 
 
 when of full age, by attorney 
 
 204 
 
 of bailees 
 
 57 
 
 Incompetent as witnesses 
 
 869 
 
 of common carriers 
 
 50 
 
 
 
 
 90 
 91 
 
 MAIL, 
 
 notice of protest may be sent by 
 
 
 of parents 
 
 71 
 
 
 93 
 96 
 
 Maiming or Mayhem, 
 
 
 of corporations 
 
 of principal, for acts of agent 
 
 of partnership firms 104 tc 
 
 M"; 
 
 98 
 
 
 598 
 
 99 
 
 
 598 
 
 108 
 
 Malice, 
 
 
 actions upon, when to be commenced.. 
 
 137 
 
 ■when presiimed 
 
 318 
 
 actions upon, when several 
 
 154 
 
 legal meaning of term 
 
 319 
 
 of officers, for escape 
 
 178 
 
 Malicious rRosBCUTioN, 
 
 
 of constables, for property attached, 182 
 
 ,186 
 
 justices cannot try civil actions for 
 
 27 
 
 of guardian of infant defendant, foi 
 
 
 Malioxotjs Mischief, 
 
 
 costs 
 
 203 
 
 information for , 
 
 552 
 
 of surety, on undertaking, on plea of 
 
 
 Mandate, 
 
 
 title 
 
 244 
 496 
 
 definition of term 
 
 ■ift 
 
 of constables' sureties 
 
 under the Code, 
 
 
 rule as to, of justices 
 
 536 
 
 [See Execution and Warrant.'] 
 does not need a seal 
 
 
 of complainants in criminal cases 
 
 638 
 
 159 
 
 of justices, for committing prisoner.... 
 
 60« 
 
 to remove tenant at will 
 
 829 
 
 LlBKL, 
 
 
 to remove tenant holding over 
 
 828 
 
 j ustices cannot try civil actions for 
 
 27 
 
 to remove tenant in default of payment 
 
 
 actions for, abate by death 
 
 94 
 
 
 829 
 
 actions for, when to be commenced . . . 
 
 136 
 
 how stayed, for removal of tenan t 
 
 818 
 
 Liens, 
 
 
 how stayed on appeal 
 
 833 
 
 of bailees, for services 
 
 fin 
 
 undertaking to stay on appeal SS3 
 
 8.36 
 
 duration of, created by attachment 
 
 185 
 
 affidavit to stay on appeal 
 
 834 
 
 of justices' judgments . 
 
 455 
 
 order staying on appeal 
 
 Manslaughter, 
 
 83& 
 
 [See Mechanics' Liens.1 
 
 
 
 
 
 information for 
 
 543 
 
 of mechanics' liens 
 
 130 
 
 in the first and second degrees 
 
 599 
 
 evidence to support plea of 
 
 432 
 
 punishment of, in the first and second 
 
 
 statute of. 
 
 
 
 599 
 
 145 
 H2 
 
 Manupactubing Companies, 
 
 certificate of incorporation of, evidence, 
 
 
 computation of time under 
 
 398 
 
 as to accounts 
 
 ua 
 
 Manure, 
 
 
 must be pleaded 
 
 144 
 
 belongs to landlord 
 
 1!!8 
 
 as to proraiaeory notes 
 
 Limited PAiiTNEnsHipa, 
 
 acknowledgment of certiflcates of 
 
 [See Partnerships.] 
 
 144 
 
 860 
 
 
 
 Marine Court, 
 
 12 
 
 number and election of justices of 
 
 12 
 
INDEX. 
 
 897 
 
 Mabike Court, page. 
 
 clerk of 12 
 
 compensation of officers of 13 
 
 powers of 21 
 
 jurisdiction of 28, 29 
 
 adjournment in, on motion of plaintiff, 252 
 
 commitments for contempt in 529 
 
 powers of justices of, as to forcible 
 entry and detainer 849 
 
 Marriage;, 
 
 con tracts in contemplation of 88 
 
 when actions do not abate by 154 
 
 when husband competent to prove 367 
 
 certificate of, evidence 403 
 
 punishment for seduction 621 
 
 Marriage Cbrtifioates, 
 
 justices to give 839 
 
 contents of 839 
 
 form of 839 
 
 ministers and priests to give 839 
 
 when certified, may be filed 839 
 
 Marriages, 
 
 justices may solemnize 837 
 
 requisites to validity of 837 
 
 age of, consent to 837 
 
 before age of consent, voidable 837 
 
 consMit to, must be voluntary 837 
 
 consent makes valid 837 
 
 age of parties to, to be ascertained 838 
 
 registry of, to be kept 838 
 
 contents of such registry 838 
 
 solemnization of, improperly, a misde- 
 meanor 838 
 
 form of ceremony 838 
 
 certificate of, to be given 839 
 
 form and contents of such certificate. . . 839 
 
 ministers and priests to certify 839 
 
 when certificates of, may be filed 839 
 
 fees 840 
 
 Mabribd Women, 
 civile 
 
 separate property of 87 
 
 may inherit 88 
 
 may convey and devise 88 
 
 trust estates of 88 
 
 when they may act by agents 97 
 
 may act as agents 97 
 
 statute of limitations as to 138 
 
 actions by and against... 152 
 
 arrest of, on civil process 177 
 
 service of subpcena on 272 
 
 conveyances by. in other states 395 
 
 promissory notes of 427 
 
 criminal, 
 
 cannot become sureties 626 
 
 special, 
 acknowledgment of conveyances and 
 grants by — 687 
 
 Masters, 
 
 [See Apprentices.} 
 
 Mechanics' Liens, 
 
 for labor and materials 129 
 
 owner's liability 129 
 
 notice to be filed 130 
 
 lien docket 130 
 
 clerk's fee on filing. 130 
 
 / 51 
 
 Mbohasics' Liens, pagb. 
 
 evidence by lienor 130 
 
 action may be brought 131 
 
 in what court 131 
 
 how commenced 131 
 
 answer, &c 131 
 
 service on absentees 132 
 
 bill of particulars 133 
 
 proceedings on default 132 
 
 proceedings on appearance before jus- 
 tice 132 
 
 proceedings on appearance in supreme 
 
 or county court 138 
 
 costs 134 
 
 transcript of judgment 134 
 
 judgment a lien 134 
 
 notice to present claim 134 
 
 duration of lien 134 
 
 appeals 135 
 
 priority of liens 135 
 
 liens how discharged 135 
 
 in particular counties 129 
 
 Mbmorakduhb, 
 
 under statute of frauds 40 
 
 of auction sales 49 
 
 of sales under executions 490 
 
 Mbsne Process, 
 
 married women cannot be arrested on.. 177 
 
 Mexico, 
 
 recovery of penalties 121 
 
 what coins of, are a leo;al tender 227 
 
 conveyances by officers and soldiers in, 392 
 
 Mile-Stones, 
 
 punishment for destroying 680 
 
 Militia, 
 
 when exempted from arrest 177 
 
 when public officers may order out l&l 
 
 exempted from jury duty 287 
 
 evidence of service in 288 
 
 double costs, when allowed to officers of, 466 
 security for costs in actions against offi- 
 cers of 467 
 
 Militia Oppicerb, 
 
 justices may administer oaths to 701 
 
 Minors, 
 
 [See Infants, and Parents and Children.'] 
 
 Minutes of Conviction, 
 
 of defaulting witness 277 
 
 [See Conviction, and Certijicates.'] 
 
 MlBDEUEANORS, 
 
 justices acting before taking oath and 
 
 filing bond 10 
 
 instituting actions maliciously 151 
 
 neglecting to fill up process 159 
 
 ariesting females on civil process 177 
 
 taking reward, etc., from prisoners, 
 
 etc 179 to 181 
 
 serving process on Saturday, on persons 
 
 observing that day 190 
 
 justices refusing to take affidavit 208 
 
 justices buying demands for suit 220 
 
 constables baying demands for suit 220 
 
 conviction for, does not disqualify as 
 
 witness 360 
 
 giving or selling liquor to Indians 364 
 
 taking illegal fees 472 
 
898 
 
 INDEX. 
 
 MiSDKMEANOnS, PAGE. 
 
 cousttibles taking rewards 490 
 
 juetices neglecting to pay over money.. 497 
 inserting names of prisoner's witnesses 
 
 in people's subpcena 643 
 
 taking illegal 'fees 682 
 
 taking acknowledgments improperly. .. 690 
 
 solemnizing marriages improperly 838 
 
 refusing to extinguish fire in woods 848 
 
 [Hee Commitment, Crimes, and Qfences.'] 
 Mistake, 
 
 recovery of money paid under 62 
 
 MiTTIMtJS, 
 
 [See Oommitments.] 
 
 Mob, 
 
 remedy for injuries by 114 
 
 Monet, 
 
 actions for, paid, laid out, etc 61, 62 
 
 recovery of, on illegal contracts 62 
 
 recovery of, paid under mistake 63 
 
 MoNBOE County, 
 
 jurors in 285 
 
 juvenile delinquents in, where to be 
 
 sent 650 
 
 jurisdiction of special sessions in 658 
 
 Month, 
 
 computation of 524 
 
 Mortgages, 
 
 with no tice, not protected 59 
 
 title of articles mortgaged 54 
 
 of chattels 50 
 
 forms for satisfaction of 698, 699 
 
 [See Chattel Mortgages, Conveyances, 
 and Instruments.'] 
 
 Motion, 
 
 to strike out irrelevant matter 211, 813 
 
 [See Pleadings.] 
 
