Cornell University Law Library The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented- February 14, 1893 IN HEnORY OP JUDGE D0UQLAS5 BOARDMAN FIRST DEAN OF THE SCHOOt By his Wife and Daughter A. M. BOARDMAN and ELLEN D. WILLIAMS ^^ Cornell University Library KF 8986.Z95E26 The law and practice of referees, under 3 1924 020 115 485 The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/cletails/cu31924020115485 THE LAW AND PRACTICE EEFEEEES, UHDEK THE » NEW YORK CODE AND STATUTES GENERALLY; APPLICABLE TO THE NEW PEACTIOE IN THE STATES OF MISSOURI, CALIFORNIA, WISCONSIN, KENTUCKY, INDIANA, IOWA, OHIO, ALABAMA, MINNESOTA, OREGON, AND THE ISLAND OF NEWFOUNDLAND. By CHARLES ^WARDS, COUNSELLOR- AT-LAW. AUTHOR OP "bECEIVBKS IN EQUITY," "PARTIES IN CHANOEET," "jBET- MAn'S guide," ETC., ETC. ALBANY: WEARE C. LITTLE, LAW PUBLISHER. 1860. Entered according to act of Cougrees, in the year 1860j by WEARE C. LITTLE, lu the clerk's office of tho District Court of the Northern district of New York- VBBD, PARSONS AND COMPANY, PRINTERS, DEDICATION. A lawbook need not, necessarily, be dedicated to a lawyer; and, yet, in putting tho name of my friend ROBERT BUNCH, Esq., H. B. M's Consul for North and South Carolina, Upon this dedication page, I couple my work with one who Is conversant with inter- national law ; while his talents and bearing deserve even a higher mark than I, thus, with affectionate regard, lender him. CHAELES EDWARDS. New York, 1860. PREFACE. A Refeeee is bom of an order; without it, he is not — and even with one, the Court can fcontrol, limit and set him aside. And, yet, unnamed by governor or legislature, an individual can, by the force of this mere accidental order — provided the portion of the Code to which we are referring be constitutional — have all the important attri- butes of a judge. Hundreds of solemn issues of law and of fact are tried before and decided by mere attorneys, when called referees ; while the attempt to destroy the Court of Chancery and its officers, has only changed the latter in name — for many a referee is a mere master. It is true that referees were well known before the Code ; but, still, their acts were not perfect without the interven- tion of a court, a court had to ratify and confirm — the court settled the difference. Now, the judgment of a Referee may per se become the adjudgment of the Court. Even the Examiner of the old Court of Chancery lives under another name, the ubiquitous one of Referee. The latter often comes into existence for the mere purpose of taking and returning testimony. In the performance of such a duty, and while, too, taking accounts which a master used to have sent to him, he may be, peradventure — to use VI PEEFACE. a strong expression — an intelligent legal jackall to justices : and yet, when the issues of an action are laid upon him, he wears ermine. Eeferees are, in fact, judges of a smaller growth. And when we look upon what is thrown upon them and what they may do, we can soon see and must admit how much may be got together in aid of their labors. And it is remarkable — and telling little for the Code — when we find that we must cull from works issued long before it and which it was supposed to have shut up for ever, in order to give it vitality. It is fortunate that the science of law is not dead : for this Code of Procedure can move and breathe and have being only through constantly imbibing old principles. Its want of completeness is apparent as we observe how we still have ninety-three Standing Rules of the Supreme Court, voluminous useful commentaries which, like commentaries on the Bible, out- rival text in quantity, the living heart of the Revised Statutes still remaining and more than forty volumes of practice reports. A student could hardly deserve to bq admitted to practice as a lawyer, if he knew no more than the New York Code. We have said all this, partly to show how the size of our book may very well be what it is : for a Referee becomes — as we have before intimated — what a master was ; may have to do the duty of an examiner in equity ; and can be clothed with the authority of a judge. C ONTENTS. CHAPTER I. OP EEFEEENCES AND REFEREES GENERALLY. PAGB. Sectiok I. The constitutionality of references. II. Propriety of a reference. III. Referee's office a iDranoli of the court. IV. Referees, aside from the Code. V. References where they are not reached by statute or standing rules. VI. Referees under the Code. VII. Number of referees. VIII. Prom what time a referee should act. IX. Referee's report and certificate. X. Referees not restricted in their powers to their own county. XI. Change of referees, 1 CHAPTER n. WHAT A REFEREE CAN OE MAT NOT DO. Seotiou I. Limited to statute powers. II. Disregard decisions of court. III. Act by proxy. IV. Act under undue influence. V. Strike out a complaint. VI. Amend pleadings. VII. Strike out a party. VIII. Disregard variances. IX. Summon and notify all parties beneficially interested. X. Refuse to mark a party's attend- ance before him. XI. Depositions prepared and brought in. XII. Compel attendance of witnesses. XIII. Proceed ex parte. XIV. Examine viva voce or upon written interrogatories. XV. Commit for contempt. XVI. Open case for further testimony. XVII. Verbally fix the time for meetings. XVIII. Proceed de die in diem. XIX. Power to grant adjournments. XX. Decline to pass on or decide a matter or claim before him. XXI. Referee as a witness. XXII. Refuse or accept testimony of a witness's character. XXIII. Require production of books and papers without an order of court. XXIV. Inquire into damages. XXV. Just allowances. XXVI. Postpone a sale. XXVII. Hear further testimony. XXVIII. Referee's stating, out doors, the conclusions in advance of his VIU CONTENTS. PIGB. report. XXIX. Pull or brief report. XXX. Costs and extra allowance. XXXI. Promptly pay over money. XXXII. Act after trial of issues and report made. XXXIII. Receive fees, 16 CHAPTER in. EEFEEENCE WHERE THE TRIAL OP AN ISSUE OF PACT WILL REQUIRE THE EXAMINATION OP A LONG ACCOUNT ON EITHER SIDE. Section I. Observations. II. Moving for the reference. III. A&- davit on whioli to move for a reference. IV. Notice of motion for reference. V. As to wliat constitutes an account. VI. Questions of law. Vll. Affidavit to oppose motion for -■ reference on tlie ground that questions of law are involved. VIII. Order of refer- ence connected with, long accounts, 82 CHAPTER IV. GENERAL COURSE AND CONDUCT ON A TRIAL OP ISSUES BEFORE REFEREES. Section I. Observations. II. Meetings before referee. III. Appoint- ment in writing of a first meeting. IV. Notice of trial. V. Form of countermand. VI. Adjournments. VII. Oath, of referees. VIII. Form of oath. IX. Amendments. X. Witnesses. XI. Form of oath to a witness. XII. Form of oath to an interpreter. XIII. Form of oath of a party to admit evidence of the contents of a paper not produced. XIV. Form of oath of a party prelimi- nary to proving the handwriting of a subscribing witness. XV. Admissions and evidence. XVI. Costs. XVII. Compelling referee to report. XVIII. Referee's report. XIX. General form of referee's report on all the issues. XX. Further allowance. XXI. Certifi- cate from referee to aid in obtaining a further allowance. XXII. Referee's fees. XXIII. Filing report and perfecting judgment. XXIV. Notice of judgment served with copy of report. XXV. When referee's duties are determined. XXVI. Appeal from and reviewing a judgment entered on the decision of referees. XXVII. Form of a case on appeal from referee's report and from the judgment thereon. XXVIII. Setting aside report and granting a new trial. XXIX. Costs on the granting of a new trial. XXX. Sending the action to a new referee. XXXI. Order setting aside a report of referees and directing a hearing before new referees,. . 99 CONTENTS. IX CHAPTER V. EEFEEENCE IN SUPPLEMBNTAKY PEOCEEDIKGS. i ' PAGB. SEftpiON I. General observations. II. Proceedings under tlie first Wbdivision of section two hundred and ninety-two of the Code ind which has no requirement of proof of property ; affidavit to ground order for judgment debtor to discover property under the abpve subdivision; order {ex parte), for the judgment debtor to appear before a referee and proof thereof. III. Proceedings under theVcond subdivision of section two hundred and ninety-two of the SJode, having reference to an execution issued and where a defeiiiant unjustly refuses to apply property ; affidavit to obtain order Vnder the last above subdivision ; order {ex parte) based on the last^bo ve affidavit ; service of order ; summons of referee and of subpcenX ; default in attendance ; report or certificate of non-attend- ance of i judgment debtor or witness ; oath to debtor ; oath to a witness ; Wtent of examination of debtor and of witnesses ; ad- journment5 ; report or certificate of referee to ground order for an attachments^ on a judgment debtor's refusing to answer ; referee taking testifaony ; form of referee's minutes of examination ; report of ex^niination. IV. Examination of debtors of a judg- ment debtor dc of those having property belonging to him ; affida- vit to ground drder for examination of any person or corporation having propertj or being Indebted to the judgment debtor ; like affidavit, where Judgment was obtained in a judicial district court of the city of New York ; order {ex parte) ; moving on the referee's report, 158 CHAPTER VI. EEFEEENCE TO ASCEETAIN DAMAGES ON THE DISSOLUTION OF AN INJTJNC?rlON OEDEE. Section I. General observations ; and, when to move. II. Affidavit to ground order for a reference to ascertain damages sustained by an injunction order? Hi. Notice of motion. IV. Order of refer- ence. V. Damages. VI. Report. VII. Affidavit to ground order to sue the undertaking. VIII. Notice of moving on referee's report. IX. Order for payment, and, in default, to sue. X. Exceptions to report, , 201 CHAPTER VII. EEFEEENCE TO COMPUTE AND TO SELL IN CASES OF FOEE- CL08UEE. Section I. Observations. II. Reference to compute. III. Where all is due and no infant or absentee is interested. IV. Forms of affl- X CONTENTS. FADE* davit and order ot reference where the whole amount is due and there are no infant or absent defendants. V. Where there is an infant defendant. VI. Order of reference where an infant is a party. VII. Where there is a, non-resident defendant. VIII. Order of reference where there is a non-resident defendant. IX. Instalment or interest only due. X. Order of reference where interest or instalment of principal only is due. XI. RefereeS report where the whole amount is due, with clause where there is a non-resident or infant defendant. XII. Referee's report wfere the whole amount is not due, with a clause to meet a case wlere there is an infant or non-resident defendant. XIII. Notice of pendency of action. XIV. Affidavit of filing notice of peniency of action. XV. Usual judgment for sale in foreclosure, where the whole amount is due. XVI. Judgment for sale wher< a part only of debt is due and premises cannot be sold in parcels. XVII. Judgment for sale, where a part of debt is not due and the pre- mises can be sold in parcels. XVIII. Notice of sale by a referee and form of notice. XIX. Conditions of sale. XX. Selfng. XXI. Purchaser ; and as to his completing purchase, as wel as to his being relieved from it ; also, resale. XXII. Costs and interest on discharging purchaser. XXIII. Referee's deed. XXIV. Rents. XXV. Referee paying or distributing purchase moieys. XXVI. Report of sale. XXVII. Form of referee's report of sale, 233 CHAPTER VIII. EBFBEENCE IN RELATION TO SUEPLITS MONEYS ON SALES OF MORTGAGED PREMISES, .Section I. General and particular observations. II. Notice of claim on surplus moneys. III. Motion for referenje. IV. Affidavit to ground order of reference as to surplus moneys. V. Order of reference on claim to surplus moneys. VI. Proceedings on the reference. VII. Certificate of clerk as to who have appeared or filed claims. VIII. Claims to surplus moaeys on a mortgage sale. IX. Report where there is but one claimant. X. Order to pay sur- plus moneys where there is but one claimant. XI. Report where there have been conflicting claims. XII. Notice that the referee's report is on file. XIII. Exceptions to report. XIV. Form of exceptions. XV. Costs. XVL Final order on report, 282 CHAPTER IX. REFERENCE TO APPOINT A RECEIVER. Section I. Observations. II. Notice of motion for order of reference to appoint a receiver. III. Order of reference to appoint a receiver. CONTENTS. XI Txaa. IV. Proposal for a receiver. V. Receiver's bond. VI. Referee's report of appointment of receiver. VII. General assignment to a receiver of stock in trade, etc. VIII. Transfer of real estate to a receiver, 307 CHAPTER X. EEFEKBNCB ON TITLE. Section I. Observations. II. Order to report if plaintiff can make a good title to a purchaser. III. Proceedings on reference, and prin- ciples. IV. Referee's report in favor of title. V. Referee's report against the title. VI. Form of exceptions to the report. VII. Judgment order on report. VIII. Costs, 323 CHAPTER XI. EEFEEBNCE TO APPOINT A GENERAL GUARDIAN FOB AN INFANT. Section I. Observations. II. Proceedings to appoint a guardian. III. Petition for appointment of a general guardian where the infant is fourteen years of age or upwards. IV. Petition for the appointment of a general guardian in behalf of infants under four- teen years of age. V. Order of reference to nominate a general guardian. VI. Referee's report on petition for general guardian where the infant is over the age of fourteen years. VII. Order appointing a general guardian for an infant over the age of fourteen years. VIII. Clerk's oertiflrate of the filing of security. IX. Re- feree's report on petition for general guardian where the infant is under the age of fourteen years. X. Order. XI. Order for the appointment of guardian for infants under the age of twenty-one years. XII. Security by guardian. XIII. Bond by guardian and his sureties. XIV. Powers of a guardian. XV. Responsibility of guardian and surety. XVI. Removing a guardian. XVII. Form of order superseding a guardian for cause. XVIII. Petition of guardian to be discharged from his trust. XIX. Order on the last petition 348 CHAPTER Xn. REFERENCE TO OBTAIN A SALE OR OTHER DISPOSITION OF AN infant's REAL OR LEASEHOLD ESTATE. Section I. Observations. II. Application for sale. III. Form of petition for guardianship and sale. IV. Reference. V. Order of reference. VI. Security by special guardian. VII. Bond of spe- XU CONTENTS. PAOB. cial guardian, and justice's approval. VIII. Certificate of filing the bond. IX. Referee reporting. X. Form of referee's report. XI. Order on the referee's report authorizing guardian to contract. XII. Report of guardian of agreement to sell. XIII. Order con- finning guardian's report and directing a conveyance. XIV. Deed hy special guardian. XV. Guardian's report of disposition of pro- ceeds of sale, 396 CHAPTER Xm. PARTITION. Section I. Observations. II. Partition without sale. III. Affidavit of fact. .IV. Notice of a motion for a reference. V. Order of refer- ence thereon. VI. Report. VII. Judgment order for partition. VIII. Partition where a, sale is necessary. IX. Affidavit where a sale is necessary. X. Order of reference. XI. Ascertainment of liens and incumbrances and notice. XII. Notice, by referee, to creditors having general liens or incumbrances. XIII, Report that a sale is necessary. XIV. Report under order of reference as to title, &c., and that a sale is necessary. XV. Judgment order of sale and for distribution and partition of proceeds. XVI. Assent by a wife to have her share paid to her husband. XVII. Sale. XVIII. Notice of sale. XIX. Conditions of sale. XX. Report of Bale. XXI. Form of report of sale. XXII. Confirmation of sale. XXIII. Order of confirmation of sale. XXIV. Purchaser declining ; and as to compelling him to take. XXV. Requirement that buyer complete his purchase. XXVI. Order requiring a purchaser to complete his purchase. XXVll. Enforcement thereof. XXVIII. Order against purchaser (on default to complete purchase) and commitment. XXIX. Resale. XXX. Order for resale, and that purchaser make good any deficiency. XXXI. Resale and return of deposit. XXXII. Order for resale and discharge of purchaser. XXXIII. Report on a resale. XXXIV. Referee's deed. XXXV. Form of referee's deed. XXXVI. Receipt for a distributive share. XXXVII. Value of dower right. XXXVIII. Final report. XXXIX. Form of final report of sale. XL. Confirming the last report. XLI. Order confirming the same. XLII. Amendments, 429 CHAPTER XIV. EEFEKENCES IN ACTIONS EOR DIVORCE AND SEPARATION. Sbotioit I. Observations. II. Reference in an action to dissolve a marriage because of adultery, where there is a failure to answer or the charge is not denied. III. Order of reference on default, etc. CONTENTS. XIU PAOK. IV. Referee's report on complaint to dissolve marriage because of adultery (on defendant's default). V. Judgment (on report) dis- solving marriage because of adultery (on default of defendant). VI. Reference in matter of limited divorce, where there is a default or the charge of cruelty is not denied. VII. Order of reference. VIII. Report finding cruelty, on complaint for a limited divorce. IX. Judgment for a limited divorce, on default, etc. X. Reference for trial of issues in a divorce case. XI. Order referring the issues. XII. Referee's report in favor of plaintiff (applicable to adultery or cruelty.) XIII. Judgment dissolving marriage after a trial of issues before a referee. XIV. Judgment of separation after trial of issues before a referee. XV. Report of referee in favor of a defend- ant. XVI. Judgment on the last report. XVII. Reference in an action for divorce for that one of the parties was an idiot or luna- tic. XVIII. Affidavit of the continued lunacy of the plaintiff. XIX. Affidavit (where plaintiff is rational) of non-cohabitation. XX. Order of reference in case of alleged lunacy. XXI. Report finding lunacy at the time of marriage. XXII. Judgment (on report) dissolving marriage because of lunacy. XXIII. Reference in an action for divorce where one of the parties had not attained the age of legal consent. XXIV. Affidavit of non-cohabitation where marriage is sought to be annulled for non-age. XXV. Order of reference where marriage is sought to be annulled for non-age. XXVI. Reference in an action for divorce because the former hus- band or wife of one of the parties is living. XXVII. Order of reference where former husband or wife is living. XXVIII. Refer- ence in an action for divorce on the ground that the consent of one of the parties was obtained by force or fraud. XXIX. Affidavit of no voluntary cohabitation where force or fraud is the ground for a divorce. XXX. Reference in an action to annul a marriage for physical incapacity. XXXI. Notice of motion for order of refer- ence in a case of alleged physical incapacity. XXXII. Order of reference on complaint to dissolve marriage because of physical incapacity. XXXIII. Costs in divorce cases. XXXIV. Reference to ascertain proper amount of temporary alimony and expenses to carry on a defense. XXXV. Petition for alimony and expenses. XXXVI. Order of reference as to alimony and expenses. XXXVII. Report on temporary alimony and expenses,^ 509 CHAPTER XV. EEFEEENCE TO APPOINT A COMMITTEE OF A LUNATIC, IDIOT OR HABITUAL DEUNKAED. Section I. Observations. II. Petition for a committee. III. Form of order, where the court confirms the finding of the jury and such XIV CONTENTS. PAGB. court itself appoints a committee, but directs a reference to approve of bond and to fix amount of allowance, etc. IV. Order confirm- ing the finding of tbe jury and directing a referee to report a suit- able person as committee and to fix amount of allowance. V. Report of referee. VI. Bond and security by a committee and his sureties. VII. Order confirming referee's report and appointing a committee. VIII. Commission of commitment of lunatic, etc., to committee. IX. Costs of commission and of subsequent proceed- ings, 579 CHAPTER XVI. EEFBEENCE ON AN APPLICATION BY A COMMITTEE OF A LUNATIC, ETC., TO MORTGAGE, LEASE OE SELL EEAL ESTATE. Section I. Observations. II. Petition for sale or to lease or mortgage a lunatic's real estate. III. Order of reference. IV. Report of referee, recommending a sale of part of the real estate. V. Order for sale. VI. Report of sale. VII. Order for conveyance on report of sale. VIII. Conveyance by committee. IX. Form of deed of committee of lunatic, 606 CHAPTER XVII. BEFEEENCE FOE A COMMITTEE OF A LUNATIC, ETC., TO PASS HIS ACCOUNTS. Section I. Observations. II. Petition by committee to pass his ac- counts. III. Order of reference to pass accounts. IV. Allowances and liabilities. V. Report of referee on a final accounting by the committee. VI. Order confirming report, declaring balance and canceling bond, 618 CHAPTER XVIII. EEFEEENCE OF CLAIMS AGAINST THE ESTATE OF DECEASED PERSONS WHICH ARE CONSIDERED OF A DOUBTFUL CHARACTER BY EXECUTORS OR ADMINISTRATORS. Sbotion I. Observations. II. Form of claim. III. Agreement to refer the claim. IV. Surrogate's approval. V. Rule. VI. Ij'orm of oath of referees. VII. Proceedings before the referees. VIII. Referee's reporting. IX. Form of report. X. Form of rule or order for confirmation. XI. Form of judgment, 629 CONTENTS. XV CHAPTER XIX. EEFEEKNCE TO ACCOUNT BETWEEN PAETNBRS. PAGE. Section I. Observations. II. General form of the active part of a judgment order for an account in partnership. III. Mode of taking partnership accounts. IV. Books and accounts. V. Charge and discharge. VI. Examining partners. VII. Settled accounts. VIII. Surcharging and falsifying an account. IX. Profit and loss. X. Charges particularly against and allowances to partners. XI. Sale of partnership property. XII. Interest. XIII. Settlement of report and objections. XIV. Form of objections. XV. Form of report. XVI. Form of exceptions to report. XVII. Form of active part of judgment order on the report. XVIII. Costs, . , . . . 648 CHAPTER XX. EEFEEENCE IN PEOCEEDINGS POE THE COLLECTION OP DEMANDS AGAINST SHIPS AND OTHER VESSELS. Sectios I. Observations. II. Form of a creditor's claim ; aifidavit annexed. III. Statement of objection. IV. Referees. V. Agree- ment to refer. VI. Form of rule to refer under agreement. VII. Certificate of judge of selection of referee. VIII. Rule on such certificate. IX. Form of report, , 683 CHAPTER XXI. SPECIFIC PEEPOEMANCE BY AN INFANT HEIE OP THE CON- TEACT OP HIS ANCESTOE OE BY ANY OTHEE PERSON WHO MAY BE A PAETY TO SUCH AN INSTEUMENT. Section I. Observations. II. Petition by a purchaser. III. Order of reference and appointment of guardian ad litem. IV. Report of referee. V. Order for conveyance. VI. Petition by an execu- tor of a purchaser. VII. Deed by infant heir, with a widow joining, 695 CHAPTER XXII. EEFBEENCE, AS TO TWO SUITS OE PEOCEEDINGS PENDING FOE THE SAME MATTEE ; AND WHEEE ONE OE MORE SUITS AEE INSTITUTED FOE AN INFANT. Section I. Observations. II. Answer of former action pending. III. Notice of motion for an order of reference to ascertain wiiether there is another action pending. IV. Order of reference. V. Priu- XVI CONTENTS. PAGS. oiples governing the point of reference. VI. Report. VII. Order on referee's report. VIII. Suits instituted on behalf of infants. IX. Affidavit to ground order of reference where there are two suits pending. X. Order of reference thereon, 714 CHAPTER XXni. EBFEEENCE TO SETTLE ISSUES. Section I. Observations. II. Affidavit and notice of motion for a reference to settle the form of issues. III. Order of reference to settle issues. IV. Referee's report, and issues embraced by inter- rogatories, 735 CHAPTER XXIY. EEEBEENCE TO DISCOVER THE DEATH OF PEESONS TTPON WHOSE LIVES ANY PAETIOULAE ESTATE MAT DEPEND. Seotioit I. Observations. II. Form of petition for the production of a person upon whose life some particular estate depends. III. Form of notice of presenting petition. IV. Order on petition. V. Referee's return. VI. Entry on minutes of the court that order was complied with by the production of the person required. VII. Active part of referee's return where the person was not produced. VIII. Entry on the minutes of the court that the person required was not produced, , 741 CHAPTER XXV. EBPEEEES, IN EELATION TO AXTEEING, DISCONTINUING OE EBEUSING TO LAY OUT A EOAD ; ALSO, EEFEEENOE IN EEGAED TO THE LOCATION OE A TOLL GATE. Section I. Observations in relation to altering, discontinuing or refusing to lay out a road. II. Appeal. III. Form of appeal. IV. Appointment of referees. V. Form of appointment by a justice of sessions where the county judge is interested or otherwise disabled. VI. Notice by referees of their appointment. VII. Form of oath of referees. VIII. Notice by referees to the commissioners of high- ways. IX. Notice to the applicant. X. Witnesses. XI. Form of subpoena. XII. Powers of the referees. XIII. Decision of refe- rees. XIV. Form of decision of referees on an order in i-elation to altering or discontinuing a road. XV. Observations in regard to the location of a toll gate. XVI. Notice of appeal. XVII. No- tice of motion for the appointment of referees. XVIII. Order of reference by the Supreme Court. XIX. Proceedings before the referees. XX. Fees, costs and expenses, 754 CONTENTS. XVll CHAPTER XXVI. BEFEEENCB IN A CONTEOVERST BETWEEN TRUSTEES OP AN INSOLVENT DEBTOR AND ANY OTHER PERSON. PAGE. Section I. Observations. II. Form of debt. III. Agreement to refer. IV. Rule. V. Notice of intention to apply for the ap- pointment of referees. VI. Certificate of officer of selection of refe- rees. VII. Enle entered by the olerk\on the above certificate. VIII. Form of report, 789 CHAPTER XXVH. MISCELLANEOUS I AND ADDENDA. Section I. Reference in suits^ against heirs to' ascertain the value of lands descended. II. Reference where testimony is confiicting on a motion to discharge from arrest. III. Reference by creditor of a decedent -on a claim to a fund in court belonging to his infant heir and which arose from the estate of the ancestor. IV. Refer- ence in actions of account. V. Collateral matters of fact. VI. Demurrer referable. VII. Attorney's action for professional ser- vices. VIII. Gross-actions. IX. Date of referee's report. X. De- risions of a referee conclusive as res adjudicata. XI. Death of a party while the issues in an action are with a referee 803 E. TABLE OF CASES. A. PAGE. Abbey ». Abbey 573 Abrahams ads. Wilson 26 Accessory Transit Co., v. Gar- rison, 25 Acland adi. Edmunds, 724 Adams v. Bayles, 8 Adcock ads. Sharp, 330 Agate ads. Cheesebrongh, 142 Ahrenfeldt v. Ahrenfeldt, 526 Aislabie v. Rice, 340, 343 Akely v. Akely 631, 633 Albany City Bank v. Schermer- horn 45,48,49,50, 179 Alcock V. Jeudwine, 337 Aldrich v. Reynolds, 219 Alexander v. Fink, 131 Allard v. Mouchon, 152 Allen ads. Cady 148 Allen V. Coit 668 Allen ads. Davis, 14 Allen ads. McMahon, 129 Allen ads. Richards, 131 Allen ads. Richards, Receiver, . 750 Allen V. Way, 80 Alley V. Desohamps, 341 Alsop ads. Pierce, 805 Alt ads. Bramley 840 American Bible Society v. Hague, 721 PAGE. Am'n Ins. Co. v. Oakley, 267-8, 274 Anderson v. Poulke, 488 Andrew v. Andrew 337 ■ Andrews ads. Wilson, 191 Andrews, matter of 347 Angel ads. Wiley, 255 Anna Catharine, The, 225 Annan ads. Merrit, 110, 170 Anonymous, . . 15, 96, 283, 313, 717 ApoUon, The, 225 Arborgast v. Arborgast 537 Armitage ads. Harrison, . . 649, 650 Arnold v. Patrick, 292 Arnold ads. The Bank of Og- densburgh, 255, 261 Arnold ads. United States, .... 247 Arnot V. McClure, 235 Ashburner ads. Fletcher 698 Askew ads. Osbaldeston, 330 Astor V. Romayne, 265 Attorney-General v. Bank of Columbia 314 Attorney-General v. Parthner, . 625 " V. State Bank, 668 Atwater v. Fowler 662 Austin ads. Low, 685 Axe ads. Sheriff, 70 Aymar v. Roff, 552 Ayrault v. Saokett, .... 72, 73, 125 Ayres ads. Shaw 95 XX TABLE OF CASES. B. FAGB. B , In the matter of, 581 Backus V. Smith 90 Baker ads. Billings, 17, 30 Baker, Bx parte 586, 591, 592 Baker ads. People, 776 Baker ». Lorillard 397 Balfour ads. Farquarson, 64 Balfour v. Welland 325 Ball ada. Gordon, 321 Balmano v. Lumley ..323, 324 Bangor, Matter of Lord, 582 Bank of Columbia ads. Attor- ney-General 314 Bajikof Genesee*. Spencer,163, 191 Bank of Niagara, in the matter of the 322 Bank of Ogdensburgh v. Ar- nold, 255, 261 Banks & Ors. v. Davison, Bar- bour, Little & Ors. , 210 Banks v. Walker, 267 Banta v. Banta 38, 523 Bantes v. Brady 653 Barber ads. Cooper, 121 Barber v. Cromwell, 8, 86 Barber ads. People 757 Barber ads. People ex rel. Dris- mer, 774 Barculows v. Protection of New Jersey, 193 Bardeau ads. King, 266, 699 Baring v. Moore, 29 Barker ads. Kinsman 663 Barker ads. Methodist Churches of N. y., 209, 214 Barnes ads. Brocksopp 70 Barnes ads. Drewry, 307, 308 Barnes ads. Moffatt 246 Barron v. Sandford, 807 Bartlett v. Bartlett 571 Bartlett, Hic parte, 350 Basnett ads. Mousley, 720 Baxter ads. Corning, 236 PAOB. Baxter ads. Scranton 149 Bayley v. Edwards, 721 Bayley ads. Woodin, 635 Baylis ads. Adams 8 Beachamu. Eokford'sExors.,.. 670 Beak v. Beak, 671 Beardmore v. Phillips, 315 Beardsley v. Dygert, 83 Bearss v. Copley, 148 Beaufort Duke of, v. Berty, ... 347 Beecher ads. Griffith 697 Bedford v. Kimberly, 666 Bedle v. Willet, 89 Bedwell ads. Tounley, 697 Belden ads. Philips, . . 662, 663, 664 Belden ads. Whitney, 311 Belknap's Estate ads. Herriok, . 98 Bell ads. Leapinasse, 312 Bell ads. Nearing 113 Bender ads. HoUister, 114 Bennet v. Byrne,' 357 Bennet v. Fowler, 699 Bennet ads. Harris 133, 138 Bennet v. Rees, 326 Benson ads. General Mutual Ins. Co., 721 Bent V. Baker, 116 Bernal ads. Wood, 331 Bertie ads. Faulkland, 385 Berty ads. Duke of Beaufort, . . 347 Betts ads. Osborne, 79 Billings V. Baker, 17, 30 Billings ».Vanderbrek,7, 18, 57, 155 Billington v. Forbes, 274 Bilting V. Vanderburgh 159 Bingham ads. Harmony 33 Bird 41. Sands 66 Birkbeck v. Hobokeu Horse Ferry Boats 684 Biscoe V. Wilks 341 Bishop V. Main, 141 Bishop of London ads. Creuze, 317 Bishop of Winchester v. Paine, 341 344 TABLE OF CASES. XXI Blachly ad». Wiser, 384 Blackbeard II. Lindigren, 326 Blackwell ads. Walker, 684 Blair, In re, 594 Blakely v. Calder 397, 431, 487 Blanoliard ads. Graves, , . . i . . . 75 Blenkin ads. Lyons, 729 Bliss ads. Haner 5 Bliss ads. Vancouver, 338 Board of Supervisors of Albany Co. a&. Whalen, 107 Booock V. Reddington, 623 Bodine ads. Edwards, 217, 218, 226 Bodle ads. Ogden, 720 Bokel V. Bokel 523 BoUes'orfs. Fenn, 669 Bond ». Hopkins, 227 Bonesteel v. Lynde, ... 29, 62, 178 Bookhout, matter of, 399, 402 Bootli arfs. MoMaster 85, 93 Borradaile v. Borradaile 556 Borst V. Spelman 147 Bosworth. ads. Stratford, 344 Bowman «j. Sheldon, 92, 813 Brace ads. Murfey, 14, 150 Bradford ads. Hawkins, . . 129, 802 Bradford v. Kimberly, 666 Bradshaw v. Bradshaw, 349 Bradshaw ads. Brown, 92 Bradley ads. Van Wyok 193 Bramley v. Alt, 340 Bramwell ». Bramwell, 513 Brasier ads. Lechmere, . . . 325, 333 Braslier's Executors v. Cort- landt, 268 Brayton v. Smith 262 Brest ads. Scott, qui tarn, 313 Brevoort v. Jackson, 235 Brewer ads. Weems, 487 Brewster ads. Simpson, 722 Brickhouse v. Hunter 657 Briggs ads. Supervisors of Onondaga 814 Brocksopp t). Barnes 70 pAaB. Brodie ads. McCullough 8, 83 Brodie v. St. Paul, 344 Brown v. Bradshaw, 92 Brown v. De Taslet, 68, 669 Brown v. Frost 264, 268, 278 Brown o. Whipple, 273 Collinge ads. , 344 CoUingridge ads. Cook 68 Colonial Ins. Co. ads. Vander- voort 106 TABLE OP CASES. XXIU PAOK. Colton, ex parte 595 Colvin, inre., 619 Combs ads. Jackson, 372 Combs V. Wyokofif, 150, 151 Commissioners of Brunswick ». Meserole, 772 Commissioners of Cherry Valley ads. People 774 Commissioners of Highways ads. People, 757, 761, 773 Commissioners of Highways of Sherburne v. Judges of Che- nango 775, 777 Commissioners of Lewiston, matter of, 787 Comyn v. Smith, 322 Conokin v. Hall, 268 Congdon, in the matter of, 378, 396 Constable ads. McVickar, 348 Cook V. CoUingridge 68 Cook V. Litchfield, 721 Cook ads. Morehouse, 357 Cook «. Campbell, 123 Glascock V. Hayes, 224 Glinsman v. Glinsman, 558 Gojon ads. Ferlat, 558, 561 Goldwin ads. Chambers, 313 Gompertz v. , 324 TABLE OP CASES. XXVU PAOE. Goodu. Blewitt, 36 Goodall V. Demarest, 164 Gooding ada. Fort 75, 632 Goodwin ads. The People 773 Gordon v. Ball, 324 Gorham v. Gorham, 431 Goulard ii. Castillon, 72 Gould V. Chapin, 132, 133, 134, 136 Gracook ads. Emery 330 Graham v. Colburn 779 Graham ads. Van Sickler, 644, 645 Graham v. Wood, 87 Grant V. Grant, 227 Graves v. Blanohard, 75 Graves v. Graves, 567 Graves «. Lake 160, 196 Gray ade. Judson, 139 Gray ads. Tennants, Executors, 247 Green v. BuUard, .... 174, 175, 178 Green v. Brown, 61 Green v. Hicks 182 Green t>. Monk, 74 Green ads. Fleetwood, 325 Green v. Putnam, 432 Greenwood ffrfs. Wilson, 667 Gregory v. Campbell, 254 Gregory ads. The King, 266 Griffin ads. Burnaby, 344 Griffin v. Dominquez 157, 180 Griffing ads. Corwithe, 431 Griffing II. Slate, 228 Griffith ti. Beecher, 69 7 Griffiths ads. Pudney, 161 Groshon v. Lyon, 715, 719, 720, 724 Grusher ads. Knatohbull, 331 Guest V. Hompay, 344 Guest ads. Lewin, 331 Gundelsheimer ads. Candee, 159, 165 Gwinits ads. Yale,. . .21, 24, 25, 157 Gwydir, Lord v. Camptell, .... 698 G. Hacker ads. Codwise, . 813 Hague ads. Am. Bible Society, 721 PAGE. Hale «. Thomas, 227 Hall ads. Conokin, 268 Hall V. Hall 377 Hall 0. Partridge, 451, 454 Hallo. Storer 348 Hall «*. Wheate 329 Hallett ads. Low, 95 Hallock V. Woolsey 761 Halsey ads. Le Roy, ." 181, 185 Hamilton v. Morris, 487 Hamlin v. Coursen, 667 Hammersley v. Parker, 175 Hammond v. Hammond, 569 Hanbury v. Litchfield, 699 Hanbury v. Walker, 386 Haner d. Bliss, 5 Handford 1). Storle,. 724 Hanford v. Hanford 522 Hanks v. Hanks, 521 Hanks, matter of, 619 Hannan v. Osborn, 481 Hannay V. Pell, 152 Hapgood ads. Hinman, 75 Hardman ads. Omerod, . > . . . . 330 Harden ads. Knight, 341 Hare i>. Rose, 36 Harewood, Lord, ads. Milner, . . 374 Harford v. Furrier 342, 344 Harmony v. Bingham, 33 Harrington v. Wheeler, 341 Harris v. Bej^ett, 133, 138 Harris v. CiJkP, 247 Harrisu. FI^ 236 Harrison v. Armitage, . . . 649, 650 Harrison v. Coppard, 342 Harrison ads. Courtois, . . 194, 199 Harrison ads. Soattergood, .... 70 Hart V. Deamer 549 Hart V. Hudson, 59 Hart «. Phillips, 726 Hart V. Seixas, 430 Hart V. Trotter 97, 98, 813 Hartford Fire Ins. Co. «. Mc- Laren, 277 xxvm TABLE OF CASES. Harvey ads. Edwards, 341 Hase ad». Emery, 699 Hasewell v. Penman, 199 Hasker v. Sutton, 340 Hastings, ex parte, 592 Hastings v. Palmer, 114 Hatch T,. Weyburn, 167 Havilan v. White, 757 Hawkins v. Bradford, . . . 129, 801 Hayes ads. Glascock, 224 Haycock, ex parte, v. Jones, . . . 595 Haywood v. Judson, 432 Hazard, matter of, 415 Heartt v. Corning, 657 Heartt ads. Gardner, 235 Heath .i>. Heath, 700 Henderson v. Molver, 69 Henry v. Lowell '. 122 Henry . Rigby, 721, 724 Lawlin ads. Jones, 167 Lawrence ads. Dunkin, 202, 206, 208 Lawrence ads. Farmer's Delight, 684 Lawrence v. Lawrence, . . . 574, 575 Lawrence 1). Murray, 79, 278 Lawson ads. Nightingale, 68 Lawson ads. Sale, 174 Lawton v. Sager, 303 Layman v. Whiting, 235 Leacocke, in the matter of, ... . 583 Leavitt ads. Curtis, 307 Leaycroft v. Fowler, 7 Leohmere v. Brasier, 325, 333 Lee V. Lashbrooke, 664, 666 Lee V. Tillotson, 1, 67 Lee w. Willock 13, 748 Leet Qife. Post, 273 Lefevre v. Laroway, 348, 476, 481, 489 Le Grand v. Whitehead, 330 Le Heup's Case, 584 Lent ads. Meyer 4, 812 Le Roy v. Halsey, 181, 185 Lespinasse v. Bell, 312 Levert v. Redwood, 17 Lewin v. Guest, 331 Lewis ads. Dorlon 20 Lewis V. Loxham, 342 TABLE OP CASES. XXXI PAGE Lewiston, matter of commrs. of, 787 Liddeard ada. Bidden, 63 Lindigren ads. Blaokteard, , . , , 326 Lindsay v. Sherman, 163 Litchfield ads. Cook, 721 Litchfield ads. Hanbury, 699 Litton ads. Brown 664 Livingston v. Newkirk, 697 Livingston ads. Croghan, 488 Livingston, the matter of, 584, 624 Lockwood ads. Kelly, 213 Logan V. Logan, 576 Long ads. Calkins, 513 Longfellow v. Longfellow, 569 Lonsdall, Lord, v. Church 247 Loomis V. Brown, 226 Loomis ads. The National Fire Ins. Co., 268, 275 Loomis ads. The Marine Fire Ins. Co., 264 Lord Bangor, matter of, 582 Lord Camelford ads. Pitt 13 Lord Grwydir v. Campbell, .... 698 Lord Harewood ads. Milner, ... 374 Lord Lonsdall v. Church, 247 Lord Massarene ads. Hutchin- son 307 Lorillard ads. Baker, 397 Louis V. Ridge, 724 Lovett V. Rogers, 47 Low II. Austin, 685 Low V. Hallett 95 Low ads. Potter, 188 Lowell ads. Henry, 122 Ludington v. Taft 75, 122 Ludlow, ex parte, 582, 583, 585 Luke ads. Gardiner, 452, 454 Lumley ads. Balmanno, . . . 323, 324 Lusher t). Walton 89, 95 Lyddall «. Weston, 700 Lyle V. Clason, 151 Lynch ads. Stoughton, 657, 662, 671, 674 Lyndea*. Bonesteel,.. 29, 62, 178 PAOE. Lyne, ex parte, 584 Lyonarfs.Groshon,715,719,720, 724 Lyons v. Blenkin, 729 Lytton ads. Price, 40 M. MoBrideu. The Farmers' Branch Bank, 159 MoCanly ads. Knowles 421 McClure ads. Anot, 235 MoComb ads. Ray, 322 MoCready ads. Davis 148 McCredie ads. Senior, 46, 48, 59, 50 MoCuUough V. Brodie, 8, 83 McElwain ads. Dickinson 76 McGrowen v. Wilkins 269 Mcintosh ads. Scott, 3 Molver ads. Henderson, 69 McKay ads. Hulbert, ..36, 288, 290 297, 300, 301 McKillip V. McKillip 587 McLaren v. Charrier, 80 McLaren -v. The Hartford Fire Insurance Company, 277 McMahon i>. Allen, 129 MoMaster D. Booth, 85, 93 McMillen ads. Eomaine 477 McNamara ads. Purcell, 54 Macnamara ads. Rigby, 487 McNeill ads. Burroughs, 68 McNeil V. McNeil, 521 Macondray v. Wardle, 187 McQueen u. Farquhar, 331, 341, 343 MoEae v. McKenzie, 666 McVickar v. Constable, 348 Magennis v. Fallon, 330, 331 Magnetic Telegraph Company ads. Landsberger 124 Main ads. Bishop, 141 Main v. Pope 79, 133, 136 Maitland ads. Wheeler, 15, 101 Malcom ads. Salter, 39 Malingo. Hill 341, 344 xxxu TABLE OF CASES. PAGE. Manhattan Co., Denny and The President &o. of, 790 Mann ads. Jackson, 103 Margravine of Anspaoh v. Noel, 325 Marlborough, Duchess of ads. Wheat, 13 Marine Fire Ins. Co. v. Loomis, 264 Marquis of Townsend v. Stang- room , 344 Martin ads. Chennell, 11 Martyr ads. Powell 344 Mason, matter of, 396 Massarene, Lord, ads. Hutchin- son, 307 Masterson ads. Kain, 271 Masterton v. Howell, 95 Matlock V. BuUer, 325 Matthews ads. Castle 431 Matthews ads. Kershaw, 309 Maule ads. Crawshay, 669 May w. May 274 May ads. People, ex rel. Dayton, 764 Mayor of the City of N. Y. ads. Sharp, 91 Mayhee ads. Hunt 122 MayhewflfZs. Dudley, 166 Mazetti v. N. Y. and Harlem R. R. Co., 149 Mechanics' Fire Ins. Co. v. Samhler, 83, 92 Meeker ads. Forbes 43 Mechanics' Bank v. Edwards, . 293 Meigs ads. Robinson, 270 Merchant ads. Foster, 592 Merritt v. Annan, 110, 176 Merryfield v. Jones,' 210 Mersereau v. Myers, 75 Merwiu ads. Every, 114 Meserole ads. Commissioners of Bushwiok, 772 Mestaer v. Gillespie, 699 Methodist Churches of N. Y. v. Barker 209, 214 Meyer v. Lent, 4, 812 PASS. rs. Turner, 549 Milbank v. Eevett 309 Mildmary, ex parte., 584 Miles ads. Kirkman 698 Mill ads. Portman 337 Millard ads. The Farmers' Loan and Trust Company, 304 Miller ads. Burrows 714 Miller v. Case, 292 Miller v. Hooker, 93 Miller V. Miller 575 Mills v. Thursby 94 Miller v. Wilson, 737 Milligan v. Cooke 699 Mills V. Van "Voorhis, 332 Milner v. Lord Harewood, .... 374 Minard ads. Dunham, 267, 461, 488 Mitchell ads. Forbes, 376 Mix r. Mix, ......574, 576 Moffath V. Barnes, 247 Mollet ads. Pringle 223 Monell V. Monell 348, 383 Monks ads. Green, 74 Monroy v. Monroy, 569 Montgomery ads. Clark, . . . 350, 395 Montgomery v. Montgomery, 559, 561 Moor V. Welsh Copper Co 722 Moore ads. Baring 29 Moore ads. Durant, 49 Moore v. Frowd, •. . . . 70 Morehouse «. Cook, 357 Morgan ads. Brown, 183 Morgan ads. Burney, 724 Morgan v. Shaw, 324 Morgan ads. Wynn, 325, 343 Morrell v. Dickey, 373 Morrell, matter of, 411, 426 Morrell v. Morrell, .536, 576 Morris v. Floyd 293 Morris ads. Hamilton, 437 Morris v. Husson 447 Morris ads. King 272 Morris v. Mowatt, .... 270, 803, 805 TABLE OF CASES. XXXlll FAOE. Morse v. Elmendorf, 699 Moras v. Morss 59, 109 Mosher ads. Sage 101 Mott ads. Bank 33 Mott ads. The Dutch Churoli in Garden Street, 329 Mott V. Walkley, 265 Mouolion ads. AUard, 152 Moulton V. Moulton 616 Mount ads. Thompson 267, 270 Mousley v. Basnett, 720 Mowatt ads. Morris 803, 805 Mower v. Kip, 246 Muir ads. Howe, 75, 76, 79, 133, 134 Mumford v. Murray, 668 Munger ads. Flagg, 812 Murfey v. Brace, 14, 150 Murphy ads. Jackson, 106 Murray ads. Fornshill, 510, 558, 561 Murray ads. Lawrence, 79, 278 Murdock v. Empie, 271 Myers v. Wade, 376 N. Nanny ads. Denton, 294 National Fire Insurance Co. u. Loomis, 268, 275 Neafie v. Neafle, 723 Neal's Case, 582, 584 Nearing v. Bell, 113 Nelson ads. Smith, 343, 344 Neve V. Western 724 Nevins ads. The People, 179 New V. Jones, 71 Newall V. Smith, 342, 344 Newhurgh, Lord, v. Wren, . . . 723 Newdigate ads. Stead 698 Newkirk ads. Livingston, 697 Newland v. West 14, 101 New York and Harlem R. E. Co. ads. Mazette, 149 New York Central Mills ads. Shearman, 204 Niagara, Bank of, 322 K. E PAGE. Nightingale v. Lawson, 68 Niles ads. Ford, 114 Niver v. Rossman, 76, 79, 132, 133 Noble V. Cromwell, 454 Noel ads. Margravine of Ans- pach, 325 North ads. Price 332 Norton ads. The People, . . 194, 597 Norton v. Whiting, 303 Noye ads. Powell, 662 o. Oakley ads. The American Ins. Co., 267,268, 274 O'Brien v. English, 49 O'Donel v. Browne, 226 Ogden V. Bodle, 720 Ogilvie ads. Duguid, 52, 57, 72, 128 Olalield v. Round 341 Oldham acTs. Taylor, 729, 731 Oliver ads. Eay 262, 477 Oli ver t) . The Trustees of Spring- field 26 Omerod v. Hardman, 330 O'Neil ads. Shepherd 293 Onondaga, Supervisors of, v. Briggs, 814 Ontario Bank v. Strong, 249 Orr'sCase 158,175, 184 Osbaldeston v. Askew 330 Oshorn ads. Haman, 481 Osborne v. Betts, 79 Osgood V. Osgood, 569 Otis V. Spencer, 142 Otway ads. Holdipp, 247 Owen V. Dupignac, 173 Owen V. Foulkes, 487 Owen V. Owen 729 P. Packer «. French, 53, 57 Palmer v. Danby, 375 Palmer ads. Hastings, 114 Palmer X). Palmer, 660 XXXIV TABLE OP CASES. Palmer ads. Stelle, 808 Paine ads. Bishop of Winohes- ter, 341, 344 Parlier ads. Hammersley, 175 Parlier v. Parker 517, 536 Parker v. Snell, 92 Parker ads. Thompson, 124 Parker ads. White, 348, 371, 372, 373, 382, 384 Parkes ads. Wake 724 Parkins ads. Ryckman, 322 Parsons v. Suydam, 112, 141, 147, 150 Parthner ads. Attorney-General, 625 Partridge ads. Hall, 451, 454 Paton V. Rogers 325, 338 Patrick ads. Arnold, 292 Payn , in re 581 Peacock t). Peacock, 308, 664 Pearson v. Lane, 698 Peet V. Worth, 124 Peck V. Yorks 141 Peckford v. Peckford, 574 Pell ads. Hannay, 152 Penman ads. Hasewell, 199 People V. Baker, 776 People ex rel. Drismer v. Barter, 774 People V. Barber, 754 People V. Commissioners of Cherry Valley, 774 People exrel. Flint v. Cline, 757, 773 People V. Commissioners of Highways, . . . 757, 761, 773, 774 People V. Cunningham, 121 People ex rel. Dayton ». May, . . 764 People V. Goodwill , 773 People ex rel. Disosway v. Flake 754, 762, 765, 772 People V. Hovey, 516 People V. Hulbert,. . .174, 193, 198 People V. Humphreys 525, 557 People V. Judges of Herkimer, 769 People V. King, 193, 194 People V. Nevins 179 PAGE. People V. Norton, 194, 597 People V. Rogers, 47 People V. Wilcox, . . . .349, 357, 377 Ferine v. Dunn, 722 Perit V. Wallis, 247 Perry v. Perry, 531 Pett ads. Robinson, 70 Pettit, in the matter of, 607 Phelps ads. Clark, 764 Phelps ads. Fraser, 43, 62, 178, 189 Philips V. Belden, . . . 662, 663, 664 Philips ads. Hart, 726 Philips V. Turner, 664, 666 Phillips ads. Beardmore, 315 Phillips ads. Burchard,... 293, 306 Pickford V. Hunter, 721 Pierce v. Alsop, 805 Pierson v. Shore, 377 Pincke V. Curties 342 Pinkerton ads. Scott, 654 Pitclier V. Carter, 397 Pitt ads. Langford, 325 Pitt V. Lord Camelford, 13 Pleasants v. Roberts, 343, 487 Plets ads. Hudson, 184, 188 Pollard ads. Fletcher, 657 Pond V. Curtiss, , 374 Poole V. Shergold 327, 328 Pope ads. Main 79, 133, 136 Portman v. Mill 337 Posey ads. Donaldson's admrs., 669 Post V. Leet, 273 Potter V. Low 188 Poughkeepsie and Salt Point Plank Road Co. ads. Keeler, . 91 Powell ads. Jones 729 Powell V. Martyr, . . . , 344 Powell J). Noye, 662 Powell V. Wallworth 227, 724 Powis ads. Burt, 18 Pratt V. Styles, 80, 141 Prendergast v. Eyre, 331 Price V. Lytton, 40 Price D. North, 332 TABLE OF CASES. XXXV PAGE. Prince ads. Foster, 194 Pringle v. MoUet 223 Prior ads. Fleming, 724 Proude «. WMton, 632 Proctor ads. Chuning, 246 Proctor, ex parte, 584 Proctor ti. Parnham, 266 Protection Co., N. J., ads. Bar- cnlows, 193 Pudney J). Griffiths, 161 Pultney v. Warren, 226 Puroell V. McNamara, 64 Purcell V. Purcell, 571 Purrier ads. Harford, 342, 344 Putnam ads. Green, 432 Pynliam ads. Walters, 342 R. Rangan and others ads. Rogers, 758 Ranson v. Davis's Adm'rs, ... 98 Raphael ads. Cockburn 315 Ray V. McComb, 322 Ray u. Oliyer, . „ 262, 477 Read ads. Bryan, 329 Reardon ads. Johnston, 73 Reddington ads. Bocock 623 Redfield ads. Silmser, 85 Redwood ads. Levert, 17 Rees ads. Bennett, 326 Reeve v. Dalby, 724 Regua a. Rea 268, 274 Ressegieu ads. Hill, 698 Revett ads. Milbank, 308 Reybold v. Dodds, Adm 666 Reynolds ads. Aldrich, 219 Reynolds ads. Deaver, 488 Reynolds v. Reynolds, . . . 432, 462 Rice ads. Aislabie 340, 343 Rice V. Welling, 148 Richards v. Allen, 131, 750 Richard ads. Kemeys, 150 Richardson's Ex'ors v. Wyatt's Ex'ors, 665, 666 Richley ads. Dederick's Admin- istrators 82, 83 Riohmoud «. Richmond, 138 Rider v. Kidder, 49 Ridge ads. Louis, 724 Rigby «&. Law, 721, 724 Rigby V. Macnamara, 487 Ripley v. Waterworth, 698 Roach V. Garvain, 386 Robert v. Ditmas, 631, 635 Roberts v. Carter, 14 Roberts v. Jackson, 376 Roberts, matter of, 624 Roberts ads. Pleasants, .... 343, 487 Robinson ads. Franklin 666 Robinson ti. McGregor, 503 Robinson «. Meigs, 270 Robinson v. Pett, 70 Rodman v. Henry, 159, 179 Roe V. Hodgson, 371 Rofif ads. Aymar 552 Rogers v. Rogers, 512 Rogers v. Cruger, 377 Rogers v. Ball, 396 Rogers ads. Drake, 757 Rogers ads. Lovett, 47 Rogers ads. Paton, 325, 338 Rogers v. Rangan and others, 758 Rogers ads. The People, 47 Romaine v. McMillen, 477 Roniayne ads. Astor 265 Root ads. Ubsdell, 98 Rose V. Calland, 324 Rose ads. Hare, . , 36 Rose velt ads. Fulton , 728 Rossman ads. Niver, 76, 79, 132, 133 Round ads. Oldfield, 341 Ruffin ads. Hodder, 328 Russell u. Lane, 634 Rirssell ads. Yates, 104 Rutter, ex parte, 55 Rutter V. Tallis, 318 Ryckman v. Parkins, 322 XXXVl TABLE OF CASES. s. PAGE, Saokett ads. Ayrault, ... 72, 73 125 Safford V. Safford, 508 Sage V. Mosher 101 Sage ads. Williams, 102 Sager ads. Lawton, 303 Sale V. Lawson, 175 Salisbury v. Scott 95 Salter v. Malcolm, 39 Samble v. The Mechs. Fire Ins. Co. 83, 92 Sandford ads. Barron, 807 Sandford u. Carr, 186 Sandford v. Churoli, 182 Sands ads. Bird, 56 Sands v. Craft, 632 Sanxter ads. Eaton 699 Saunders, in re, 596 Scattergood v. Harrison, 70 Sohermerhorn v. Develin, 72, 128 Soliermerhorn ads. The Albany City Bank, . . 45, 48, 49, 50, 179 Schermerhorn v. Van Alen, . . . 153 Schieffelin ads. Field, .... 371, 374 Sohultz V. Whitney, 138 Scott, qui tarn, v. Brest, 313 Scott ads. Champernoun, . . 13, 74 Scott V. Mcintosh, 3 Scott V. Pinkerton, 654 Scott V. Shufeldt 559 Scott V. Thorp, 324 Scranton v, Baxter 149 Seaman v. Duryea, 385 Seaman v. Hicks, 270 Seaman, in the matter of, 365, 426 Sedgwick ads. Jackson, . . 656, 665 Sedgwick v. Fish, 264 Seeley v. J^bson 42, 43 Seeley ads. Hyatt, 696, 712 Seixas ads. Hart, ' 430 Senior ads. McCreadie, 46, 48, 49, 50 Sergeson v. Sealey, 549 Seymour v. Delaney, 330 Seymour ads. Hobson, 92 Shackles ads. Holdemess, 665 Sharp V. Adcock, 330 Sharp V. The Mayor, &c., of the City of New York, 91 Sharpsteen ads. Wadsworth, . . 581 Shaw V. Ayres 95 Shaw ads. Morgan 324 Shearman v. The N. Y. Central Mills, 204 Shelden ads. Garcia 7 Sheldon ads. Bowman, 92, 813 Sheldon ads. Garcie 402, 403 Sheldon v. Wood, 84, 86 Shepherd v. O'Neil, 293 Shergood v. Poole 327, 328 Sheriff v. Axe, 70 Sherman ads. Lindsay, 163 Sherwood v. The Buffalo and New York City R. R.,. . 160, 195 Shirley v. Ferrers, 657 Shirling ads. Davis 663 Shore ads. Pierson, 377 Shottenkirk ads. De Ponclear, 148 Shuart D. Taylor, 157 Shultz D. Whiting 19 Shumway v. Shumway, 428 Sickles V. Fort 58, 105 Sldden v. Liddeard, 63 Silk ads. Paulder 549 Silmser v. Redlield, 85 Simpson v. Brewster, 722 Simpson ads. Ten Eiok 369 Skip ads. West 666 Slack V. Crooke 685 Sladev. Slade, 340 Slate ads. Griffing 228 Slee ads. Washington Ins. Co , 263 Slocum a&. Holmes, .... 102, 544 Slocum V. Watkins 58 Sloo ads. Ten Broeck, 181 Sloper V. Fish, 330 Smedes v. Houghtaling, 248 Smetliurst, in the matter of, . . 43 Smith ads. Backus 90 TABLE OF CASES. XXXVU PAGE. Hmitli ads. Bray ton, 262 Smith ads. Deas, 105 Smith 1). De Sylva, 665 Smith V. Dodd, 93, 98 Smith «&. Hibbard, 696 Smith ads. Hyde, 372 Smith V. Johnson, 191 Smith V. Nelson, 343, 483 Smith ads. Newall, 342, 344 Smith V. Scandrett, 315 Smith V. Smith, 450, 514, 515, 537, 538 Smitli V. Thompson, 26 Smith V. Webster, 17 Smyth ads. Avery 642, 644 Smyth ads. Comyn 322 Smyth ads. Waring 235 Snell ads. Parker, 92 Sneyd ais. Kilbee, 74 Snyder v. Stafford, 264, 282 Southwick ads. Weeks, . . 204, 208 Spelman ads. Borst 147 Spencer v. Cnyler 161 Spencer ads. Otis, 142 Spencer «rfs. The President, &c., of the Bank of Genesee, 163, 191 Spring V. Sandford, 267, 455 Spring Valley Shot and Lead Company v. Jackson, 124 Squire ads. Fuller, 814 Squire v. Young 159 Stofford V. Heskeeth, 124 Stafford, Lord, ads. Gage, 714, 716, 724, 729, 733 Stangroom ads. Marquis of Townsend, 344 Stapylton v. Scott 329 State Bank ads. Att'y General, 668 State, The, ads. Farkington, . . . 525 State of Maryland v. Wayman, 247 Stead V. Newdigate 698 Steadman v. Feidler, 685 Steene ads. Tomlin, 700 Stevens v. Strong, .... 54, 101, 102 PAGE, Stephenson ads. Eisdale 338 Stevens ads. Foot, 430 Stevens v. Fulton 729, 730 Stelle V. Palmer, 808 Stevens v. Stevens, 730 Stevens ads. Varian, 431 Stewart u. Elwele 92 Stewart v. Foster 164 Stewart v. Turner, 3, 112 Stiles, matter of, 411 Stiles ads. Pratt 80, 139 Stilwell V. Mills 384 Stilwell V. Staples, 124 Stilwell ads. Trimble, .... 121, 151 Storie v. Wishart, 314 Storer ads. Hall, 348 Storie ads. Handford 724 Storrs ads. Williams 372 Story V. Brown, 660 Stanghton v. Lynch,667,662,668 671 St. Paul ads. Brodie, 344 St. Peter's Church «<&. De Ruy- ter, 292 Stratford v. Bosworth 344 Stafford, Earl of ads. Jones, . . . 720 Strode ads. Casamajor 331 Strod ads. Hutchings 340 Strong V. DoUner, 277 Strong ads. Ontario Bank, 249 Strong ads. Stephens, 54 Sucumb ads. Fitzgerald 720 Sudam v. Swart, 5& Suelthorpe v. Burgess, 748 Sullivan v. Sullivan, 729 Sutphen v. Fowler, 699 Snlton ads. Hasker, 340 Suydam ads. Parsons, 112, 141, 147, 150 Suydam ads. Tracy, 633, 635 Swart ads. Sudam, 56 Swartwout v. Swartwout, 377 Swift V. Wells, 92 Sweet V. Jaoocks, 292 Symonds ads. Davis, 340 XXXVlll TABLE OF CASES. T. PAGE. Tabler v. Wiseman, 64, 31 Tait ads. Ludington 75, 122 Tallis ads. Eutter 318 Tallmadge ads. Genet, 369, 371, 372 Tappen ads. Jansen, 87, 812 Taylor v. Oldham 729, 731 Taylor ads. Shuart 157 Taylor, the matter of, 685 Taylor D. Wood, 112 Telford ads. Johnson, 69; 71 Ten Eick u. Simpson, 369 Ten Broeck v. Sloo, 181 Tennant's Exr's v. Gray, 247 Terry ads. Duval 227 Thomas ads. Elmore, 4 Tliomas ads. Enos, 87 Thomas ads. Hale 227 Thomas v. Thomas, 567 Thompson v. Dimond, 269 Thompson v. Krider, 102 Thompson v. Mount 2G7, 270 Thompson v. Parker, 124 Thompson ads. Smith, 26 Thompson adi. Veltman 685 Thorp V. Freer, 340, 343 Thorp ads. Scott, 324 Thursby arfs. Mills, 94 Tiffany cds. Wilkinson, 77 Tillotson, matter of, 405 TiUotson ads. Lee, 1, 67 Todd V. Cooke, 200 Toll V. Hillier 267 Tillou V. Vere 167 Tompkins ads. Woolsey,.. 760, 610 Tomlin v. Steene 707 Tooker ads. Corning, .159, 162, 183, 184, 186 Tottenham, in re 585 Townley u. Bedell, 697 Towusend, ex parte, 663 Tracy v. Snydam , 633, 635 Travis ads. Waters, 699 Tremain's Case, 377 FAGE, Trezevant v. Fraser 301 Trigg V. Trigg, 66 Trimble ads. Hord 217 Trimble v. Stilwell, 121, 151 Tripp V. Cook, 273 Trotter ads. Hart, 97, 98, 813 Trotter v. Latson, 62 Troyne ads. Inwood, 376 Trust V. Trust 522 Trustees of Springfield ads. Oli- ver, 26 Turner ads. Davis 177, 200 Turner ads. Kirby, 375, 378 Turner v. Meyers, 549 Turner ads. Stewart, 3, 112 Turner v. Turner, 14, 516, 521 Troyne ads. Inwood 376 Trust V. Trust, 522 Trustees of Springfield ads. Oliver 26 Turner ads. Davis, 177, 200 Turner ads. Kirby, 375, 378 Turner v. Meyers, 549 Turner ads. Stewart 3, 112 Turner v. Turner, 14, 516, 521 u. Ubsdell V. Root, 98 Ulster and Delaware Plank Road Co. ads. Keator 7, 107 Underwood ads. Clark, 373 Union Bank v. Mott, 33 United States v. Arnold, 247 Utica City Bank v. Buel, . . 174, 175 V. Vallanoe v. King 152 Valleau v. Valleau, 515 Van Aernam v. Van Aernam, 525 Van Alen ads. Schermerhorn,. 153 Van Antwerp ads. Clowes, .... 395 Van Arsdale v. Drake 450 Van Cott ads. Franklin, 296 Van Couver v. Bliss 340 TABLE OF CASES. XXXIX Vandevbilt, matter of, 47, 48 Vanderbrek ads. Billings, 7, 18, 57, 155 Vanderburg ads. Belting, 159 Vandervoort v. Col. Ins. Co., 106 Vandewarter ads. Ives, 96 Van Epps v. Van Dusen, 372 Van Epps v. Van Epps, 523 Van Geesen ads. Puller, 277 Van Knren ads. Wheeler, 293 Van Noatrand ads. Dougherty, 667, 670 Van Rensselaer v. Gallup, .... 114 Van Rensselaer v. Jewett, 92 Van Sickler v. Graham, . . . 644, 645 Van Steenburgh v. Hoffman, . . 150 Van Voorhis ads. Mills, 332 Van Wyok v. Bradley, 193 Varian v. Stevens, 431 Vassall ads. Poster, 715, 721 Veeder v. Ponda, 273 Veeder v. Whipple, 269 Veltman v. Thompson 685 Vidler ads. Brown, 669 Vincent ads. West 487 Vere ads. TiUou, 167 Voorhies v. De Meyer, 330 Vulte V. Whitehead, 164 w. Wade ads. Myers 376 Waggoner ads. Gumming, 48 Wake V. Parkes, 724 Walker v. Blackwell, 684 Walker v. Walker, 386 Walklpy ads. Banks 267 Walkley ads. Mott, 265 Waller ads. Hillary, 700 Wallis ads. Perit, 247 Walters ads. Lusher 39, 95 Walworth ads. Powell . . . 227, 724 Wambaugh v. Gates, 803 Ward ads. Jones, 371 Wardle ads. Macondray 187 PAGE. Wardsworth v. Sharpsteen, . . . 581 Waring v. Smyth, 235 Waring v. Waring, 487 Warren ads. Pultney, 226 Wade ads. Emery 421 Washington Ins. Co. v. Slee, 263 Waters v. Travis, 699 Waterworth ads. Ripley, 698 Watkins ads. Slocum, 58 Watson V. Campbell 14 Way ads. Allen, 5, 80 Webster ads. Smith, 17 Weed V. Ellis, 374 Weed V. Kennedy, 166 Weeks v. Southwiok, 204, 208 Weems v. Brown 487 Wolland ads. Balfour, 325 Welling ads. Rice 148 Wells ads. Swift 92 Welsh Copper Co. ads. Moor, . . 722 Wenman's Case, 583 Wentworth r. Candee, 152 Worry ads. Lannoy, 223 Werss V. Dill, 69 West V. Frazei-, 193 West ads. King 45, 292 West ads. Newland, 14, 101 Westi). Skip, 666 West «!. Vincent, 487 Weston ads. Fairfield, 318 Weston V. Paulker, 49 Weston ads. Neve 724 Weston ads. Lyddall, 700 Weyburn ads. Hatch, 167 Whalen v. Board of Supervisors of Albany Co., 107 Wheate ads. Duchess of Marl- borough, 13 Wheate v. Hall, 329 Wheeler B(fe. Harrington, 341 Wheeler v. Maitland, 15, 101 Wheeler v. Van Kuren,. , 193 Whispell V. Whispell,. . . 614, 631 Weitbread, fa;^a)ie, 691, 593 xl TABLE OF CASES. PAGE. White, Matter of 597 "White V. Carpentier, 292 White V. Coatsworth 814 White ads. Haviland 757 White V. Parker, 248, 371, 372, 373, 382, 384 Whitehead ads. Le Grand, 330 Whitehead ads. Vnlte, 164 Whipple ads. Collier 273 Whipple ads. Veeder, 269 Whiting ads. Layman, 235 Whiting ads. Norton, 303 Whiting ads. Solmltz, 19, 138 Whiting ads. Proud, , . 632 Whitlock ads. Johnson, . . 128, 142 Whitney v. Belden, 311 Wicker ii. Dresser, 183 Wightman v. Wightman, 545, 459 Wilcox ads. the People, 349,357, 377 Wilde V. Jenkins, . . . 451, 452, 454 Wilde «>. Joel, 209, 210, 213,219, 226 Wiles ads. Hiilsaver, 161, 162, 163, 177, 191, 200 Wiley V. Angel 255 Wilkins ads. MoGowen 269 Wilkinson v. Tiffany, 77 Wilkinson v. Wilkinson 69 Wilks ads. Bisooe 341 Willet ads. Bedle, 89 Williams ads. Calvary, 343 Williams v. Estate of Cameron, 604 Williams v. Sage, 102 Williams v. Storrs, 372 Williams i). Williams, 569 Williamson w. Dale, 273 Williamson v. Williamson, . . . 513 Willock i>. Lee, 13, 748 Wilson V. Andrews, 191 Wilson V. Abrahams, 26 Wilson V. Clapham 344 Wilson ads. Clapp, 121 Wilson ads. Francis 247 Wilson V. Greenwood, 667 PAGE. Wilson, matter of 399 Wilson ads. Miller, 737 Winans ads. Faure, 246 Winch II. Winchester, 332 Winchell v. Latham, 148 Windle, matter of, 712 Winter adi. Bunbury, 313 Wiseman ads. Tabler 431 Wiser ?;. Blaohly, 384 Wishart ads. Stone, 314 Wolcottv. Weaver, .... 235, 241 Wood ads. Crowner, 87 Wood ads. Fish, 148 Wood ads. Graham, 87 Wood ads. Sheldon, 84, 86 Wood ads. Taylor, 112 Wood V. Wood, 513, 515, 516, 567, 569 Woodin V. Bayley, 635 Woodin V. Foster, 147 Woolsey ads. Hallock, 761 Woolsey v. Tompkins,. . . 760, 761 Worden v. Worden,.. 74, 571, 576 Worsley v. Worsley 513 Worth rt&. Peet, 124 Wortley ads. Crofts, 722, 724 Wren ads. Lord Newbnrgh, . . . 723 Wright V. Delafield 324 Wyatt's Executors ads. Richard- son's Executors 665, 666 Wyckoft a&. Combs, ... . 150, 151 Wyman u. Hooper, 416 Wyun V. Morgan, . . . 325, 342, 343 Wyvill V. Wyvill 340 Y. Yalei). Gwinits, .. 21,24,25, 157 Yates V. Russell, 104 York Buildings Co. ads. Hug- gins, 723, 724 Yorks ads. Peck, 141 Young ads. Fearns, 69 Young ads. Hulbert, 351 Young ads. Squire, 159 THE LAW OF REFEREES. CHAPTER I. OF REFERENCES AND REFEREES GENERALLY. Section I. The constitutionality op eefeebnoes. 11. Propriety op a REPBitENCE. III. Referee's office a branch of the court. IV. Referees, aside from the Code. V. References where they are not reached by statute or standin RULES. VI. Rbpeebes under the Code. VII. KUMBER of referees.' VIII. From what time a referee should act, IX. Referee's report and certificate, X. Referees not restricted in their powers to their own county. XI. Change op referees. SECTION I. THE CONSTITUTIONALITY OF REFERENCES. It has been made a point tliat a reference is uncon- stitutional, from the fact that a party has a right to a trial by jury ; but previous to the adoption of the State Constitution, references were known and sanc- tioned. " But it is said," observed Judge Cowen, in Lee V. Tillotson (24 Wend., 338), " the right to refer ^ THE LAW OF REFEEEES. is absolutely unconstitutional, as being contrary to the seventh article of the amendment to the Consti- tution of the United States. That, however, relates to such courts only as sit under the authority of the United States. In respect to the forms of proceed- ing in suits, the Constitution and laws of the United States are regarded as those of a foreign government. " But the seventh article (§ 2) of our own Consti- tution declares, that ' the trial by jury in all cases in which it has been heretofore used shall remain invio- late for ever,' and the case before us is supposed not to come within the exception. It is a satisfactory answer, however, that references as broad as that now contended for by the plaintiff, were sanctioned by statute and practised by the courts long before the adoption of the Constitution." SECTION II. PKOPEIETT OF A EEFEEENCE. Where matters in controversy between parties involve the examination of long accounts, unmixed with any question of law, it is most proper and con- venient, instead of submitting the controversy to a jury — a mode of trial ill adapted to the unraveling and investigation of the multifarious and complicated transactions which frequently occur in the course of mutual dealing — to refer the cause to persons of skill and experience, who may, in a leisurely and deliberate manner, scrutinize the accounts of the OF REFERENCES AND EEFEREES GENERALLY. 6 parties and ascertain the balance justly due from one to the other. For this purpose (even aside from the provisions of statutes and Code) a compulsory power is lodged with the court, to order a reference. (Scott V. M'Intosh, 2 Campb. N. P., 238.) SECTION III. eefeeee's office a branch of the court. It may be fairly assumed — from the fact that refe- rees are judicial officers appointed by court, indeed officers of it — that their offices or places of conduct- ing a reference, will be looked on as branches of the court ; and that, in examinations there, both witnesses and counsel are to be governed by the same rules which would control them in a court of law. (See Steivart v. Turner, 3 Edwards' V. C. R, 458.) SECTION IV. REFEREES, ASIDE FROM THE CODE. While referees may have to be appointed pur- suant to the Code, and while it seems to have worked up weapons to use in all litigated actions, there are many highly important suits and proceedings which it has been unable to bring within its narrowed circle. And while, also, the Code has, of course, been obliged to recognize, it has left them to be worked through the old law which created them, 4 THE LAW OF EEFEEEES. coupled with the spirit of ancient rules. The con- sequence is, that referees still remain under active provisions of the Revised Statutes; and the Code itself, to help its own working, has to declare that every referee appointed pursuant to it, "shall have generally the powers now vested in a referee by law." (Code, § 421.) Thus, referees appointed under the Code, have to gather from the Statutes much of their powers and duties, in fact, the greater part of their duties and powers. A jury trial may be waived and a reference had by consent in all cases. (Code, §§ 270, 271, 253.) SECTION V. EEFEEENCES WHEEE THEY AEE NOT TOUCHED BY STATUTE OE STANDING . EULES. Referees, also, may be required, as they formerly were, in cases not directly touched by statute or standing rules (^Elmore v. Thomas, 7 Abbott's Pr. R., 70) ; and, in such cases, the proceedings will be con- ducted according to the customary practice as it has heretofore existed in the Court of Chancery and Su- preme Court. (Rule 93 of the Supreme Court.) If affidavits, on a motion, are not sufficiently de- finite and certain, the court can order a reference of the question. {Meyer v. Lent, 7 Abbott's Pr. R., 225.) OP REFERENCES AND REFEREES GENERALLY. 5 SECTION VI. REFEREES UNDER THE CODE. The Code of Procedure recognizes referees in every stage of an action. They may be required to perform duties which attached to masters and exami- ners in Chancery and be authorized to take the place of judge and jury. Their duty, however, ends with the delivery and filing of their report (Allen v. Way, 3 Code Rep., 243), unless the court should send a matter back, from the duty imposed not having been fully performed. References under the Code may be looked at, through consent or compulsion. By consent : All or any issues in an action, whether of fact or of law, or even both, can be sent to refe- rees upon the written consent of parties (Code, § 270), except, however, where an infant is a party. In such a case it cannot so take place, for section 273 says : " In all cases of reference, the parties, ex- cept when an infant may be a party, may agree upon a suitable person or persons," &c., &c. Where a consent to refer to a particular person is signed, in an action not oljierwise referable, there can be no change of the person as referee by either side. In Haner v. Bliss (7 Howard's Pr. R., 246) (and which was a case not referable, save by mutual agreement), the respective attorneys had stipulated to refer the action to Mr. Maynard ; and the stipula- tion was delivered to the defendant's attorney to 6 THE LAW OF REFEREES. present to the court at the circuit and obtain the order. The defendant's attorney presented the stip- ulation, and, by mistake, named Mr. Irvine, the partner of Mr. Maynard ; and the reference Avas ordered to him and the rule so entered in the absence of the plaintiff's attorney. The defendant's attorney subsequently served a copy of the order of reference on the attorney for the plaintiff, who refused to con- sent to the reference as ordered; and, at a subse- quent circuit, on due notice, put the cause upon the calendar and took an inquest by default. A motion was made to set aside the inquest, on the grotind that the action had been previously referi-ed. The court denied the motion. Judge Johnson observed : " The Code (§ 270) provides, that all or any of the issues in the action, whether of fact or of law, or both, may be referred upon the written consent of the parties. In all cases of reference the parties may agree upon a suitable person or persons, not exceeding three, and the reference sliall be ordered accordingly. (§ 273.) Did this order, thus entered, take the cause out of court for the purpose of a trial 1 I think not. The plaintiff's consent was upon the sole condition that the cause should be referred to a particular person. But his consent was not acted upon. The dofendants undertook to move the court upon it, but, through inadvertence, failed to do so, and the order was entered referring the cause to another person, without the authority or consent of the plaintiff. I am clearl}^ of opinion that the plaintiff's standing in court was not in the least affected by this order. The statute was not followed OF REFERENCES AND REFEREES GENERALLY. 7 and the order was a nullitj. It was as mucli unau- thorized as though no consent whatever had been given. The defendant's counsel contends that the order of reference to Irvine instead of Maynard waa merely irregular, and operated as a valid reference "to the. latter until set aside. But this, I think, is a mistake. Suppose, in a case like this, there was no pretence of any consent and no application for a reference. Could the judge, of his own motion, make an order of reference which would he of any force or validity 1 Clearly not. It is the statute alone which gives the court the power to change the mode of trial ; and that power is given upon consent only, manifested by a writing. The consent in this case conferred no power or authority unless it was followed, and clearly it was not. The court had no jurisdiction to make the order which was made, and it was void. (Garcia v. Shelden, 3 Barb. S. C. E., 232.)" And see Billings v. Vanderheck (15 How. Pr. R, 295.) Although the Code (as above) provides that an action may be referred upon a "written consent" of the parties, yet, where they appear in court and verbally agree to a reference to a particular person as referee, the same will be binding. {Keator v. The Ulster and Delaware Plank R. Co., 7 How. Pf. R., 41 ; S. P. Leaijcroft v. Foioler, lb., 259.) On compulsion : When the parties do not consent, the court may, on the application of either or of its own motion, except xvliere the investigation ivill require the decision of difficult questions of law, direct a reference in the following cases: 1. Where the 8 THE LAW OF EEFEEEES. trial of an issue of fact shall require the examination of a long account on either side. In which case the referees may be directed to hear and decide the whole issue or to report upon any specific question of fact involved therein. 2. Where the taking of an account shall be necessary for the information of the court before judgment, or for carrying a judg- ment or order into effect. 3. Where a question of fact, other than upon the pleadings, shall arise on motion or otherwise, in any stage of the action. (§ 271.) By the Revised Statutes (2 vol., 354, § 40), the court could order a cause to be referred, whenever it was made to appear that the trial would " involve the examination of a long account on either side ; " by the Code, as we see, a reference may be ordered " where the trial of an issue of fact shall require the examination of a long account on either side." The language of the two statutes, prescribing the condi- tion on which a reference may be ordered, compul- sorily, is the same. {M' Cullough v. Brodie, 13 Barb. S. C. R, 346.) The objection to a reference, on the ground that an action will require the decision of difficult ques- tions of law must be made by the party who opposes the reference. {Barber v. Cromwell, 10 How. Pr. R., 351.) Before the Code, a reference would not be granted where it appeared that questions of law could arise. (J)e Hart v. Coioenhoven, 2 J. C, 402 ; Adams v. Barjlis, 2 J. R., 371.) OF EEFEEENCES AND EEFEEEES GENEEALLY. 9 The compulsol-y reference allowed under section 271 of the Code (subdivision 2), "where the taking of an account shall be necessary for the information of the court before judgment or for carrying a judg- ment or order into effect," is, in fact, the reference of the old courts of equity, such as was always made to a master in cases of accounting. The practice in Chancery, in such cases, was for the master to pre- pare a draft of his report and deliver it to such par- ties as desired it, and for the parties then to come in and file objections to such draft; and, after argument thereupon, the master made his final report. To this report, either party who had filed exceptions could take exceptions based upon such objections. (See old Chancery Rules, 109, 110; 1 Barb. Ch. Pr., 547.) These exceptions could be brought on before the court for argument and' nothing else in the accounts came up for review or examination. The report of the master was final and conclusive on all parties, in respect to all such matters, after the expi- ration of the order nisi. That practice, as far as relates to references like the one in this case, is still in force in respect to proceedings before referees. Section 469 of the Code, and the former 89th, now 93d Rule of the Supreme Court, expressly retain all the customary practice in Chancery as it had heretofore existed in that court in cases not provided for in some statute or other rule. {Ketchum v. Clark, 22 Barb S. C. R., 319.) e2 10 THE LAW OF EEFEEEES. SECTION VII. NCMBEE OF EEFEEEES. The number of referees cannot be more than three in any one case. There may be from one to three. (Code, § 273.) Some matters of reference embraced by the Re- vised Statutes, remain untouched (Code, § 471) ; and in these cases the number of referees fixed by those statutes remain. SECTION vm. FEOM WHAT TIME A EEFEEEE SHOULD ACT. It is customary to deliver to and leave with the referee a certified copy of the judgment or order of reference, under which he is to act, for his use ; and it would be irregular for a referee to issue a summons until such judgment or order was brought into his office. The possession of the judgment or order of reference by the referee is necessary, not only that he may know he has authority to execute the refer- ence and to summon parties to appear before him, but also to enable him to exercise a proper discretion in fixing a reasonable time for the service of sum- mons, notices and subpenas, in reference to the nature of the matters to be inquired into and the residence of parties and their attorneys. OF EEFEEENCES AND REFEREES GENERALLY. 11 The discretionary power committed to a referee, must be exercised in such a manner as to do justice to both parties ; and he should not permit the party who has the prosecution of the reference to fix the time and place thereof and the time of service of summons, &c., so as to suit his own convenience only. (1 Barb. Ch. Pr., 472.) SECTION IX. eefeeee's report and certificate. A referee approaches a court through what is called a report. Under the old practice in equity, a master would sometimes certify, although he would generally report. The Code appears to recognize, more especially, perhaps entirely, the word ''■report ;" and, no doubt, that, in all cases affecting the merits of a suit, there should be a formal report. However, in minor matters, a referee might still act through a certificate] Even under the old system, there appeared to be but little distinction between a certificate and a report. Vice-Chancellor Shadwell, after a very careful investigation of the subject, came to the con- clusion and expressed his opinion to be that there is no distinction between a report and a certificate ; and that master's reports and master's certificates are convertible terms. {Chennell v. Martin, 4 Sim., 340.) Still, although the point is merely one respecting terms, there may be considered a difference. The iQtxQ. report has been applied to those reports or cer- 12 THE LAW OP EEFEREES. tificates that are made upon a reference of issues or a reference by judgment, decree or judgment order upon which it is intended to ground a further judg- ■ment; whilst the term certificate has been more commonly applied to those reports or certificates which are intended merely as the foundation for some future interlocutory order or process and not intended as the ground of a judgment or a judg- ment-order. (2 Daniell, 934.) Gray, in his Country, Solicitor's Practice, at page 102, has neatly put the distinction : " Wherever a master has acted in obe- dience to the directions of the court, he informs the court, by a document in writing, what he has done or what conclusion he has come to ; in most cases this document is called his report, but in other cases it is called his certificate: a report being an instru- ment which conveys to the court information of various proceedings taken by the master and his conclusions upon them, which, in a degree, partake of the judicial nature; a certificate being merely information conveyed to the court that the master has performed some single act, generally of a minis- terial nature Certificates are usually applicable to matters of practice; whereas, reports, in general, affect the merits of a suit." Aside from what may be called a judgment-report (a report on the issues), a referee's report may be considered as made in pursuance of the inquiries directed by order ; and, commonly, each inquiry is answered seriatim. It is divided into two parts, the body and the schedules or schedule : the schedules are annexed to it. The body, is a short epitome of OF REFERENCES AND REFEREES GENERALLY. 13 tte proceedings laid before the referee, with Ms opinion and finding thereon. The body only con- tains the results of the accounts and refers to the schedule for detailed particulars. (2 Smith Ch. Pr., 147.) If it be referred to a referee to inquire as to a fact, it is not sufficient for him to state, in his report, the circumstances, and leave the court to draw the conclusion ; but the referee must draw his own con- clusion. {Dixon V. Dixon, 3 Bro. C, C 510(n.) ; Lee V. WiUocJi, 6 Ves., 605.) A referee should only state bare matters of fact and not set forth the evidence with his opinion upon it. (Dutchess of Marlborough v. Wheat, 1 Atk., 453.) Questions of intention are to be determined by the court, not by the referee. (Pitt v. Lord Camelford, 1 Ves., 82.) A referee, by his report, may state the reason why he has disallowed a claim ; and, in taking an account, may give special matter, although the judgment does not direct him to present any special circumstances. (Champernoun v. Scott, 4 Madd., 209 ; Anon., 2 At, 602.) A referee may eir and injustice might be done if his conclusions were conclusive. Every party to a suit, if dissatisfied with a referee's report, is at liberty to bring the point under the consideration of the court in the form of exceptions ; and where they may be too late for that, can ask for a review of it. After the confirmation of a report, a review will not be ordered, unless on a very strong case ; and objections affecting the substance of it will not be 14 THE LAW OF EEFEEEES. permitted, but mere mistake may be rectified {Turner v. Turner, 1 J. & W., 39.) Wyatt in his Practical Register, says: "After a report is con- firmed, the court will not easily (if at all) stir it upon pretense of an omission or mistake ; for the parties had sufficient time to except to it, and if they will not mind their business, it is their own fault." (p. 380.) It is a safe rule, and it has been long established, that the court will not interfere with the report of a referee on a question of fact, unless the clear weight of evidence shows that he has erred {Watson v. Campbell, 28 Barb. S. C. R, 421) ; or, that his find- ing is in direct violation of some rule of law. (Roberts v. Carter, lb., 426, referring to Davis v. Allen, 3 Comst, 168 ; Murfe^j v. Brace, 23 Barb. S. C. R., 561.) SECTION X. EEFEEEES NOT EESTRICTED IN THEIR POWERS TO THEIR OWN COUNTY. Although a referee generally is appointed in con- nection with duties or property within the cOunty where he resides, yet there does not appear to be any statutory restriction upon his sphere of action ; and it would seem that he may act in any county of the state. The same idea as we now suggest was applied to masters in Chancery. (1 Barb. Ch. Pr., 469.) In Newland v. West (2 J. R., 187), the court said, that OF REFERENCES AND REFEREES GENERALLY. 