 Murder, 
 
 information for, 541, 642 
 
 statute definition of 582 
 
 NAVY, 
 
 exemption of employees in, from arrest, 177 
 
 Necessaries, 
 
 husband is liable for 90 
 
 when parents liable for 91 
 
 liability of Infants for 93 
 
 evidence of, how rebutted 422 
 
 New York, 
 
 justices, how appointed in colony of .. . . 2 
 
 their jurisdiction therein 2, 3 
 
 marine court in 12, 21 
 
 judicial districts in 32 
 
 district courts In 12, 21 
 
 jurisdiction of marine court in 28, 29 
 
 jurisdiction of district courts in 29, 30 
 
 chattel mortgages in, where to be filed, 52 
 exemption of firemen in, from jury 
 
 duty 287 
 
 proceedings of common council of, evi- 
 dence 390 
 
 proclamation by mayor of, how proved, 391 
 register of, to certify transcripts of 
 
 records 396 
 
 transcripts of justices' judgments in... 459 
 special sessions in 652 
 
 New York, page. 
 powers of justices in, as to forcible en- 
 try and detainer 849 
 
 Next Friend, 
 
 married women need not appear 152 
 
 Niagara County, 
 
 jurors In 285 
 
 Non-Delitert, 
 
 damages in actions for 47 
 
 Non-Rbsidents, 
 
 when plaintifi's, to give security, 147, 162, 163 
 process against, when defendants.. 164, 168 
 affidavit for short attachment against., 171 
 Nonsuit, 
 
 on non-appearance of plaintiff 205 
 
 in actions on demand bought for suit, . 221 
 
 not a bar to a new action 222 
 
 when to be granted, 299 
 
 judgment of, when to be rendered . , , , 453 
 North America, 
 
 proof of conveyances made in 391 
 
 Notaries Public, 
 
 effect of certificates of 403 
 
 official acts of, how proved 424 
 
 Notes, 
 
 [See PromUsory Notes.] 
 Notices, 
 
 drawing of justices 6 
 
 dtiU, 
 of vicioueness of domestic animals, to 
 
 be given 11' 
 
 of appointment of guardian by plain- 
 tiff 2(te 
 
 in actions on demands bought for suit, , 221 
 
 of set-off, to be given 236 
 
 effect of not giving such 237 
 
 of recoupment, to be given 240, 260 
 
 of application for a commission 262 
 
 service of, when proved by an affidavit. 263 
 
 to party, to be examined 369 
 
 of examination of assignor 372 
 
 affidavit of publication of, legal 405 
 
 to produce private writings 408, 410 
 
 special, 
 
 of protest 429 
 
 of sale under execatlon 484 
 
 of appeal 499 
 
 to be stamped 501 
 
 of filing undertaking 503 
 
 of argument of appeal, to be given 506 
 
 designating habitual drunkard 787 
 
 of application by habitual drunkard for 
 
 ajury 788 
 
 to obtain trial by jury 830 
 
 to landlord of appeal 835 
 
 of intention to re-enter demised prem- 
 ises 823 
 
 to pay rent or quit 821 
 
 of appeal in proceedings to remove 
 tenant 835 
 
 OATHS, 
 
 justices to take oath of office 9 
 
 form 9 
 
 dvil, 
 constable may administer, to surety — 186 
 
INDEX. 
 
 899 
 
 Oaths, page. 
 
 of service of notice of application for 
 
 commission 263 
 
 to procure commission 264 
 
 on trial of challenges 392 
 
 to jurors challenged 292 
 
 to triers 293 
 
 to juror:* 293 
 
 to witnesses 295 
 
 of materiality of witness 297 
 
 to constable, on taking charge of jury.. 301 
 <ynminal, 
 
 to complainant and witnesses 539 
 
 to jurors 643 
 
 to witnesses, on trial 644 
 
 to constable, on retiring with jury 645 
 
 to subscribing witness to conveyance, 
 &c 
 
 to witness proving identity of parties, 
 or of witness, to a conveyance 
 
 justices may administer 
 
 form of, to town ofllcers 
 
 to a deponent 
 
 to jurors, on trials of habitual drunk- 
 ards 
 
 to witnesses on such trials 
 
 to jurors, on reassessment of highway 
 damages 
 
 to witnesses, in like cases 
 
 to jurors, when encroachment is denied, 
 
 to witnepees, in like cases 
 
 to jurors, on trials between landlord and 
 tenant 
 
 to officer, to keep jury, in such case 
 
 justices may administer, to arbitrators, 
 Observance of Sunday, 
 
 day defined 
 
 Sabbath breaking defined 
 
 labor prohibited 
 
 persons observing another day 
 
 public sports prohibited 
 
 traffic prohibited 
 
 service of process 
 
 punishment 
 
 forfeiture of goods 
 
 form of warrant 
 
 processions and parades 
 
 theatrical performances 
 
 fees — 
 
 Offenses, 
 
 punishment for attempt to commit 
 
 punishment for compounding 
 
 [See Crimes, and Compromise of Offenses. 
 Office, 
 
 infants, ineligible to 
 
 Ogden Companv, 
 
 papers and field notes of, evidence 
 
 Obange County-, 
 
 fees of justices of sessions in 
 
 Obleans CotlNTY, 
 
 jurors in 
 
 Oswego, 
 
 two justices in 
 
 mechanics' liens in 
 
 epecial sessions in 633, 
 
 789 
 
 831 
 831 
 847 
 
 751 
 751 
 751 
 751 
 751 
 752 
 752 
 753 
 753 
 754 
 753 
 753 
 755 
 
 585 
 613 
 
 94 
 
 401 
 
 850 
 
 285 
 
 4 
 128 
 658 
 
 Overseers op Highways, page. 
 
 vacancy in office of, how filled 857 
 
 Overseer of the Poor, 
 
 when execution to issue against 474 
 
 vacancy in office of. how filled 857 
 
 [See Bastards, Habitual Drunkards, 
 Hawkers and Pedlers, Highways 
 and Boads. Lunatics, and Parents 
 Absconding.'] 
 Oyer and Terminer, 
 
 jurisdiction of 580 
 
 PAEENTS, 
 
 [See Lunatics.] 
 
 Parents Absconding, 
 
 property of, of bastards, may be seized 734 
 
 warrant for that purpose 735 
 
 property of, when to be seized 735 
 
 overseers of the poor may take prop- 
 
 ertyof 737 
 
 when entitled to property seized 735 
 
 to give security 735 
 
 form of such security 735 
 
 fees 737 
 
 Parents and Children, 
 
 statute requires former, to maintain 
 
 latter 91 
 
 necessaries 91 
 
 step-fathers 92 
 
 step-children 92 
 
 Parol Evidence, 
 
 [See Evidence.l 
 
 Parol Contracts, 
 
 [See Contracts.l 
 
 Parties, 
 
 jurisdiction not conferred by consent of 20 
 
 jurisdiction of, how acquired 20 
 
 actions cognizable by justices when peo- 
 ple are 37 
 
 residence of. to give juri!?diction 34 
 
 both, must be privy to ufury 75 
 
 character of, must be stated in process . 157 
 
 may defend in person 303 
 
 rights of, to due bills 228 
 
 may adjourn cause beyond ninety days, 357 
 may waive regularity of adjournment... 260 
 
 may agree upon interrogatories 265 
 
 form of assent by, to interrogatories . , . 267 
 
 may try their own causes 279 
 
 may prove death or absence of subscrib- 
 ing witness 294 
 
 may poll the jury , . , 305 
 
 identity of, presumed from identity of 
 
 names 314 
 
 admissions by 344 
 
 competent as witnesses 365 
 
 in interest, competent;a8 witnesses 365 
 
 examination of 367 
 
 may prove loss of instruments 408 
 
 may prove death or absence of subscrib- 
 
 ing;witness 413 
 
 hand-writing of, how proved 413 
 
 Partners, 
 
 who may be 103 
 
 what constitutes 104 
 
 powers of individual 104 
 
900 
 
 INDEX. 
 
 PABTNEItB, PAGE. 
 
 notes given by 104 
 
 partnership of,jliow diasolved 106 
 
 powers of, after dissolution 106 
 
 acknowledgment by one of several , . 106, 345 
 
 powers of surviving 106 
 
 payment by one 106 
 
 actions between 106 
 
 evidence of partnership 106 
 
 entries in books of 106 
 
 rights of, between themselves 107 
 
 payment by one, after dissolatlon 107 
 
 general and special 108 
 
 set-off of note of, against firm 239 
 
 justices cannot have 280 
 
 Pabtnehship, 
 
 definition of 103 
 
 who may enter into 104 
 
 how formed 104 
 
 what constitutes 104 
 
 how dissolved 106 
 
 effect of dissolution of 107 
 
 evidence of 107 
 
 property of, how applied 107 
 
 limited, how formed. 108 
 
 transaction of business by, limited 109 
 
 once shown, presumed to continue 323 
 
 evidence of 423 
 
 Pawn, 
 
 definition of term 58 
 
 [See Pledges.] 
 
 PAWN-BROKHrRfl , 
 
 warrant, when to issue against 843 
 
 powers of constables under such war- 
 rant 843 
 
 claimant executing bond, entitled to 
 
 property 843 
 
 form of such bond 844 
 
 property, when to be re-delivered to. .. 844 
 
 fees 844 
 
 Pateh, 
 
 definition of term 66 
 
 where to indorse name 66 
 
 [See Promissory Notes.'] 
 
 PATMKNT, 
 
 actions not maintainable for voluntary, 62 
 
 rule as to application of 73 
 
 by note of third person 77, 426 
 
 by debtor's note 77, 425 
 
 in bank bills 77 
 
 of judgments for penalties 124 
 
 effect of partial, by one of several joint 
 
 debtors 144 
 
 demand of, on chattel notes 204 
 
 in forged paper or base coin 227 
 
 in worthless bank bills 237 
 
 in counterfeit bank notes 227 
 
 of due bills 228 
 
 by defendant, in actions on bonds 232 
 
 of money into court 232 
 
 evidence of 424 
 
 Peaoe, 
 
 ! [See Surety of the Peaae.] 
 
 Pjedluhs, 
 
 [See HawJcers and Pedlers.] 
 
 Penalties, fags. 
 
 venue In actions for, given to towns . . 24 
 
 actions for, In justices'" courts 26 
 
 husband liable for. Incurred by wife ... 90 
 
 actions for 159 
 
 actions for, for cutting down trees 113 
 
 recovered, whore to be paid 121 
 
 venue, in actions to recover 1211 
 
 given to any person who will sue 122 
 
 actions for. when commenced 122 
 
 compromise of actions for 122 
 
 endorsement of process in actions for., 122 
 
 pleadings in actions for 123 
 
 imposed by by-laws of corporation 1J8 
 
 cannot be raised by implication 1*4 
 
 one, for one offense 124 
 
 double or treble, how found 124 
 
 when moietv given to people 124 
 
 jurors in actions for 124,288 
 
 stamte of limitations as to 138 
 
 of bonds for attached property 185 
 
 for selling liguor to apprentices 770 
 
 for selling liquor to habitual drunkards, 787 
 
 for pedlinis: goods without license 792 
 
 for not showing pedler's license 792 
 
 for obstructing highways SO"? 
 
 for injuring highways 803 
 
 for obstructing water-courses, &c 808 
 
 for not removing fences 804 
 
 for refusing to extinguish fire in woods, SW 
 
 PBBJtraT, 
 
 conviction for, di(?q.ualifies as vritness,. 361 
 information for 553 
 
 Personal PROPKaTT, 
 
 venue in actions for, distrained 34 
 
 actions for injuries to 114 
 
 plaintiff must have possession, or a 
 
 right thereto 115 
 
 examples of actionable injuries to, 
 
 114 to 113 
 statute of limitations as to actions for. 137 
 
 possession of, evidence of title 319 
 
 admissions by vendors of 34S 
 
 Personal REPRBSENTATmss, 
 
 [See Administroiors and Executors.] 
 
 Persons, 
 
 actions for injuries to 110 
 
 such actions, when to be commenced. . . 138 
 
 Peru, 
 
 what coins of, a legal tender 237 
 
 Petit Larobnt, 
 
 information for 510 
 
 special sessions has jurisdiction 630 
 
 [See Mxecutions.] 
 
 Philadelphia, 
 
 proof of conveyances made in 3^ 
 
 Physicians, 
 
 communications to, when privileged. . . 353 
 [See Manslaughter.] 
 
 Plaob of Trial, 
 
 actiona for injuries to real property 34 
 
 actions for personal property distrained, 34 
 
 penalties 34 
 
 actions against public officers. 34 
 
 Plaint iFTs, 
 
 residence of, to give jurisdiction 34 
 
INDEX. 
 
 901 
 
 PLAINTirPS, PAGE. 
 
 non-resident, to give security 147, 162 
 
 may conduct action in peri^ou 152 
 
 guardian? for infant. .-. 152 
 
 wtio ir.ay be 154 
 
 ■warrant in favor of non-reeident 163 
 
 to be notified of defendant's arrest 162 
 
 to elect between warrant and eummons, 162 
 bond and affidavit by, for attacbment. 
 
 164 to 168 
 
 when entitled to ebort attacbment 168 
 
 may take out summons after attacb- 
 ment 187 
 
 appointment by, of guardian, for infant 
 
 defendant 202, 203 
 
 requiring testimony of justice, must 
 
 discontinue 308 
 
 to prove case 217 
 
 witneBs in actions on demands bought 
 
 for suit 220 
 
 ■entitled to amount tendered 331 
 
 recovering less than tender, to pay 
 
 costs 231 to S33 
 
 entitled to money paid into court 233 
 
 ■set-off by defendants against 233 
 
 notice of set-off to be given to 236 
 
 judgment for, on set-off 236 
 
 undertaking to be given to, on plea of 
 
 title 244 
 
 <liie8tioning title 244 
 
 adjournment on motion of 249 
 
 when entitled to commission, without 
 
 notice 262 
 
 statement of action by, to jury 293 
 
 introduction of evidence by 294 
 
 examination of witnesses for 298 
 
 when to be nonsuited 299, 453 
 
 to be called to receive verdict 305 
 
 may remit excess of verdict 305,454 
 
 may be called to prove usury 364 
 
 and that demand was bought for suit. . . 365 
 
 joint, must prove joint contract 418 
 
 must be free from fault 115,444 
 
 judgment for, after trial 453 
 
 costs of, recovering double or treble 
 
 damages 466 
 
 when to give security for costs 467 
 
 evidence by^ 
 
 in actions on contract 417 
 
 in actions against common carriers 418 
 
 in proof of damages 420 
 
 to avoid defense of infancy 422 
 
 pleading statute of limitations 423 
 
 of partnership 423 
 
 in answer to plea of payment 424 
 
 in actions on promissory notes 425 
 
 to avoid a plea of tender 432 
 
 in actions of trespass 433 
 
 in actions of trespass on the case 435 
 
 in actions of trover 436 
 
 Flank-Road Companibs, 
 
 copy articles of association of, evidence, 399 
 
 transfer books of, evidence 405 
 
 Pz;EADiNaB, 
 
 in actions for penalties 119 to 123 
 
 in actions by and against public officers, 145 
 
 Pleadings, page, 
 
 character of parties, to be stated in 157 
 
 when to be made 209 
 
 object of 210 
 
 different kinds of 210 
 
 may be oral or in writing 210 
 
 construction of 311 
 
 judgments, how to be stated in 211 
 
 performance of conditions precedent, 
 
 how to be stated in 211 
 
 private statutes, bow to be stated in . . . 213 
 
 no reply in justices' courts 217 
 
 when pleadings may be amended.. 218, 300 
 effect of variance between, and proof. . , 330 
 [See Amendments, Answer, Complaint, 
 and Demurrer.] 
 Plea or Title, 
 
 not a bar to action for obstructing 
 
 road 803 
 
 Pleas, 
 civil, 
 
 in abatement, abolisbed 158 
 
 to jurisdiction, when and how made 220 
 
 to jurisdiction, when deemed waived . . 220 
 
 of former action 232 
 
 of payment 223 
 
 of tender 333 
 
 of title 243 
 
 criminal, 
 
 to the jurisdiction, 
 
 when proper 637 
 
 form of , 637 
 
 in abatement, 
 
 when proper 638 
 
 should be verified 638 
 
 form of 638 
 
 special, in bar, 
 
 goes to the merits 639 
 
 what are good as 639 
 
 pleading over, after 639 
 
 form of 639 
 
 [See Pai/7Mni^ Pleading^ Tender, and ,■ 
 Title to Seal Property.} 
 Pludob, 
 
 definition of term 58 
 
 difference between, and chattel mort- 
 gage 60 
 
 title to, in debtor 60 
 
 must be delivered 61 
 
 when to be redeemed 61 
 
 Poison, 
 
 punishment for administering, to ani- 
 mals 583, 630 
 
 punishment for selling without labels, 630 
 Poisoning, 
 
 complaints for, food and wells 547 
 
 punisbmentof, food and wells 600 
 
 puuisbment for, cattle 630 
 
 POMFRBT, 
 
 number of justices in 4 
 
 Police Courts, 
 
 jurisdiction of 656 
 
 election of justices 656 
 
 justice to take and file oath of office 656 
 
 justice, how to hold office 657 
 
 justice, compensation of. 657 
 
902 
 
 INDEX. 
 
 Police JrsTiCES, page. 
 jurisdiction of, generally exclusive 4 
 
 POOR-HOXJSES, 
 
 keep(^re of, exempt from jury duty 287 
 
 Posse Comitates, 
 
 when it may be ordered out 191 
 
 Potsdam, 
 
 has five justices 4 
 
 POtJGHKEBPSIB, 
 
 special sessions in 659 
 
 Powers, 
 
 of agents, cannot he delegated 93 
 
 Presenting False Bills, 
 
 is a felony 591 
 
 Presumptions, 
 
 in favor of public officers 314 
 
 [See Evidence.] 
 
 Phikgipals, 
 
 may act by agents 97 
 
 how 97 
 
 when bound by acts of agents 98 to 103 
 
 must express dissent 101 
 
 agents to account to 101 
 
 when not bound by acts of agents 103 
 
 when bound by declarations of agents. . 336 
 
 admissions of, against surety 348 
 
 agents, competent as witness against... 367 
 [See Agents.] 
 