15 "there is no such thing as a venue in regard to a hearing before referees. The court, however, will take care that the place of their meeting be not so chosen as to be oppressive to the opposite party." And see Wheeler v. Maitland (12 How. Pr. R., 35). SECTION XI. CHANGE OP EEFEEEES. After a suit has been referred to a referee, it can- not be withdrawn from him without an order of the court. And such an order will not be made, unless on very special occasions : such as the incapacity of the referee, from illness, to attend to the business ; which, to justify such a removal, must be shown to be of a very urgent nature. (2 Dan., 791.) In one case, Lord Eldon directed a cause to be removed, on the allegation of counsel that he found the master in such a state, from his advanced age and infirmity, that it was not proper to go into the business before him. (^reore., 9 Ves., 341.) Where a referee dies, the court will appoint a suc- cessor. CHAPTEE II. WHAT A EEFEEEE CAN OE MAY NOT DO. Section I. Limited to statute powers. II. Disregard decisions op court. III. Act by proxy. IV. Act under undue influence. V. Strike out a complaint. VI. Amend pleadings. VII Strike out a party. VIII. Disregard variances. IX. Summon and notify all parties beneficially interested. X. Refuse to mark a party's attendance before him. XT. Depositions prepared and brought in. XII. Compel attendance op witnesses. XIII. Proceed ex parte. XIV. Examine viva voce or upon written interrogatories. XV. Commit for contempt. XVI. Open case for further testimony. XVII Verbally fix the time for meetings. XVIII. Proceed db die in djem. XIX. Power Ta grant adjournments. XX. Decline to pass on or decide a matter or claim before him. XXI. Referee as a witness. XXII. Refuse or accept testimony op a witness's character. XXIII Require production op books and papers without an okder of court. XXIV. Inquire into damages. XXV. Just allowances. XXVI- Postpone a sale. XXVIi. Hear further testimony. XXVIII. Referee's stating, out doors, the conclusions in advance of his report. XXIX. Full or brief report. XXX Costs and extra allowance. XXXI. Promptly pay over money. XXXIL Act after trial of issues and report made. XXXIII. liECEIVE FEES7 SECTION I. LIMITED TO STATUTE POWEES. Eefeeees, to wliom the issues of an action are left, are now vested with all needful authority over a "WHAT A EEFEEEE CAN OR MAT NOT DO. 17 cause, over its issues, over pleadings and over tlie parties to such extent as to preserve order, enforce obedience and determine every thing which properly belongs to the trial of the action. The theory of the Code, in this respect, as now amended (1857), seems to be that the referee is to try the action which the court has sent to him, and may exercise therein the powers expressly enumerated; but for every other purpose, the process in the action and the parties to the action remain in the court, and sub- ject to its control. {Billings v. Baker, 6 Abb. Pr. R, 217.) Under Chancery practice, a master's report was not to be respected which exceeded the terms of reference. (Beames' Orders, 23.) Nor had he power to dispense with or relax the general orders of the court. {Smith v. Webster, 3 My. & Craig., 21:4.) And so it must be with a referee. A reference will not authorize a report more exten- sive than the allegations and proofs warrant ; and a report which is erroneous on its face may be inquired into without any exception taken. {Levert v. Red- wood, 9 Port., 80.) SECTION XL DISEEGARD DECISIONS OF COUET. A referee has no right to disregard the decision of a general term of the Supreme Court upon a point similar to the one brought before him. If there be E. 3 18 THE LAW OF REFEREES. error in the view which the court itself may have taken, the power which erred has the power to cor- rect, but while it remains the law, it is binding as authority in all places until reversal by the Court of Appeals. {Burt v. Poivis, 16 How. Pr. R, 289.) " On questions of law," said Justice E. Darwin Smith, "judges and referees make frequent mistakes, and the more experience they have in judicial pro- ceedings, the more conscious they are to mistrust their first impressions and take a pleasure in correct- ing the error. ' There doubtless is much diversity of character among referees, as among judges, in res- pect to the pertinacity with which they adhere to opinions once formed ; but, whatever may be the pri- vate opinion of a referee upon the law of a case, every member of the bar of sufficient standing to be designated a referee will, I trust, so far respect him- self and the court, and knows too wellhis duty, not faithfully to conform to its decisions of the trial of any cause which may be referred to him. Judges, more or less, at every circuit held by them, try over causes where they have been overruled upon the law by the Court of Appeals, or their brethren, and it would be quite extraordinary if a judge did not, in such a case, try it upon the law as thus settled, as fairly as any other judge ; and so I think it ought to be with referees." {^Billings v. Vanderbrok, 15 Barb. Pr. K, 295.) WHAT A EEFEEEE CAN OR MAY NOT DO. 19 SECTION III. ACT BY PROXY. Where a sale is to be made by a referee under a judgment or decree, it must be made under his im- mediate direction. A sale by a person deputed by him would be irregular and set aside. (Heyer v. Deaves, 2 John. Ch. R., 154.) A referee cannot employ his clerk to take down testimony and claim his fee for it. " The fee," ob- served Judge Hilton, of the New York Common Pleas, in Shultz v. Whiting (17 How. Pr. R., 471), " can only be allowed for each day spent by the referee in the business of the reference ; and if the parties agree to dispense with his presence at the hearing and he absents himself, I do not see how the fact that the clerk wrote down a statement of the witness, which the parties agreed to regard as evidence, can, upon objection, entitle him to the fee which the statute only allows for actual and personal service. His ina- bility, on account of other references or engagements, to attend to the trial which the court, at the request of the parties, had entrusted to him, would be a sufficient reason for appointing another referee, his clerk, in- deed, if the parties desired it ; but it furnishes no reason for allowing him a fee for a service he has never performed. I say never performed, because I cannot admit that a referee, any more than a judge or juror, can act by proxy in the trial of an action ; and as a referee cannot so act, it follows that no fee 20 THE LAW OF EEFEEEES. can be allowed for any service shown or claimed to have been thus rendered. The actual presence of the referee is required as a condition precedent to the allowance of any fee for a hearing of a matter referred to him ; and this presence must, in all cases, be shown affirmatively when, as in the present in- stance, his absence is urged as an objection to the fees claimed by him upon the adjustment of costs by the clerk." SECTION IV. ACT UNDEE UNDUE INFLUENCE. The high position of a referee entrusted with the issues of an action — for he takes the place of jury as well as of the court — should cause him to bear himself with the greatest discretion and impartiality and avoid contact with parties and their counsel. Justice Haeeis has so well put this in Dorlon v. Lewis (9 How. Pr. R, 1), that we are induced to extract his Honor's remarks : " A referee takes the place of a jury as well as of the court. His decision upon questions of fact, like that of a jury, is, as a general rule, conclusive. Whenever there is any, even the slightest reason to suspect that the verdict of a jury has been affected by any influence exer- cised by the successful party, it is set aside. Courts have always guarded with the most jealous watchful- ness the right of litigants to have the unbiased judgment of the jury upon the evidence openly produced before them. Whenever it has been seen WHAT A REFEREE CAN OR MAY NOT DO. 21 that, by any means or influence beyond what has transpired upon the trial, and' in presence of the parties, the minds of the jury may have been operated upon with reference to their verdict, it has been deemed sufficient ground for granting a new trial. (See Graham's Practice, 313, 628; Yale v. Gwinits, 4 How., 253, and cases there cited.) " The reasons which have led the court to be thus careful in preserving the integrity of the jury box, apply, I think with great, if not equal force to the decisions of questions of fact by a referee. Such decisions having the same legal effect as a verdict, the parties, when they submit their rights to this kind of tribunal, should feel that they have the same guarantee against any improper influence as they would have had if the questions had been left to the decision of a jury. An error of the referee upon a matter of. fact is not the less fatal to the rights of the party : because, besides acting in the place of a jury, he also decides questions of law. " In Gale v. Gioinits, above cited, Mr. Justice Paige had the question before him, and came to this conclusion, although doubtingly, as he says, that the same rule ought to be applied to referees as to jurors. It is a question of some importance, es- pecially in the present state of the practice, where so large a proportion of the issues of fact joined in our courts are tried in this manner, and I have given it some reflection. I have also taken the liberty of conferring with my brother Parker on the subject, and we both concur in the views expressed by Mr. Justice Paige. He held that where a referee, in the 22 THE LAW OF REFEREES. absence and without the consent of the opposite party, received explanations from the witnesses of one of the parties, it was sufficient ground for setting aside the report. If the same principle be applied to this case, the report cannot stand. " The referee admits, in his affidavit, that he had repeated conversations with the plaintiff's attornej in the absence of the defendant's attorney, and so also, with the defendant's attorney in the absence of the plaintiff 's attorney, in relation to the questions pending before him ; but he says that nothing in these conversations, to his knowledge or belief, had any effect upon his mind or led him to any conclu- sions at which he would not have arrived had no such conversations been had. This, I believe. The referee is a man of the most unquestionable upright- ness. None sooner than he would have spurned an attempt improperly to influence his decision. And yet, it cannot be denied, that, in a case like this, where the attorney had so deep an interest in the result, where the case, on the part of the plaintiff, depended, as the referee himself says, upon the testimony of the attorney, and the decision was regarded as deeply affecting the character of the witness, it would have been far more prudent to have avoided all conversation with the parties or their attorneys, on the subject, until the decision had been made. A referee, under such circumstances, owes it to him- self, not only to avoid all improper influences, but even 'the appearance of evil.' Whether satisfied with the decision or not, no one should be left for a moment to question its fairness. WHAT A REFEREE CAN OR MAY NOT DO. 23 "Again, it must be admitted that the referee stepped entirely aside from the line of his duty, when he allowed himself, before he had decided the case, to prepare an opinion adverse to the plaintiff, not for the purpose of deciding the case in accord- ance with such opinion, but, as he says, with a view to its effect upon the witness himself. The motive may have been creditable to the heart of the referee, but I think the mode of its execution was objection- able. " It is charged in the moving papers, that upon receiving the opinion of the referee, the plaintiff's attorney sought an interview with the referee, and then persuaded him to change his opinion and make a report for the plaintiff. That he, in fact, had such an interview with the referee is not denied. Nor is it denied, that he endeavored to persuade the referee to make a report for the plaintiff, or that he presented the arguments and considerations set forth in the defendant's affidavit. "All that is denied is, that these arguments and considerations had the intended effect upon the mind of the referee. It_ seems, however, that the referee did inquire of the plaintiff's attorney what he would do with the report if he should obtain it, and that he replied, that he only sought to sustain his own cha- racter, and, if he got a report, he would not use it, but would discharge the judgment. The referee says he did not give him the report upon any such pledge or agreement, yet, he did suppose, that the plaintiff's attorney would not proceed upon the report, and that he would cancel the judgment. It 24 THE LAW OF EEFEREES. may have had no influence upon the mind of the referee. He thinks it did not. Whether it did or not, perhaps the referee himself cannot be entirely sure ; at any rate, in a case where, as the referee says, there was much testimony on either side, and a large amount, of this was conflicting such a con- sideration ought not to have been presented to the mind of the referee. It may have had its eff'ect without his being conscious of it, such a thing is at least possible ; and that, upon the principle already stated, is enough to justify the court in setting aside the report." In Yale v. Gwinits (4 How. Pr. R, 253), re- ferred to by Justice Harris (in the last quotation), Justice Paige observed : "I have strong doubts whether a referee ought to be regarded as standing in the same situation as a juror. He exercises the functions not of the jury alone, but of both judge and jury. The parties are indisputably entitled to the unbiased exercise of his judgment upon the evidence, as given at a public hearing in their presence, uninfluenced by any con- versations held by him with third persons, in relation to the matters of controversy. His decision should be founded alone upon the evidence regularly given on the trial of the cause in the presence of the par- ties. He is not allowed to decide the cause upon his own knowledge of the facts, nor upon any know- ledge derived otherwise than from the evidence given on the trial. And he ought not to place him- self in a situation which may expose him to be WHAT A REFEREE CAN OE MAY NOT DO. 25 influenced in his decision, by conversations held with third persons in the absence of the parties." A motion to set aside- a report of a referee and judgment obtained, on the ground of collusion and fraud, will be denied, where the evidence produced on the motion to sustain such ground, would be insufficient on an actual trial of issues formed in an action brought to secure the same object, to sustain the action. In other words, where it would be the duty of the court, in an action brought to obtain the relief sought by the motion, to dismiss the complaint for want of sufficient evidence to sustain the action, the motion will be denied. {^The Accessory Transit Co. v. Garrison, 18 How. Pr. R., 1.) A referee must not take impressions or information from a witness out of court ; and where this is done, his report will be set aside, even though it should not appear that tliey had any improper influence upon his mind. {Yale v. Gkvinits, 4 How. Pr. R., 253.) There, the defence was, that a promissory note was given for a useful and perfect machine which the defendants alleged was useless and imper- fect. The referee had found for the plaintiff ; and a motion was made to set aside his report on the ground of irregularity. The alleged irregularity was, in the referee's examination of the machine, in company with two of the principal witnesses of the plaintiff, and receiving from them explanations in regard to it. This examination occurred after the hearing had commenced, and had been adjourned to a sub- sequent day, and was without the knowledge or consent of the defendants. Paige, Justice : " The E. 4 26 THE LAW OF REFEREES. question then arises on this motion, whether the act of the referee in receiving from Ransom and Cady explanations in relation to the operation and condi- tion of the saw-mill dogs in question, in the absence and without the consent of the defendants, was such an irregularity as entitles the defendants to have the report set aside. If this question had arisen in rela- tion to a juror, it would have been deemed an irre- gularity fatal to the verdict. The rule, as laid down by Justice Bronson, in Wilson v. Abrahams (1 Hill, 211), is, ' that when, in the course of the trial, a juror has, in any way, come under the influence of the party who afterwards obtained the verdict,' or, ' if the juror has been guilty of misconduct or an irregularity which there is some reason to suspect had an influence on the final result,' the verdict cannot stand. It was settled by the earlier cases in this court that the verdict will be set aside where there is some reason to suppose that the party moving may have suffered by the misconduct or irregularity of the jury of which he complains. (1 Hill, 211 ; Smith v. Thompson, 1 Cow., 221 ; Horton V. Horton, 2 Id., 689 ; ex parte Hill, 3 Id., 355.) In Oliver V. The Trustees of Springfield (5 Cow., 283), the jurors, after retiring to deliberate on their ver- dict and before agreeing upon the same, told the con- stable that they had agreed, and he, therefore, allowed them to disperse. Before they reassembled, some of them were in a bar-room, where conversations in relation to the suit were carried on in their presence. The court directed the jury to retire and reconsider the case ; which they did, although this course was "WHAT A EEFEEEE CAN OK MAY NOT DO. 27 objected to by the plaintiff's counsel, and afterwards they returned a verdict for the defendant. The ver- dict was set aside by the court, both upon tlie ground that the jurors may have been influenced by the conversations out of doors, and the ground that they procured their separation by a very unbecoming artifice. I have strong doubts whether a referee ought to be regarded as standing in the same situa- tion as a juror, as respects the question arising on this motion. He exercises the functions not of the jury alone, but of both judge and jury. The parties are indisputably entitled to the unbiased exercise of his judgment upon the evidence as given at a public hearing in their presence, uninfluenced by any con- versations held by him with third persons in relation to the matters in controversy. His decision should be founded alone upon the evidence regularly given on the trial of the cause in the presence of the par- ties. He is not allowed to decide the cause upon his own knowledge of the facts, nor upon any know- ledge derived otherwise than from the evidence given on the trial. And he ought not to place himself in a situation which may expose him to be influenced in his decision by conversations held with third persona in the absence of the parties. "The referee in this case in receiving the explana- tions of Ransom and Cady, respecting the machine in question, was doubtless imconscious of doing an act either improper or irregular, Nay, he may have felt perfectly assured that the 'information derived fro^ these explanations did not have any influence on his mind prejudicial to the defendants. The law. 28 THE LAW OP EEPEEEES. we have seen, is so watchful in its protection of the parties from any undue influence upon the minds of jurors, that if there is only some reason to suspect that an irregularity of theirs, although trifling in its character, has had an influence on the final result, their verdict must be set aside. And, upon reflec- tion, I have come to the conclusion, although doubt- ingly, that the same rule ought substantially to be applied to referees. In this case, I am not able to say that the information derived by the referee at the saw mill of the defendant Grwinits, from Ransom and Cady, did not have some influence on his report, and that the defendants were not prejudiced by it. "There is certainly some reason to suppose that the defendants may have suffered by the information thus derived by the referee from Ransom and Cady. As the questions in this cause are purely questions of fact, and as they have once been passed upon by the referee, the cause, according to the decision in Clark V. Crandall (3 Barb. S. C. R, 612), ought not to be referred back to the same referee. The report of the referee and all subsequent proceedings must be set aside and the cause must be tried at the circuit, unless a new referee is appointed. As the plaintiff is not shown to be in any way in fault, costs must abide the event of the suit." There is no doubt that the same principles which have been applied to masters in Chancery, may be brought to bear in relation to the conduct of referees. It has been decided that if a master's conduct is grossly improper and oppressive on a sale by him, he can be ordered to pay the costs of WHAT A EEFEREE CAN OE MAY NOT DO. 29 setting aside his own report of sale and of the sub- sequent proceedings thereon. (Baring v. Moore, 5 Paige's C. R, 48.) SECTION V. STRIKE OUT A COMPLAINT. A referee has no power to strike out a complaint. {Bomsteel v. Lynde, 8 How- Pr- R-, 226.) There, the plaintiff had neglected to produce a lease and in- ventory, after having been subpenaed for that purpose ; and the counsel for the defendant moved the referee to strike out the complaint, which the latter decided he had no power to do, and in this he was sustained by the court. Although a referee, under the amendment of section 272 in 1857 (of the Code), has power to punish for contempt in actions where the issues are sent to the referee, and although the non-production of instruments by a party under a suhpena duces tecum might amount to a contempt, still it is presumed that the referee could not satisfy or use such contempt by striking out the complaint; the amendment of section 272, above referred to, allows a referee " to compel the attendance of witnesses before him by attachment and to punish them as for a contempt for non-attend- ance or refusal to be sworn or testify." It would be stretching the power to say that a i-efusal to testify about a document carries with it a refusal to produce it. 30 THE LAW OF EEFEEEES. SECTIONS VI — VII. AMEND PLEADINGS — STEIKE OUT A PARTY. A referee on a trial before him has the same power to allow amendments to any pleadings or summons^ as the court " upon such trial," on the same terms and with the like effect. (Code, § 272.) But he has not power to allow the name of a party to be struck out. It is very certain that before the amendment to the Code by the Legislature in 1857, no such power had been conferred or was claimed to be possessed by a referee. In Billings v. Baker (6 Abb. Pr. E., 213), it is decided that this late amend- ment (§ 272, as amended), does not give the autho- rity. Judge Potter, in the case referred to, says : " The examination which I propose to make, is for the purpose of determining the question, whether a referee possesses the power claimed under this new provision, which, added to the former power, reads as follows (Code, § 272) : 'They (the referees) shall have the same power to grant adjournments, and to allow amendments to any pleadings, as the court upon such trial, upon the same terms, and with like effect.' By a comparison of the phraseology of these two sections (§§ 173, 272), a very perceptible difference is seen to exist in the powers which are expressly conferred thereby. Does not the language, then, which is employed in section 272, limit the powers of the referee to the purposes therein express- ly enumerated ? I think it does. Referees, like all WHAT A REFEREE CAN OR MAY NOT DO. 31 other inferior and subordinate tribunals, in regard to questions of jurisdiction, are mere creatures of the statute. Their powers, in that respect, are special and limited. They possess no powers by implica- tion, but are confined strictly to the powers expressly conferred. It appears to me that the rule of con- struing statutes which confer jurisdiction, must apply to the powers so given to referees, to wit : the enu- meration in a statute of certain powers that are therein expressly conferred, excludes by implication the exercise of all other powers not so enumerated. ' Expressio unius est exclusio alterius! It is certain that the powers of amending process and of adding or striking out a name of a party, has not been any- where, in express terms, given to referees. It has been given to the courts. This difference is so signi- ficant, that it is improbable that the same power was intended to be conferred, by a full expression of it in language in the one case, and its entire omission- to be expressed in the other. Keeping, then, this significant difference in view, and giving to express language its proper meaning and effect, can it be regarded as an amendment of a pleading to strike out the name of a party ? Properly speaking, the name of the party is no part of the pleading. Striking out the name of a party, therefore, only changes the parties to the action, and leaves the pleadings the same, though between different par- ties. A change or alteration of parties, in this sense^ does not amend the pleading. Amendment of a pleading implies an improvement of it — the making a pleading better as a pleading — the making good 32 THE LAW OF EEFEKEES. that wliich before was defective in its form of state- ment or in making better the issues presented between the same parties. A mere alteration of names cannot make the pleading better — it maj make it worse. The difference between an alteration of the parties, and an amendment of the pleading, is palpable ; and though both are included u.nder the general term ' amendments,' the former is an amend- ment of process, or of a proceeding, the power to perform which is exclusively in the court ; the power to perform the latter is permitted in certain cases to be exercised by a referee, and may also, in all proper cases, be exercised by the court. Nor would the change of parties in the pleading carry with it, as a matter of course, in its effect, the same change of parties in the process. The effect of allowing this exercise of power, by the referee, would produce this strange anomaly in the case, that in the record to be made up, the judgment would not correspond with the process, which is required by section 281, to be attached to the roll; nor with the complaint as is required by section 142. "What would be the legal effect of such a record, if offered in evidence, it is unnecessary now to decide. It is sufficient to say, that this practice would pi'o- duce embarrassment, if not confusion. It is easily seen that the powers of referees have been essentially enlarged by the amendment of section 272. It has made an important, and, I doubt not, a very bene ficial addition to their powers. They are now vested with all needful authority over the cause, over the WHAT A EEFEEEE CAN OR MAY NOT DO. 33 issues, over the pleadings, and over the parties, to such extent as to preserve order, enforce obedience, and determine everything which properly belongs to the trial of the action. The theory of the Code in this respect, as now aniended, seems to be that the referee is to try the action which the court has sent to him, and may exercise therein the powers expressly enumerated ; but for every other purpose, the pro- cess in the action, and the parties to the action, remain in the court, and subject to its control." And in The Union Bank v. Mott (10 Abb. Pr. E., 372), it was decided that a referee could not allow a cause of action to be inserted in the complaint by way of amendment. Such an allegation would not be material to the case as made. It would change substantially the claim of the plaintiff. The interests of a defendant might be jeoparded by its allowance. It might be proper for the court to grant it, but a referee had not the power. The power of a referee to allow amendments is defined and limited by section 170 of the Code. It seems to be restricted to the curing of immaterial variances. SECTION vin. DISEEGAED VAEIANCES. A referee under the Code may disregard a vari- ance by which the party could not have been misled. (Harmony v. Bingham, 1 Duer's S. C. E., 209 ) In the case referred to, there was a variance between the complaint and the proof, but it was one by which E. 5 34 THE LAW OF EEFEKEES. the defendants were not and could not have been misled. SECTION IX. SUMMON AND NOTIFY ALL PARTIES BENEFICIALLr INTE- EESTED. All parties beneficially interested, either in regard to issues, facts, estate or funds in question, are enti- tled to attend before the referee on all those pro- ceedings which may affect their interests or increase or diminish their proportion in the fund, and, there- fore, the party conducting an action or proceeding before a referee must take care that all parties enti- tled to attend any proceedings under judgment or order have due notice. Who these are, where the parties are numerous and their interests complicated, is not always an easy task to ascertain. Parties entitled to a distributive share of a residue are all entitled to attend on those proceedings which tend to increase or diminish the residuary fund. (2 Smith, 91.) The only exception to this rule appears to be the case of a reference of the title to an estate purchased under a judgment or decree, in which case the refe- ree generally only allows the vendor's attorney to attend before him on the inquiry. {lb., 92.) Greneral legatees only are allowed to attend on those proceedings which strictly affect or relate to their legacies and not on general proceedings ; but if the fund is not sufficient to pay the legacies in WHAT A REFEREE CAN OR MAY NOT DO. 35 full, they are entitled to attend all proceedings which relate to or may affect the fund oat of which they are paid. (lb., and see Chillingworth v. Chil- Ungworth, cited lb., p 200.) Parties entitled only to the personal property are not entitled to attend those proceedings which affect the real estate alone ; and the converse of the rule prevents those interested solely in the real estate from interfering with pro- ceedings relating exclusively to the personalty, supposing always that these proceedings have no collateral bearing on each other, for, if either fund may be affected by the deficiency of the other^ each party may be indirectly interested in both and is then entitled to attend. (2 Smith, 92.) An executor, as the legal representative of his testator, is entitled to attend all proceedings relating to the charges of creditors seeking payment out of the personal property ; but, after there has been a report of debts, if all the parties interested in the personal property are before- the court, he is only entitled to attend on those proceedings ia which he is personally interested as an accounting party. (/&., 93.) Trustees are not allowed (except in proceedings carried on by themselves) to iattend before the referee in cases where all the cestuis que trusts are before the court; but, if there are any parties in esse or who may come into esse who may be interested and who are only i-epresented by the trustees, and their interest is not too remote, the trustees will be entitled • to attend the proceedings affecting that interest. {lb.) 36 THE LAW OP EEFEEEES. Parties having charges on an estate or on a fund, are, if the estate or fund is sufficient, entitled only to attend on the proceedings brought in by them- selves ; but if there is a deficient fund, each incum- brancer is entitled, to .attend on the charges of those incumbrances who claim a priority over him, but not on those who do not charge to be of a prior date to his security. (/&•) The same rule applies to creditors coming in to prove their debts under a judgment or decree. ( Hare V. Rose, 2 Ves., 558.) The above restrictions are adopted for the purpose of protecting the party or the funds upon which the costs of the suit will eventually devolve from being put to expense by the unnecessary attendance of parties before the referee ; and the application of them is generally regulated by the referee to whose discretion it is left. (2 Daniell's Ch. Pr., 802.) On a reference as to surplus moneys, in mortgage cases, the referee should ascertain, by the proper certificate and other evidence, that all claimants and other proper parties have been notified or summoned to attend before him on such reference. And the fact that such certificate anji evidence was produced before him should be stated. (^Hulbert v. McKay, 8 Paige's C. E, 651.) The rule that all parties interested in the result are entitled to attend before the referee, applies, not only to those who are parties to the restrictions, but to those who are quasi parties by having come in under the decree and established a claim, who, sub- ject to the rules before pointed out, are entitled to WHAT A REFEREE CAN OR MAY NOT DO. 37 notice of all proceedings wMch affect their interests. (2 Daniell's Ch. Pr., 804.) Parties who are entitled to attend upon a referee, are authorized to take copies of all proceedings in writing brought before the referee which, in any way, affect their interest. (2 Smith, 100.) When a judgment or decree directs inquiries as to next of kin, creditors, &c., with directions that the referee shall fix a day, &c., after which all persons will be excluded the benefit of the decree, it is not necessary for him, in his report, to notice any credi- tors except those who come in under the judgment or decree. He should merely state the claims which have been proved, taking no notice of the possible claims of others who, whether entitled or not, did not come in. {Goody. Bleioitt, 19 Ves., 336.) SECTION X. REFUSE TO MARK A PARTY'S ATTENDANCE BEFORE HIM. A referee may, at any stage of a proceeding, entertain an objection to a party attending before him, on the ground that his interest does not entitle him to do so, at the risk of throwing the expense of his attendance upon the fund in controversy or the party to be charged with the costs. Therefore, if the referee, on an objection being made to the attendance of a party before him, is of opinion that such attendance is inadmissible, he may refuse to mark the attendance of the attorney of the party in 38 THE LAW OF EEFEEEES. his minutes, which will have the effect of depriving the attorney of costs which may be allowed to those attorneys whose clients have a standing before the referee. (2 Daniell's Ch. Pr., 803.) If the referee should be considered to have come to an improper conclusion in not allowing a party to attend before him, the proper course to obtain the opinion of the court upon the point would be, to present a petition praying that the party might be permitted to attend the referee. (lb.) SECTION XI. DEPOSITIONS PREPAKED AND BEOUGHT IN. Referees should not rely on depositions prepared and brought to them, but must take down the testi- mony from the witnesses themselves. {Banta v. Banta, 3 Edw. V. C. R., 295.) SECTION XII. « COMPEL ATTENDANCE OP WITNESSES. Referees can compel the attendance of witnesses before them by attachment ; and to punish them as for a contempt for non-attendance or refusal to be sworn or testify, as is possessed by the court. (Code, § 272; and see section 15, "Commit for Contempt," post, page 40.) WHAT A EEFEKEE CAN OK MAY NOT DO. 39 SECTION XIII. PEOCEED EX PARTE. A referee's summons or a subpena to appear before him is considered peremptory; and he may, upon the non-attendance of a party, proceed in the absence of the latter ex parte. For this purpose, he must administer an oath to the person who served the summons or subpena, or have such service satis- factorily proved by affidavit ; and (keeping possession of such proof), proceed on the business of the sum- mons or subpena. (1 Newland, 324.) It was the practipe of the Court of Chancery, whelre a master (referee), proceeded, ex parte, such proceeding was not in any manner reviewed, unless the master, upon a special application made to him for that purpose by the party who was absent, should be satisfied that he was not guilty of any wilful delay or negligence, and then only on pay- ment of all costs occasioned by his non-attendance. (2 Daniell's Ch. Pr., 800.) If the plaintiff does not appear on the day of trial, the referee should merely report the fact and his decision to dismiss the complaint. {Salter v. Malcolm, 1 Duer's S. G. R, 506.) 40 THE LAW OF REFEREES. SECTION xrv. EXAMINE VIVA VOCE OR UPON WRITTEN INTERROGATORIES. In cases of account and in most matters sent to a referee, lie may examine parties upon interrogatories, and receive evidence upon affidavit or by the exami- nation of witnesses before him, either upon written inteiTogatories or viva voce. But, where a reference is made for a party to clear himself from a contempt, it will be most proper for the referee to proceed throughout by question and answer. (2 R. S., 527, 528, § 19.) And in a case where interrogatories are used, it is in the discretion of the referee, to receive further interrogatories. {Price v. Lytton, 5 Mad. Ch. R., 465 ) SECTION XV. COMMIT FOR CONTEMPT. A careful examination of the section of the Code having reference to the power of a referee to punish for contempt (§ 272, amendment of April 17, 1857)i would seem to lead to the conclusion that such power can only be exercised on a trial of issues before him, and that, in all interlocutory matters sent to him, his only course would be to report any misconduct to the court. The sefction referred to says : " The trial by referees shall be conducted in the same manner and on similar notice as a trial by the court. They shall WHAT A EEFEEEE CASH OR MAY NOT DO. 41 have the same power to grant adjournments and to allow amendments to any pleadings as the court, upon such trial, upon the same terms and with the like effect. They shall have the same power to preserve order and punish all violations thereof upon such trial, and to compel the attendance of witnesses before them by attachment, and to punish them as for a contempt for non-attendance or refusal to be sworn or testify, as is possessed by the court. They must state the facts found and the conclusions of law separately, and their decision must be given and may be excepted to and reviewed in like manner, but not otherwise ; and they may, in like manner, settle a case or exceptions. The report of the referees upon the whole issue shall stand as the decision of the court, and judgment may be entered thereon in the same manner as if the action had been tried by* the court. When the reference is to report the facts, the report shall have the effect of a special verdict." It will be observed, that the whole of the above section has direct reference to a trial, save the last sentence ; and that sentence contains its own use, namely and simply, that a report of facts is to amount to a special verdict. It cannot, very well, be coupled with the matter in the prior part of the section. We have a definition of a trial in section 251 : " A trial is the judicial examination of the issues between the parties, whether they be issues of law or of fact." Although, on a trial, a referee has power to punish for a contempt, yet this has not taken away the K. 6 42 THE LAW OF EEFEEEES. power of the court to punisli. It lias not given ex- clusive jurisdiction to the referee. In Seeley v. Job- son (6 Abb. Pr. R., 217, note), an offence had been committed, and which consisted in an assault during a trial before a referee. The referee adjourned the cause and reported to the court (the Supreme Court), and took an order to show cause why the wrong doers should not be committed for the contempt. On the return of the order, by consent of the parties, the court ordered a reference to ascertain the facts respecting the offence ; and the report thereon found the defendants guilty of contempt. Justice Suther- land stated that his associates and himself had ex- amined the law thoroughly, and were satisfied that the court had jurisdiction of the matter and a power to punish the parties ; and did, accordingly, order a commitment. On habeas corpus from the Common Pleas, Judge Beady stated his opinion to be that the court had not, by the statute of 1857, lost its power concurrently and by original action to adjudicate upon contempts committed before referees ; and he was satisfied that the statute as to contempt had been properly passed upon by the Supreme Court ; and that it was, therefore, his duty to remand the pri- soner. In connection with the above case, it will be well to refer to French v. French (1 Hogan, 138), where it was decided to be a contempt of court to insult a suitor or his counsel while attending in the referee's ofiice ; and that if such contempt is commit- ted, the party will be attached at once, on the pro- duction of the referee's report. WHAT A EEFEEEE CAN OR MAY NOT DO. 43 Where a person examined before a referee refuses to answer a question, the referee should pass upon and require such question to be answered, before an attachment is moved for. (Forbes v. Meeker, 3 Edw. V. C. R, 452.) When an application has to be made to the court for an attachment, or for an order to show cause why it should not issue against a party disobeying an order made by a referee, the question or motion is based upon a special report from the referee or by affidavit. {Fraser v. Phelps, 4 Sand. S. C. E., 682 ; and see in the matter of Smethurst, 2 lb., 724.) Although section 272 of the Code, as amended in 1857, declares that referees may, on trials before them, punish for contempt, yet it would seem best for referees to avoid using this power as far as possi- ble, because it is a very grave and high one. Such a power was never before delegated to any officer lower than a judge ; and the writer of this treatise takes the liberty to question its constitutionality. Even where a judge is supposed to issue a process of contempt, it is, in truth, the act of the court — the " Court of Record " punishes. (2 R. S., 278 ; matter of Smethurst, 2 Sand. S. C. R., 724.) Nor need a referee hesitate to avoid the responsibility of punish- ing for contempt, for the case of Seely v. Jobson (6 Abb. Pr. R., 217, note), shows, that the court has still the power to punish for contempt, notwithstand- ing the case (in which the contempt occurs) may be before a referee. If, however, a referee is inclined, as referee, to punish for contempt, then he issues an attachment, 44 THE LAW OF REFEREES. directed to the proper sherijff. Where it has relation to non-attendance of a witness (or of a party as a witness), it will be founded on proof of the default- ing party having been duly subpenaed. But where the contempt arises from misconduct in the presence of the referee, the latter will have noted upon his minutes the facts making such contempt — coupling with it, of course, satisfactory proof, by affidavit, of service of subpena. Attachment to bring up a witness before a referee for not having obeyed a subpena. The People of the State of New York to the sheriff of ....... Grreeting : . We command [seal OF THE COURT. ] TC.I -ir you to attach Hj. r . and forthwith [or, on the .... day of ... - instant at ... . o'clock in the .... noon] bring him before me, the undersigned referee, at my office. No , .... street, in the city of . . . . , to answer for his misconduct in not obeying a writ of subpena to him directed, and on him duly served, commanding him to appear before me, the said referee, at the place aforesaid, and give evidence in acertain action pending between A. B., plaintiff, and C. D., defendant, on the part of the and have you then and there this writ. Witness, Gr. H., referee aforesaid, at the city of , the day of . . . ., one thousand eight hundred and G. H., Referee. Attorney. We find our conviction so strong in not recom- mending a referee to commit for contempt, that we WHAT A EEFEEEE CAN OE MAY NOT DO. 45 shall avoid giving precedents to aid him, and shall leave him, if he will persevere in himself punishing for contempt, to gather the course to be pursued from the case of King v. West (10 How. Pr. R., at page 335), and from what now follows in relation to the courts dealing with those who are guilty of con- tempt in actions and proceedings going on before referees. The statute allows two modes of proceeding against parties as for contempt to enforce civil remedies, that is to say, in all cases except where the contempt was for the non-payment of money, namely : 1. By attachment to bring the party into court to answer for the alleged contempt; or, 2. By an order for the accused to show cause why he should not be pun- ished for his alleged misconduct.' ( The Albany City Bank v. Schermerhorn, 9 Paige's C. R., 372 ; 2 R. S., 536, § 5.) 1st. If the party complaining of the alleged mis- conduct intends to proceed by attachment, in the first instance, he must lay a foundation therefor by affidavits, or other evidence, showing that the party is in contempt. (Jd. lb.) For the statute directs, that, in the case of any contempt not committed in the immediate view and presence of the court, the court shall be satisfied by due proof, by affidavit, of the facts charged (2 R. S., 535, § 3), and it is requi- site that a copy of such affidavits be served, on the party accused, a reasonable time to enable him to ' The last sentence and what follows, are mostly taken from 2 Barb. Ch. Pr., 275. 46 THE LAW OF REFEREES. make his defence, except in cases of disobedience to any rule or order requiring the payment of money, and of disobedience to a subpena. {Id. lb.) An attachment will be issued, whenever the affi- davits in relation to the alleged contempt are con- flicting, in order to enable the complainant to compel the attendance of witnesses to prove the facts. {McCredie v. Senior, 4 Paige, 378). The order for the attachment should not contain an adjudication that the defendant has been guilty of the contempt. It should merely direct the issuing of the attachment, or only declare that it appears to the court there is probable cause for the issuing of an attachment to bring the defendant before the court to answer as to the alleged contempt. {McCre- die V. Senior, supra.) The statute contains a provision, that, whenever a rule shall have been entered in any court, according to the practice thereof, requiring any officer or other person to whom any process of the court has been directed and delivered, to return the same, an attach- ment for disobedience of such rule may issue without special application to the court. (2 R. S., 536, § 6.) Whenever an attachment is issued by the special order of the court, under the provisions of the sta- tute, the court must direct the penalty in which the defendant shall give bond for his appearance to answer. (Id., 536, § 10.) If the party alleged to be in contempt is unable to travel, or to attend the court, personally, from sickness or otherwise, it will be a sufficient excuse for not bringing him before the court. {Id., 540, § 37.) WHAT A REFEEEE CAN OR MAY NOT DO. 47 If the attachment is returned served, and the defendant does not appear, the court may either award' another attachment or may order the bond taken on the arrest to be prosecuted, or both. (lb., 538, § 27.) When the party is brought up on the return-day, if he has given bail, the bond will remain in force until the court makes some order in relation to it. If there is no bail, the sheriff who brings him up must detain him in custody until some order is made in the premises. {lb., 536, § 12 ; Lovett v. Rogers, 2 Paige, 103), or he may be then bailed. {Matter of VanderUlt, 4 John. Ch. R, 57 ; Gary's R, 100.) Upon the defendant appearing or being brought into court, if he does not admit the contempt charged against him, the court must cause interrogatories to be filed, specifying the facts and circumstances alleged against such defendant and requiring his answer thereto ; to which the defendant must make written answers, on oath, within such reasonable time as the court shall allow. The court may receive any affidavits or other proofs contradictory of the answers of the defendant, or in confirmation thereof; and upon the original affidavits, such answers, and such subsequent proof, must determine whether the defendant has been guilty of the contempt. (2 R. S., 538, § 19.) A copy of the interrogatories should be served upon the defendant. In the case of The People v. Rogers (2 Paige's C. R, 103), the court directed the relators to file interrogatories in relation to the con- tempt, specifying the facts and circumstances and to 48 THE LAW OF EEFEREES. serve a copy upon the defendant, and that the defendant put in written answers, upon oath, and file the same within twenty-four hours. The interrogatories must be filed and answers thereto obtained, before the court can make a final order, unless the accused, upon being brought into court upon the attachment, admits the contempt as charged. {The Albany City Bank v. ScJiermerhorn, 9 lb., 372.) It is usual practice to direct a reference to examine the defendant upon the interrogatories and other proof ; and to certify as to the contempt. (^Matter of Vanderbilt, 4 John. Ch. R., 57 ; Cumming V. Wag- goner, 7 Paige C. R., 603.) In McCreadie v. Senior (4 lb., 381), the Chancellor speaks of process to compel the attendance of witnesses either before the court or a master, as if either course was proper. In the case of Cumming v. Waggoner, the court decided that ixpon such a reference, by which the ofiicer was directed to examine the defendant on interrogatories and to take such other proof concerning the con- tempt as should be produced before him by either party, the officer was not authorized to receive the ex parte affidavits of witnesses, unless he was specially directed by the order of reference to receive such affidavits as proof. And as a general rule, the court will not allow ex parte affidavits to be used on such a reference, but will compel the parties to produce and examine the witnesses, so that they may be cross-examined by the adverse party. {Cumming \.. Waggoner, supra.^ WHAT A EEFEEEE CAN OE MAY NOT DO. 49 If the answers of the defendant to the interroga- tories are short and evasive, they may be excepted to ; and if they appear to be insufficient, the inter- rogatories may be sent back, that they may be fully answered. {O^Brien v. English, Vem. and Scriv., 386 ; 1 How. Exch., 85.) 2d. The proceedings, by an order to show cause why the party should not be punished for his alleged misconduct, must, in the same manner as the pro- ceedings by attachment, have a foundation laid for them by affidavits or other evidence, showing that the accused party is in contempt. ( The Albany City Bank v. Schermerhorn, 9 Paige's C. R., 372.) T^e orders to show cause and copies of the affida- vits and other papers on which the application is founded, or so much of them as is not already in the possession of the accused, must be served on hitn or his solicitor such length of time before the hearing as the court may direct in the order. (2 R. S., 535, § 5.) The statute requires the order to specify "some reasonable time." {^The Albany City Bank y. Schermerhorn, supra?) The order must be served upon the party in per- son, unless personal service is dispensed with on spe- cial grounds. This is the general rule as to all orders on which to found process of contempt. {Durant v. Moore, 2 Russ. & My., 34; Weston v. Faulkner, 2 Price, 2 ; Rider v. Kidder, 12 Ves., 202.) If, upon, the hearing of the order to show cause, the defendant appears and denies the contempt, the proceedings must be substantially the same as upon the return of an attachment against him. {McCredie E. 7 60 THE LAW OP EEFEEEES. V. Senior, 4 Paige, 378.) If the party neglects to appear at the time appointed or shows no' sufficient cause, the court may make a final order immediately, •adjudging that he has been guilty of the alleged contempt, and awarding the proper punishment as directed by statute. ( The Albany City Bank v. Scher- merhorn, supra.) But if the. contempt is denied the court may discharge the order to show cause or may allow the prosecutor to file interrogatories, and then refer it to a referee to take the answers of the accused to such interrogatories, and to receive such testimony as to the alleged contempt as either party may offer before him, and to report the answers to the interro- gatories and the testimony taken before him to the court. But the proofs before the referee, and not merely his opinion upon such proofs, must be re- ported to the court. {Id. lb., McCredie v. Senior, supra.) If the party charged with a contempt be in the custody of any officer, by virtue of an execution against his body, or by virtue of any process for other contempts or misconduct, the court may award a writ of habeas corpus to bring him up to answer for such misconduct. (2 E. S., 536, § 7.) And in cases where a party is entitled to an attachment against a person thus in custody, without the special order of the court, a writ of liabeas corpus to bring him up may be allowed by any judge of the court or by any officer authorized to perform the duties of such judge in vacation. Upon this writ, the sherifF, in whose custody such party is, will be authorized to remove and bring him before the court, and to WHAT A REFEREE CAN OR MAY NOT DO. 51 detain him there until some order shall be made for his disposition. {Id. lb. §§ 8, 9.) SECTION XVI. OPEN CASE FOR FDRTHEE TESTIMONY. Referees may, in their discretion, open a case after it has been submitted and hear further testimony. In Cleaveland v. Hunter (1 Wend., 104), which was a case under the Revised Statutes, after the par- ties had produced their testimony, and the cause was summed up by counsel, the referees retired. Sub- sequently, they called the parties before them, and informed them that a question, important to the cor- rect decision of the cause, was left in doubt, and that they were desirous to hear further testimony, and proposed to adjourn to a future day so as to give the party an opportunity to introduce such testimony. The plaintiff's counsel objected; notwithstanding which, the referees adjourned to a day in the ensu- ing month, and gave notice to the plaintiff 's attorney that they would then proceed and hear further proof A motion was made by the plaintiff that the referees report without hearing further proof, or show cause, &c. By the Court, Sutherland, J. " It is matter of sound discretion with the referees to open a cause after it has been submitted to them, for the purpose of hearing further testimony; and it is to be pre- sumed that they will discreetly exercise such discre- 52 THE LAW OF EEFEEEES. tion. Here an important question was left in doubt, in their minds, which they believed could be dis- pelled by further proof; they, therefore, did right in adjourning the cause, to give the party an oppor- tunity of producing further testimony. The motion is denied." In Duguid v. Ogilvie (3 E. D. Smith's C. P. R., 527), the action was for labor and services, and the defendant interposed a promissory note. The evi- dence being closed on both sides, was summed up and the cause submitted for decision. Several days having elapsed, the referee notified the parties to appear before him and stated that he should allow the plaintiff to produce further testimony as to the consideration of the note. Upon the appearance of the parties accordingly, the defendant objected to the proceeding and excepted to the ruling of the referee in opening the case and admitting the testi- mony. The court observed : " It was in the discre- tion of the referee to allow the plaintiff, even after the cause was submitted, to remove this presumption by showing the circumstances under which the note was given and paid. It was held in Cleaveland v. Hunter (1 Wend., 104), that after a cause was sub- mitted and the referees had retired, they might open the cause and hear fmiiher testimony. In the pre- sent case, the parties were fully notified as to what extent further testimony was to be allowed. The additional testimony consisted in the examination of the defendant himself alone. It has satisfactorily explained why the note was given and paid, and having thereby tended to promote the ends of jus- WHAT REFEREES CAN OR MAY NOT DO. 53 tice, it would evince, on the part of the court, a disre- gard of the chief end and aim of every legal investi- gation to set the referee's report aside on that ground." But, where a referee, after a final submission, refused a postponement that further testimony might be produced on the part of the plaintiff, and placed his refusal on the sole ground of want of authority, the court allowed the hearing to be opened. The Court : " We think the referee might, in his discretion, have postponed the hearing and received further evidence at another time, and as he has certified that he declined doing so upon the sole ground of want of authority, and as the affidavits make a strong case in favor of the motion, we are of opinion that the hearing should be opened and the parties be allowed to produce further testimony. If the referee had jfut his refusal on any other ground than the want of power, we should not have inter- fered. The defendants will, very likely, think it prudent, if not necessary, to have all their witnesses, as well as their counsel, in attendance on the further hearing. The plaintiffs must, therefore, pay the costs of the hearing thus far, as well as the costs of opposing this motion, as the condition on which relief is granted." {Packer v. French, 1 Hill & Denio, 103.) 54 THE LAW OF EEPEEEES. » SECTION XVII. VEEBALLT FIX THE TIME FOE MEETINGS. When an order of reference is brought into a referee's office, he can verbally fix a time when he will commence to hear the case, without there being any necessity to write down the time and place with a view to its being served on the opposite attorney. {Stephens v. Strong, 8 How. Pr. R., 339.) SECTION XVIII. PEOCEEDING DE DIE IN DIEM. Where the circumstances of a case require it, or, to use a phrase which appears in Gilbert, " if an affected delay is used," the referee can be ordered to proceed de die in diem, or to speed his Veport, or make it up by a limited time. This rule was applied to masters. (Grilb. For. Rom., 165.) An order to proceed de die in diem, would not be imperative on the referee. He might avail himself of it or not, as the case really required — in other words, as circumstances passing before him called upon him in the exercise of a sound discretion. {Purcell V. M'Namara, 11 Ves,, 362.) WHAT A EEFEREE CAN OK MAY NOT DO. 55 SECTION XIX. POWEK TO GRANT ADJOUENMENTS. By the Revised Statutes (2 vol., p. 384, § 42), referees liad power to grant adjournments from time to time, as might be necessary ; and on the appHca- tion of either party, and for good cause, they might postpone such hearing to a time not extending beyond the next term of the court in which the case was pending (§ 43) ; while, by the Code of Pro- cedure, they have the same power to grant adjourn- ments as the court, on the same terms and with the like effect. (§ 272.) , It is to be presumed that this carries with it — as was adjudged under the old system — a reasonable discretion. {Forbes v. Frary, 2 J. R., 224.) No doubt referees, may still, as heretofore, make adjournments on their own motion. There are many cases where a hearing cannot be completed in one day and it must sometimes happen that one or more of the referees will be prevented by sickness, family afflictions or the calls of urgent business froni con- tinuing the investigation from day to day to a conclusion. In such cases, the referees may adjourn for a reasonable time on their own motion and with- out the consent of the parties. {Ex parte Rutter, 3 Hill, 467.) No doubt the court may inquire and see that referees do not act oppressively, and that parties are not delayed for an unreasonable time. (/6.) 56 THE LAW OF EEFEEEES. Actjournments can never have the efifect of putting an end to the authority of the referees. (Jb.) As referees, with an issue before them, have now the power which a court possesses of granting adjourn- ments, we can make use of adjudged cases to illus- trate their power. They can adjourn a meeting on an affidavit of a defendant, showing the absence of a material wit- ness. {Bird V. Sands, 1 J. C, 394-, C. C E., 105.) They can stay their proceedings, where there is an affidavit of the absence of a material witness, who had gone out of the state, but was expected to return by a certain day. {Sudam v. Swart, 20 J. R., 476.) Referees must not unreasonably refuse to grant an adjournment, for the doing so may be a cause for setting aside their report. This was done in a case where a reasonable adjournment was requested by a party, in order to enable him to produce witnesses. The action had been referred at the instance of the defendants, who had agreed to admit certain items in the plaintiff's account, which, at the hearing before the referees, they refused to admit. The plaintiff's attorney then requested an adjournment until the next day, in order that he might produce witnesses to prove the items. The referees refused to adjourn and made up their report, without further proof, by which they found a less sum for the plaintiff than he claimed to be due him. The counsel for the plaintiff moved to set aside the report. The court said : " The referees have a reasonable discretion as to adjourn- ments, and they ought to have given a day to the plaintiff to produce his witnesses, as he appears to "WHAT A EEFEEEE CAN OR MAY NOT DO. 57 have been taken by surprise, though the court can- not take notice of a mere verbal agreement. The referees, in the exercise of their discretion, acted unreasonably in refusing the adjournment. The report must be set aside." (Forbes v. Frary, 2 J. Cases, 224.) Parties must look to the referees and not to the court when they desire an adjournment. The pro- priety of the postponement of a trial, to give a party time to procure testimony or because of the absence of a material witness, is peculiarly within the pro- vince of referees. They are best able to judge how far the purposes of justice require the cause to be postponed from time to time. Motions to the court, in such cases, are not to be encouraged. (Langley v. Hickman, 1 Sand. S. C. R, 681.) After a cause has been heard and summed up, a referee may, in his discretion, postpone the hearing and receive further evidence at another time. {Du- guid V. Ogilvie, 1 Abb. Pr. R., 145 ; Packer v. French, 1 Hill and Denio, 103.) But, in the case last quoted, a referee doubting his power to do so and putting his refusal to adjourn at such a stage solely on that ground, the court — it being a strong case in favor of a motion to open the hearing — sent the case back for further hearing. A referee acts right in adjourning a cause in order to allow the defendant's attorney time to give the requisite notice for the examination of the defendant as a witness, especially where a refusal would have caused an unfair advantage to the other side. {Bil- lings V. Vanderbrek, 15 How. Pr. R., 295.) * 58 THE LAW OF EEFEEEES. Referees may impose tei-ms upon postponing a hearing (Sickles y. Fort, 12 Wend., 199); and such terms can include costs to be paid or a stipulation to pay them as a condition of an adjournment. (Code, § 314; 8locum v. Watkins, 1 Denio, 631.) A referee, in the exercise of a sound discretion, may adjourn a sale (which he is adjudged to make) to a future day, when a sufficient reason is shown for such adjournment. (Kelly v. Israel, 11 Paige's C- R, 147.) SECTION XX. decline to pass on or decide a matter or claim befojKE him. It has been decided to be objectionable fpr a mas- ter — and no doubt the same principle will apply to a referee — upon a reference made to him, to decline passing upon any claim brought before him and submitting its validity to the court. He should de- cide according to his best judgment, upon all the matters of mutual claim and discharge brought be- fore him, and report his final conclusion thereon, affording to the parties an opportunity of having that judgment reviewed for error. {Burroughs v. Mc- Neill, 2 Dev. and Batt. Eq., 303.) The fact that there is a variance between pleading and proof should not make him avoid any question by a dismissal. He should, if there be evidence suffi- cient,^ give a decision, leaving it to the discretion of WHAT A EEFEREE CAN OE MAT NOT DO. 59 the court to amend the pleadings in support of it. {Hart V. Hudson, 5 Duer's N. Y. Sup. C. R., 294.) SECTION XXI. REFEREE AS A WITNESS. A referee cannot be used as a witness in a case referred to him. This is decided in Morss v. Morss (11 Barb. S. C. R, 510 ; S. C, 1 Code R, N. S., 374), which was a case where three referees had been appointed, and one of them had testified. The court set aside the report. Justice Parker gave an elaborate and well-labored opinion. Among other things, his honor observed : " In examining this ques- tion upon principle,, there seems to be the same difficulty, whether the court consists of one judge 'or of three, all of them being necessary to constitute the court. In the latter case, if one of the judges be called as a witness, there are but two judges left to administer the oath, to decide upon his competency if he be objected to, and to decide questions as to the relevancy of his testimony. If he refuse to answer, there are but two judges to commit him for contempt. Two-thirds of a court cannot form a legal tribunal. The party has a right to three judges, the number prescribed by statute. Can it be said there are three judges, when one is under examination as a witness — or in the prisoner's box — on a proceeding for contempt in not answering? When thus pro- ceeded against, he becomes a party, and may be heard in his defence, either in person or by counsel. 60 THE LAW OP REFEREES. Can it be said that, under sucli circumstances, lie still, by Ms presence, forms part of the court and gives validity and jurisdiction to its proceedings ? And is it not absurd to say that he still forms part of the court when the two judges still on the bench commit him for a contempt? The statute has de- clared the qualifications of judges, and will not allow one to sit in any cause to which he is a party or in which he is interested. (2 R. S., 373, 3d ed.) If one judge, holding a court alone, cannot be both judge and witness, it seems to me to be equally clear, upon principle, that a judge cannot, who is one of three judges necessary to constitute a court. The two characters are inconsistent with each other, and their being united in one person is incompatible with fair and safe administration of justice. Lhave shown that the objection to a juror's being a witness rests mainly on a question of public policy, and that the objection to a judge being sworn depends on an additional and different ground, viz., that of want of power to discharge the duties of a cpurt while acting as a witness- But these objections combined apply in full force to the case of a referee, who is to discharge the duties of both judge and jury. He decides both the law and the fact. The referees must have full power to decide upon the competency of every witness, and the relevancy of every ques- tion ; and where a cause is referred to three referees, that full number must be present, free from all bias and competent to decide every question of law pre- sented. And public policy strongly demands, as in the case of a juror, that they should be equally WHAT A EEFEEEE CAN OR MAY NOT DO. 61 indifferent and unbiased as to all the evidence and every question of fact before them for decision." SECTION XXII. REFUSE OE ACCEPT TESTIMONY OE A WITNESS'S CHAEACTEE. Referees may refuse to hear further testimony against or in support of a witness's character. {Green V. Brown, 3 Barb. S. C R., 119.) "A point has been made," observed the court, in the above case, "on the argument of the referees' refusal to hear any further evidence either against or in support of the characters of Van Vores and Austin, two of the plain- tiff's witnesses. Several witnesses had been sworn and examined on both sides touching their characters for truth, when the referees interposed. It does not appear that either party objected at the time to their refusal to hear further witnesses in support or against the character of the two men ; nor does it appear to have been an undue exercise of power on the part of the referees. They had a right to put a stop to the examination as they did. (2 Cowen's Tr., 991, n.)" SECTION XXIII. EEQUIEE PEODDCTION OP BOOKS AND PAPEES WITHOUT AN OEDEE OP THE COUET. A referee, to whom all the issues in an action have been referred, has not authority to order the produc- 62 THE LAW OF REFEREES. tion of books, &c., by either party, where there is no provision to that effect in the order of reference. {Fraser v. Phelps, 1 Sandf. Sup. C. R., 682 ; 8. C, 1 Code Rep., N. S., 214.) The power to order the production of books, &c., is Umited to the court or a justice thereof. (J-b.) Where a referee is ordered to take accounts and the order is silent as to authority for him to require the production of books and papers, the referee's certificate that the production of them is necessary, will be regarded as presumptively suflRcient to war- rant an order for such production. The burden of showing that the order ought not to be made, would be upon the adverse party. (-/&.) What we have said, is not to -carry with it an idea that a witness subpenaed before a referee, through a subpoena duces tecum, can avoid the production of deeds and papers ; nor that a party, so subpenaed, can avoid producing them. {Bonesteel v. Lynde, 8 How. Pr. R., 226 ; although as to the latter, also, see Trotter v. Latson, 7 lb., 261.) The production and deposit in the referee's office of deeds, books, papers, &c., is a matter of such importance, that it should be one of the first objects of the attorney's attention in prosecuting the inquiries under a judgment or decree ; and although the words of a judgment or decree are "io produce,^' &c., only, yet the universal construction of them is, that it embraces a direction to deposit the deeds, &c., with the referee ; as they should be at all times accessible for the general purposes of evidence before him and to remain there as long as he may think any useful WHAT A REFEREE CAN OR MAY NOT DO. 63 purpose may be answered by their so remaining and then be redehvered to the party bringing them in. (Bennet's Master, 78, referring to Sidden v. Liddeard, 1 Sim. R, 388.) And it may be claimed that they should, when delivered, be accompanied with an affidavit, to the following effect : C. D. of L., defendant in the above entitled action, being duly sworn, maketh oath and saith, that neither he, this deponent, nor any person or persons for his use, to his knoivledge or belief, nor with his privity or con- sent, have or hath, nor ever had, in his or their custody or 'power, any deeds, papers, maps, books of account, writings or other document relating to the matters in, question in this action, save and except the several deeds, papers, maps, books of account and loritings mentioned or contained in the schedule hereto annexed. Sworn, &c. The schedule to tvhich the above affidavit refers : (Here set out, shortly, the whole of the deeds papers, &c.) A.B. It is in the discretion of the referee to determine what deeds, books, papers or writings are to be pro- duced ; and when ; and for how long time they are to be left in his office — or, in case he should not deem it necessary that they should be left or deposited with him, then he may give directions for the inspec- tion thereof by the parties requiring it, at such time 64 THE LAW OF REFEREES. and in such manner as he shall deem it expedient. (Bennet's Master, 78.) The mode of proceeding to compel this production or deposit, is by summons, with an underwriting: " at which time the defendant is to produce before me and deposit in my office all such deeds, hooks, papers,^' &;c. ( Here follow the words of the judgment or decree.) On the return of the summons, if the party is not prepared to bring them in, he may apply for time to do so, according to circumstances. If these cir- cumstances should be very special, an application to the court may be made accordingly, as where a defendant has admitted books, papers, &c., out of the jurisdiction, or at a distance, to be in his posses- sion, custody or power, the court will order them to bring them in and deposit them in a reasonable time; and if not brought in, will consider it the same as if he had them and refused to produce them. {Far- quarson v. Balfour, 1 Turn., 189.) Should, however, a party be dilatory, a certificate of the fact will be made by the referee, as follows : [7^^^&.] day of ,186 . At the request of Mr. C. M., attorney for the plain- tiff, I do certify that the defendant C. D. has not pro- duced or left with me the hooks, deeds, maps, papers and writings relating to the accounts directed to be taken by the judgment made on the hearing of this action, although he hath been duly summoned for that purpose. E. F., Referee. WHAT A EEFEEEE CAN OR MAY NOT DO. 65 An ex parte motion can be made on this certificate : ORDER THEREON. [ Titled At a Special Term, Sfc. ' On motion this day made by Mr. G. M., of counsel for the plaintiff, it was alleged that hy an order made^ &^c., the defendants O. D. was to produce, Sfc, that the said defendant has not produced before the referee all or any of the deeds or icritings in his custody, although he has been duly summoned so to do, as by the said referees certificate, dated this day, now produced and read, appears : It is ordered that the defendant C D. do, in four days after personal service hereof, on the said defendant, or on his attorney, produce before the said referee, on oath, the deeds and writings in his custody or power, relating to the matters in question, or in default thereof that, on a certificate, by such referee, of default thereof, an attachment issue to the sheriff of the city and county of New York, to take the said defendant in his custody and bring him to the bar of this court to answer his said contempt. Whereupon such further order shall be made as shall be just. CERTIFICATE ON DEFAULT. ITitle.] At the request of Mr. C. M., attorney for the plain- tiff, I do hereby certify that the defendant C. D. has not produced and left with me the several books, deeds, maps, papers and writings relating to the accounts directed to be taken by the judgment herein, pursuant to the order of this honorable court, dated the day of 18 . All lohich is respectfully submitted. E. F., Referee. E. 9 6G THE LAW OF REFEREES. In case he be still contumacious, a sequestration against his effects may be obtained to compel him to make this deposit. {Ti-iggx. Trigg, 1 Dick., 325.) When the party requires time to bring in the deeds, &c., to be deposited, the court grants a rea- sonable time for him to do so, on an application to that effect. A contempt, incurred by the non-production of documents pursuant to a referee's summons or war- rant under a decree, judgment or order, can only be cleared in the same manner as other contempts, i. e., by producing the referee's certificate of the party's having deposited the documents required and mov- ing to discharge the process on payment of costs. (2 Daniell's Ch. Pr., 813.) After the deeds, books or papers have been depo- sited with the referee, all parties wishing to inspect them or make extracts therefrom, are permitted to do so. By the old Chancery practice, summons or warrant had to be taken out for such purpose, but it cannot now be necessary. Should the papers, &c., in a defendant's custody relate to other estates or matters, as well as to the estate or matter in dispute, he will not be compelled to deposit such ; but the affidavit may contain two schedules, the one embracing such deeds, &c., as relate solely to the matters in dispute, the other such as relate as well to them as to other matters ; and the deeds, &c., contained in the first schedule, he will be ordered to deposit, and the others to be inspected at all convenient times by the parties interested in them. WHAT' A REFEREE CAN OR MAY NOT DO.' 67 So, in suits for account, where the production of original books of account have been necessary, the party interested is only entitled to have access to such parts of these books as relate to the matters in dispute ; such parts as contain other accounts being sealed up. SECTION XXIV. INQUIEE INTO DAMAGES. If an action be referred, because its trial will re- quire the examination of a long account, the referees have power to inquire into damages for the breach of a special agreement. (Lee v. Tillotson, 24 Wend., 337.) SECTION XXV. JUST ALLOWANCES. There can be no doubt that a referee, to whom a judgment or order is referred, with a view to his taking accounts between the parties or by a single party, may grant all just allowances. Still, in almost every judgment or decree directing accounts to be taken by a referee, there should be inserted a decla- ration that the referee is to make unto the parties all just allowance. Under this direction, the referee is authorized to allow the parties such disbursements as may appear to have been fairly and properly made by them. 68 . THE LAW OF EEFEEEES. It is to be observed, that it is not the ordinary course for the court, in matters of this nature, to say, in the first instance, what is a just allowance ; and that it generally leaves the determination as to what ' is to be considered a just allowance to the referee. The court is not called upon to decide it, except upon exception to the report. {Brown v. De Tastet, Jac, 284, 294.) In Cook v. CoUingridge {lb., 607), however. Lord Eldon, under the special cir- cumstances of the case, made it part of the order that, as to such part of the allowance as should be claimed and objected to before the officer, he was to state his reasons for allowing or disallowing the same. What are just allowances: With respect to what, by the practice of the court, may be considered as just allowances, that must depend, very much, upon the circumstances of each case. It is, however, a settled rule, that whatever a trustee or personal representative has expended in the fair exe- cution of his trust, may be allowed him in passing his accounts. Thus, where the decree, in a suit by residuary legatees, directed an account to be taken of the per- sonal property of a testator, " and of his debts and funeral expenses," and the personalty was ordered to be applied in payment of the debts and funeral expenses in a course of administration, and the refe- ree (master), allowed payments in discharge of lega- cies, it was held that the payment of legacies, in such an account, was the subject of a just allowance, as the plaintiff could be entitled to nothing until the legacies were paid. {Nightingale v. Lawson, 1 Cox, 23.) WHAT A REFEREE CAN OR MAY NOT DO. 69 So, where a trustee, in the fair execution of his trust, has expended money by reasonably and pro- perly taking opinions and procuring directions neces- sary to the due execution of his trust, he is entitled not only to his costs, but to his charges and expenses, under the head of just allowances. (Fearns v. Young, lOVes., 184.) So, also, is the next friend of an infant : for, as the infant himself cannot incur charges and expenses if they cannot be claimed as just allowances, and the next friend is to be at the whole expense of the infant beyond his costs, persons will deliberate before they accept the office. (lb-) An executor or trustee who requires the assistance of an attorney in the execution of his trust, will be allowed the amount of what he has properly paid to such attorney, in respect of his bill of costs. {Johnson V. Telford, 3 Russ., 477.) The court holds, that where it is necessary to the due execution of their office, that trustees, &c., should employ accountants, agents or receivers under them, they will be entitled to be allowed the costs of such agents or receivers {Henderson v. Mclver, 3 Mad., 275) ; and thus, where a testator died possessed of several houses let at weekly rents, the court held the trustees justified in paying a person to collect si^ch rents, even though the testator had, by his will, given his trustees small annuities for their trouble. ( Wilkinson v. 8am.e, 2 S^ & S., 237.) However, in Werss V. Dill (3 M. & K., 26), it was held that an executor would not be allowed to charge for an agent, except under very special circumstances ; and that a 70 THE LAW OF KEFEEEES. report reducing the executor's charge, for the employ- ment of such agent, from five per cent to two and a half per cent, was correct. What will not he considered as just allowances : Although an executor or trustee, is of course, entitled, under the head of just allowances, to have all the reasonable expenses he may have incurred in the conduct of the trust, he is not entitled to any com- pensation for personal trouble and loss of time. (RoUnson v. Peff, 3 P. Wms., 249 ; Scattergood v. Harrison, Mos., 128 ; Brocksopp v. Barnes, 5 Mad., 90.) This rule applies especially where an executor has an express legacy for his pains. Nor will it alter the case that the executor has renounced and yet is assisting in the executorship, even though it appears that he has deserved something and bene- fited the trust to the prejudice of his own affairs. (^Robinson v. Peft, supra.) And even where an executor had acted as a commission agent for a testator in his lifetime, under a power of attorney, and was held entitled on an account to the usual commission on his agency prior to the death of the testator, he was not allowed to charge commission on the business transacted subsequently to his death. {Sheriff v. Jxe, 4 Russ., 33.) The same rule has been extended to solicitors and attorneys, who, in the character of executors and trustees, are not allowed any professional charge or remuneration for loss of time or other emoluments, but only such charges and expenses, actually paid by them out of pocket, as the referee may find to have been properly incurred and paid. (Moore v. WHAT A EEFEREE CAN OE MAY NOT DO. 71 Frowd, 3 M. & C, 45 ; see also New v. Jones, 9 Bythewood's Convey., by Jarman, 338.) While he may be allowed the expense of employ- ing another solicitor or attorney, yet he will not be allowed, without question, whatever sum he thinks proper to pay to his attorney — the account will have to be taxed and moderated. (Johnson v. Telford, 3 Russ., 477.) It may be noticed here that where a substantive claim, for a specific allowance, has been made by an answer, and no special direction has been founded upon it in the judgment, the referee will not be justified in making such an allowance under the head of " Just Allowances ;" the proper inference to be drawn from the fact of the claim made by the answer not being noticed in the judgment, being either that the court did not think it proper to be allowed or that the party making had abandoned it. E. I. Company v. Keighly, 4 Mad., 38.) SECTION XXVI. POSTPONE A SALE. Although a referee should proceed to sell with all due diligence, yet, he may, in his discretion and for good reason shown, postpone the sale. {Kelly v. Israel, 11 Paige's C. R, 147.) 