 Printers, 
 
 affidavits by, of publication 405 
 
 Prisoner, 
 otvll, 
 
 rights of, under civil process 181 
 
 may be conveyed through different 
 
 counties 181 
 
 eriminal, 
 
 when and where to be searched 534 
 
 escaping, may be re-arrested 565 
 
 not liable to arrest on civil process 56P 
 
 disposition of, while awaiting examina- 
 tion 571 
 
 may be committed for further examina- 
 tion 571 
 
 may employ counsel 570 
 
 may cross-examine witnesses 573 
 
 statute authorizing examination of 573 
 
 may decline answering 574 
 
 when he need not be examined 575 
 
 when he must be examined 575 
 
 Eot to be examined on oath 575 
 
 answers of, to be written down 576 
 
 should be kept separate 576 
 
 witnesses for, to be sworn and exam- 
 ined 576 
 
 forms of examination of 576 
 
 may be committed for contempt 577 
 
 when to be discharged 577 
 
 punishment for aiding, to escape 583 
 
 to what officer to be committed 601 
 
 may be detained to prepare mittimus. .. 602 
 
 may demand copy mittimus 605 
 
 maybe discharged on giving bail,. 606, 627 
 
 when may be bailed 608 to 633 
 
 may waive examination 625 
 
 warrant to liberate 628 
 
 may pay fine to sheriff 649 
 
 Prisoner, page. 
 
 may apply to county court to remit fine, 649 
 [See Bail, Commitments and Judgments.] 
 Private Writings, 
 
 [bee Evidence.] 
 
 X'ROCESS, 
 
 civil, 
 jurisdiction acquired by service of. ... 21 
 where if, may bL' issued by justices.. 21, 3S 
 of justices, how served and returned ... 21 
 
 of juf ticee, when void 22 
 
 officer serving, when protected 25, 190 
 
 when and how to be endorsed 123 
 
 service of, in actions for penalties 123 
 
 guardians, to be appointed before issu- 
 ing 152 
 
 actions, how commenced without 156 
 
 different kinds of 15ft 
 
 long summons 15ft 
 
 character of parties, to be stated in 157 
 
 of justices, to be signed 158 
 
 but need not be sealed 15& 
 
 to be in name of people 159 
 
 to be in English 15& 
 
 not to be made returnable on Sunday , . 160 
 
 nor to be issued on that day 160 
 
 of the service and return of 173 
 
 married women, cannot be arrested on 
 
 mesn e 177 
 
 what is mesne 178 
 
 not to be executed on Sunday 190 
 
 sei-vice of, on Jews and Seventh Day 
 
 Baptists 190 
 
 not to be served on election day 190 
 
 copy of, to be given 191 
 
 return on 191 
 
 substituted service 191 
 
 orim,inaZ, 
 not necessary, for violation of Sunda}', 524 
 
 issuing of, a ministerial act 53& 
 
 when it is regular on its face 562 
 
 special, 
 
 officers bound to execute 685 
 
 in actions under excise law, to be en- 
 dorsed 761 
 
 and in actions for obstructing highways, 803 
 [See AtUichm,ents, Summons, Subpoenas 
 and Wan^ants,] 
 Propane Citrsing and Swearing, 
 
 punishment for 754 
 
 fees 755 
 
 Profits, 
 
 contingent, not recoverable as damages, 443 
 
 when recoverable 443 
 
 Promise, 
 
 to avoid statute of limitations 142, 144 
 
 Promissory Notes, 
 
 what are 65 
 
 negotiable and non-negotiable 65 
 
 endorsement of ©5 
 
 effect of taking non-negotiable 65 
 
 of any kind, may be transferred 65 
 
 tiansfer of, how made 65 
 
 need not be dated 67 
 
 necessity of " value received "in 67 
 
 import a consideration 6T 
 
INDEX. 
 
 903 
 
 Promissory Noths, page. 
 
 days of grace on 67 
 
 falling due on Sunday 67 
 
 falling due on fast days, &c 67 
 
 consideration of, when inquirable into, 67 
 property in, evidenced by possession. . . 68 
 
 owners of lost, can recover 68 
 
 void in inception, remain void 68 
 
 failure of consideration of, may be 
 
 shown 68 
 
 and that under a general denial 68 
 
 purchased at less than face 68 
 
 founded on illegal contracts 68 
 
 all makers, principals as to holders 69 
 
 construction of *' security," in 69 
 
 contract of makers of 69 
 
 contract of endorsers of 69 
 
 joint or several 69 
 
 " I promise," several 69 
 
 construction of "jointly or severally," 
 
 in 70 
 
 construction of ■' surety," in 70 
 
 demand of payment of, when necessary, 70 
 notice of non-payment of, to be given . . 70 
 how and by whom notice may be given, 71 
 
 evidence in actions on 71 
 
 interest on, how computed 72 
 
 guaranty of 72 
 
 actions against guarantors of 72 
 
 rule of construction of guaranties of... 72 
 
 application of payments of 73 
 
 examples of, not void for usury 74 
 
 accommodation makers may set up 
 
 usury in 76 
 
 payment by, of third persons 77, 425 
 
 payment by debtor's own 77, 425 
 
 statute of limitations as to 143, 144 
 
 not to be bought for suit 220 
 
 endorser may demand, on tender 225 
 
 when due, when time not mentioned... 239 
 
 payable on demand, when due 229 
 
 Be^off, in actions on 234 
 
 set-oflf, of partner's, against firm 239 
 
 admissions of makers of 344 
 
 parol evidence, to vary terms of 355 
 
 cannot be taken on execution 485 
 
 evidence in actions on, 
 
 the existence of the note _. 426 
 
 its loss 426 
 
 the signature of the parties 427 
 
 the relation of the defendant 427 
 
 note of married women 427 
 
 interest of plaintiff in 437 
 
 the breach of contract 428 
 
 demand and protest 429 
 
 notice of demand and of non-payment, 429 
 
 against guarantors 431 
 
 of want of consideration 431 
 
 of usury 432 
 
 Froof, 
 
 necessary to sustain chattel mortgage.. 50 
 
 in actions for goods sold 63 
 
 in actions for non-delivery of property, 63 
 [See Burden of Proof and Evidence.l 
 
 Protest, 
 
 [See Notaries Public and Promissory N'otes.'\ 
 
 Provisions, paqb. 
 warranty and sale of 56 
 
 Public Docomentb, 
 
 [See Evidence.l 
 
 Public Ofpiceks, 
 
 venue in actions against 35 
 
 may sue and be sued in justices' courts, 145 
 pleadings in actions by and against . . 145 
 
 actions against successors of 146, 155 
 
 actions do not abate by death of 155 
 
 actions, how coniraenced against 156 
 
 when to order out posse comitatus 191 
 
 presumptions in favor of 311 
 
 rule of evidence as to authority of 333 
 
 Purchaser, 
 
 acceptance by, necessary 48 
 
 caveat emptor, applicable to 55 
 
 when accidents at risk of 63 
 
 when entitled to possession 63 
 
 Putnam County, 
 
 mechanics' liens in 129 
 
 QUALITY, 
 
 warranty of 56 
 
 Quo Warranto, 
 
 justice's title to office may be ques- 
 tioned by 10 
 
 KACING, 
 
 when punishable 630, 631 
 
 statute forbidding 850 
 
 , peace officers, to attend and prevent 850 
 
 justices may order apprehension of per- 
 sons engaged in 850 
 
 form of warrant for that purpose 851 
 
 persons engaged in, to be recognized. . , 851 
 
 form of recognizance 851 
 
 fees 351 
 
 Railroad Companies, 
 
 are private corporations 96 
 
 cattle trespassing upon roads of 118 
 
 Rail-Road Companies, 
 
 may be sued by long summons 1 59 
 
 copies articles association of, evidence, 399 
 punishment for injuries to roads of 60C 
 
 Rape, 
 
 presumption of inability to commit 31 7 
 
 information for 544 
 
 punishment for * 600 
 
 Real Estate, 
 
 [See Real Property.^ 
 
 Real PROPERxr, 
 
 justices cannot try title to 27, 243 
 
 venue in actions for injuries to 34 
 
 requisites of authority to convey 98 
 
 actions for injuries to 110 
 
 what is a trespass upon 110 to 113 
 
 owners of, possess highway Ill 
 
 examples of trespasses upon 112 
 
 what are fixtures 125 
 
 actions for, when to be commenced, 136, 187 
 
 death does not affect rights to 137 
 
 actions for trespass on, when to be 
 
 commenced 137 
 
 right of way in 246 
 
 declarations of persons in possession of 339 
 
904 
 
 ITSTDKX 
 
 Heal Propebtt, page. 
 
 certificates of redemption of, evidence, 406 
 when justice's judgment a lien upon... 455 
 
 Receipt, 
 
 for property attached 18G 
 
 may be explained by parol evidence 35% 424 
 [See Evidence.'] 
 
 Rbceiptor, 
 
 for property attached 186 
 
 Recetting Pkopertt Stolen, 
 
 punishment for 622 
 
 Regognizakoeb, 
 
 on adjournment 628 
 
 of complainant and witnesses, when to 
 
 betaken 578 
 
 to be certified to proper court 578, 581 
 
 form of, by witness, to give evidence. . . 580 
 
 by witness, with sureties 681 
 
 on appeals from judgments of coarts of 
 
 special sessions 672 
 
 to keep the peace 675 
 
 by master, on complaint of apprentice, 714 
 by apprentice, on complaint of master, 715 
 
 by disorderly persons 744 
 
 by persons engaged in racing 851 
 
 [See Bait.J 
 
 Records, 
 
 tobeinEnglish 159 
 
 copies of, evidence 400 
 
 lalsely certifying 590 
 
 Records of Conviction, 
 
 of defaulting witness 277' 
 
 for contempt of court 528 
 
 cannot be questioned in collateral action 536 
 
 beggars and vagrants 740 
 
 disorderly persons 745 
 
 observance of Sunday 749 
 
 disturbing religious meetings 749 
 
 [See Sonde, and Undertakings.'] 
 