72 THE LAW OF EEFEEEES. SECTION XXVII. HEAE FUETHEE TESTIMONY. The reported cases go to the extent that the case is within the control of the referee until his decision is made and the report is filed, or, at least, delivered to the successful party for that purpose. His deci- sion is not made until his report is signed and delivered. At any time before this, he may change or modify it to any extent, in conformity to his better judgment; and, as long as he has control of the cause, he may open it for a further hearing and receive evidence upon any question in which he may desire new or additional light. {Ayrault v. Sackett, 17 Barb, S. C. R, 461 ; 8. P. Duguid v. Ogilvie, 3 E. D, Smith R, 527.) The court will not interfere with the discretion of a referee until after he has • reported, (Schermerhorn v. Develin, 1 Code R., 28.) If referees, on the report being sent back for revision and correction, go beyond the errors com- plained of and reopen the case as to other items, they are bound to hear further testimony. {Goulard v. Castilhn, 12 Barb. S. C. R., 126.) WHAT A EEFEEEE CAN OK MAY NOT DO. 73 SECTION XXVIII. EEFEEEE STATING OUT DOOES HIS CONCLUSIONS IN ADVANCE OP HIS EEPOET. Altliougli a referee may, as he believes, have come to a decision in his own mind in a case before him, he should be exceedingly careful not to advise either side in respect to his conclusions in advance of the delivery of his report. The objection is, its liability to abuse in the hands of easy or facile referees, after parties have ascertained at what particular point the stress of the case lies in the mind of the referee. Should the power of giving conclusions in advance be abused, the court would apply a remedy after the report was made, on the fact of such abuse being shown. {Ayrault v. Sackett, 17 How. Pr. R., 462.) SECTION XXIX. FULL OE BEIEF EEPOET. As a general thing, a referee's report should con- tain such a statement of the evidence as will enable the- court to judge of the justness of the findings, if questioned by either party, not detailing the evi- dence, but giving such a specification of it as will enable the court to see with certainty the grounds upon which the referee acted. {Johnston v. Reardon, 1 MoL, 54.) 74 THE LAW OF REFEREES. Therefore, where a debtor and creditor account has to be taken, a report will be too brief unless the evidence is set out upon its face and a schedule annexed showing the way in which the balance is formed. {Kilhee v. Sneyd, 2 Mol, 196.) And, in cases of title, a report generally that a good title cannot be made is insufficient ; the referee should state the precise points in which the title is defective. {Green v. Monks, lb., 325.) A referee, in his report, is always at liberty, though not directed, to state his reasons for disallowance of a claim. {Champernowne v. Scott, 4 Med. C. R., 209.) On a reference to report amount of alimony and an advance to counsel, a report should show the means and ability of the defendant. ( Worden v. same, 3 Edw. C. R., 387.) SECTION XXX. COSTS AND EXTRA ALLOWANCE. A referee stands in the place of the judge holding the special term. Having heard the whole cause upon the merits, he is the most fit person to decide upon the question whether, under section 306 of the Code, costs shall be allowed or not, and if so, to which party. That section says, that costs may be allowed or not, at the discretion of the court. The referee to whom the whole cause is referred, is the court to whose discretion this matter is confided. WHAT A REFEREE CAN OR MAY NOT DO. 75 It is idle to say he is not the court for this purpose if his decision is to stand as the decision of the court and is open to appeal in the like manner. ("Willard, J., in Graves v. Blanchard, 3 Code R., 25 ; 8. C, 4 How. Pr. R., 300.) And the court will not supervise the referee's decision in respect to costs, unless upon some manifest error. (Ludington v. Taft, 10 Barb. S. C. R, 449.) What we have above said, as to the power of a referee to allow costs on issues before him, is to be qualified where executors or administrators are de- fendants. In Mersereau v. Myers, 12 How. Pr. R., 300, Justice Balcom says: "The practice under the Code, so far as my knowledge extends, has been against allowing referees to decide the right to costs against executors and administrators. {Fort and wife v. Gooding and others, executors,^ Barb. R., 388.) My conclusion is, that in actions prosecuted or defended by an executor or administrator, a referee has not the right to decide the question of costs or the power to award costs against the executor or admin- istrator personally or against the estate he repre- sents." An arbitrator can, and we presume a referee may, maintain an action for his fees, without any express promise to pay ; and where there are several referees, each maintain a separate action for his fees. (Hinman V. Hapgood, 1 D^nio, 188.) A referee cannot grant an extra allowance or " further allowance " by way of costs. He has no power to pass upon the point; the statute has given it to the court alone. {Howe v. Muir, 4 How. Pr. R., 76 THE LAW OP EEFEEEES. 252, Rule 52 of the Supreme Court.) Still, the extra allowance is applicable to cases tried before referees. {Niver V. Rossman, 5 lb., 153.) In difficult and ex- traordinary trials before a referee (other than cases of partition, foreclosure, adjudication of wills or other writings where attachment has been issued and in certain proceedings to compel the determina- tion of claims to real property), the court may, in its discretion, make a further allowance to any party not exceeding five per cent upon the amount of the recovery or claim or subject matter involved. (Code, § 309.) When the cause has been tried by a referee, the court can decide upon the propriety of granting the allowance only on a view of the facts on which the charge of unfairly or unreasonably conducting the defence is predicated. And those facts can be brought to the knowledge of the court only by an affidavit- The affidavit may be explained or contradicted ; and to enable a party to do this, he must have notice of the motion and of the grounds on which the applica- tion is made. {Hoive v. Muir, supra.) The application should be made where the judg- ment is rendered. {Niver v. Rossman, supra.) It is a matter of right for the successful party to present the case to the court for an extra allowance. It is equally a matter of right for the unsuccessful party to resist such application, The decision, upon the application, rests very much in the discretion of the court; and, in such cases, it is not usual to charge either party, whatever the result, with the costs of the motion. {Dickson v. McElwain, WHAT A EEFEREE CAN OR MAY NOT DO. 77 7 How. Pr. R, 138.) "The making of an extra allowance," observes Justice Harris, in tlie last quoted case, "is, from the necessity of the case, a matter resting in the discretion of the court to which the application is made. It depends upon the question, whether the trial has been difficult or ex- traordinary or whether a prosecution or defense has been unreasonably or unfairly conducted. This question must, of course, be decided according to the impression which the facts and circumstances pre- sented may make upon the mind of the judge who holds the court. The same facts and circumstances may make a very different impression upon other minds. There is no legal test by which, upon a review, the propriety of the decision can be deter- mined." An order granting an extra allowance is not ap- pealable, {lb.) Unless, indeed, it should be extended to. an amount of allowance exceeding the rate fixed by the Code ; for, in such a case, it would affect a substantial right and be, consequently, appealable. {Wilkinson v. Tiffany, 4 Abbott's Pr. R, 98.) The party moving for an .extra allowance, had better be armed with a certificate from the referee as well as with the affidavit of his attorney or coun- sel. The affidavit should be pointed in showing the difficulties of the trial or its extraordinary character. These difficulties might arise from obstacles inter- posed by the other side or from t"he building up of proof to sustain the complaint in a peculiar case or connected with old claims or ancient rights or from the very action itself being of a special or remark- 78 THE LAW OF EEFEREES. able character. And, it is presumed, ' that the certi- ficate of the referee should go a little into particulars and might add the referee's opinion of what would be a reasonable and proper allowance. The writer has heard judges suggest the latter. CERTIFICATE OF KEFEEEE TO USE ON MOTION FOE A FUETHEE ALLOWANCE. imie.] I., G. H., the undersigned 7-eJeree, before tvhom the issues in this action were tried, do respectfully certify, that the case herein was a difficult one to try on the part of the plaintiff {or defendant) for that, Sfc. (here set forth shortly the causes of its difficulty and time necessarily consumed) ; and that, in my opinion of its difficulties before me, a per centage of per cent on $ being the amount recovered (or, of the subject matter involved) to the plaintiff (or defendant), as a further allowance of costs in this action would be reason- able and proper. Dated, New York, the day oj 18 . Gr. H., Referee. If an extraordinary case : certify, that the case herein was extraordinary on account of its being an ac- tion for, 8)X., and consequently causing proof {and which proof was made) of, 5^-c., (stating, shortly, what aided in making it extraordinary) ; and that, on account of its extraordinary character, a per centage of per cent, on % , 8^c. (As above.) A referee cannot grant an allowance. All he can do is, to furnish a certificate to the court, showing what has been done on the trial before him and what would be a proper amount of allowance. The court WHAT A REFEREE CAN OR MAY NOT DO. 79 alone can make the allowance. {Osborne v. Betts, 8 How. Pr. R., 31 ; Main v. Pope, 16 Ih., 271 ; Howe V. Muir, 3 Code R., 21 ; Niver v. Rossman, 5 How. Pr. R., 153.) And it can only be made to the court before which the trial is had or the judgment ren- dered. (Rule, 52.) The court does not grant an allowance upon the mere certificate of a referee. When the cause has been tried (by a referee), the court can decide upon the propriety of granting the allowance Only on a view of the facts on which the charge of unfairly or" unreasonably conducting the defense is predicated ; and those facts can be brought before the court only by an affidavit. The affidavit may be explained or contradicted. To enable the party to do this, he must have notice of the motion and of the grounds on which the application is made. {Howe v. Muir, 4 How. Pr. R, 252.) SECTION XXXI. PROMPTLY PAY OVEE MONEY. Upon a sale by a referee, the money should be paid over without delay to the parties entitled thereto. If the referee neglects to pay it over, as directed by the order of the court, he should be charged per- sonally with interest. {Lawrence v. Murray, 3 Paige's C. R., 400.) 80 THE LAW OF REFEREES. SECTION XXXII. ACT AFTER TRIAL OP ISSUES AND REPORT MADE. After a referee has had an action sent to him on all the issues, and he has decided and made and delivered his report and directed final judgment, his power over the action is ended. It terminates his jurisdiction. {Pratt v. Stiles, 17 How. Pr. R, 211.) .His discretion, as well as his authority over the interlocutory questions presented in the progress of the trial, ceases with the decision of them, or, at least, with the trial itself. {Allen v. Way, 3 Code R,243.) SECTION XXXIII. RECEIVE FEES. The Eevised Statutes prohibit any judge, commis- sioner or other judicial officer from demanding any fees, &c., for giving his advice in any matter or thing pending before him or which he has reason to believe will be brought before him for decision or for drafting or preparing any papers or other pro- ceedings relating to any such matter or thing — except where fees are allowed to him as such judge or officer for such services. (2 R. S., 276, § 6.) This section was generally considered as extending to masters of the late Court of Chancery ; and will, no doubt, apply to referees. In McLaren v. Charrier WHAT A REFEREE CAN OR MAY NOT DO. 81 (5 Paige's C R., 530), it was decided, that where a master had, in the character of a solicitor or coun- selor, given advice or prepared any pleadings, &c., in a cause or matter pending in or brought before the court or had made or opposed motions or peti- tions in such cause or matter or where his law partner had been thus employed or consulted, although not solicitor or counsel on record, such master could not afterwards act as master or do any judicial act requiring the exercise of judgment or discretion which was, in any way, connected with such cause or matter. R. 11 CHAPTER III. EEFEEENCE WHEEE THE TEIAL OF AN ISSUE OP PACT WILL EEQUIEE THE EXAMINATION OF A LONG ACCOUNT ON EITHEE SIDE. Section I. Observations. 11. Moving for the referenoe. III. Affidavit on which to move for a reference. IV. Notice of motion for reference. V. As TO WHAT constitutes AN ACCOUNT. VI. Questions op law. VII. Affidavit to oppose motion fob a reference on the ground that questions op law are involved. VIIL Order op reference connected with long accounts. SECTION I. OBSEEVATIONS. Enactments for a reference where a trial will require the examination of a long account on either side, go as far back, in the State of New York, as the year 1780. (JDedericK s administrators v. Richley, 19 Wend., 110.) Principles and practice, governing references under the Revised Statutes, will, in a large degree, be still found to apply to the provisions of the Code touch- ing references. Indeed, the Code itself expressly declares that referees "shall have generally the powers now vested in a referee by law." By the Code : where the parties do not consent, the court may, upon the application of either, or of its mon motion, except where the investigation will require the decision of difficult questions of law, direct a reference TRIAL OF PACT INVOLVING LONG ACCOUNT. 83 in the following case, among others : Where the trial of an issue of fact shall require the examination of a long account on either side ; in which case, the referees may he directed to hear and decide the whole issue or to report upon any specific question of fact involved there- in. (§ 271.) It will be observed, that three points have to be considered under references compelled by the court : First, whether all or what cases in particular are referable ; Second, as to what are long accounts ; and, Third, what are difficult questions of law which would debar a court from sending a case to referees. Prior to the Code, actions of tort were not refer- able. (DedericK s administrators v. Richley, 19 Wend., 108 ; Beardsley v. Dygert, 3 Denio, 380.) In mixed questions of law and fact, where long accounts were involved, it was the practice of the court to hear the cause, until the questions of law were disposed of (Samble v. The Mechanics' Fire Ins. Co., 1 Hall's Sup. C. R, 560.) Judge BoswoRTH, in a case under the Code (Mc- Cullough V. Brodie, 13 How. Pr. R, 346), observed: " It may be true, that the class of actions in which the court can order the whole action to be tried by the referee, without the consent of either party, is enlarged by the Code; but the fact, which warrants the exercise of the power, is the same now as when the Revised Statutes alone gave the authority to refer. (19 Wend., 31 ; 25 Id., 687 ; 6 Id., 503.) "By 2 R S., 384, § 40, the court could order a cause to be referred, whenever it was made to appear that the trial would ' involve the examination of a 84 THE LAW OF EEFEREES, long account on either side.' By the Code, a refer- ence may be ordered, ' where the trial of an issue of fact shall require the examination of a long account on either side.' (Code, § 271, sub. 1.) The language of the two • statutes, prescribing the condition on which a reference may be ordered, compulsorily, is the same." In the above case, the action was upon false repre- sentations as to a secret for manufacturing resin-soap, and the exclusive right to manufacture it and the alleged involvement of long account consisted of the item of damage resulting from establishing a factory and purchasing materials wherewith to make the soap. The judge ended thus : " When the items to be investigated are made the subject of examination, in order to recover damages, strictly and properly so called, either party has a right to have the issue tried by a jury, unless it be joined in an action which the Code requires the court to try. I think the action is not referable, without the consent of the parties ; and, the motion must be denied." But, a judge of the same cornet, Judge Mason, in Sheldon v. Wood (1 Code E., N. S., 118), observed: " The court has power to order a reference in actions sounding in tort, where the trial of issue of fact shall require the examination of a long account. Therefore, where an action is brought to recover back money alleged to have been fraudulently charged in an account between the parties, a reference will be ordered, though the ground of the action is fraud of the defendant. TRIAL OF FACT INVOLVING LONG ACCOUNT. 85 " Section 271, of the Code, is broader in its terms than the provisions of the Revised Statutes on the same subject. The latter provided for the appoint- ment of referees in actions founded on contract ; the Code authorizes a reference in all actions what- ever. We think that the account in this cause could not well be investigated and settled by a jury; and the motion for a reference is therefore granted, the costs to abide the event of the suit." The learned j udge is right in saying that " the Code authorizes a reference in all actions whatever ; " but the question is, whether a court can compel a reference in all actions 1 It may be a point, whether the Code, which allows a reference on compulsion, does not con- template a case where something is due to one party or the other. This idea was put by . Ch. J. Nelson in connection with an exposition of a referable case under the R. S. {8ilm,ser v. Redfield, 19 Wend., 22.) In McMaster v. Booth (2 Code Reporter, 111; 8. C, 4 How. Pr. R., 427), and which was an action based upon carelessness or negligence — Justice Barculo observed: "It is obvious that the com- missioners did not intend to alter the prevailing ru^e on this subject by enlarging the meaning of the words, ' long accounts.' For it will be seen, upon page 177 of their first report, that they had in view the constitutional provision which preserves ' trial by jury in all cases in which it has been heretofore used,' inviolate for ever. And on page 185 they say ' a trial by jury is secured by the Constitution to the parties, if they require it, where there are issues of fact in the courts of law, excepting only those where 86 THE LAW OF EEFEKEES. the trial involves the examination of a long account.' They here refer to the Constitution and the law as it existed prior to the Code. If, therefore, actions of this nature were not referable under the former law, and the Constitution has rendered inviolate the right of trial by jury in all cases in which it has been heretofore used, it follows that the Code has not and could not deprive either of the parties, in the case before us, of the right to have the issue in question tried by a jury. The motion must be denied, but without costs." However, in Sheldon v. Wood (3 Sand. S. C. R., 73), the court decided that the Code authorizes a reference in all actions whatever; and would order one in an action grounded on alleged fraud, if the trial required the examination of a long account. SECTION 11. MOVING FOE THE REFERENCE. The objection to a reference, on the ground that an action will require the decision of difficult ques- tions of law, must be made good by the party who opposes the reference. The moving party need not, in his papers, negative the point of any such diffi- cult questions. The presumption will be that there are none. " In a large majority of referable causes," said Justice Hubbaed, in Barber v. Cromwell (10 How. Pr. R, 351), "it is not contended by either party that referees are not an appropriate tribunal TRIAL OF FACT INVOLVING LONG ACCOUNT. 87 In sucli actions generally the trial involves merely a statement of an account between the parties — a find- ing of facts upon undisputed questions of law. There is, therefore, no presumption that intricate legal questions will arise in that class of actions. The presumption is the contrary, and it should have its legitimate force and effect until answered by the opposing party. "It seems to me that the old practice in this respect should be adhered to, that all the moving affidavit need to show is, that the cause is referable under the statute, and leave it for the party opposing the motion to show that the case is within the excep- tion of section 271 of the Code, above referred to." When both parties move for a reference, the motion of the party first giving notice is entitled to a preference. {Graham v. Wood, I Wend., 15.) An affidavit, on which to move for the reference, must, in general, be made by the party and not the attorney. ( Wood v. Crowner, 4 Hill, 548.) It would seem to be otherwise where a sufficient excuse ap- pears for dispensing with the affidavit of the party. A motion to refer may be made immediately on receiving a reply to the answer ; and the party is not bound to wait twenty days to see if the defend- ant will amend it. (Enos v. Thomas, 2 Code R., 148.) An affidavit for a reference should state that issue is joined. (Jansen y. Tappen, 3 Cow., 34.) 88 THE LAW OP KEFEEEES. SECTION III. AFFIDAVIT ON WHICH TO MOVE FOR A EEFEEENCE.' [Title.'] County, ss: A. B., the plaintiff {or, the defend- ant) in the above entitled action, being sworn, says, that this action is at issue ; that it is brought to recover a demand claimed to he due on contract for work, labor and services ; that the complaint sets forth a large number of items of demand, and the answer herein contains a large number of items which the defendant claims to set off or to recoup against the said plaintiff; and the trial of this action will require the examination of a long account on the part of the plaintiff (or, defendant, or on the part of both parties'), A. B. Sworn, 8^c. SECTION IV. NOTICE OF MOTION FOR REFERENCE. [Title.] Sir, — Take notice, that on the pleadings herein and upon an affida/oit, of which a copy is hereto annexed, a motion will he made at {chambers as of) special term to be held at, 3fc., on the day of instant, at o'clock in the morning, or as soon as counsel can he ' Altered from McCall, 20. TRIAL OP FACT INVOLVING LONG ACCOUNT. 89 heard, that this action be referred (to A. B., C. D. and E. F. of, Sfc.) Dated the day of , 18 . Yours, Attorney for defendant (or, 'plaintiff). To , Esquire, Attorney for 'plaintiff {ox, defendant). It was the practice under the olcl system to name three persons in the notice as referees. Indeed, it was decided to be indispensable {Lusher v. Walton, 1 Caines' C, 150) ; and this seems to have been on the idea that the court only appoints, never noininates. {Bedle v. Willett, lb., 7.) And this might still be done ; although, in some districts, especially in the first, the justices seem to have made a rule not to pay respect to any nomination of persons as referees. (13 How. Pr., R. 346.) The chief justice (Roose- velt) gave the following important notice : " A referee can, in no case, be nominated by a party, unless all the parties agree upon a suitable person. No such agreement can be made where an infant or an absentee is a party; nor, where a divorce is sought by or against a married woman. The agreement, when allowed, must be evidenced by writing signed by the parties or their attornies. The referee's name should [guery, not ?] be inserted in any proposed order, unless accompanied by such agreement. If inserted otherwise, the court will not strike it out, nor in any manner act on the proposed draft order." K. 12 90 THE LAW OF EEFEREES. The provision of the Revised Statutes, relating to a reference of causes in matters involving an account and as to their appointment, are still of some force. "If the parties agree on three persons as referees, such persons shall be appointed by the court ; if they disagree, each party shall be entitled to name one, and the court shall appoint the persons so nomi- nated, if they are free from all exceptions, and such other person as the court shall designate." (2 E. S., 384, § 40.) Supposing the practice of naming referees in the notice to be still continued, the party against whom a reference is moved may nominate one of the refe- rees, instead of any one named in the notice ; but he cannot, by showing cause, entitle himself to a further nomination. If a name is rejected for cause, it lies with the mover to nominate a substitute. So, the mover is always entitled to nominate -two. (Backus V. Smith, 3 Cow., 344.) Where the issues of fact in an action between partners will require the examination of a long account, the court, on its own motion, where appli- cation is made for the appointment of a receiver, will direct a reference to hear and decide the whole issues; that is, will direct an order of reference for the appointment of a receiver, &c., and a reference to hear and decide the whole issues. (Jackson v. De Forest, 14 How. Pr. R, 81.) TRIAL OF FACT INVOLVING LONG ACCOUNT. 91 SECTION V. AS TO WHAT CONSTITUTES AN ACCOUNT. On moving for a reference, on the ground of account, the coui't must be able to see, from plead- ings and papers, that the trial of the action will necessarily involve the examination of a long account on either side. {Keeler v. The Poughkeepsie and Salt Point Plankroad Co., 10 How. Pr. R., 11.) Compulsory references should be rigorously confined to cases invoking the examination of a bona fide account in an action of contract. [Sharp v. The Mayor, 8^c., of the City of Neio York, 18 How. Pr. R, 213.) To entitle a party to such a reference, the words are express that the object referred must be a matter of account. And it would not be sufiicient, at a cir- cuit and when an action was reached for trial, to obtain a reference simply because there has to be an examination of mere debits and credits : it must be shown that the question to be submitted to the jury will involve the examination of long accounts, such as will exceed the bounds of common jury investi- gation and are too long and intricate to be readily explained. (Caine's Practice, 484 ; and see Sharp v. The Mayor, Sfc, of the City of New York, supra.) There should be a pure matter of account to entitle to a reference ; and it was refused, in a case before the Code, where notice had been given that the defendant would give in evidence his discharge under the insolvent law, although the plaintiff stated 92 THE LAW OP REFEREES. that he meant to impeach the discharge for fraud. (/&., referring to Hobson v. Seymour, MS.) There must be an account in the ordinary accepta- tion of the term. {Van Rensselaer v. Jewett, 6 Hill, 373.) That the action has once been tried by a jury is no objection in a motion to refer it, upon the ground of its involving the examination of a long account. (Brown v. Bradshaio, 1 Duer's Sup. C. R., 635.) In an attorney's action for professional services, a reference may be had to ascertain the amount he will be entitled to recover, if at all, and reserving the trial of his right to recover. {Bowinan v. Shel- don, 1 Duer, 607.) In an action upon a policy of insurance against fire, if the defendants admit that they are liable for the loss, and the' controversy between the parties relates solely to items of injury and the amount of loss sustained by the assured, the court will refer the matter to referees to adjust the amount {Samhler v. The Mechanics Fire Ins. Co., 1 Hall's Sup. C. R, 560.) Prior to the Code, a reference was refused where; from the bill of particulars, there were but four items of an account. {Parker v. Snell, 10 Wend., 577.) And, since the Code, a reference was refused where an account, although containing many items, yet embraced but a single purchase and made at one time {Stewart v. Elwele, 3 Code R., 139 ; S. P. in Sidft V. Wells, 2 How. Pr. R., 79), where Ch. J Beonson^ denied a motion for a reference on the ground that one bill of goods, containing fifty differ- ent items, delivered at the same time, was, in fact, but one item. TRIAL OF FACT INVOLVING LONG ACCOUNT. 93 Also, in Miller v. Hooher (2 How. Pr. R, 171), it was held, that a single bill of lading was but one item, no matter of how many different articles it was composed; and that it could not be considered as involving the examination of a long account. Justice Baeculo defined an account to be : a com- putation or statement of debts and credits arising out of personal property bought or sold, services rendered, materials furnished and the use of property hired out and returned ; and his honor further observed, that if an account did not fall within this definition, it was not an account within the ordinary legal acceptation of the term and could not be referred without consent of parties. {McMaster^. Booth, 2 Code R, 111.) In an action wherein the plaintiff! as a ground upon which he demands judgment, avers the failure of the defendants to make advances as required by an agreement between the parties and also claims that, by reason thereof, he has been required to make and has made numerous advances, and, on the other hand, the defendants, in their answer, aver that they have made all the advances which they were bound to make : a reference is proper to take the account of the advances respectively made. {Smith v. Dodd, 3 E. D. Smith's R, 348.) Such a reference may be ordered before the other issues are submitted to a jury for trial, lb. If there be a main issue on which the accovmting depends, a reference will be refused. Thus, where the necessity of examining a long account depended upon the question, whether a partnership existed, the 94 THE LAW OF REFEREES. court decided that there should be no reference until that issue was tried. The court observed : " It is admitted that no account will be necessary if the plaintiflf fails to prove a partnership. The issue sub- stantially is, whether there is a partnership or not ; and then, if the plaintiff succeed, the accounting would follow to ascertain the amount which he is entitled to recover. Thus, the accounting is like an inquiry to assess damages, and until it is known that there is a partnership, it cannot be said in this case that the trial of the issue of fact will require the examination of a long account. In one case that has occurred in this court, the previous dealings of the parties and their contract was such, that the question whether there was a partnership or not could only be ascertained by first going into the accounts, the plaintiff being entitled to be a partner on his bringing into the business a certain amount of capital, and he insisting that he had done so and that the books would show it: there, the reference was ordered. But here, the' question of partnership or not, does not turn on any such peculiar circumstances. The general rule, therefore, must prevail, that the question of partnership be first settled by an issue, or by the court, before a reference can be ordered by the court. Motion for reference denied, without costs." The case to which the court, in the above opinion refers, was Mills V. Thurshy (11 How. Pr. R, 113), and there the court observed : " Although it might be proper to send to a jury a naked question of partnership or no partnership, if that inquiry were entirely isolated from the statement of the accounts, yet, even that TRIAL OF FACT INVOLVING LONG ACCOUNT. 95 question is here so connected with the accounts that a reference should be ordered." In Masterton, v. Howell (10 Abbott's Pr. R, 118), an action was brought to recover commissions for indorsing upwards of twenty promissory notes. A reference was granted, the judge considering that, as it would be necessary to ascertain both the number and amount of the notes, therefore, there remained the requirement of a long account. SECTION VI. QUESTIONS or LAW. The principle on which a reference is authorized is, that a matter of account is a mere matter of fact ; when, therefore, a matter of law will arise, it neces- sarily, as well as by force of statute, affords a solid ground of opposition. (Caines' Pr., 487.) The manner of showing how questions of law will arise, would be, by referring to the pleadings and by an affidavit, to be made by the opponent, mentioning what they are. (Shaw y. Ayres, 4 Cow., 52.) The opposing affidavit must state what the difficult ques- tions of law are. {Dewey v. Field, 13 How. Pr. E. 437 ; Lusher v. Walton, 1 Caines, 149 ; Salisbury v. Scott, 6 J. E., 329, overruling Low v. Hallett, 3 Caines, 82.) To warrant denying a reference on the ground that questions of law will arise, the court must be 96 THE LAW OF EEFEEEES. satisfied' that they will be questions of real difficulty. (^Anonymous, 5 Cow., 423.) It will be denied, where it clearly appears that substantial questions of law will arise on the trial, although a plaintiff shows that it will require the examination of a long account on his part. {Ives v. Vandewater, 1 How. Pr. E., 168.) SECTION VIL AFFIDAVIT TO OPPOSE MOTION FOR A REFERENCE ON THE GROUND THAT QUESTIONS OF LAW ARE INVOLVED. [ Title of the action. ss: C D, the defendant in this action, being sworn, deposes and says, that questions of laio toill arise on the trial herein ; that the complaint in the present action is founded on (state what) ; and to which this defendant has answered (state what, and if there be a reply, mention its substance) : and the following will lie insisted on, on behalf of this defendant (state the points of law) ; and this deponent has understood and believes that the plaintiff's counsel will urge (state briefly what points of law are anticipated from the plaintiff) ; and this deponent is advised by his counsel and believes that such points are material and difficult and that referees are not a proper tribunal for the trial of this action. Sioorn to, Sfc. TRIAL OF FACT INVOLVING LONG ACCOUNT. 97 SECTION VIII. ORDER OF REFERENCE (CONNECTED WITH LONG ACCOUNTS). At a special term (or, if the reference is made at the circuit, at a Circuit Court^, held at the City Hall, in the city of New York, the — day of , 18 — . Present : Esq., Justice. \_Title of the action.'] It sufficiently appearing to this court that the trial of this action will require the examination of long accounts ; on motion of Mr. of counsel for the plaintiff (or defendant), and after hearing Mr. of counsel for the defendant (or plaintiff^ : it is ordered — (or, the court on its own motion hereby orders) that this action and all its issues therein he referred to E. F. of 8^c., coun- selor at law, and that he (or, E. F., G. H. and I. J., all of 8^c., counselors at law, and that they or any two of them), report thereon with all convenient speed. In a case before the Code, where cross-actions, to a large amount, were pending between the parties, in one of which the venue was laid in New York, and the other in Albany, and references in both cases were moved for, the court appointed a joint reference in the two causes, giving leave to the referees to hold meetings both in New York and Albany to hear the parties. {Hart v. Trotter, 4 Wend., 198.) Two of the persons named as referees by the K. 13 98 THE LAW OF EEFEEEES. plaintiffs in the first suit were appointed and one named by the plaintiffs in the second suit. (/J.) In an action in which a reference may lawfully be made, the decision of the judge at special term that a reference is proper, rests so far in his discre- tion that it is not appealable. (^Smith v. Dodd, 3 E. D. Smith's R., 348 ; Vbsdell v. Boot, 3 Abb. Pr. R, 142, and cases there cited.) Where a reference is had to state accounts, the referee's report should so present the items that exceptions may be taken to it. {Ransom v. Davis's ad- ministrators, 18 How. U. S. R., 295.) Indeed, a referee, in taking an account, should so state it at length and all facts found by him, that the same will be intelligible to the court without reference to the testimony. {Herrick v. Belknap's Estate, 1 Williams' [Vermont] R, 673.) CHAPTER IV. GENERAL COURSE AND CONDUCT ON A TRIAL OF ISSUES BEFORE REFEREES. Section I. Observations. II. Meetings before kefbree. III. Appointment in writing of a first meeting. IV. Notice op trial. V. Form op coitntbrmand. VI. Adjournments. VII. Oath of referees. VIII, Form of .oath. IX. Amendments. X. "Witnesses. XI. Form of oath to a witness. XII. Form op oath to an interpreter. XIII. Form of oath of a party to admit btidencb op the contents of a PAPER NOT PRODUCED. XIV. Form op oath op a party preliminary to proving the handwriting of A subscribing witness. XV. Admissions and evidence. XVI. Costs. XVII. Compelling referee to report. XVIII. Referee's report. XIX. General form of referee's report on all the issues. XX. Further allowance. XXI. Certificate from referee to aid in obtaining a further allowance XXII. Referee's fees. XXIII. Filing report and perfecting judgment. XXIV. N'OTic:^ of judgment served with copy of report. XXV. When repbrbb's duties are determined. XXVI. Appeal from and reviewing a judgment entered on the decision op referees. XXVII. Form of a case on appeal from referee's report and from the judg- ment thereon. XXVIII. Setting aside report and granting a new trial. XXIX. Costs on the granting of a new trial. XXX. Sending the action to a new referee. XXXI. Order setting aside * report op referees and directing a hearing before new beferbes. SECTION I. OBSERVATIONS. A TRIAL before a referee or referees is to be con- ducted in the same manner as a trial by the court. (Code, § 272.) 100 THE LAW OF REFEREES. It is to be on a similar notice {Ih.) Witnesses will be subpenaed in like manner {lb.); and tbe referees {on a trial of issues) can compel witnesses to attend before them by attachment, and punish them as for a contempt for non-attendance or refusal to be sworn or to testify as is possessed by the court. {Ih.) They have the same power as a court, to preserve order and punish all violations thereof upon such trial {lb.) Mark : " upon such trial" for they do not seem to have any such statutory power in interlocu- tory matters, or on special proceedings before them- (See ante, " Commit for contempt," p. 40.) It is customary to deliver to and leave with the referee a certified copy of the judgment for his use ; and it would be irregular for a referee even to issue a summons until such judgment was brought into his office. The possession of the judgment by the referee is necessary, not only that he may know he has authority to execute the reference and to sum- mon parties to appear before him, but also to enable him to exercise a proper discretion in fixing a reasonable time for the services, in reference to the nature of the matters to be inquired into and the residence of parties and their attorneys. The dis- cretionary power committed to a referee must be exercised in such a manner as to do justice to both parties, and he should not permit the party who has the prosecution of the reference to fix the time and place thereof and the time of service of summons, &c., so as to suit his own convenience only. (1 Barb. Ch. Pr., 472.) TRIAL OF ISSUES. 101 SECTION 11. MEETINGS BEFOEE EEFEEEE. Referees are to proceed with diligence to hear and determine the matters in controversy. (2 E. S., 384, §43.) As respects the place of meeting, it is not necessary that the referee should meet in the county in which the venue is laid ; although the court will take care that the place of meeting be not chosen so as to oppress an opposite party. {Newland v. West, 2 J. R., 188 ; and see Wheeler v. Maitland, 12 How. Pr. R., 35.) Justice E. Dakwin Smith, in Sage v. Mosher (17 How. Pr. R., 367), lays it down as the better prac- tice, for a referee to appoint in writing a time and place for the hearing of the action and the service of a copy of it with or before the notice of trial, although, as the justice observes, the practice has, to a large extent, been otherwise. (And see Stephens v. Strong, 8 lb., 339.) 102 THE LAW OF REFEREES. SECTION III. APPOINTMENT IN WRITING OP A FIRST MEETING. [Title.] I, the undersigned referee herein, do hereby appoint the — day of next at — o'clock in the noon, at my office;, No. street, in the city of , for the trial of the above action. Dated New York, the — day of , 18 — . , Referee. However, where a party has knowledge that an action is referred, a regular notice of trial upon him, " on similar notice, as a trial by the court " (Code, 272), although unaccompanied by any written ap- pointment by the referee of time and place, will be good and he is bound to attend ; and if he do not, the referee may proceed on the motion of the party giving the notice. {Stephens v. Strong, 8 How. Pr. R., 339.) Either party may notice and bring on the trial of a cause before referees, the same as before the court. {Thompson v. Krider, 8 How. Pr. E.., 248.) If the plaintiff neglects to appear, the referee may go on and ma,ke his report in favor of the defend- ant and may nonsuit the plaintiff. {lb. ; S. P. Williams v. Sage, 1 Code R, N. S., 358; contra. Holmes V Slocum, 6 How. P. R., 217.) TRIAL OF ISSUES. 103 SECTION IV. NOTICE OF TRIAL. A trial before referees is to be on similar notice, as on a trial before the court (Code, § 272) ; in other words, at least fourteen days' notice of trial should be given. FOEM OF NOTICE OF TEIAL. [Tiile.'] Sir, Take notice, that this action will be brought to a hearing before the referee appointed here- in, at his office in the city of , on the — day of next, at d clock in the — noon of that day. Dated the day of , 18 — . Yours, Attorney for plaintiff (or, defendant.) To — : , Esquire, Attorney for defendant (or, plaintiff). If the trial ^cannott be brought on according to notice, a countermand should be given as early as possible, as the defendant might be entitled to all expenses he had been put to in subpenaing his wit- nesses. {Jackson V. Mann, 1 Caines' Ca., 123 ; Jackson V. Brown, lb., 484.) 104 THE LAW OP REFEREES. SECTION V. FOEM OF COUNTEEMAND. [Tifle.] Sir, I do herehy countermand the notice of trial given you in this action. Dated, New York, the day of , 18—. Yours, Plaintiff's Attorney. To , Esquire, Defendants Attorney. All the referees must meet together and hear all the proofs and allegations of the parties, although a report by any two of them will be valid. (2 R S., 384, § 46.) It will, however, be presumed, where a cause is referred to three persons and the report is signed by two only, that all the referees met and heard the parties, nothing to the contrary appearing on the record {Yates v. Russell, 17 J. R, 461) ; and if the fact were otherwise, the objection ought to be raised in the court below on the coming in of the report. {lb.) Where issues of law are apparent on the pleadings and can be tried independent of the issues of fact, the referees must first try such issues of law, unless the court otherwise direct. (Code, § 251.) TRIAL OP ISSUES. 105 SECTION VI. ADJOUENMENTS. Eeferees have the same power as the court to grant adjournments (Code, § 272) ; and this, on the same terms and with like effect. {lb.) They may impose a sum not exceeding ten dollars on an adverse party on condition of granting a postponement of trial. (See lb., § 314.) Eeferees prior to the Code had power to require the payment of costs as a condition to the postponement of a hearing. (^Sickles v. Fort, 12 Wend., 199.) And see further on this subject: " 19, Power to grant adjournments," page 55, ante. The a,bsence of a material witness is a good reason for putting off the trial ; but then the affidavit of the want of such witness can be required and should state that endeavors have been faithfully used to procure his attendance, that his testimony is mate- rial, that the party cannot, as advised by counsel and as he himself believes, safely proceed to the trial of the action without it, and show a probable time at which his evidence may be expected. If a witness has been in the power of him who applies to put off the trial, and the endeavors to obtain his testimony be not shown, the cause will not be postponed. {Deas v. Smith, 1 Caines, 171.) Whether the testimony wanted be to arise from a commission or a witness, the same principles will induce the referee to defer the cause. Therefore, that a commission from whence the testimony ex- R. 14 106 THE LAW OP REFEREES. pected is to be obtained, is not returned, is a good reason for an adjournment. {Vandervoort v. Col, Ins. Co., 2 Ih., 155.) So, if the conduct of the plaintiff manifest a dis- position obstructive of justice, as, for instance, wbere a survey is necessary for the investigation of the merits of the controversy and the plaintiff will not consent to its being taken. (Jackson v. Murphy, 3 lb., 82.) SECTION vn. OATH OP EEFEEEES. Before proceeding to hear any testimony, the referees are to be severally sworn, faithfully and fairly to hear and examine the cause and to make a just and true report according to the best of their understanding. (2 R. S., 384.) This oath may be administered by any person authorized to take affidavits to be read in the court in which the suit is pending. (Jb.) The referees being ready to hear the merits of the action, the counsel on the part of the plaintiff, or he who holds the affirmative of the question in issue, opens the nature of the action ; recites the substance of the pleadings; shows what the issue is which the referees are sworn to try ; and states the evidence he proposes to produce on the part of his client. Then, he calls his witnesses who are first examined by the party producing them, and then cross- examined by the other side. TRIAL OF ISSUES. 107 SECTION VIII. FORM OF OATH. [ Title of action.'} We, the referees appointed in this action, do swear that we respectively will faithfully and fairly hear and examine this action and make a just and true report therein according to the best of our understanding. Sworn, Sfc. There is no provision made for the filing of the oath. And the fact that a referee has not been sworn in a cause sent to him, will not affect his finding, where parties appear before him and argue without raising any objection. {Whalen v. Board of Supervisors of Albany County, 6 How. Pr. R., 278.) " A referee," said Justice Harris in Keator v. The Ulster and Dela- ware Plank Road Co. (7 How. Pr. R., 41), " is required by law to take a prescribed oath before entering upon his duty ; and yet it often happens that no such oath is taken. If the parties proceed with the refer- ence without objection, they are held to have waived their right to object." 108 THE LAW OP EEFEEEES. SECTION IX. AMENDMENTS. Eeferees on a trial before them, are vested with the same power to amend summons which a court has upon a trial, and on the same terms and with the like effect. (Code, § 272.) And the same thing may be said with regard to pleadings. .(/&.) See further in regard to a referee's power to amend : " 6, Amend pleadings ; 7, Strike out a party," p. 30, ante. SECTION X. WITNESSES. Witnesses are brought before referees through sub- pena and ticket, as on trials in court. The statute authorizes it. (2 R. S., 384, § 46.) FORM OF A SUBPENA TO TESTIFY BEFORE EEFEREES. The People of the State of New York, to K. L. and M. N., greeting : We command you, that all business and excuses being laid aside, you and each of you appear and attend before E. F., Esq., Referee, appointed under an order of the Court, on the — day of 18 — , at — o'clock in the afternoon, at his office, No. — street, New York, to testify and give evidence in a cer- TEIAL OF ISSUES, 109 tain action now pending in the Court, then and there to he tried hetween A. B., plaintiff", and C. D., defendant; on the part of the {plaintiff). And for a failure to attend, you will he deemed guilty of a con- tempt of court, and liable to pay all loss and damages sustained thereby, to the party aggrieved, and forfeit fifty dollars in addition thereto. Witness, , Esquire, one of the Justices of the said Cow t, at the City Hall, in the City of New York, the — day of , one thousand eight hundred and sixty By the Court. Attorney for {plaintiff). Clerk. On this subpena, what are called suhpena tickets will be made out and be. served as in other cases. Referees cannot be witnesses in .actions tried before them. This applies as well to where three act, as where there is a sole referee, for referees act in the place of both judge and jury. The objection to the competency of a judge (referee), as a witness, goes to the power of the court, the power to administer the oath, to decide on a question of competency, or the admissibility of parts of the evidence, to commit for refusing to answer and to exercise over the wit- ness all the other powers of the court which may be called into requisition for the protection of the rights of the party. {Morss v. Morss, 11 Barb. S. C. R, 510.) Referees, before whom the issues of an action are to be tried, have the power to compel the attendance of witnesses before them by attachment, and to 110 THE LAW OP EEFEEEES. punisli them as for a contempt for non-attendance. (Code, § 272 ; 2 R. S., 384, § 46. See more on this subject, and the mode and forms under chapter, what A KEFEEEE CAN OR MAY NOT DO. 15. " Commit for Con- tempt," p. 40, ante.) The service of a summons to bring a party into contempt for a neglect to attend before a referee to do some act by a judgment order in an action, need not be personal. It is sufficient, if served on the attorney of the party, where he appears by one. {Merritt v. Annan, 7 Paige's C. R., 151.) And referees have express power to administer oaths in any proceeding before them. (Code, § 821.) The oath to a witness is the same as on a trial. SECTION XI. FORM OF OATH TO A WITNESS. The evidence you shall give in this issue in the Su- preme Court, joined between A. B. plaintiff, and C. D. defendant, shall be the truth, the whole truth and nothing but the truth. So help you God. (Or, you swear by the Ever-living God that — or, you solemnly affirm that, ^c.) Where a witness does not understand English, the use of an interpreter will be required. TRIAL OF ISSUES. Ill SECTION xn. FORM OF OATH TO AN INTBEPEETEE. You shall well and truly interpret to E. F., a witness There produced in behalf of A. B. in this issue joined, be- tween A. B. plaintiff, and C. D. defendant, the questions and demands made hy the court to the said E. F. and his ansrvers made to them. So help you God. It may be ttat a party may be called to depose as to a lost or destroyed paper. SECTION XIII. FOEM OF OATH OP A PAETT TO ADMIT EVIDENCE OF THE CONTENTS OP A PAPEE NOT PEODUCED. You shall true answers make to such questions as shall be put to you, touching the power or control you have over any paper (or, the loss or destruction of any paper), which would be proper evidence in this action. So help you God. SECTION XIV. FOEM OF OATH OF A PAETT PEELIMINAET TO PEOVING THE HANDWRITING OF A SUBSCEIBING WITNESS. You shall true answers make to such questions as shall he put to you touching your ability to procure the attend- ance of G. H., a subscribing witness to this paper (or, the paper in question). So help you God. 112 THE LAW OF EEFEEEES. Where a witness is called, sworn and examined by the plaintiff, and the defendant declines to cross- examine him, but after the plaintiff rests his case the defendant moves for a nonsuit, which being denied, he calls the witness again to the stand, it is not proper for the referees to administer the oath a second time, even though the defendant requests it. {Parsons Y. 8uydam, 3 E. D. Smith's E,., 276.) A witness before a referee has a right, in the referee's presence, but not privately, to consult coun- sel and may select the same as are employed by either party in the cause. He may demur to a ques- tion, taking upon himself the consequences. He need not answer any question which may tend to expose him to punishment, penalty or forfeiture ; but though his answers might establish or tend to establish his indebtedness or liability in a civil action, this cannot excuse him from answering. Counsel there, are not to hold any whispering with a witness, nor retire with him for private consulta- tion ; nor, after consultation, dictate his answer. His advice must be given under the eye and in the hear- ing of the referee. The witness is to give his answers in his own language. {^Stewart v. Turner, 3 Edw. V. C. R, 458.) In relation to witnesses before examiners in Chan- cery, it has been decided that counsel have no right to advise a witness that he is not bound to answer a particular question. {Taylor v. Wood, 2 Edw. V. C. R., 94.) Also, that if the witness objects to answer, he should demur ; and, likewise, that it is the duty of the examiner to inform a witness of his legal rights. TEIAL OF ISSUES. 113 (lb.) We have no doubt the same rules will apply- in connection with a referee. SECTION XV. ADMISSIONS AND EVIDENCE. To save the expense and delay which often occurs in establishing a fact of strict evidence, the referee may allow parties, who are competent for that pur- pose, to admit any given facts to be true. But only competent persons can, by their attorneys, make admissions. Therefore, an attorney acting for an infant or married woman cannot, in strictness, make admissions for them to their disadvantage. (Bennet's Master, 15.) Where a referee reports anything to be admitted by parties before him, and that report is excepted to, the fact admitted must be taken to be prima facie true, and requires at least an affidavit to falsify it. {IK, 3 P. Wms., 142, n.) By a standing rule of the Supreme Court, no pri- vate agreement or consent between the parties or their attorneys, in respect to the proceedings in a cause, shall be binding, unless the same shall have been reduced to the form of an order by consent, and entered; or unless the evidence thereof shall be in writing, subscribed by the party against whom the same shall be alleged, or by his attorney or counsel. (Rule 13 of tlje Sup. Court.) The plaintiff cannot be restricted in his proofs by the opening. {Nearing v. Bell, 5 Hill, 291.) E. 15 114 THE LAW OF EEFEEEES. As a general rule, neither party can be required or permitted to go beyond the issue joined. {Gardner v. Gardner, 10 J. R., 47.) The substance of an issue of fact is all that need be proved. {Van Rensselaer v. Gallup, 5 Denio, 454.) It is for the party holding the affirmative to make out a preponderance of proof. {Hollister v. Bender, 1 Hill, 150.) Strictly, the party holding the affirmative is bound to introduce all the evidence on his side, except that which operates merely to answer or qualify the case as sought to be made out by his adversary's proof. At this alone the evidence in reply must be pointed ; however, this is subject to the discretion of the referee. {Hastings v. Palmer, 20 Wend., 225 ; and see, Ford V. Niles, 1 Hill, 200.) The rules of evidence are the same before referees as before a jury. They come in the place of a jury- Improper testimony must not be heard before them, any more than before a jury at the circuit. {Every v. Merwin, 6 Cow., 364.) Evidence signifies that which demonstrates, makes clear or ascertains the truth of the point in issue, either on the one side or on the other ; and no evi- dence ought to be admitted to any other point. It is deemed unnecessary to enter minutely into what is and what is not legal evidence for a referee. A few leading principles, it may be well to give. "With regard to parol testimony, the general rule is that every man who believes in a Supreme Being ; is in his sound senses ; is of an age to be sensible of the nature of an oath, and who is not by law deemed TRIAL OF ISSUES. 115 infamous, may be sworn and examined as a witness. This general rule is liable to the exception which arises from the matrimonial connection ; a husband and wife cannot give evidence for or against each other. No other degree of kindred excludes a per- son's testimony. As the law of the State of New York now stands, interest in the event of the action will not debar a person from being a witness. (Code, § 398.) And a party to an action or proceeding may be examined as a witness, in his own behalf, the same as any other witness, but such examination shall not be had, nor shall any other person, for whose im- mediate benefit the same is prosecuted or defended, be so examined unless the adverse party or person in interest is living ; nor when the opposite party shall be an assignee, administrator, executor or legal representative of a deceased person. And when, in any action or proceeding, the opposite party shall reside out of the jurisdiction of the court, such party may be examined b}^ commission issued and executed as now provided by law ; and whenever a party or person in interest has been examined under the pro- visions of the section of the Code, now under notice, the other party or person in interest may offer himself as a witness in his own behalf, and shall be so re- ceived. When an assignor of a thing in action or contract is examined as a witness on behalf of any person deriving title through or from him, the adverse party may offer himself as a witness to the same matter in his own behalf, and may be so received, and to any matter that will discharge him from any liability that the testimony of the assignor tends to 116 THE LAW OF EEFEEEES. render Mm liable for ; but such assignor is not to be admitted to be examined in behalf of any person de- riving title through or from him against an assignee or an executor or administrator, unless the other party to such contract or thing in action whom the defend- dant or plaintiff represents, is living, and his testi- mony can be procured for such examination ; nor unless at least ten days' notice of such intended examination of the assignor shall have been given in writing to the adverse party. (Code, § 399.) The credibility of witnesses is to be considered by the referees. It has been the unanimous and rational inclination of great judges, in modern times, to confine the objection to the credit, instead of the competency of witnesses, leaving the question of their veracity open to such observations as the wis- dom and experience of the referees may justly enforce. {Bent v. Baker, 3 T. R., 32.) The credi- bility of witnesses depends on their number, skill and integrity. Although their niimber corroborates and confirms, yet, in general, one witness is suffi- cient But a conviction for perjury must be grounded on the testimony of two, at the least, for a very obvious reason, that otherwise there would only be one oath in opposition to another. (10 Mod., 194.) The skill of witnesses is a material consideration in determining their credibility ; and it is important to inquire how they happen to know the truth of what they depose. With the same view, it is expe- dient to discuss the opportunities which the witness had of making just observations, and his condition, circumstances and temper of mind at the time to TRIAL OF ISSUES. 117 which his evidence relates. The imperfection of man will frequently render him liable to deception ; and facts are too often seen through a jaundiced eye. On this idea of possible deception, the law rejects hearsay evidence, always requiring the best proof of which the nature of the case is capable. Yet in some cases, as in proof of some prevailing customs or of matters of common tradition and repute (3 Black. Com., 368; Burr. Sett. Ca., 701; Cow., 591), the courts admit of an account of what persons deceased have declared in their lifetimes ; bitt such evidence will not, in general, be received of any distinct facts. The courts constantly receive testimony of things said in the presence of the plaintiff or defendant, and uncontradicted, though not positively assented to I'espectively by them; but this is inconclusive and may often lead to fallacy. A most important point, affecting the credibility of witnesses, is their integrity. It is impossible to define how many ways a man's veracity may be- come suspected, or how many causes may give a wrong bias to his affections. It may be proved from various causes that his wishes and testimony strongly tend the same way ; as, that he stands in the same situation with the party for whom he is called to give evidence, or in a near degree of relationship or friend- ship to him ; or, on the other hand, that there sub- sists inveterate enmity between them. The fact sworn to may be shown to be impossible by circum- stances, though no other person be present, and posi- tive testimony may be thereby refuted. So, the declarations of a witness at another time may be 118 THE LAW OF EEFEEEES. material, where they vary from his present evidence, or where they betray any fraudulent design for or against either of the parties affected by his testimony. Where such declarations agree with the evidence given in court, they may be admitted to corroborate it, and to show that the witness always persisted in the same account. To this head may be referred the objection, that a witness shall not, in general, be allowed to invalidate an instrument which he himself has signed ; because it is holding out false credit to the world, evinces duplicity, and would facilitate frauds. The deportment of witnesses, at the time of exami- nation, is highly important. Thus, it is usual to remark, whether they give ready answers with an air of probability to such occasional questions as are proposed, or persist in the same premeditated recital and uniformity of expression ; whether their account is steady and consistent, or differing in circumstances, pronounced with apparent irresolution, or betraying any doubt or uncertainty in their own minds. But if a witness can, from his own recollection, swear positively to the general fact, it is the constant prac- tice to allow him to refresh his memory as to parti- culars, by written memorandums made by himself. Sometimes the credit of a witness is more directly attacked, where it happens that, although he is not legally branded with infamy so as to be totally re- jected from giving evidence, yet the vileness of his character renders his testimony suspected. In such case, general accounts may be given of his reputa- tion, as that he is not a person to be believed on his TRIAL OF ISSUES. 119 oath, but it is not permitted to charge him with any- particular crime, against which it is not to be pre- sumed he should be prepared to make a defence. Written or instrumental testimony, ramifies : 1st. These are acts of the' Legislature ; 2d. Judicial and other memorials of courts ; 3d. Public instruments ; and 4th. Private writings. As to the first, the dis- tinction is to be kept up between public and private acts — the first being general law, and must be offi- cially taken notice of by courts of justice — the latter should be regularly proved. Foreign laws, written or unwritten, must be proved as facts if their exist- ence is controverted as to judicial and other memo- rials of courts. If a record of the same court be necessary, the record itself must be offered in evi- dence ; if of another court, an exemplification, for records themselves being things to which every man has a right to have recourse, cannot be transferred from place to place. An affidavit cannot, in general, be read in evidence before a jury ; but if the party who made it be sworn and give testimony, his own affidavit may be read against him, in order to dis- credit him. Where decrees of courts of equity are given in evidence, they ought to be preceded by the pleadings of the parties in the cause ; and the pro- ceedings must be between the same parties or claim- ants respectively under them. If a prior verdict be proposed to be used as evidence, its admissibility will be subject to three restrictions: 1st. The former cause must have been between such as were parties or privies to the cause in which the verdict is offered in evidence ; 2d. The matter so to be proved, must 120 THE LAW OF EEFEEEES. have been really in issue in such former cause ; 3d. A verdict in a criminal cause cannot be given in evidence in a civil suit, because it is not between the same parties and might have l^een grounded on the party's own oath. As to public instruments (being neither acts of the Legislature nor of a judi- ciary kind), wherever an original is either a record or of a public nature and would be evidence if pro- duced, an immediate sworn copy will avail ; so, also, it is of things not being records, as journals of the Houses of Legislature, transfer books of public com- panies and the like. A general history may be admitted to prove a matter relating to the nation, but not to establish a particular right or custom. It is said, that the almanac is part of the law of the land, of which the court must take judicial notice. What gives authenticity to other instruments and ranks them in this class of evidence, is, that they have the sanction of persons acting in a public trust, recog- nized by law. The last class of written evidence comprehends private writings and instruments. Such muniments «eem admissible, not only to prove the principal matter contained in them, but also things therein recited as against the party executing the instrument. As to these, the original must generally be produced. But if it be positively proved that the adverse party has the deed, or that it is burnt or destroyed (not relying on any loose negative, as that it cannot be found or the like), then an attested copy may be produced, or parol evidence be given of its contents ; ,and the like, where a deed is taken away, suppressed Exceptions filed and served by C. D. ) the defendant. To the report of the referee, hearing date the — day of , 18 — , and to the decision of the issue in this case contained therein, the defendant excepts, as follovjs : First. For that the second section of the facts found, erroneously states or implies that, 8^c. Second. For that the third section of the facts found, erroneously, S^c. Third. For that the following facts are not stated in the findings of fact in the said report, namely : That, SfC, Sfc. The time when, Sfc, 8fc. Fourth. For that the first of the conclusions of laio contained in the said report is erroneous. Fifth. For that the second of the conclusio7is of law contained in the said report, is erroneous. Sixth. For that the said report is in favor of the plaintiff', whereas it should have been in favor of the defendant. TEIAL OF ISSUES. 147 Seventh. For that the following conclusions of law upon the facts in the case, are not contained in the said report, namely, 8^c., 8^x. for the Defendant. Here take in, the Judgment. And end with, Notice of Appeal. On appeal to the Court of Appeals, that court will not consider questions which were not raised before the referees and excepted to. (^Morris y. Husson, 4 Seld., 204.) Nor questions of fact. (Borst v. Spelman, 4 Comst., 284.) SECTION XXVIII. SETTING ASIDE REPORT AND GRANTING A NEW TRIAL. Destitute of evidence : The report of a referee is like the verdict of a jury and must be destitute of any evidence to support it to warrant the court in granting a new trial. (Woodin v. Foster, 16 Barb., 146.) Variance between complaint and proofs : Where the whole merits have been examined before referees, the court will not reverse a judgment because there is a variance between the complaint and the proofs in a particular in which the parties have not been misled ; but will, on appeal, either disregard the variance or direct an amendment. {Parsons v. 8uy- dam, 3 E. D. Smith's C. P. E., 276. Finding on doubtful, contradictory or conflicting testimony : Where there was contradictory or doubt- 148 THE LAW OF REFEREES. ful evidence, whether the sale of a chattel was abso- lute or not, the court refused to set aside the verdict; {De Fondear v. Shottenkirk, 2 J. R., 170.) Where the witnesses were very numerous and their testi- mony extremely contradictory, and it being apparent that the verdict must have been very essentially influenced by their general character and appearance and their manner of testifying, the court refused to disturb it. {Winchell v. Latham, 6 Cow., 682.) Usury was found by the jury in a doubtful case; the coiui refused a new trial. {Rice v. Welling, 5 "Wend., 595.) Upon a question of fact where the testimony is contradictory, the report of the referee is conclusive. Bearss v. Copley, April, 1854, Clinton's Digest.) Finding on doubtful or conjlicting testimony : Although the finding of a referee is based upon con- flicting or doubtful evidence, yet if it is not obvious that his finding is founded on bias, partiality or other undue influence, nor probably the result of any mistake in the rules of law or their application to the case, the report of the referee will not be dis- turbed. {Fish V. Wood, 4 E. D. Smith's R., 327.) The court will not ordinarily interfere with the find- ing of a referee upon a question of fact, where there is evidence both to sustain and to overthrow the finding. {Davis v. McCready, lb., 565.) Where evidence in regard to a matter of alleged set-off is conflicting, and the proof does not satisfy the referee that there is any set-off which should be allowed, and he has, on a fair construction, found against its existence, his decision, on that question, will not be disturbed. {Cody v. Allen, 22 Barb. S. TEIAL OF ISSUES. 149 C. R, 388.) "The evidence," said the court, "in regard to the indebtedness alleged by the defendant as a set-off is conflicting ; and I think, upon a fair construction of the report of the referee, he has found against its existence. His decision, on that question, as the evidence stands, cannot be disturbed." And although the court may be of opinion that, upon the evidence as it appears on paper, they should have found differently, they will not, where the evidence is conflicting, set aside the report of a referee upon the facts, unless the evidence against the finding so greatly preponderates or his finding is so far without evidence in its support as to warrant the inference of bias, corruption, partiality or some bad faith or unfairness in the referee, or some mis- take in law or in its application to the case. {Mazetti V. N. Y..and Harlem R. R. Co., 3 E. D. Smith's C. P. R, 98.) As to the report being against the weight of evidence : The rule that the report of a referee is not to be set aside, unless it is plainly against the weight of evidence, can apply only where the grounds of his decision are explicitly stated by him or are apparent on the face of the report. Where several distinct and alternative questions, both of law and of fact, have been submitted to him, and his report is gene- ral, the court can sustain the report only when it corresponds with its own view of the law and merits of the case. {Scranton v. Baxter, 4 Sand., 5.) Report defective : Where the report of the referee is defective, in not stating, with sufficient particu- larity, the several facts found, the party complaining 150 THE LAW OP EEFEEEES. of the same should apply by motion, at special term, to have a further report ordered. {Parsons v. Suydam, 3 E. D. Smith's C. P. R., 276.) Act of attorney the act of the client : Under an order for a reference, the act of the attorney is as much the act of the party, as in any other stage of the proceedings ; therefore, if the attorney nominate referees on the part of his client, the fact that they were nominated without his knowledge is no ground for setting aside the report. (Combs v. Wyckoff, 1 Caines, 147.) Improper testimony : The report of a referee may be sustained, although he improperly admits some testimony, if, on rejecting that, enough remains to support it. (Kemeys v. Richards, 11 Barb., 312.) Where report is correct, hut based on erroneous deci- sion : If the report of the referee is correct, it will not be set aside because the referee founded it upon an erroneous decision. {Morris v. Husson, 4 Sand. Sup. C. R., 93.) As to setting report aside on a question of fact : The court will not set aside the report of a referee upon a question of fact, unless there is an absence of evidence or so great a preponderance of evidence against the finding, as to indicate prejudice, partiality or corruption. {Van Steenburgh v. Hoffman, 15 Barb., 28.) It is a most salutary rule, that the decision of a referee upon a question of fact — especially of fraud — where there is evidence on both sides, and the point is not entirely free from doubt, cannot be disturbed. (Murfey v. Brace, 23 Barb. S. C. R., 561.) TRIAL OP ISSUES. 151 Where an affidavit is offered, that new evidence would diminish the damages: A report of referees will not be set aside on an>affidavit that the party can now introduce evidence to diminish, at least, the damages reported. (Combs v. Wyckoff, 1 Caines' R, 149.) The Court: "The defendant states that 'he can now introduce evidence' to diminish at least the damages reported.' This is very loose, to say the least. Why was not this testimony obtained before? and to what extent will the damages be reduced, if it be offered now \ Will it justify a dimi- nution of only a dollar, or less \ If so, 'de minimis non curat lex' and if the discovery had been made even prior to the report, it would be no reason for dis- turbing it. Let the defendant take nothing by his motion, and pay the costs of this application." Referee refusing to recall a witness : Where a party suffers a witness to leave the stand, having inadvert- ently omitted to ask a certain question, it is usual to permit the recalling of the witness before such party has rested his case. But a ruling of a referee refus- ing such re-examination, is, however, an exercise of discretion, which will not form ground for reversing a judgment. (Trimble v. Stilwell, 4 E. D. Smith's R, 512.) Facts various, intricate and involved in doubt; and amounts in two suits mingled: Where a suit by A. against B., and one by B. against A. and C, were referred, and the referees set off a balance found for the plaintiff in the one suit, against a balance found for the plaintiffs in the other, the report was set aside. {Lyle v. Clason, 1 Caines' R, 323.) 152 THE LAW OF EEFEEEES. And where the facts in the case were various and intricate, and the matters involved in doubt and ob- scurity, a report was set aside, in order to let in new light and to have the merits re-examined. {Allard v. Mouchon, 1 J. C, 280.) Immaterial error of referee : An immaterial error of referees, in the progress of a trial, is no ground for a new trial. {Hunt v. Fish, 4 Barb. S. C. R, 324 ; and see Vallance v. King, 3 Ih., 548.) Where the court will disregard the referees conclu- sions of law : When facts are correctly found by a referee, the court, on appeal from the judgment entered upon his report, may disregard his conclu- sions of law, if erroneous, and may direct the entry of such judgment, upon the facts found, as, in the opinion of the court, should have been recommended by the referee. {Hannay v. Pell, 3 E. D. Smith's C. P. R., 432.) SECTION XXIX. COSTS ON THE GRANTING OF A NEW TEIAL. On setting aside a report of referees as against the weight of evidence, and ordering a new trial, the costs are in . the discretion of the court and may be ordered to abide the event. The arbitrary rule which applies to verdicts being set aside as against the weight of evidence, and a new trial ordered only on payment of costs, does not apply to reports of referees. ( Wentworth v. Candee, 1 7 How. Pr. R., 405.) There, the court observed : " A referee occu- TRIAL OF ISSUES. 153 pies, to the case tried before him, the composite relation of judge and jury. He is to pass upon all the questions, both of law and fact, that arise upon the trial; and in the application of these to each other his position may, in many cases, be quite as well regarded as that of a court communicating to a jury erroneous instructions as to the law, as of a jury adopting wrong conclusions of fact. A trial before a referee is more analogous to a trial by the court without a jury, than to a jury trial ; and the courts have never adopted the practice, in such cases, of charging with costs the party who succeeds in establishing that the decision of the court at circuit was against evidence. On the whole, we are of opinion that it is better for the court to hold in its own hands its discretion as to costs in cases like this, to be used as justice may demand, rather than sur- render it to an arbitrary rule, which destroys its essential power, and, in effect, changes its character." SECTION XXX. SENDING THE ACTION TO A NEW REFEREE. Justice Haeeis, in Schermerhorn v. Van Alen (13 How. Pr. E,., 82), has decided, that when a new trial is granted on an appeal from a judgment founded on the report of a referee, the cause should be tried be- fore a new referee. In that case, counsel moved that another referee be substituted. It may be well to give his honor's reasons : " The referee, it is conceded, possesses all the requisite qualifications for an intelli- 154 THE LAW OF REFEEEES. gent discharge of the duties of the office. But were the issue to be tried at the circuit, however well qualified he might be in other respects, the referee, if called as a juror, would be set aside, on the ground that he had heard the proofs in the case, and had not only formed but had expressed an opinion upon the very questions to be tried. "I am aware that this objection has not been re- garded as tenable when made against a referee. But 1 have never been able to see any good ground for the distinction. It is true that the referee takes the place of a court as well as a jury. This, instead of being a ground for requiring the referee, after having prejudged the case, again to hear and determine the facts, furnishes an additional reason why he should not be continued. So far as it is practicable, all agree that it is better that the same judge, though he decides nothing but questions of law, and his errors are more easily corrected than those of a jury or referee, when deciding questions of fact merely, should not sit in review of his own decisions. Every experienced lawyer knows that, when he enters upon the retrial of a cause before a tribunal that has already pronounced a decision in his favor, upon the same questions, he starts with a decided advantage. His adversary also feels that he has not only to sus- tain his case, but has also to overcome the impres- sions made upon the mind of the tribunal by what has already transpired in the cause. This ought not to be so. No party should be required to enter upon the trial of an issue under the consciousness that be- sides establishing his side of the issue, he has the TRIAL OF ISSUES. 155 preconceived opinions of the tribunals before wtom lie appears to encounter. On the contrary, he should be permitted to feel that he stands upon an equality with his adversary before a tribunal as ready to de- cide every question in his favor as against him. Such cannot always be the case where a retrial is had before the same referee. " The question derives increased importance from the fact that, in the present state of the practice, so large a proportion of the suits in which issues are joined are tried before referees. I am convinced, from my own experience and observation, that the ends of justice will be better promoted by allowing either party, if he desires it, when a new trial is granted upon an appeal from a judgment founded on the report of a referee, to have the cause tried before a new referee. " Entertaining these views, I shall in this, and in similar cases where the question is referred to the exercise of my own judgment, direct that the new trial be had before a new referee." In^Billings V. Vanderbeek (15 How. Pr. R., 296), it is intimated as being too late for a motion to substi- tute another referee where the plaintiff (making the motion) had noticed a retrial and the referee had granted an adjournment. 