 Recoupment, 
 
 meaning of term 240 
 
 notice of, to be given 240 
 
 in what actions allowed 240 
 
 instead of cross action 240 
 
 defendant, not entitled to balance on .. 241 
 
 of damages, after action brought 241 
 
 cases in which it has been allowed 242 
 
 Redemption, 
 
 of pledges 60 
 
 certificate of, of real estate, evidence.. 406 
 
 Relationship, 
 
 judgments void, on account of 22 
 
 what degree of, disqualifies 23 
 
 Reliei*, 
 
 actions for, on the ground of fraud, 
 
 when to be commenced 138 
 
 actions for, when to be commenced 139 
 
 Reuoiotjs Meetings, 
 
 information for disturbing 654 
 
 l^ee Disturbance of Religiffua Meetiffiga.l 
 
 Rknewino Executions, 
 
 [See WxeeuU/ona.'] 
 
 Rensselaer County, 
 
 special sessions in 659 
 
 Rent, 
 
 actions for 65 
 
 Rent, page, 
 
 recoupment in actions for 242 
 
 [See Landlord and Tenant.} 
 
 Replevin, 193, &o. 
 
 Reply, 
 
 .n actions for penalties 1^ 
 
 not allowed in justices' courts 217 
 
 [See I^eadinjB.} 
 
 Respondent, 
 
 [See Appeal.] 
 
 Returns, 
 
 on sommons 174 
 
 on warrant 181 
 
 on attachment 187 
 
 on attachment, conclasive IflS 
 
 on subpoena 273 
 
 on execution 496 
 
 fee for jasticcs', on appeal 499 
 
 form thereof 504 
 
 on appeal from judgment of special ses- 
 sions 668 
 
 on summons for collection of highway 
 
 fines 796 
 
 on warrant to remove tenant 830 
 
 [See Certiorari.] 
 
 Rbtisbd Statutes, 
 
 evidence 406 
 
 Right of Way, 
 
 is real property 246 
 
 Riots, 
 
 remedy for injuries by 114 
 
 justices may suppress 525 
 
 rioters may be arrested without process 525 
 
 information for 554 
 
 punishment of 621 
 
 Roads, 
 
 injuries occasioned by neglect of 97 
 
 [See Highways and Soads.] 
 
 Robbery, 
 
 information for 551 
 
 punishment for, in all degrees 601 
 
 Rochester, 
 
 three justices in 4 
 
 special sessions in 660 
 
 Rockland County, 
 
 mechanics' liens in 128 
 
 Routs, 
 
 [See Hiots.'] 
 
 Russia, 
 
 proof of conveyances made in 392 
 
 SALES, 
 
 by auctioneers 50 
 
 of chattels , 50 
 
 by sample 56 
 
 of grass, fruit, &c . . 64 
 
 [See Vendor and Vendee.] 
 
 Salt Manufactories, 
 
 exemption of employees in, from jury 
 
 duty -287 
 
 injuries to 681 
 
 Sample. 
 
 sales by 56 
 
 Saturday, 
 
 when civil process pot to be served on. 190 
 
INDEX. 
 
 905 
 
 SOHKNECTADT, PAGE. 
 
 four jnsticeain 4 
 
 SOHODACK, 
 
 hae five justices 4 
 
 SciBB Facias, 
 
 abolished 459 
 
 Sealed Instruments, 
 
 actions on, when to be commenced .... 138 
 [See Bonds and Under laUngs.'] 
 Seals, 
 
 import a consideration 42, 45 
 
 ' agents, when to he appointed under ... 98 
 
 partners cannot hind each other by 106 
 
 public, and if notaries public, judicially 
 
 noticed , 308, 309 
 
 what are 309 
 
 only presumptive evidence of consider- 
 ation 358 
 
 what, judicially noticed 385 
 
 of corporations, may be on paper 400 
 
 Seabching Prisoner, 
 
 when and hy whom 534 
 
 Search Warrants, 
 
 when to he issued 531 
 
 when' to authorize search in night 
 
 time 539 
 
 must be executed by an officer 532 
 
 contents of 533 
 
 complaint to obtain 532 
 
 form of 532 
 
 execution of 533 
 
 disposition of goods on return of 534 
 
 Seohetart of State, 
 
 certificate of, as to authority of commis- 
 sioners of deeds in other states 394 
 
 copies deeds in office of, may be re- 
 corded 397 
 
 copies papers in office of, evidence 404 
 
 to certify laws 406 
 
 Seotritt, 
 
 tainted with usary, void 73 
 
 to procure warrant 163 
 
 to stay execution, on appeal 502 
 
 for costs^ 
 
 in actions against militia officers 467 
 
 statute as to 467 
 
 [See Bonds and Undertakings.] 
 Sbduotion, 
 
 justices cannot try actions for 27 
 
 punishment of, under promise of mar- 
 riage 621 
 
 Service, 
 
 of summons 172 
 
 of warrant 175 
 
 of attachment 181 
 
 substituted 191 
 
 [See Executions and Subpcenas.'] 
 SBT-orp, or Counter-claim, 
 
 hy purchaser against principal 101 
 
 general remarks concerning 233 
 
 what demands are good as 2'^ 
 
 statute concerning 233 to 236 
 
 against judgments on attachments 236 
 
 notice of, to be given 236 
 
 judgment on 237 
 
 in actionsby personal representatives. 237 
 
 Set-ofp, or Counteb-Claim, page. 
 
 actions ou demands wbich should have 
 
 been used as 237 
 
 in actions for tort 238 
 
 in actions for breach of warranty 238 
 
 against personal representatives 238 
 
 against firm, of partner's note 239 
 
 general rules concerning 339 
 
 recoupment analogous to 340 
 
 [See Becoupment.'] 
 
 Seventh Day Baptists, 
 
 when process not to be served on 190 
 
 when exempt from j ury duty 287 
 
 Severing Pboducb, 
 
 special sessions has jurisdiction of. ... 630 
 
 Sheriffb, 
 
 liable for money collected on execution, 62 
 actions against, when to be commenced, 139 
 
 when admissions of deputy bind 346 
 
 liability of, for refusing to discharge 
 
 prisoner 495 
 
 [See Constable.'] 
 
 Shooting, 
 
 information for 546 
 
 Shop-Books, 
 
 admissibility of, in evidence 413 
 
 proof, when entries were made hy clerk, 414 
 proof, when entries were made by par- 
 ties 414 
 
 what they are not evidence of 414 
 
 party not allowed to swear to 414 
 
 all, must be produced 415 
 
 Short Attachment, 
 
 [See Attachment.} 
 
 Sing Sing Guards, 
 
 exempted from jury duty 287 
 
 Seahbateles, 
 
 number of justices in 4 
 
 Slander, 
 
 justices cannot try actions for 27 
 
 actions for, abate by death 95 
 
 actions for, when to be commenced 138 
 
 Sluices, 
 
 penalty for obstructing or diverting 103 
 
 Smithfibld, 
 
 jurors in 285 
 
 Sodomy, 
 
 [See Crime Against Nature.] 
 
 South America, 
 
 proof of conveyances made in 391 
 
 SpBCIAL PnOCEBDINSS, 
 
 iiow continued before different justice. . 686 
 Special Se8»ionb, 
 
 to be held hy a single magistrate 629 
 
 recorder of city to hold court 633 
 
 minutes of proceedings in, to he kept.. 647 
 jurisdiction of, 
 
 petit larceny, charged as first offense. . . 630 
 
 assault in third degree 630 
 
 racing animals near courts 630 
 
 severing produce from freehold 630 
 
 selling poisons not labeled 630 
 
 removing, etc., monuments 630 
 
 destroying mile stones 630 
 
 destroying toll-gate 630 
 
 intoxication of engineer or conductor.. 630 
 
906 
 
 INDEX. 
 
 Spbcial Sessions, page. 
 
 setting up lotteries 630 
 
 running horses 680 
 
 making or eelling elung-shot 630 
 
 disclosing finding of indictment 630 
 
 bringing to, or carrying letters from, 
 
 State prison 630 
 
 destroying milldam 630 
 
 injuring telegraph 630 
 
 counterfeiting trade-mark 630 
 
 malicious trespass 630 
 
 injuring canals 630 
 
 defacing, etc., marks.. 631 
 
 setting fire to wood or fallow land 631 
 
 defacing logging marks 631 
 
 frequenting public gathering 631 
 
 taking oysters of another 631 
 
 removing property to defraud creditors, 631 
 
 driving carriage fnr running horses 631 
 
 cruelty to animals 631 
 
 cheating at games 631 
 
 winning or losing twenty-five dollars ... 631 
 
 selling liquors in court-house or jail 631 
 
 wanton or malicious mlechief 631 
 
 violating excise laws 631 
 
 selling liquor to Indians 631 
 
 jurisdiction by special statute 632 
 
 trials in, 
 
 when to take place 633 
 
 disposition of prisoner awaiting 637 
 
 order to bring up prisoner for 637 
 
 charge, to be stated to prisoner 638 
 
 pleas by prisoner on 638 to 640 
 
 prisoner's plea, to be entered in minutes, 640 
 
 by the justice, when 640 
 
 by a jury, when 641 
 
 formal management of, before a jury, 
 
 641 to 646 
 
 rules of evidence applicable to 644 
 
 general rules applicable to 646 
 
 proceedings subsequent to the trials 
 
 what punishment may be awarded 646 
 
 prisoner acquitted, to be discharged 647 
 
 certificate of conviction, to be made. . . . 647 
 contents and form of such certificate. . . 648 
 
 such certificate, evidence 648 
 
 fines, how applied 648 
 
 defendant, if acquitted, not to pay fees, 648 
 judgment of court, how executed. . . 648, 649 
 warrant of commitment, to whom di- 
 rected 649 
 
 Its form 649 
 
 juvenile delinquents, where to be sent, 650 
 judgment when complaint was ma- 
 licious 650 
 
 reversal of judgments of 667 
 
 In particular localities^ 
 
 New York 652 
 
 Albany 653 
 
 Brooklyn 657 
 
 Elmira 658 
 
 Monroe 658 
 
 Oswego 65S 
 
 Poughkeepsie 659 
 
 Rensselaer 659 
 
 Lansingburgh 660 
 
 Special Sessions, page. 
 