156 THE LAW OF EEFEEEES. SECTION XXXI. ORDER SETTING ASIDE A REPORT OF REFEREES AND DIRECT- ING A REHEARING BEFORE NEW REFEREES. [Title.'] Present, S^c. : (After reciting the order of reference.) And the said referees having made their report in writing, whereby they find, ^c. (Here insert sufiEicient of their report.) And the same having come up on a case and exceptions embraced therein ; and counsel having been heard ; and the said report being duly con- sidered, it seemeth to the court that the said report of the said referees is [irregular and void], therefore, the said report is by the court now here adjudged to be vacated, annulled and set aside. And the court doth hereby discharge and remove the said referees from any further burthen of hearing or reporting in the said action as referees ; and do now [of its own motion — or, the court on motion of the counsel for the defendant or plaintiff d6\ hereby appoint , and referees in the above action, in lieu and stead of the referees aforesaid first above named and who are removed and discharged as aforesaid. And the said referees, now here last appointed, or any two of them, are directed to report therein with all convenient speed. Where a cause is referred and tried before a referee, and he makes a report, which is set aside and a new trial ordered, with costs to abide the event, and no new referee is mentioned or further directions given TRIAL OF ISSUES. 157 in the order, the old referee has the power to try the cause again. {Shuart v. Taylor, 7 How. Pr. E., 251.) But, where there has been a reference, in a suit not referable as of course by a judge, and his report is set aside and the court considers it should not go back to the same referee, the cause will have to be tried at the circuit, unless a new referee should be agreed to. {Yale v. Gwinits, 4 How. Pr. R., 253.) CHAPTER V. REFERENCE IN SUPPLEMENTARY PROCEEDINGS. Section I. Q-eneral observations. II. Proceedings under the first subdivision op section two hundred and NINETT-TWO OF THE CODE AND WHICH HAS NO REQUIREMENT OF PROOF OP property ; AFFIDAVIT TO GROUND ORDER FOR JUDGMENT DEBTOR TO DIS- COVER PROPERTY UNDER THE ABOVE SUBDIVISION ] ORDER (BX PARTE), FOR THE JUDGMENT DEBTOR TO APPEAR BEFORE A REFEREE, AND PROOF THEREOF. III. Proceedings under the second subdivision of section two hundred AND ninety-two OP THE CODE, HAVING REFERENCE TO AN EXECUTION issued AND WHERE A DEFENDANT UNJUSTLY REFUSES TO APPLY PROPERTY ; AFFIDAVIT TO OBTAIN ORDER UNDER THE LAST ABOVE SUBDIVISION ; ORDER Hermann Loohius et al. \ Statement of damages claimed by defendant : Provisions of 25 passengers at .50 each day, $12 60 Provisions of captain and mate, at $1.50 each day, $3 00 Provisions of 22 seamen, &c., at 50 each day, 11 00 14 00 per month. per day. Wages of Captain,... $250 $8 33 1st Mate,.. 60 2 00 2d do. .. 35.... 1 16 3d do. .. 25--. 84 Carpenter, 30 1 00 " Steward, .. 30 1 00 " Boatswain,- 25 84 Cook, 25 84 2d Steward, 20 66 " 15 Seamen, 20 each 10 00 DAMAGES ON DISSOLUTION OF INJUNCTION. 221 per montb. per day. Wages of 1 Boy, $16 $0 53 4 Boys,... 10 each 1 33 S28 53 Demurrage of ship 225 00 Pilot's charge, 3 00 Total expenses of ship, &c., per day, $283 03 Eleven days' detention at $283.03 each day, 6,113 33 Wilson's bill for steamboat, 190 00 Total, $3,303 33 Or, if the referee thinks the defendants are not entitled to more than nine days' detention, the amount would stand as follows : lS[ine days' detention at $283.03 each day, $2,547 27 Wilson's bill for steamboat, 130 00 Total, $2,677 27 Or, again, if the referee considers the charge of $225 per day for demurrage of the ship, to include the wages and provisions of the captain and crew, the account would then stand thus : Provisions of 25 passengers at .50 per day, $12 50 " of captain and mate, as before, 14 00 Wages of captain and crew, as before,. ... 28 53 Value of ship per day, insurance, &c., is $225. Less, $42.53, 182 47 Pilot's wages, 3 00 Total expenses of ship, &c., per day, $240 50 222 THE LAW OF REFEREES. Nine days' detention at $240.50 per day, $2,164 50 Wilson's bill for steamboat, 180 00 Amount to be reported, $2,294 60 The damages were allowed on the principle of demurrage; counsel and attorney's fees and the fees of the referee. The author deemed it well to give reasons for his conclusions. They were published, at the time, in some of the newspapers, and were acquiesced in by the respective council (Messrs. Benedict, Hamilton and Smales). The following are copies of such reasons and of the report in the matter. " Supreme" Court. f Memorandmn of referee^ s J /."a ' f I C ground for his report. "The plaintiffs obtained an injunction order, restraining the defendants, owners of the ship Con- necticut, from causing, permitting or suffering her to go to sea until leave of the court; and they enter into an undertaking in $2,000 that they ' will pay to the defendants such damages, not exceeding the before mentioned sum, as they may sustain by reason of such injunction, such damages to be ascer- tained by a reference,' &c. The court dissolves the injunction. It was granted on the 25th of October, served late in the afternoon of that day ; and dis- solved on the 3d of November following ; but the vessel did not sail until the 6th or 7th of November. " A reference is had to ascertain the damages. DAMAGES ON DISSOLUTION OF INJUNCTION. 223 " Ships are very seldom stopped by injunction in Chancery and other equity courts; and there are but few decisions to guide a referee in reporting damages. " Whatever may be the rate of allowance of dama- ges, it is necessary to look to the period of time which should be covered by them. As the injunc- tion was not served until the evening of Saturday the 25th of October, I am inclined to exclude that day; and as the injunction was dissolved in the morning, most likely, for that is the period of time of giving decisions, as early as 10 o'clock, and there is nothing shown for detaining her afterwards, I must exclude the 3d of November (the date of dissolution of injunction); especially as it will be seen that I allow damages in the nature of demurrage, and (so far as I have been able to ascertain) demurrage is not allowed on a fraction of a day. " She must be considered as ready to sail at any moment, because she had her crew and all appliances on board; she was within the jurisdiction and could soon have been ordered to 'up-sail,' while any cir- cumstances of weather, even if proved, could not be taken into account. {Pringle v. Mollet, 6 M. & W., 802 ; Lannoyy. Werry, 4 Bro. P. C, 630.) The fact of mutiny of crew and consequent delay cannot as I consider, cause the time of charge to be extended beyond the period of getting rid Of the injunction. The defendants claim damages for the detention of a ship properly manned and, therefore, to allow damages from insubordination, would be in conflict with that insistment. I cannot consequently allow 224 TfiE LAW OF EEFEEEES. damages for the time the vessel was detained after the court had freed her, on account of having to ship any fresh hands. " It is shown that the expenses of the ship, in pro- visions, wages and pilot, amounted to a daily total of $55.03 ; also there is some evidence to show that a steam-tug was employed on the 25th and 26th October to take persons down to the ship, in order to examine her and give in depositions which aided in removing the injunction, and the charges for these two days are $50 and $40. (There were also pay- ments made for extra towage to Quarantine on the 24th of October, and 5th and 6th of November, but these, on account of the dates and otherwise, I ignore.) Evidence has been given of what demur- rage should attach to a vessel of character and situated like to the Connecticut, and I am inclined to consider (under the evidence), that the average rate ofi such demurrage to be $200 a day. " The case is not without difficulty, for a ship is a peculiar species of property. I am induced to resort, for an exposition and decision, to courts where ves- sels and cargoes are adjudicated upon ; while I am more especially justified in this, from the facts that equitable principles there govern, while the present action is of the nature of an equity suit Even in a strict action of detinue at law the plaintiff can recover in damages the worth of the use of the thing detained ; as, the hire of a slave during the time of the unauthorized detention. {Olascock v. Hayes, 4 Dana, 58.) DAMAGES ON DISSOLUTION OF INJUNCTION. 225 "The defendants are to be compensated with reference to detention and the ship's expense, wear and tear and common employment ; I am inclined to adopt the, principle to be found in the case of The ApoUon (9 Wheaton, 362). In that case, there was an improper seizure ; and restitution wag awarded. The court allowed demurrage : ' What fairer rule,' said the court, ' can be adopted than that which founds itself on mercantile usage as to indemnity, and fixes a recompense upon the deliberate consider- ation of all circumstances attending the earnings and expenditures in common voyages 1 It appears to us that an allowance by way of demurrage is the true measure of damages in all cases of mere detention, for that allowance has reference to the ship's expenses, wear and tear and common employment. Every other mode of adjusting compensation would be merely speculative and liable to the greatest uncer- tainties ;' and see The Anna Catharine (6 Rob., IQ). " I, therefore, shall report, thus far, an allowance of $200 a day for 8 days, as damages in the nature of demurrage, making $1,600. It is true that one of the days allowed was a Sunday (26th of October), still, in the absence of custom, a Sunday may be legallj'" included in the computation of the lay-days. (Brown V. Johnson, 10 Meeson and "W., 331.) "I do not, however, consider myself justified in allowing the steam tug's charge for taking down the parties who examined the vessel on a Sunday (on the same 26th of October), I shall therefore, only allow her demand for the 25th of October, $50. It is possible that something might fairly be allowed for E. 29 226 THE LAW OF EEFEEEES. interest on the cargo ; but, as there is no proof of ownership of it, and as no part had been disturbed or had had the chance of sale or injury, I am not inclined to increase the damages by such an item. " Counsel and attorney's fees are a proper item of damage. (jCoatesv. Coates, 1 Duer, 664; Edwards y. Bodine, 11 Paige's C. R, 223.) " C. E., Referee." Charges for the personal services and travel on attending a sale stopped by injunction and the going to see and consult counsel and claim of attor- ney for attending to advise them, are not damages recoverable under the condition of the bond or un- dertaking. {Edwards v. Bodine, 4 Ed. V. C. E., 292 ; S. C, 11 Paige's C. R, 227.) The dismissal of a complaint on a final hearing, implies of itself a determination that the plaintiff was not equitably entitled to an injunction at the commencement of the action. {Loomis v. Brown, 16 Barb. S. C. R, 325.) In Wilde v. Joel (15 How. Pr. R., 320), there are statements of items disallowed and of others allowed by the court, as damages on dissolving an injunction ; but, there is not enough of the particulars of the case to gather any principle in connection with them. It is presumed that interest lost on money or on moneyed securities enjoined, would be a legitimate object of damage. {CfDonel v. Browne, 1 Ball and B., 262, 2 MoL, 519 ; Pultney v. Warren, 6 Ves., 88.) Also, that a debt secured by a bond may be car- ried beyond the penalty of the bond if the debtor DAMAGES ON DISSOLUTION OF INJUNCTION. 227 has, by injunction, restrained the creditor from pro- ceeding at law and there has been no misconduct on the part of the creditor. [Grants. Grant, 3 Russ, 598 ; Buml v. Terry, Show. P. C, 15 ; 8. P., 2 Ch. Ca., 182, 186 ; Hale v. Thomas, 1 Vem., 350, and see note there ; Bond v. Hopkins, 1 Scho. and L., 413.) It may be a question whether, as between defend- ant and plaintifif, the former is limited, in his damages, to the amount mentioned in the undertaking. (See Powell V. Wallworth,, 2 Mad. C. R, 183.) SECTION VI. EEPOET. To the Supreme Court of the State of New York : [Title.] In pursuance and by virtue of an order of this court made in the above action, and bearing date the — day of , 18 — , by which it was referred to me, the under- signed, as referee, to ascertain, 8^c., 8^c., I, the subscriber, do respectfully certify and report : That, after having duly summoned the parties to this action and the sureties to the undertaking before me, and after beir^g attended by their respective counsel, I took and heard the allegations and proofs of the parties. And I further report that having so done, I have ascertained and do find the total amount of damages which the defendant has sustained by reason of the said injunction order, amounts to the total sum of $ . And that such total sum is made up of the following items of damages, namely : the sum of $ , being 228 THE LAW OF EEFEEEES. for, S^c. ;, the sum of % , for the defendant's reason- able and 'proper counsel fees, paid hy him (or, for which he is liable to his counsel), for services in the above action, Sfc, Sfc, S^c. ; and the sum of$ , my fees on the said reference, making a total of % . All which is respectfully submitted. New York, dated the — day of , 18 — . Referee. This report will have to be filed, and notice given to the opposite parties. (Rule 32 of the Supreme Court.) And if no exceptions to it are filed and served within eight days thereafter, the same will become confirmed and absolute. Then, based on a certificate from the clerk of no exceptions having been filed or, it is presumed, on an affidavit of that fact and on proof of service of notice of filing report on plaintiff and sureties, and of no copy of exceptions having been served, and upon the report on file, notice of motion for an order to prosecute the undertaking should be given. There seems to be no occasion to serve a copy of the report at any time. Nor, since the 32 d rule was adopted, can there be any occasion for a special motion to confirm it, as was decided to be formerly necessary. (See Griffing V. Slate, 5 How. Pr. R., 205.) DAMAGES ON DISSOLUTION OF INJUNCTION. 229 SECTION VIL AFFIDAVIT TO GEOUND OEDEE TO SUE ON THE UNDEH- TAKING. [Title.'] ss : K. L., defendant's attorney, being sworn, saith : That an order was heretofore granted, referring it to ■— — , Esq., as referee, to ascertain, &;c. ; that such reference was had and the referee reported % , 8^c., as will appear by his report filed the — day of , 18 — . That on the — day of , this deponent caused notice to be served on the attorney for the plaintiff and on the sureties in such undertaking (or, an their counsel and attorney), as appears by affidavit hereto annexed ; that no exceptions to such report were filed and served within the time required by the rule of court ; and that such damages have not been paid or satisfied in part or in whole, so far as this deponent knows, has been informed and believes. Sworn, Sfc. SECTION VIII. NOTICE OF MOVING ON EEFEEEE'S EEPOET. [Title.]. — Take notice, that on the report of , Esq., referee, on file and on affidavits, of which copies are noiu served a motion will be made at chambers, as of special term, at the New City Hall, Neiv York, on the — day of 230 THE LAW OF EEFEEEES. , 18 — , at the opening of the court, or as soon there- after as counsel can he heard, that the plaintiff pay the amount of damages found by the said referee in his said report, within a time to be fixed by the court or, in default, that the defendant he at liberty to commence an action therefor or for such other or further order as the court may see fit to grant. New York, the — day of , 18—. Yours, K. L., Attorney for defendant, No. — , , street, New York. To the plaintiff and his attorney, , Esq., and to the plaintiff'' s sureties and , and their attor- ney, , Esq. As to service, see Code, § 409. As it is probable that the court would give a specified time within which the damages should be paid (in the same way as the law gives twenty days for payment of interlocutory costs : Session Laws of 1847, p. 491), before allowing an action to be brought, we have, therefore, in the above notice — as will be seen — gone on that idea and shall continue it in our next precedent. DAMAGES ON DISSOLUTION OP INJUNCTION. 231 SECTION IX. ORDER FOR PAYMENT, AND, IN DEFAULT, TO SUE. [Title.] At a Special Term, Sfc. The referee's report of damages to the defendant, on the injunction order herein, having lecome confirmed, and the plaintiff now duly moving thereon ; and after hear- ing Mr. K. L., of counsel for the defendant, 8^c., 8^c., it is ORDERED AND ADJUDGED that the plaintiff or his sureties pay the said damages, amounting to % , to the defend- ant or his attorney within [twenty] days from the service on them of a copy of this order; and that in default thereof, the defendant he at liberty to commence an action in this court against them for the same, on their undertaking given upon the granting of the said injunction order. SECTION X. EXCEPTIONS TO REPORT. If the plaintiff or his sureties are dissatisfied with the report, then exceptions will have to be filed. (Rule 32d of the Supreme Court.) EXCEPTIONS. [Title.] Exceptions taken hy the plaintiff (or, hy and sureties') to the report of , Esquire, referee, touching damages on account of injunction order. FlEST EXCEPTION. For that the said referee has found (inter alia) the sum of % , as damages for, 232 THE LAW OF REFEREES. 8^c., S^c. Whereas there was no sufficient proof of any such damages before him [or, whereas the same was not and is not and ought not to have been allowed as an item of damage.^ Second exception. For that, 8fc., Sfc, Sfc. In all which particulars, the said excepts to the said report. Attorney for the said plaintiff (or, sureties.) The exceptions will te filed, copy served and notice given of bringing them to a hearing at special term (Rule 32) ; and the party moving had better be, also, prepared with a certified copy of the referee's minutes of testimony. CHAPTER VIL REFERENCE TO COMPUTE AND TO SELL JN CASES OF FORECLOSURE. Section I. Observations. II. Reference to compute. III. Where all is due and no iNFAkT or absentee is interested. IV. Forms op affidavit and order of rbferenob where the whole amount IS DDE and there ARE NO INFANT OB ABSENT DEFENDANTS. V. Where there is an infant defendant. VI. Order op reference where an infant is A party, VII. Where there is a non-resident defendant. VIII. Order op reference where there is a non-resident defendant. IX. Instalment or interest only due. S. Order of reference where interest or instalment of principal only IS DUE. SI. Referee's report where the whole amount is due, with clause whebk THERE IS A non-resident OR INFANT DEFENDANT. ZII. Referee's report where the whole amount is not due, with a clause to MEET A CASE WHERE THERE IS AN INFANT OR NON-RESIDENT DEPENDANT, XIII. Notice op pendency of action. XIV. Affidavit op filing notice of pendency op action. XV. Usual judgment for sale in foreclosure, where the whole amount is DUE. XVI. Judgment for sale where a part only of debt is dub and premises CANNOT BE SOLD IN PARCELS. XVII. Judgment for sale where a part of debt is not due and the prb- HISES CAN be sold IN PARCELS. XVIIL Notice op sale by a referee and form op notice. XIX. Conditions op sale. XX. Selling, XXI. Purchaser ; and as to his completing purchase, as well as to his BEING relieved FROM IT', ALSO, RESALE. XXII. Costs and interest on discharging purchaser. XXIII. Referee's deed. XXIV. Rents. XXV. Referee paying or distributing purchase moneys. XXVI. Report op sale. XXVII. Form of referee's report of sale. SECTION I. OBSEEVATIONS. The power of a court to adjudge a sale of mort- gaged premises or so mucii as may be sufficient to 234 THE LAW OP REFEREES. discharge tlie debt and costs, was exercised under the Colonial Grovernment. The earliest act in which it was recognized was that of April, 1801. (Webster and Skinner, 443.) This power was implied in 1 Revised Laws, 409, § 11, and 493, § 21 ; and we now look for it in the Revised Statutes, 2 vol., 191> § 157, in connection with the Code. The Code itself has but little in relation to fore- closure by action ; and much of the old routine is kept up bj standard rules of the Supreme Court, which are mainly what were the former Chancery rules. Although in ordinary cases, sales under decrees in foreclosure are conducted by a sheriff, yet the court has the power, under the 77th section of the judiciary act, whenever it shall be deemed proper, to appoint a suitable person (a referee) to make the sale instead of the sheriff. {Knickeriocker v. Eggleston, 3 How. Pr. R, 130.) Where infants or absentees are named as defend- ants in an action for foreclosure, the order must direct the referee (among other things) " to take proof of the facts and circumstances set forth in the com- plaint ; " and also, " to report the proofs and circum- stances had before him." It is an established rule that no decree can be taken against an infant by default ; nor even upon the admissions of his attor- ney or counsel. So scrupulously does the law guard the rights of this class of persons that they cannot be bound by any adverse adjudications except vipon due proof exhibited to the court. Hence, the formal answer of the guardian to defend of an infant, sub- TO COMPUTE AND SELL ON FOEECLOSUEE. 235 mits his rights to the determination of the court and leaves the plaintifiF to make out 'the facts of his case by proof. (Wolcott v. Weaver, 3 How. Pr. E., 159.) Notwithstanding the Revised Statutes, the court can order the whole of the mortgaged premises to be sold, where a referee reports it woujd be bene- ficial to the infant children of a deceased mortgagor. {Brevoort v. Jackson, 1 Edw. V. C. R, 447.) When process has been personally served upon an adult resident defendant, it is fair to conclude that he has no defense to the complaint, if he allows a default for the want of an answer. And when this is so, it is not necessary to prove any of the allega- tions in the bill in any proceedings after default, and in connection with a reference. ( Wolcott v. Weaver, 3 How. Pr. R, 159.) Property in a mortgage, is a mere chattel interest. {Gardner v. Heartt, 3 Denio, 232 ; Calkins v. Calkins, 3 Barb. S. C. R., 305 ; Waring v. Smyth, 2 Barb. Ch. R., 135.) The title and seizin remain in the mortgagor until foreclosure, and he is not divested of his title until all the steps required by statute and rule have been complied with. (Arnot v. McClure, 4 Denio, 41 ; Layman v. Whiting, 20 Barb. S. C. R., 559 ; Bryan Y. Butts, 27 lb., 503.) Where a reference to make preliminary inquiries preparatory to the hearing of a cause for foreclosure is necessary or proper, in a case in which the rules do not authorize the entry of a common order, where such reference is not assented to by all the parties interested therein, a special application must be made to the court, upon due notice to all such 236 THE LAW OP REFEREES. parties as have appeared. ( Corning v. Baxter, 6 Paige's C. R, 178.) By the 72d rule of the Supreme Court, the referee to be appointed in foreclosure cases is to be selected by the court ; and the court will not appoint, as such referee, a person nominated by the party to the action or his counsel. Where an answer in an action of foreclosure de- nies any material facts of the complaint, the cause must take its usual course of a trial of issues. {Corn- ing V. Baxter, 6 Paige's C. R, 178 ; Harris v. Fly, 7 Paige's C. R, 421.) But where no answer is put in within the time allowed for that purpose, or any answer denying any material facts of the complaint, the plaintiff can proceed to obtain the proper order of reference for computation preparatory to applying for judgment. SECTION II. EEFEEENCE TO COMPUTE. The attorney for the plaintiff, when he is ready to proceed to a reference, will, in commencing to draw his order (of reference), consider whether there is any circumstance or party to the proceedings which may require more than the usual order. Thus, if there be an infant defendant, there must be a clause to take proof of the material facts and circumstances stated in the complaint ; where there is a non- resident or absent defendant, there will be the addi- TO COMPUTE AND SELL ON FOEECLOSUEE. 237 tional clause, that the plaintiff be examined as to payments made ; where a part of principal only, or a mere arrear of interest is due, then will come a clause as to ascertaining the situation of the mortgaged premises and as to the ability to sell in parcels, •without injury to the interest of parties. Where all these circumstances combine, they, of course, can and will be embraced in one order. SECTION III. WHEEE ALL IS DDE AND NO INFANT OR ABSENTEE IS INTERESTED. By the 71st rule of the Supreme Court, which is nearly the same as was the 134th Chancery rule, if, in an action to foreclose a mortgage, the defendant fails to answer within the time allowed for that purpose, or the right of the plaintiff, as stated in the complaint, is admitted by the answer, the plaintiff may have an order referring it to the clerk or to some suitable person as referee to compute the amount due to the plaintiff and to such of the defend- ants as are prior incumbrancers of the mortgaged premises. Thus far the rule has reference to an ordinary case where the whole amount is due, and there is no in- fant, absent or non-resident defendant. 238 THE LAW OP REFEREES. SECTION IV. FOKMS OP AFFIDAVIT AND ORDER OF REFERENCE WHERE THE WHOLE AMOUNT IS DUE AND THERE ARE NO INFANT OR ABSENT DEPENDANTS. ITiile.} ss : , plaintiff's attorney, being sworn, maketh oath and saith. That this is an action of foreclosure of a mortgage, the whole amount whereof is due ; and that none of the defendants have appeared or put in answers or otherwise pleaded ; nor are any of them non-residents or under age. Sworn, Sfc. At a Special Term of the Supreme Court held at, 8^c. Present, 8fc. : [Title.] This being an action of foreclosure where the whole amount is due, and the defendants having failed to an- swer or otherwise plead in this action, and the twne for their doing so having gone by ; on motion of Mr. , attorney for the plaintiff, it is ordered, that it be referred to , residing, 8^c., as referee, to ascertain and compute the amount due to the plaintiff for principal and interest on the bond and mortgage set forth in the complaint, and to such of the defendants, if any, as are prior incum- brancers of the mortgaged premises ; and that he make report thereon with all convenient speed. TO COMPUTE AND SELL ON FOEECLOSUEE, 239 SECTION V. WHBEE THEKE IS AN INFANT DEFENDANT. By the 71st rule (of the Supreme Court), where a defendant is an infant and has put in a general an- swer by his gnardian, the order of reference must direct the referee to take proof of the facts and cir- cumstances stated in the complaint, and to examine the plaintiff or his agent, on oath, as to any payments which have been made, preparatory to the applica- tion for judgment of foreclosure and sale. SECTION VI. OEDEE OF BEFEEENCE WHEEE AN INFANT IS A PAETT. [ Title.l At a Special Term, S^c. Judgment on failure to answer the complaint filed in this action having leen taken against all the defendants, except the defendant Q. H., who is an infant, and who has put in an answer by his guardian to defend ; there- upon, and on motion of Mr. , attorney for the plaintiff", it is ordered that it he referred to of as referee, to compute and ascertain the amount due to the plaintiff on the bond and mortgage mentioned in the complaint. Also that the said referee take proof of the facts and circumstances stated in the complaint ; and also examine the plaintiff or his agent on oath as to any payments which have been made preparatory to the application for judgment of foreclosure and sale. 240 THK LAW OF EEFEEEES. SECTION VII. WHERE THERE IS A NON-EESIDENT DEFENDANT. The 71st rule has provisions touching non-resident defendants, similar to those which attach to an infant defendant ; in fact, the active part of the order will be alike in both cases. SECTION VIII. ORDER OF REFERENCE WHERE THERE IS A NON-RESIDENT DEFENDANT. \_TitleJ] At a Special Tenn, Sfc. Present, 8^c.: On filing proof of personal service of the summons in this action upon the defendants ; and that the same has been served upon the defendant I. J., ivho is a non resident of this State (or, who cannot he found therein), by the publication thereof, as required by the statute and the order of this court ; and no ansicer having been put in by any of the defendants (except G. W., whose answer admits all the rights and interests of the several parties) ; and the periods for the defendants to answer or othenvise plead having expired; on filing proofs of such respective service, and on motion of Mr. , of counsel for the plaintiff, it is ordered that it be referred to — of , as referee, to TO COMPUTE AND SELL ON FORECLOSURE. 241 compute and ascertain the amount due to the plaintiff on the bond and mortgage mentioned in the complaint. Also, that the said referee take proof of the facts and circumstances stated in the complaint ; and also examine the plaintiff or his agent on oath as to any payments which have been made, preparatory to the application for judgment of foreclosure and sale. The duty of the referee, in cases where there is an infant or non-resident defendant, is laid down by Justice GrRiDLEY in Wolcott v. Weaver (3 How. Pr. R., 159) : " the referee in this case has committed an error which has become of such frequent occurrence that it may be useful to state the duties of a referee in the execution of an order of reference like this." The order directs the referee (among other things), " to take proof of the facts and circumstances set forth in the bill," and also, " to report the proofs and examinations had before him." This provision should always be incorporated in the order of reference, wherein either infants or absentees are named as defendants in the bill. It is an established rule that no decree can be taken against an infant by default ; nor even upon the admissions of his solicitor or counsel. So scrupu- lously does the law guard the rights of this class of persons, that they cannot be bound by any adverse adjudications, except upon due proof exhibited to the court. Hence, the formal answer of the guardian ad litem of an infant submits his rights to the deter- mination of the court ; and leaves the complainant to make out the facts of his case by proof. R. 31 242 THE LAW OF EEFEEEES. " The case of an ' absentee ' stands upon different ground. When process has been personally served upon an adult resident defendant, it is fair to con- clude that he has no defense to the bill, if he allows his default to be entered for want of an answer. Hence, by the practice of the court an order 'pro confesso ' is entered against such defaulting defend- ant, by which all the allegations of the bill are taken ' as confessed ' by him ; so that it is not necessary to prove them in any of the subsequent proceedings in the cause. " This conclusion, however, would be very unrea- sonable when applied to the case of a non-resident defendant, upon whom no process has ever been served. For the purpose of making the proceedings in the cause regular and of authorizing a decree against an absent defendant who happens to be a necessary party to the suit, the statute has substituted the publication of a notice in such newspapers as may be designated by the court in the place of . an actual service of the process. This notice, how- ever, may never come to the knowledge of the party for whose benefit it is published. It would be an extremely harsh judgment, therefore, to infer, from his omission to employ a solicitor, and to cause his appearance to be entered, that he has no defense to the suit and elects to confess the averments in the bill. The law, however, is guilty of no such injustice. It does, indeed, allow the usual order ^ra confesso to be entered if he fails to appear within the prescribed period limited in the order, but it expressly declares that 'the bill shall not be considered as TO COMPUTE AND SELL ON FORECLOSURE. 243 evidence of any fact stated therein ;' and it further provides that the ' court shall direct a reference to a referee to take proof of the facts and circumstances stated in the bill.' (2 R S., 186, §§ 126 and 127.) It is the duty of the plaintiff, under this provision, to adduce legal proof before the referee of every material fact alleged in the bill, such as the execution of the bond and mortgage, or of any assignment of the same that is necessary to make out a complete case for the complainant; on the hearing upon such a reference, the evidence must be strictly legal proof, secondary evidence will not answer. In the absence of the defendant, there can be no presumption of a waiver of any objection to the character or decree of the proof The further duty of the referee is under the act ' to report the proofs and examinations had be- fore him,' and upon the coming in of the report ' the chancellor shall make such order thereon as shall be just.' Under this provision, it is not enough for the referee to report the results of his own examination or his own conclusions from the evidence. In most cases, such areport is all thatis calledfor by the requirements of the order of reference, and the master or referee would not be justified in reporting the depositions in extenso. Not so here, however. The referee is to perform his duty as though he were an examiner, and the ' proofs,' whether documentary or oral, are to be reported to the court, which must itself deter- mine, whether the facts proved and reported are sufficient to sustain the allegations in the plaintiff's bill. 244 THE LAW OF KEFEEEES. "By applying these principles to the report under consideration, it will be readily seen that it is entirely defective. One fact, the proof of which by the plaintiff was indispensable, is the execution of the mortgage by the defendant. That may be proved by a subscribing witness when there is one, by evi- dence of the defendant's signature when there is not, or by the production of the certificate of a proper officer, of the acknowledgment of the defendants, or of the proof by a subscribing witness." SECTION IX. INSTALMENT OR INTEEEST ONLY DUE. In cases where interest or an instalment of princi- pal only is due, and the mortgagor has not brought the amount into court in due time and before a judg- ment has been had (2 R. S., 192, §§ 167, 168), the court will direct a reference to a referee to ascertain and report the situation of the mortgaged premises ; and if it shall thereby appear that the same can be sold in parcels, without injury to the interests of the parties, the judgment shall direct so much of the said premises to be sold as will be sufficient to pay the amount then due on such mortgage, with costs ; and such judgment will remain as security for any subsequent demand (/&., 193, §§ 169, 170), and the whole of the premises can be sold, in case a portion only cannot be sold (/&., § 171), and payment of the whole amount of principal (with rebate) or TO COMPUTE AND SELL ON FOEECLOgURE. 245 investment of part, can take place through action of the court. {lb., § 172.) The 71st rule of the Supreme Court, drawn partly to meet the above sections of the Revised Statutes, in directing a reference to compute the amount due to the plaintiff and to such of the defendants as are prior incumbrancers of the mortgaged premises, requires also, where the whole amount is not due, a direction to the referee to examine and report whe- ther the mortgaged premises can be sold in parcels. SECTION X. OEDER OP KEPEEENCE WHERE INTEREST OR INSTALMENT OP PRINCIPAL ONLY IS DUE. l^Title^ At a Special Term, S^c. Judgment upon failure to answer the complaint filed in this action having been taken against all the defend- ants (except, &c.) ; thereupon, on motion of Mr. , attorney for the plaintiff, it is ordered that it be referred to , of , as referee, to compute the amount due to the plaintiff on the bond and mortgage mentioned in the said complaint. And also to ascertain and report the amount secured to be paid by the said bond and mort- gage and which remains unpaid, including interest thereon to the date of such report. And also to ascer- tain and report the situation of the Tnort gaged premises, and whether, in his opinion, the same can be sold in parcels without injury to the interests of the parties. And if he shall be of opinion that a sale of the whole of the said premises, in one parcel, will be most beneficial to 246 THE LAW OF EEPEREES. the parties, then that he report his reasons for such opinion. On a reference to compute the amount due on a bond and mortgage, it is necessary to produce the bond, as it is the highest evidence of the debt. The recital in the mortgage is n'ot sufficient. (Chetvning V. Proctor, 2 McCord's Ch. R., 14.) In computing the amount due upon a mortgage, the referee cannot allow a plaintiff the amount of a premium paid for an insurance of the mortgaged premises, unless it was paid by express agreement of the mortgagor or owner of the equity of redemption. But he may allow payments for taxes or assessments which were a lien upon the premises. {Fawe v. Winans, Hopk. E., 283.) On the bond accompanying a mortgage, the referee may allow interest beyond the amount of its penalty. {Mower v. Kip, 6 Paige's C. E., 88.) In this case, Chancellor Walworth observed : " Such a limitation of liability, however, is not applicable to the principal debtor in a money bond. As to him, the amount secured by the condition of the bond is the real, debt, which he is both legally and equitably bound to pay ; and if he neglects to pay the money when it becomes due, there is no rule of jvxstice or of common sense which should excuse him from the payment of the whole amount of the principal and interest, whether it be more or less than the formal penalty of the bond. I think also, upon examination, it will be found that there is no technical difficulty in recovering a judgment at law upon the bond, which will be sufficient in amount to enable the TO COMPUTE AND SELL ON FOEECLOSUKE. 