 Utica 661 
 
 Watertown, 66^ 
 
 Watervliet 063 
 
 [See Judgments.'] 
 
 Specialty, 
 
 what is a 87 
 
 [See Evidence.'] 
 
 SpiBiTcroua Liquors, 
 
 lawfulness of sale of, presumed 73 
 
 Stamp, 
 
 on summons, when 160, 164 
 
 on notice of appeal 501 
 
 State, 
 
 civil divisions of this, judicially noticed, 384 
 
 State Prisows, 
 
 oflicert* of, exempt from jury duty 287 
 
 penalty for escaping from 615 
 
 [See Ball] 
 
 Statute of Frauds, 
 
 contracts void by 40, 64 
 
 evidence required by 353 
 
 Statute op Limitations, 
 
 [See LimitatiOTis.'] 
 
 Statutes. 
 
 private, how pleaded 212 
 
 complaint in actions for violating 21$ 
 
 [See Evidence.'] 
 
 Step-Fathers, 
 
 rights and liabilities of; 92 
 
 Stbubkn County, 
 
 jurors in 285 
 
 St. Lawrence Countt, 
 
 jurors in 285 
 
 Stockqoldebs, 
 
 competent as witnesses 366 
 
 Stolen Property, 
 
 duly of justices as to 534 
 
 information for receiving 552 
 
 punishment for receiving 622 
 
 Subpoenas, 
 civil., 
 of justices, run to adjoining counties, 
 
 35, 261, 270 
 
 form of 270 
 
 justices, when to issue 270 
 
 duces tecum 271 
 
 service of 271 
 
 evidence of service of 272 
 
 return of c mstable on 272 
 
 criminal^ 
 
 memorandum to be endorsed on 643 
 
 penalty for inserting names in, wrong- 
 fully 643 
 
 how many can be charged for &4.3 
 
 form of 644 
 
 epecial, 
 in a case of bastardy 722 
 
 SUBSCR3ING Witness, 
 
 to endorsement of notes 60 
 
 proof of death of S94 
 
 must be called 831, 411 
 
 evidence, when they are dead or absent' 831 
 
 rule as to, in justices' courts 331 
 
 proof of instruments by 411 
 
 when they need not be called 418 
 
INDEX. 
 
 907 
 
 SuBscRiBiNQ Witness, pagu. 
 
 parties may prove deatti or absence of. . 413 
 
 proof of handwriting of , . , 413 
 
 denying execution of instrument 413 
 
 Suicide, 
 
 punialiment for attempting., 633 
 
 bUMMONB, 
 
 civil, 
 
 effect of '"and over" in 32 
 
 to issue to county of justice 35 
 
 actions commenced by service and de- 
 livery of 139, 156 
 
 to whom directed 157 
 
 contents of 157 
 
 to express character of parties 157 
 
 in replevin 197 
 
 need not express cause of action 157 
 
 when defendants may disregard 157 
 
 to be filled up 159 
 
 to be under seal or without seal 158 
 
 to be signed by justice 158 
 
 to be In name of people 159 
 
 to be in English 159 
 
 against joint debtors in different coun- 
 ties 158 
 
 claiming over $100 158 
 
 defendant suable by fictitious name in . . 15S 
 
 how served on corporations 173 
 
 forms of 159, 163 
 
 may be taken out with attachment. . 183-188 
 
 on claim of personal property 197 
 
 return of constable 199, 200 
 
 justice to wait one hour after return of . . 205 
 
 adjournments on 348 
 
 form on an arrest 163 
 
 first process against freeholders 156 
 
 against railroad companies 159 
 
 when to be made returnable 159 
 
 time on, how computed 160, 173 
 
 service of 173 
 
 no adjournments on arrest, when 248 
 
 and attachment 163 
 
 and arrest, give security for 162 
 
 when proper process 160 
 
 statute authorizing 160 
 
 not to issue without security 160 
 
 and arrest returnable, when 161 
 
 computation of time on 173 
 
 service of, on arrest 161 
 
 adjournment on 251 
 
 speinal, 
 
 for refusing to work on highways 797 
 
 for a jury to reassess highway damages, 801 
 [See Braining in Swamps and Excise^ 
 Taverns^ Landlord and Tenant^ and 
 Process. } 
 Sunday, 
 
 what days esteemed as 67 
 
 contracts made on,> 80 
 
 last day for performance of contract, on, 80 
 
 last day prescribed by statute, on 80 
 
 work performed on 80 
 
 awards published on bO 
 
 acts on, forbidden by statute 81 
 
 actions for horses hired on 81 
 
 when to be computed 163, 164, 173 
 
 Sunday, page. 
 
 civil process, not to be made returnable 
 
 on 160 
 
 nor to be issued on 160 
 
 nor to be executed on 190 
 
 arrests on, after escape 190 
 
 courts, not to be open on 305 
 
 verdict, may be received on 305, 646 
 
 jury may be discharged on 305 
 
 judgment, not to be entered on 305 
 
 process not necessary, for violation of. . 534 
 
 courts to be adjourned over 646 
 
 [See Observance qf Sunday,"] 
 
 StJPERINTKNDBNTS OF COMMON SOHOOLB, 
 
 executions against 475 
 
 Superintendents of the PoC'R, 
 
 executions against 475 
 
 may bind out apprentices 701 
 
 [See Bastards.} 
 
 SUPBRTISORS, 
 
 boards of, formerly nominated justices, 3 
 to give notice of drawing of justices, 5, 8 
 to make certificates of sucb drawing. . . 6 
 
 j ustices may resign to 11 
 
 may sue and be sued in justices' courts, 145 
 actions against counties, to be brought 
 
 against , 147 
 
 actions against successors of 147, 155 
 
 actions do not abate by death of 155 
 
 actions, how commenced against 156 
 
 executions against 475 
 
 to sue for dog penalties 756 
 
 and justices, to appoint firemen 848 
 
 and fill vacancies 848 
 
 vacancy in office of, how filled 857 
 
 [See Excise and Taverns.} 
 Supplemental Complaint, 
 
 to continue action 154 
 
 Supreme Court. 
 
 may remove justices 11 
 
 to assign cause fur so doing 11 
 
 jurisdiction of, under mechanics' lien 
 
 law 131 to 138 
 
 action in, after plea of title 243 to 347 
 
 justices cannot take acknowledgment 
 
 of bail in 686 
 
 [See Courts.} 
 
 SURHTIBS, 
 
 on bonds for attached property 188 
 
 such, to be approved 188 
 
 liability of, oa bonds on plea of title, . . 244 
 admissions of principal, receivable 
 
 against 348 
 
 liability of constables 496, 497 
 
 Surety of tqe Peace, 
 
 how obtained 678 
 
 complaint to be in writing 674 
 
 who may demand 674 
 
 complaint, to obtain 674 
 
 warrant, when to issue 674 
 
 prisoner, to be interrogated 675 
 
 prisoner, when to be recognized 675 
 
 form of undertaking by 675 
 
 prisoner, when to be committed 676 
 
 form of such commitment 676 
 
 prisoner, when to be discharged 677 
 
908 
 
 INDEX. 
 
 Surety of the Peace, page. 
 
 warrant to discharge 677 
 
 when court may require 677 
 
 SUBOHONS, 
 
 communications to, when privileged... 353 
 Stikplusaqe, 
 
 what comprehended by the term 326 
 
 evidence as to, inadmissible 326 
 
 examples of 326 
 
 SURBOGATEe, 
 
 to iiisaG letters 94 
 
 SURTirORSHlP, 
 
 presumptions of 314 
 
 SwoHN Copies, 
 
 what are 385 
 
 Syracuse, 
 
 three justices in 4 
 
 recovery of penalties 119 
 
 competency of justices, witnesses, Ac, 286 
 
 TAVERNS, 
 
 [See Excise and Taverns.^ 
 
 Taxes, 
 
 certificates of unpaid, evidence 407 
 
 leases for unpaid, in villages, evidence, 407 
 
 Telegraph Companies, 
 
 copies certificates of incorporation of. 
 evidence 396 
 
 Tenants, 
 
 implied contracts of 37 
 
 righls of, as to fixtures 125, 126 
 
 whal may be removed by them 126, 127 
 
 manure does not bflong to them 128 
 
 when rails do 128 
 
 when, may mortgage grass 128 
 
 possession by, deemed that of landlords, 137 
 
 cannot deny landlord's title 316 
 
 [See Landlord and Tenant.} 
 
 Tender, 
 
 effect of, after default on mortgage 55 
 
 by pawnor 60 
 
 mu?t be averred in answer 2si3 
 
 in what, may be made 223 
 
 of portable and cumbrous articles 224 
 
 equivalent to performance 224 
 
 a question for the jury 225 
 
 debtor discharged by 225 
 
 of specific actions, to be unconditional, 225 
 
 who may make 235 
 
 what is a good tender 925 
 
 of money 225 
 
 must be unqualified 226 
 
 what is a legal tender 227 
 
 of bank notes 227 
 
 creditors refusing, to bear loss 227 
 
 where to be made 228 
 
 at what time to be made 939 
 
 to whom to be made 230 
 
 consequences of, and refusal 230 
 
 to be kept good 230 
 
 costs on recovery beyond 230 
 
 plaintiff entitled to 231 
 
 after action brought 231 
 
 statute applicable to such 231 
 
 hy payment of money Into court 232 
 
 evidence of 932 
 
 Territorial Jubisdiotion. page. 
 
 of justices 34 
 
 of United States courts 7t3 
 
 Time, 
 
 computation of 160,164, 16T, 173 
 
 Title, 
 
 to things mortgaged, in mortgagee 55 
 
 warranted, by vendor of chattels 55 
 
 tenant cannot deny lessor's 316 
 
 to property levied on, how determined, 
 
 486, 487 
 to real property, 
 
 justices have no jurisdiction of 27, 243 
 
 plea of 243 
 
 answer containing, to be written 243 
 
 form of answer setting out 243 
 
 undertaking on 244 
 
 costs in such case 244 
 
 when disputed by defendant 245 
 
 new action, when title is set up 245 
 
 examples, where title comes in ques- 
 tion 216, &17 
 
 plea of, not a bar to action for obstruct- 
 ing highway 803 
 
 Torts, 
 
 joint liability for 112 
 
 set-off, in actions for 238 
 
 Town Auditors, 
 
 board of, how composed 852 
 
 when to meet 853 
 
 to make two certificates 853 
 
 to whom to deliver certificates 853 
 
 not to audit accounts, unless verified. . . 853 
 
 chairman of. may administer oaths 833 
 
 to make abstract of accounts 853 
 
 to whom to deliver abstracts 853 
 
 certificate by 85* 
 
 affidavit, to attach to account 854 
 
 form of abstract by 854 
 
 fees 855 
 
 Town Clerks, 
 
 notice of drawing of justices, to be 
 
 given to 6 
 
 to record certificates of such drawing.. 6 
 
 to keep mechanics' lien docket 130 
 
 their fees, for entries therein 130 
 
 cortifled copies papers in office of, evi- 
 dence 407 
 
 justices, when to deliver papers to 464 
 
 when to demand such papers 464 
 
 Town Meetings, 
 
 justices to be elected at 4 
 
 clerks of, to certify such elections 5 
 
 and to notify justices elected 5 
 
 presiding officers of, to determine such 
 
 election g 
 
 justices, to preside at 355 
 
 powers, while so doing 855 
 
 fees \ 855 
 
 Town OrncERs, 
 
 justices may administer oaths to 700 
 
 [See Town OJices.] 
 
 Town OrrioEs, 
 
 vacancies in, how filled 955 
 
 Towns, 
 
 number of justict,3in, limited 8 
 
INDEX. 
 
 909 
 
 Towns, page. 
 
 election of Justices, in new 5 
 
 justices must reside in 21, 34 
 
 actions for penalties given to, -where to 
 
 be tried 24 
 
 actions by and against officers of 36 
 
 actions by and against 97 
 
 officers of, may sue and be sued in jus- 
 tices' courts 145 
 
 actions against, h.ow brought 147 
 
 actions against, how commenced 156 
 
 venire, in actions between 282 
 
 executions against officers of 476 
 
 firemen in, how appointed 848 
 
 officers of, when allowed ^er diem com- 
 pensation 853 
 
 Transcripts, 
 
 of judgments of courts in New York, 
 
 may be filed 31 
 
 of judgments under mechanics' lien law, 134 
 [See Evidence, and Judg?nent8.} 
 Trsason, 
 
 what constitutes 583 
 
 [See CHmes.} 
 Treble Cobtb. 
 
 [See Costs.'] 
 Trebb, 
 
 contracts for sale of 64 
 
 actions for cutting down 119 
 
 go to the ht'ir 126 
 
 complaint for girdling 653 
 
 Tbbspass, 
 
 willful, by agents 101 
 
 upon real property 110 
 
 defense in actions for, by cattle 110 
 
 who may maintain 110 to 113 
 
 obstruction of lights not a Ill 
 
 defense in actions for US 
 
 damages for, on lauds ;. 112 
 
 by cattle 118 
 
 actions for, when to be commenced 133 
 
 tender in actions for 331 
 
 evidence in actions for, on the case 435 
 
 evidence in actions for, generally 433 
 
 levying on property of stranger 487 
 
 information for malicious 553 
 
 punishment for ' 622 
 
 special sessions has jurisdiction 630 
 
 Tbkspabsers, 
 
 minors acting as officers 94 
 
 agents 102 
 
 who are, upon real property 110, 112 
 
 Gb initio 312 
 
 corporations liable as 112 
 
 justices issuing attachments without 
 
 proof 170 
 
 justices, not having jurisdiction 260 
 
 constables arresting wrong person 563 
 
 [See Trespass.'] 
 Trial, 
 
 whatis 279 
 
 by jury, when to be demanded 280 
 
 general rules as to, by justice 280 
 
 by jury 
 
 [Kee Judgments, Special Sessions and 
 Venire.] 
 
 Trikrs, page. 
 
 challenge to favor, decided by 292 
 
 who may be 293 
 
 oath to 293 
 
 Trovbr, 
 
 evidence in 436 
 
 Trot, 
 
 justices' courts in 13, 21 
 
 Trustees, 
 
 set-off, when plaintiff is 235 
 
 of express trusts^ 
 
 actions by 151 
 
 of gospel and school lots, 
 
 actions by and against 146 
 
 executions against 475 
 
 of absconding debtor, 
 
 appointment of, evidence 407 
 
 of school districts, 
 
 actions by and against 146 
 
 executions against 475 
 
 Trusts, 
 
 actions by trustees of express 151 
 
 Turnpike Companies, 
 
 are private corporations 96 
 
 copy articles association of, evidence.. 399 
 transfer books of, evidence 405 
 
 ULSTER, 
 
 recovery of penalties 121 
 
 Unolazued Baqoags, 
 
 duty of proprietors of conveyances, as 
 
 to 845 
 
 duty of justices, as to 8-15 
 
 fees 846 
 
 Undertaking, [See Bonds.] 
 
 on claim of personal property 198 
 
 for return of personal property 200 
 
 on plea of title 244 
 
 form of, in such cases 244 
 
 justice, to approve such 244 
 
 to stay execution on appeal 508 to 511 
 
 on appeal to county sessions 671 
 
 United States, 
 
 jurisdiction of justices in 2 
 
 offt-Tiders against lawj of, 
 
 justices may arrest, imprison or bail 783 
 
 proceedings upon arrest of 783 
 
 when justices may bail 783 
 
 process and recognizances, where to be 
 
 sent 784 
 
 [See Circuit Courts and District Courts.] 
 
 Upper Canada, 
 
 proof of conveyances made in 393 
 
 Usage, 
 
 evidence of 359 
 
 [See M)idence.] 
 
 UbE AND Occupation, 
 
 actions for, of lands 65 
 
 UfiURT, 
 
 promlFSory notes void for 68 
 
 statute concerning 73 
 
 criterion to detect 75 
 
 recovery on executed contracts void for, 75 
 
 subsequent agreements cannot create.. 76 
 
 when maker of note may set up 76 
 
 both parties must be cognizant of 76 
 
910 
 
 INDEX. 
 
 Ubtjkt, page. 
 
 plaintiff, may be called to prove 364 
 
 witnesses to prove, in notes 433 
 
 XJtica, 
 
 four juBtices in 4 
 
 snecial sessions iu 661 
 
 VACANCY, 
 
 election of justices to fill 
 
 bow occasioned, in office of justice. , 10, 
 in town offlc s geuerally, how filled — 
 
 in office of assessor, bow filled 
 
 in office of collector, how filled 
 
 in ofilce of commissioner of bigbways, 
 
 how filled 
 
 in office of overseer of highways, how 
 
 ftllod 
 
 in office of inspector of elections, how 
 
 filled 
 
 in office of overseer of the poor, how 
 
 filled 
 
 in office of supervisor, how filled 
 
 Vagrahtb, 
 
 [See Beggars and Vagrants.'] 
 Valuk, 
 
 false assertions as to 
 
 Vakiance, 
 
 to be disregarded 
 
 judgment for, wnen not to be given 
 
 eff'ect of, between proof and pleadings.. 
 Yendee, 
 
 definition or word 
 
 must return goods, to recover price 
 
 Yendob, 
 
 definition of word 
 
 of chattels, warrants title 
 
 rights of, to stop in transitu 
 
 admisEions by, of personal property . , . 
 Yen IRE, 
 civil, 
 
 when to be issued 282, 
 
 in actions between towns 
 
 how executed 283, 
 
 costs on 
 
 when jury disagree 
 
 costs on, abide event 
 
 criminal, 
 
 contents of 
 
 form of 
 
 service of 
 
 habitual drunkarda - . . 788 
 
 re-assessment of highway damages . . . 800 
 removal of encroachments from high- 
 ways 805 
 
 removal of a tenant 831 
 
 [See Jurors, and Jury.^ 
 Ybntie, 
 
 [See Place of Trial.'] 
 
 YSRDICT, 
 
 when conclusive 232 
 
 for amount tendered 231 
 
 justices, to enter in docket 3u4 
 
 may be received on Sunday 305 
 
 when final 305 
 
 how delivered 305 
 
 Yerdiot, pagb. 
 
 examples of various 806 
 
 judgment to be rendered after 455 
 
 of fact, of habitual drunkenness, is pre- 
 sumptive evidence 789 
 
 [See Highways and Boads.] 
 
 Yernon, 
 
 jurors in town of 285 
 
 Vebshl, 
 
 destruction of 601, 632 
 
 YlLLAGES, 
 
 certificate of incorporation of 407 
 
 leases for unpaid taxes, in 407 
 
 certificates by clerks of 407 
 
 Vindictive Dasiages, 
 
 [See Damages.] 
 
 Violating Graves, 
 
 punishment for 612 
 
 Voluntary I'atment, 
 
 actions not maintainable for 62 
 
 WARRANT OF COMMITMENT, 
 
 [See Commitments and Warrants.] 
 Wabkakts, 
 civil, 
 
 to issue to county of justice 34 
 
 to detain canal boats, when to issue — 124 
 actions not commenced by arrest under, 156 
 defendant may be sued by fictitious 
 
 name 158 
 
 to be filled up 159 
 
 need not be sealed 159 
 
 to be signed by justice 159 
 
 to be in name of people 159 
 
 to be in English 159 
 
 when to be issued 160 
 
 affidavit for 161 
 
 security, when to be given for 162 
 
 to whom directed 162 
 
 contents of 162 
 
 form of 163 
 
 void, when summons is the regular pro- 
 cess 163 
 
 when to be made returnable 161 
 
 service of. 161 
 
 officer n eed not show 175 
 
 but should state substance 175 
 
 special deputy must show 175 
 
 exemptions from arrest under. . . 176 to 178 
 
 is mesne process 178 
 
 constable to make return on 181 
 
 return on 181 
 
 proceedings on return of,. 207 to 209 
 
 adjournment on, by justice 248 
 
 adjournment on, by plaintiff" 249 
 
 adjournment on, by defendant 250 
 
 to commit witness refusing to testify. . . 397 
 criminal, 
 
 command of justice, when good as 523 
 
 of arrest for contempt 5:27 
 
 of commitment for contempt 629 
 
 when to be issued 556 
 
 remarks as to contents of 556 
 
 how to be nnide returnable 558 to 561 
 
 to whom to be directed 558 
 
 form of 561 
 
INDEX. 
 
 911 
 
 Warrants, page. 
 
 service of 562 
 
 backing 566 
 
 to whom to be delivered after arrest .... 569 
 of commitmeut for further examination, 571 
 
 of comniliment of witness 578 
 
 to liberate prisoner 6-28 
 
 of commitment 606 
 
 of commitment of prisoner, to await 
 
 trial 637 
 
 of commitment from special sessions.. 649 
 special^ 
 
 to arrest apprentice 709 
 
 to apprehend reputed father of a bas- 
 tard 718 
 
 to commit a putative father 727 
 
 to commit mother refusing to disclose 
 
 name of father 72S 
 
 to commit mother who has property In 
 
 her own right 729 
 
 to diachai'ge putative father 733 
 
 to seize property of absconding father. 735 
 
 to commit a beggar or a vagrant 740 
 
 to commit a child to the county poor- 
 house 741 
 
 to aiTest a disorderly person 744 
 
 to commit a disorderly person 745 
 
 of arrest, for disturbance of religious 
 
 meetings ^49 
 
 of commitment, for the same 751 
 
 to seize goods exposed for sale on Sun- 
 day 754 
 
 to commit a fugitive from justice 781 
 
 to commit a hawker or pedler refusing 
 
 to pay penalty, »fec 798 
 
 to collect penalty from a hawker or 
 
 pedler 794 
 
 to collect ahighway fine 799 
 
 to collect costs of proceedings upon an 
 
 encroachment 808 
 
 to put landlord in possession 821, 832 
 
 to seize goods of an absconding parent 
 
 or husband 841 
 
 to arrest persons engaged in racing 851 
 
 [See Commitments and Search Warrants.'] 
 Wabrantt, 
 
 implied, of title to chattels 55 
 
 of quality 56 
 
 not implied, as to latent defects 56 
 
 actions for breach of 56 
 
 that residue is like sample 56 
 
 of wholesomenesB of provisions 57 
 
 when to be made B7 
 
 language constituting 57 
 
 "not afraid to warrant" 57 
 
 by agents 100 
 
 nost-t-off in actions for breach of 238 
 
 damages for breach of, 446 
 
 Water Courses, 
 
 penalty for obstructing 803 
 
 TVaifrtown. 
 
 special sessions in 662 
 
 Watertliet, 
 
 special sessions in 663 
 
 Westchestbr County, 
 
 mechanicsMiens in 128 
 
 Wheat, page. 
 may be sold by parol 128 
 
 Wipe, 
 
 [See Husband and yVife^ and Married 
 Women.} 
 
 Wilful Trespass, 
 
 what is a 63 
 
 West Trot, 
 
 police justice in 664 
 
 Wills. 
 
 originals, records, and exempliflcstions 
 of, evidence 397, 407 
 
 Witnesses, 
 civil, 
 
 subscribing, to indorsement of note 66 
 
 exempted from arrest 177 
 
 justices cannot be, before themselves.. 208 
 
 justices, for defendants 208 
 
 justices, for plaintiffs 208 
 
 plaintiffs, in demands bought for suit. . . 220 
 
 refusing to testify or be sworn 251 
 
 examination of, by commission .. 261 to 270 
 
 when to produce books and papers 271 
 
 service of subpcena on 272 
 
 fees of 371 
 
 attachments against 972 
 
 duty of, as to obeying subpoena 276 
 
 damages recoverable from defaulting... 277 
 punishment of, for non-attendance, 
 
 &c 275 to 2-^9 . 
 
 oath to, on ti'ials of challenges 2£fC 
 
 evidence of death, or absence of 294 
 
 incompetency of, how determined 294 
 
 in jail, how brought out 294 
 
 swearing 295 
 
 punishment of, refusing to testify 296 
 
 oath to materiality of 297 
 
 examination of plaintiff's, when 293 
 
 examination of defendant's, when 300 
 
 testimony of deceased 340 
 
 attorneys, cannot be, against client 352 
 
 w%en infants competent as 360 
 
 examination of parties as 367 
 
 examination of assignor as 372 
 
 justices in adjoining States, to prove 
 
 docket 387 
 
 to prove usury in notes 4£2 
 
 fees of 470 
 
 (^minalt 
 
 not exempt from arrest for crimes 537 
 
 oath to, on complaint 539 
 
 testimony of, to be in writing. , 574, 576 
 
 of prisoner, to be sworn and examined, 573 
 643, 644 
 
 should be kept separate 576 
 
 may be bound over 578 
 
 and when in default, may be commit- 
 ted 578 
 
 form of recognizance by 580 
 
 not entitled to fees 643 
 
 oath to 643 
 
 special, 
 
 in cases of bastardy 731 
 
 fees of, in such cases 738 
 
 fees of, in proceedings against beggars 
 and vagrants 742 
 
912 
 
 INDEX. 
 
 WiTNESSEB, PAGE. 
 
 fees of, in proceedings against die- 
 orderly pereons \ .. . 748 
 
 in actions to recover propert)' pawned, 
 
 &c., for liquor 776 
 
 on trials of habitual drunkards 789 
 
 oath to, in such cases 789 
 
 fees of. in such cases 793 
 
 oath to. ou re-assessment of higbway 
 
 damages 801 
 
 oath to, when encroachment is denied, 806 
 fees of, in proceedings before arbitrators 847 
 justices, may compel, to attend before 
 
 arbitrators 847 
 
 may be compelled to give depositions 
 
 to be used in other States 847 
 
 fees of, for such depositions 848 
 
 persons excluded (w, by statute, <&c.i 
 
 idiots, lunatics and madmen 360 
 
 infants, when 360 
 
 persons intoxicated 360 
 
 persons convicted of perjury and felony, 360 
 
 husbands and wives 361 
 
 persons insensible to the obligations of 
 an oath 363 
 
 persons rendered competent as, by special 
 statute, 
 
 corporators 363 
 
 Indians, for themselves 364 
 
 owners of lost baggage 364 
 
 plaintiff, where defence is usury 364 
 
 plaintiff, where demand was bought 
 
 for suit 365 
 
 parties to actions 365 
 
 parlies in interest 366 
 
 mode of examining^ 
 privilege of witnesses 372 
 
 direct examination, 
 
 cannot be asked leading questions 374 
 
 exceptions to this rule , 37B 
 
 WiTNKBSEB, PAOE, 
 
 refreshing memory of 375 
 
 cannot be asked opinion 376 
 
 exceptions to this rule 276 
 
 cannot be impeached by party calling. . 371 
 nor discredited by him, by evidence of 
 
 different statements 877 
 
 cross-examtnation, 
 
 great latitude allowed on 378 
 
 when not allowed 378 
 
 * questions not to be asked on 878 
 
 foundation to be laid on. for impeaching 378 
 
 leading questions permitted 379 
 
 as to contents of lettdre 379 
 
 when memory of, has been refreshed .. 379 
 impeachmerU, 
 
 by evidence of general character 380 
 
 propel' questions to be asked 330 
 
 by evidence of different statements 381 
 
 attention of witness must have been 
 
 called to former statement 379, 381 
 
 redirect-examination, 
 
 object of 381 
 
 sustaining impeached, 
 
 by evidence of general character 398 
 
 proper qneetions to be asked 383 
 
 Wkitten Instruments, 
 
 [See Instruments.} 
 Wrongs, 
 
 liability of husband for, committed by 
 
 wife 90 
 
 liability of infant for 94 
 
 actions for, by personal representatives, 94 
 
 set-off, in actions for 2:^6 
 
 damages, in actions for 443 
 
 YEAR, 
 
 computation of 524 
 
 TONKEBS, 
 
 rtjco very of penalties 121