247 plaintiff to levy the whole of the debt, and interest and costs justly due him by an execution upon such judgment. By the common law, the plaintiff, in an action upon a penal bond, is entitled to recover damages for the detention of the debt, beyond the amount of the penalty of the bond. And although the damages usually recovered in such cases are merely nominal, as the penalty of the bond is gene- rally sufficient to cover the sum actually due, with the interest thereon, yet the amount of such damages may be increased by the jury upon a trial or added to the damages and costs upon taxation where there is judgment by default, whenever the justice of the case requires the judgment to be entered in that form. {Moffath v. • Barnes, 3 Caines, 49, n ; Holdipp V. Otwaij, 7 Term. E., 447, n.) I admit there are conflicting decisions on this subject in the English courts ', but the last one which I have been able to find is in favor of allowing interest beyond the penalty of the bond by way of damages for the detention of debt, to the extent, if necessary, of the damages laid in the plaintiff's declaration. {Francis V. Wilson, Eyan and Moody's E., 105. See also Lord Lonsdall v. Church, 2 Term E., 388.) The general current of the American cases is in favor of allowing interest, by way of damages, beyond the penalty ; and in many cases this principle has been extended to the case of a surety. (See United States V. Arnold, 1 Gall. E., 348 ; Harris v. Clapp, 1 Mass. E., 308 ; Perit v. Wallis, 2 Darll., 252 ; State of Maryland v. Wayman, 2 Grill and John., 254 ; Ten- nanfs ex'rs v. Gray, 5 Munf. E., 494). This ques- 248 THE LAW OF EEFEEEES. tion appears to liave been deliberately settled by the Supreme Court of this State, as early as 1805, in the case of 8medes v. Houghtaling (3 Caines' E., 48). Kent, Ch. J., there says : ' On a review of all the decisions on this subject, the court think this rule ought to be adopted : that interest is recoverable be- yond the penalty of the bond ; but that the recovery depends upon principles of law and is not an arbi- trary ad libitum discretion in the jury.' This case was not overruled in the subsequent case of Clark v. Bush, in the same court (3 Cow. R., 151) ; although it appears to have been overlooked by the learned chief justice in his very elaborate examination of the cases on this subject, as it was not referred to by either of the counsel and is not alluded to in his opinion. The question which the chief justice was examining, and the only one upon which any defi- nite opinion was expressed by him in the case of Clark V Bush, was, whether a surety in a mere bond of indemnity, given by him for the benefit of another person, was chargeable beyond the penalty of his bond ; and the conclusion at which he arrived in that case was unquestionably correct. " That decision, therefore, did not conflict in any manner with the former decision of the court, that the principal debtor in a money bond may be charged with the money which is actually due, with interest thereon from the time it became due, although the amount of such debt and interest may exceed the nominal amount of, the penalty of the bond." In cases of the above nature, if the referee decides that a sale of the whole premises is necessary, he TO COMPUTE AND SELL ON FOEECLOSUEE. 249 should state the reasons why that will be most bene- ficial to the parties. And if he decides that the property may be sold in parcels, he should state the relative situation and value of the several parcels and which should be first sold ; or such other facts in relation to the property as will enable the court to act understandingly in making such an order of sale as will be most beneficial to the parties. {Ontario Bank V. Strong, 2 Paige's C. K., 301.) SECTION XI. eefeeee's eepoet wheee the whole amount is due, with CLAUSE wheee THEEE IS A NON-EESIDENT OE INFANT DE- FENDANT. To the Supreme Court of the State of Neio York : ITitk.'] In pursuance and by virtue of an order of this court dated the — day of , 18 — , hy which it was re- ferred to me, the undersigned , as referee, to com- pute, 8^c. (here recite the order fully). /, the said referee, do respectfully certify and report, that I have computed and ascertained the amount due to the plaintiff in this case as aforesaid; and that the amount so due on the said bond and mortgage, for the principal and interest up to and including the date of this report, is the sum of $ . And I do further certify and report, that the schedule hereunto annexed, marked A., and making a part of this my report, contains a statement and account of the prin- cipal and interest moneys due to the plaintiff as afore- E. 32 250 THE LAW OF EEFEEEES. said; the period of the computation of the interest, and its rate and to which, for greater certainty, I refer. (If any of the defendants are infants or absentees, but not otherwise, add : And I further certify and report, that I have examined the plaintiff on oath, as to any pay- ments on account of the said bond and mortgage ; and have taken proof of the facts and circumstances stated in the plaintiff s hill ; and I find the several matters stated in the said hill to be true. And I further certfy that the schedule B. hereto annexed, and making a part of this my report, contains the substance of the examination and proofs had before me, except so much of said proof as is documentary, and of that an abstract is herewith returned^ All which is respectfully submitted. Dated, , 18 — . Referee. Schedule marked A. referred to in the preceding re- port. One bond, dated 18 — , in the penal sum of % , conditioned to pay % , as follows, viz.: on the \st day of , 18 — , with interest; ivhich bond is accompanied by a mortgage of the same date. Principal sum due, % Interest thereon from , 18 — to 18 — , being years and months, at seven per centum per annum, is $ Amount due plaintiff" this — day of , 18 — , is % Referee, TO COMPUTE AND SELL ON FOEECLOSUEE. 251 [If any of the defendants are infants or absentees, add Schedule B, containing the examination and proofs.] SECTION XII. eefeeee's eepoet wheee the whole amount is not due, (with a CLAUSE TO MEET A CASE WHEEE THEEE IS AN INFANT OE NON-EESIDENT DEFENDANT.) (Take last precedent of report, p. 249, down to and so as to include a full recital of order of reference, and then go on, thus :) /, the subscriber, referee aforesaid, do respectfully cer- tify and report, that I have computed and ascertained the a^nount due to the plaintiff in this cause as afore- said ; and that the amount so due on the said bond and mortgage for the principal and interest, up to and in- cluding the date of this report, is the sum of % . And I do further certify and report, that the schedule hereto annexed, marked A, and making a part of this my report, contains a statement and account of the prin- cipal and interest moneys due to the plaintiff as afore- said; the period of the computation of th& interest and its rate, and to which, for greater certainty, I refer. And I do further certify and report, that 1 have com- puted and ascertained the amount secured to be paid by the said bond and mortgage, and which remains unpaid, including interest thereon to the date of this my report, and the same is the sum of % . Schedule marked B, to this my report annexed, and forming a part there- of, contains a statement of the said principal and interest 252 THE LAW OF EEFEREES. moneys respectively; the period of the computation of the interest, and its rate ; and to which, for greater cer- tainty, I refer. [In case there is an infant, or non- resident defendant, add :] And I do further certify and report, that I have taken proof of the facts and cir- cumstances stated in the said complaint, and have ex- amined the complainant, A. B., on oath, as to any pay- ments which may have been made to him or to any person for his use, on account of the demand mentioned in the said complaint and which ought to he credited thereon ; and such proofs, except those which are docu- mentary, and such examinations, are to this my report annexed; and I am of opinion that the facts and cir- cumstances stated in said hill are true. And I do further certify and report, that I have ascertained the situation of the said mortgaged premises, and am of opinion the same can (not) he sold in parcels witJwut injury to the interests of the parties, (for the reason that the mortgaged premises consist of a house and lot in the city of , which cannot well be divided.) All which is respectfully reported and suhmitted. Dated this — day of , 18 — . Referee. Schedule A, referred to in the preceding- report. One bond, dated 18 — , in the penal sum of % , conditioned to pay % , as follows, namely : in one year from its date, with interest and $ in years from its date, with interest ; which hond is accompanied hy a mortgage of the same date. TO COMPUTE AND SELL ON FOEECLOSUEE. 253 Principal suvi due, $ Interest thereon from the — day of- , 18, — to , 18 — , heing years and — days, at 7 per centum per annum, is $ Amount due plaintiff" this — day of- 18—, is Referee. Schedule B, eefeeeed to in the peeceding EEPOET. (Same bond and mortgage mentioned in Schedule A.) Principal sum secured and unpaid, $ Interest thereon from the — day of- , 18 — , to the — day of ,18 — , being — years and — days, is $ Whole amount secured and unpaid, including interest thereon to this day, is ^ Dated, ,18 — . Referee. The report of a referee in foreclosure, is but part of the evidence before the court, and upon which it is called to decide whether it will or will not be most beneficial to the parties to decree a sale of the whole premises in one parcel in the first instance. The court will look to the pleadings and will receive other evidence in its discretion, and will consider 254 THE LAW OP EEFEEEES. any stipulations offered and admission of the parties or of other persons presented to it on the hearing. {Crregory\. Campbell, 16 How. Pr. E.., 417.) SECTION XIII. NOTICE OF PENDENCY OF ACTION. In all foreclosure cases the plaintiff, when he moves for judgment, must show, by affidavit or by the cer- tificate of the clerk of the county in which the mort- gaged premises are situated, that a notice of the pending of the action, containing the names of the parties thereto, the object of the action and a descrip- tion of the property in that county affected thereby, the date of the mortgage and the time and place of recording the same, has been filed at least twenty days before such application for judgment, and at or after the time of filing the complaint, as required by § 132 of the Code of Procedure. (Rule 71 of Sup. Court.) SECTION XIV. AFFIDAVIT OF FILING NOTICE OF PENDENCY OF ACTION. {Title.^ {City and) County of- , ss. G. H. of, S^c, being sworn, maketh oath and saith : That he is the attorney for the plaintiff in this action ; that the said action was commenced to foreclose a mortgage ; that the summons TO COMPUTE AND SELL ON FOEECLOSUEE. 255 and complaint were served on C. D., the defendant, and the summons and notice, a copy of which is hereto annexed, on all the other defendants herein, on or before the — day of last past, as appears hy the proof of the said service ; and that more than twenty days since a notice of the pending of this action, of which the an- nexed is a copy, was filed in the office of the clerk of the county of , in which county the said mortgaged pre- mises are situated; and which notice contained the names of the parties to this action and the ohject of the same ; the date of the said mortgage and the names of the persons hy who7n and to whom the said mortgage was executed ; the time ivhen and the office in which the said mwtgage was recorded; a description of the land mcn-tgaged as set forth in the said rnortgage ; and show- ing the city and ward (or town, village or ward) and county in ivhich the said, mortgaged premises were situated at the time when this action was commenced. Sworn, 8^-c., A judgment of sale on the foreclosure of a mort- gage should contain a clause authorizing the sale of so much of the mortgaged premises as may be suffi- cient to raise the amount due on the mortgage ; and if the judgment does not contain such a clause, the referee, under ordinary circumstances, should sell only sufficient to raise the amount of the mortgage money, if the mortgaged premises are susceptible of a division. (Wiley v. Angel, 1 Clarke's Ch. E., 217 ; The Bank of Ogdenshurgh v. Arnold, 5 Paige's C. R., 38.) 256 THE LAW OF EEFEEEES. By the 72d rule of the Supreme Court, every judgment in foreclosure must contain directions that all surplus moneys arising from the sale of mortgaged premises shall be paid by the referee making the sale within five days after the same shall be received and be ascertainable ; in the city of New York, to the chamberlain of the said city, and in other coun- ties to the treasurer thereof, unless otherwise specially directed, subject to the further order of the court. SECTION XV. USUAL JUDGMENT FOR SALE IN FORECLOSURE WHERE THE WHOLE AMOUNT IS DUE. At a Special Term of the Supreme Court, held at the City Hall in the city of New York, the — day of , 18—. Present, , Esq., Justice : \_Title.1 On reading and filing the report of , referee herein, dated the — day of , 18 — , to whom it was referred to compute the amount due to the plaintiff for the principal and interest on the hand and mm'tgage set forth in the complaint (if any of the defendants are non-residents or infants, and to examine the plaintiff on oath as to payments and to talie proof of the facts and circumstances stated in the said complaint^, by which report it appears that there loas due to the plaintiff, at the date of the said report, for the said principal and interest, the sum of $ ; and on reading and filing TO COMPUTE AND SELL ON FOEECLOSUEE. 257 the affidavit of , attorney for the plaintiff, showing the filing of the notice of the pendency and object of this action and the other matters required by the list rule of the Supreme Court and section 132 of the Code of Procedure ; and on motion of Mr. , of counsel for the plaintiff: It is ordered, that the said report he and the same hereby is, in all things, confirmed. And, on like ^notion as aforesaid, it is adjudged that the mortgaged premises described in the complaint in this action, as here- inafter set forth, or so much thereof as may he necessary and as may he sold separately without prejudice to the interest of the owner thereof, be sold at public auction, in the (city and) county of (New York), by E. F., of, S^c, as referee, and he being herein and hereby appointed referee for that purpose ; that the said referee give public notice of the time and place -of such sale according to law and the practice of this court ; that any of the parties to this action may purchase at such sale ; that the said referee execute to the purchaser or purchasers a deed or deeds of the premises sold; that out of the moneys arising from such sale, after deducting the amount of his fees and expenses on such sale, and any lien or liens upon said premises so sold, at the time of such sale, for taxes or assess7nents, the said referee pay to the plaintiff or his attorney, the sum of dollars and — cents, adjudged to the plaintiff for costs and charges in this action, with interest from the date hereof allowed, and also the amount so reported due as afore- said, together with the legal interest thereon, from the date of the said report, or so much thereof as the purchase money of the mortgaged premises will pay of E. 33 258 THE LAW OF EEFEREES. the same, take a receipt therefor and file it with his report of sale; that he deposit the surplus money (If any) with the treasurer of the county of (or, if tlie judgment be had in the city and county of New York with the chamberlain of the city of New York), to the credit of this action, to he drawn only on the order of the court, signed hy said clerk and a judge of the court, within five days after he receives the same ; that he make a report of such sale and file it with the clerk of this court with all convenient speed ; that if the proceeds of such sale he insufficient to pay the amount so reported due to the plaintiff, with the interest and costs as afore- said, the said referee specify the amount of such deficiency in his report of sale, and that the defendant, C. D. pay, the sam£ to the plaintiff; and that the purchaser or fur- chasers at such sale he let into possession on production of the referees deed. And it is further adjudged, that the defendants, and all persons claiming under them, or any or either of them, after the filing of the aforesaid notice of pendency of this action, he forever barred aud foreclosed of all I'ight, title, interest and equity of redemption in the said mortgaged premises so sold or any part thereof. The following is a description of the mortgaged pi-emises hereinbefore mentioned and to he sold under and hy virtue of this judgment, namely : (Insert description of mortgaged premises.) TO COMPUTE AND SELL ON FORECLOSURE. 259 SECTION XVI. JUDGMENT FOR SALE, WHERE A PART ONLY OP DEBT IS DUE AND PREMISES CANNOT BE SOLD IN PARCELS. [ Title.\ At a Special Term, 8^c. (Here take precedent of judgment, " usual judg- ment," &c., at p. 256, ante, down to the description of the premises to be sold — in fact, the whole of that form, save the description of the premises ; and, then, go on as follows : ) And in case the amount reported as actually due, with interest and the costs of this action, shall be paid before such sale, it is further ordered that said plaintiff" be at liberty, at any time hereafter when any principal sum or interest secured by said bond and mortgage shall become due, according to the condition of the said bond, to go before the aforesaid referee who is hereby continued referee for that purpose, on the foot of this judgment, and procure a report of the amount which shall then be due thereon, to the end that upon the coming in and confirmation of such report, a judgment may be made for a sale of the said premises to satisfy the amount xohich shall then be due, with interest, and the costs of such report and sale. And in case the said pj-emises shall be sold under this judgment and shall not produce suffi- cient to satisfy the amount so reported as secured and unpaid, with interest and the costs of this suit and of su^Ji sale, it is then further ordered that the -said plaintiff be 260 THE LAW OF EEFEREES. at liberty, at any time thereafter when any such defi- ciency of 'principal or interest shall have hecome due according to the condition of the said bond, to apply to this court for an execution against said defendant C. J)., who is personally liable for the payment of the debt secured by the said mortgage, to collect the amount which shall be then due thereon. The description and particu- lar boundaries of the property authorized to be sold under and by virtue of this judgment, so far as the same can be ascertained from the mortgage above referred to or from the complaint in this action, are as follows, namely : (Insert description of mortgaged premises.) SECTION XVII. JUDGMENT FOE SALE WHERE A PAET OF THE DEBT IS KOT DUE AND THE PREMISES CAN BE SOLD IN PARCELS. \Title.\ At a Special Terin, d^c. (Here take precedent of judgment, " usual judg- ment," &c., at p. 256, ante, down to the description of the premises to be sold — in fact, the whole of that form, save the description of the premises ; and, then, go on as follows : ) And it is further ordered and decreed, that the said plaintiff be at liberty, at any time hereafter, as any instalment of principal or interest shall become due on said bond and mortgage, to go before the aforesaid referee who is hereby continued referee for that purpose, on the foot of this judgment, and obtain a report of the amount TO COMPUTE AND SELL ON FORECLOSUEE. 261 which shall then he due, to the end, that, on the coming in and confirmation of such report, a judgment may he made for a sale of the residue of the said premises not sold under this judgment to satisfy the amount which shall then he due, with interest and tlie costs of such report and sale. And in case the said premises shall all he sold under this judgment to satisfy the amount now actually due, with interest and costs, it is then further ordered that the said plaintiff he at liberty, at any time thereafter when any future instalment of principal or interest shall fall due upon the said bond and mort- gage, to apply to this court for an execution against said defendant C. D., who is personally liable for the pay- ment of the debt secured by the said mortgage, for the amount which shall then be due, with interest and the costs of such application. The description and particular boundaries of the property authorized to he sold under and by virtue of this judgment, are as follows, namely : (Insert description of mortgaged premises.) Where, in a suit for the foreclosure of a mortgage, the whole amount is not due, if the referee reports that the premises can be sold in parcels without injury to the interests of the parties, only so much of the premises can be sold as will satisfy the amount then due, with costs ; although the residue will be insufficient to satisfy the mortgage money which is yet to become due. {Bank of Ogdensburgh v. Arnold, 5 Paige's C. R, 38.) It is proper to insert the title of the action in the notice of sale, by stating the names of the first plaintiff and first defendant at length, and adding 262 THE LAW OP EEFEEEES. the words "and others," where there are several plaintiffs or defendants, for the purpose of attracting the attention of those who may be interested. (2 Hoff. Pr., 144, referring to MS. case, before the Chancellor, of Ray v. Oliver.) And in Brayton v. Smith (6 Paige's C. R. 489), it is declared to be proper that the title of the cause should be inserted in the notice of sale, though its omission will not make the sale irregular. SECTION XVIII. NOTICE OF SALE BY A REFEREE AND FORM OF NOTICE. The 73d standing rule of the Supreme Court is explanatory as to place and publication of notice of sale : where lands in the city of New York are sold under a decree, order or judgment of any court, they shall be sold at public vendue, at the Merchants' Exchange between twelve o'clock at noon and three in the afternoon, unless otherwise specially directed. The notice of the sale of lands lying in any of the cities of the State (of New York), in which a daily paper is printed, except where a different notice is required by law or by the order of the court, shall be published in one or more of the daily papers of that city for three weeks immediately previous to the time of sale at least twice in each week. When lands in any other part of the State are directed to be sold at auction, notice of the sale shall be given for the same time and in the same manner as is required by law on sales of real estate by sheriffs on execution. TO COMPUTE AND SELL ON POEECLOSUKE. 263 FOKM OF NOTICE. [ Title of cause.] In pursuance of a judgment order of the Supreme Court of the State of New York made in the above action, will he sold, under the direction of the subscriber, at public auction at the (Merchants' Exchange in the city of New York), on , the — day of , 18 — , at 12 d clock noon: All that (describe property). Dated , 18 — . Referee. SECTION XIX. CONDITIONS OF SALE. See form of conditions of sale in chapter XIII, ON PARTITION, " 19, Conditions of Sale," post. SECTION XX. SELLING. Where a sale by a referee has been adjudged, and the action abates before the sale, a sale cannot be had before a receiver. {Washington Ins. Co. v. Slee, 2 Paige's C. R., 365.) Real estate adjudged to be sold must be sold in the county where it lies by the sheriff of the county or by a referee appointed by the court for that purpose. (Code, § 287.) Although the above extract from the Code is found under the title " of the execution 264 THE LAW OP EEFEREES. of the judgment in civil actions," its wording is very general and can hardly be considered as narrowed to sales under writs of execution, because such writs are executed only by sheriffs, while the clause in question brings in " a referee." Mortgaged premises are not to be sold on credit without the consent of both parties. (^Sedgwick v. Fish, Hopk., 594.) In Brown v. Frost (1 Hoff. Ch. E., 41), it is said that on mortgage sales, where it is certain that the property will produce sufficient in any mode of divi- sion to pay the plaintiff, the referee should pursue the instructions and wishes of the owner; and the mortgagee can only demand that the usual terms of sale, as to time of payment, &c., be not departed from, without special reasons. This case, however, without reverting particularly to the above doc- trine, was overruled on appeal. (10 Paige's C R., 244.) And in Snyder v. Stafford (11 lb., 71), Chan- cellor Walwoeth decided that the owner of a decree for the sale of mortgaged premises has no right to control the referee in relation to the order of sale of the parcels. Mortgaged premises adjudged to be sold by a referee, must be made by or under his immediate direction. A sale by a person deputed by him is irregular and will be set aside. {Heyer v. Deaves, 2 J. C. R, 154.) Any person has a right to bid at a judicial sale in person or by his agent ; and the agent need not dis- close that he is bidding as such. {The Marine Fire Ins. Co. V. Loomis, 11 Paige's C. R, 431.) TO COMPUTE AND SELL ON FOEECLOSUEE. 265 Where a sale of mortgaged premises is adjudged and the plaintiff neglects to proceed to a sale with due diligence, the court will, upon application, com- mit the execution of the decree to any other party interested in it. (Kelly v. Israel, 11 Paige's C. R., 147.) It is the duty of the referee to sell with all reason- able diligence, upon the request of any party in interest. (Kelly v. Israel, 11 Paige's C. R, 147.) He may, however, in his discretion, and for good reason shown, postpone the sale. (7&.) Sale of mortgaged premises under a judgment will not be postponed merely on account of the existence of war. "War, as a general calamity, is not suffi- cient to justify the court in interupting the regular administration of justice and the collection of debts. (Astor V. Romayne, 1 J. C. P., 310.) SECTION XXI. PUECHASEE ; AND AS TO HIS COMPLETING PUECHASE AS WELL AS TO HIS BEING BELIEVED FEOM IT; ALSO, EESALE. A purchaser at a referee's sale is entitled to a reasonable time to procure specie, if it be unex- pectedly demanded for his bid. (Baring v. Moore, 5 Paige's C. P., 48.) A mortgagee has equal rights with third persons to purchase in mortgaged premises ; and the lowness of price at which he purchases is no ground to set aside a sale. (Moft v. Walkley, 3 Edw. V. C. P., 590.) K. 34 266 THE LAW OF REFEREES. On a referee's sale, which reserves to the referee a right to consider the biddings open until the deposit is paid, no sale can be enforced where the purchaser refuses to pay the deposit or sign an acknowledg- ment ; and no order for a resale is necessary. The referee will go on as if no sale had taken place. {Hewlett V. Davis, 3 Edw. V. C. R, 338.) Where a purchaser at a referee's sale dies before he completes his purchase, his heir-at-law will be entitled to take the purchase. This, however, may be subject to the question whether the original buyer has disposed of> his bid or covered it by any trusts in his will. In The King v. Gregory (4 Price, 180), a purchaser under a decree died before conveyance was made, having devised the property in question and all his real estate to trustees. The court autho- rized a conveyance to such trustees, the heir-at-law of the purchaser being an infant. The purchaser at a referee's sale may assign his bid, and have the conveyance made to his assignee ; and if he makes two assignments, the court will de- cide between the assignees. {Proctor v. Farnham, 5 Paige's C. R., 614.) On foreclosure, two lots were sold as one parcel, for one price, subject to a lease of part of the premi- ses on which was a building, which, at the sale, was stated to be on one of the lots. The sale being in good faith, the purchaser was compelled to take the deed although the building projected two feet upon the other lot, and rendered it less convenient for building on, it appearing that it could be moved off the two feet, but a deduction from the price was ordered. {King v. Bardeau, 6 Johns. Ch. R., 38.) TO COMPUTE AND SELL ON FOKECLOSUKE. 267 The court neither gives nor requires a vendor to give a title against which there can be no possibility of a valid claim. The purchaser at a referee's sale is authorized to object to the title, only when there is a probability that some other person has a valid claim or subsisting lien upon the premises. {Dunham V. Minard, 4 Paige's C. R., 441.) Where the title is not suspicious, and is, prima facie good, the purchaser under a judicial sale is bound to complete his purchase. {Matter of Browning, 2 Paige's C. R., 64.) On a referee's sale, the court does not undertake to give a title good beyond all possibility of defeat, but only such a title as a pvirchaser at a private sale could not legally object to receive. (Sjpring v. San- ford, 7 Paige's C. R., 550.) Where real estate is sold by a referee without war- ranty, the purchaser takes the same at his own risk. {Banks v. Walker, 3 Barb. Ch. R., 438.) Where the mortgaged premises are sold for much less than their value, and the mortgagor makes an agreement with the purchaser for a conveyance upon equitable terms, and violates it, he cannot have a resale. (Toll v. Hillier, 11 Paige's C. R., 228.) Mere inadequacy of price, not being so great as to be evidence of fraud or unfairness, is no ground for ordering a resale. (The American Insurance Co. V. Oakley, 9 Paige, 259 ; and see Thompson v. Mount, 1 Barb. Ch. R., 609.) The referee's announcing that the property will be put up and resold, at the expense of the purchasers, if they do not comply with the terms of sale, does 268 THE LAW OF EEFEEEES. not discharge them on non-compliance. ( The National Fire Insurance Co. v. Loomis, 11 Paige's C R., 431.) A. party to a decree purchasing under it, cannot question its regularity in a proceeding to compel him to complete his purchase. His remedy is to apply to the court, directly, to vacate it. {Conckin v. Hall, 2 Barb. Ch. R., 136.) A party to a foreclosure suit cannot impeach or set aside the sale, by an original bill, where a summary application could have been made in the suit for that purpose. {Nicholl v. Nicholl, 8 Paige, 349 ; Brown v. Frost, 10 Paige's C. R., 243.) A regular and fair sale will not be set aside for the benefit of the persons interested in the proceeds, who might have protected their own interests. ( The American Insurance Co. v. OaMey, 9 Paige's C. R., 259.) A purchaser under a decree or judgment submits himself to the jurisdiction of the court in that suit as to all matters connected with the sale or relating to him in the character of purchaser. {Requa v. Rea, 2 Paige's C. R., 339.) A purchaser at a referee's sale under decree, may be compelled to complete his purchase, by attach- ment. (Brashers'' executors v. Cortlandt, 2 John. Ch. R., 505.) A mortgagor cannot redeem after a sale, nor defeat the sale by a subsequent tender. {Brown v. Frost, 10 Paige's C. R., 243.) Where, under a judgment for foreclosure and sale, a purchaser refuses to perfect his purchase and the plaintiff does not press him, the referee should sell TO COMPUTE AND SELL ON POEECLOSUEE. 269 the property over again, and not let the plaintiff take it at the purchaser's bid and receive a deed. (Thofnpson v. Dvnond, 3 Edw. V. C. R., 298.) If any deception has been practised upon a pur- chaser at a referee's sale, the court will relieve him. He will not be compelled to carry the contract be- tween himself and the court into effect under circum- stances where it would not be perfectly just in an individual to insist upon performance. The referee, therefore, must not, in his description of the property, add any particulars which may unduly enhance the value of the property or mislead the purchaser. (Veeder v. Whipple, 3 Paige's C. R, 97.) In mortgage sales, purchasers should know that if they pay a fair price for the property, they will be protected by the court and not be compelled to take an incumbered or worthless title. If there is any cloud upon the title, or incumbrance, or difficulty in obtaining possession, and the sale be not at the risk of the purchaser in that respect, the purchaser wiU be excused and a resale ordered. {McGowen v. Wil- kins, 1 Paige's C. R., 120.) The purchaser at a referee's sale', if he neglects for a reasonable time to comply with the terms of the sale, will not be listened to on a motion for a resale ; nor will he be compelled to complete it, where performance on the other side has been un- reasonably delayed. {Jackson v. Edwards, 7 Paige's C. R., 387.) A defendant who has appeared and has an interest in the property, or in the proceeds thereof, is entitled 270 THE LAW OF EEFEEEES. to notice of an application to discharge the purchaser or for a resale. (Robinson v. Meigs, 10 Paige's C. R., 41.) Until confirmation of the referee's report of sale, any person interested in the sale may apply to the court to vacate it and for a resale. (Brown v. Frost, 10 Paige's C. R., 243.) If the title be defective, and there is an unreason- able delay in perfecting it (in this case ten months), equity will not compel the purchaser to complete his purchase. (Jackson v. Edwards, 22 Wend., 498 ; aff'd, 7 Paige's C. R., 386.) Equity will not compel one who purchased at a referee's sale, with an understanding that he was to receive a perfect, to accept a doubtful title ; nor a mere equitable title not available at law ; nor a valid legal title, liable to be litigated in equity, in conse- quence of a valid equitable claim which may be brought against it. (Morris v. Mowatt, 2 Paige's C. R., 586.) It is a valid objection to a completion of the pur- chase, where the referee sold good title, that the land or buildings can be taken by a corporation for open- ing or enlarging a street without compensation, (Seatnan v. Hicks, 8 Paige's C. R., 655.) Mere inadequacy of price, where the sale is to a stranger, and the party applying was in a situation to protect his rights on the sale, is no ground for setting it aside. But, where the price was inade- quate, and the party's agent was prevented by the act of God from attending the sale, a resale was ordered. (Thompson v. Mount, 1 Barb. Ch. R., 609.) TO COMPUTE AND SELL OK POEECLOSUEE. 271 Although a resale will not be ordered merely on the facts that the property was sold below its real value, and that it would bring an amount equal to the price bid and ten per cent thereon, yet if, besides this, a suspicion of conduct in the former sale attaches, a resale will be ordered under conditions. Thus, in the late case of Murdoch v. Empie (19 How. Pr. R, 79), Justice Ingeaham explained the facts and gave the following decision : Ingeaham, J. " The papers in this case show that the property was sold below its real value, and that, on a resale, it will bring an amount equal to the price bid and ten per cent thereon. " If this sale had been made by the order of the surrogate, those facts might be suflScient to authorize the court to order a resale, as was said in Kain v. Masterson (16 N. Y. R, 176). " That rule, however, as applied to surrogates, is not sufficient in mortgage sales. The statute (2 E. S., p. 105, § 33) makes it the duty of the surrogate to order a resale in such a case. There is no such statute relating to sales on the foreclosure of mort- gages. On such sales, parties interested are sup- posed to be able to attend to their interest at the sale and do not require the same protection that should be extended to the sales of property of the estates of deceased persons. Something more is necessary in relation to the sales of lands under foreclosure. (26 Wend., 143.) " I am not, however, satisfied that the sale was con- ducted in a way free from suspicion. Lloyd admits that he told Mrs. Empie that he thought some one 272 THE LAW OP EEFEREES. would bid $500. He does not deny what is stated by Empie, that he wished her not to bid, as he would take care of her interests, and the subsequent propo- sition, by which Lloyd was authorized to sell the property immediately at $14,000, does not furnish any additional evidence of good faith in the pro- ceeding. " When, in addition to these facts, it appears that the result of this sale, if carried out, will probably involve the mortgagee in the loss of all her property and leave her liable for a large deficiency on the second mortgage, I am of the opinion that jus- tice will be promoted by ordering a resale of the premises. [King v. Morris, 2 Abbott's P. R, 277 ; lb., - 294.) This, however, can only be done on the fol- lowing conditions : " First. The purchaser must be indemnified against loss. For this purpose, in addition to the return of the part paid by him on the sale, he must be paid the disbursements made by him, including the auc- tioneer's fees and one hundred dollars to satisfy any expenses he may have been put to in examining the title, &c. Second. The defendant must file a bond with sureties to be approved by a judge that at least $14,000, and the expenses of the resale shall be bid by a hona fide bidder at the next sale. Third. Pay the costs of the motion, hastl^. If the terms are completed within six days from service of notice of this decision, the motion for a resale is granted, otherwise the same is denied." A resale will be ordered where parties interested in the sale omit to attend and bid through misinfor- TO COMPUTE AND SELL ON FOEECLOSUEE. 273 mation of the referee, or the representatives of the mortgagee, or of a co-defendant and the sale is greatly below value. {Collier v. Whipple, 13 Wend., 226; Tripp v. Cook, 26 lb., 143.) Any false or mistaken particular in the description of the property by the referee's advertisement, cal- culated to enhance its value and mislead the pur- chaser, if it do mislead him, is good ground for avoiding the sale. ( Veeder v. Fonda, 3 Paige's C. R., 94.) Where city property was sold by a referee upon the terms that all taxes and assessments were to be paid out of the purchase money, provided bills were produced before the completion of the sale, and it was known to some bidders that a very large assessment (which had been made) had not been confirmed, the purchasers, who bid under the belief that it had been confirmed, were excused; and, a resale ordered. (Post v. Leet, 8 Paige's C. R, 337.) Where the executors and heirs of the mortgagor were led to believe, by representations of the com- plainant, that the sale would not take place at the appointed time, a resale was ordered on payment of costs and the costs and expenses of the purchaser. {Williamson v. Dale, 3 Johns. Ch. E., 290.) Where the land was the property of infants, and sold for not more than half its value, the sale being a surprise on their mother and step-father, a resale was ordered, on security being given that premises should bring fifty per cent advance, and on fully indemnifying the purchaser. {Duncan v. Dodd, 2 Paige's C. R, 99.) E. 35 274 THE LAW OF EEPEEEES. So, when a co-defendant took an unconscientious advantage of the mortgagor's sickness, prevented a postponement, and became the purchaser. (Billington V. Forhes, 10 Paige's C. R., 487.) An irregular sale of mortgaged premises, to the prejudice of a judgment creditor, will be set aside on his apphcation. {May v. May, 11 Paige's C. R., 201.) If the referee, being instructed by the plaintiff's attorney not to sell for less than a certain sum, sell for a less sum, a resale will be ordered, on the com- plainant's motion. {Requa v. Rea, 2 Paige's C. R., 239.) So, where he sells in gross what he should have sold in parcels. ( The American Insurance Company v. Oakley, 9 Paige's C. R., 259.) And see further as to title and purchaser taking or being relieved, under chapter X, ''Reference on Title," 3, Proceedings on Reference and Principles, post. SECTION XXII. COSTS AND INTEREST ON DISCHARGINa PUECHASEE. If the purchaser be discharged of his pin-chase, he is entitled to his costs and to the interest on his deposit until its return, to be charged on the com- plainant personally even if he has acted in good faith, unless there be a fund in court or one in pros- pect. {Morris v. Mowatt, 2 Paige's C. R., 586.) If a referee's sale of real estate is within the statute of frauds, his report of the sale, stating its terms, the »ame of the purchaser and the price bid, and sub- TO COMPUTE AND SELL ON FORECLOSURE. 275 scribed b}'" tlie referee, or any other note or memo- randum of tbe contract, containing the requisites of the statute and signed by him, is a suflScient com- pliance with the statute. ( Tlie National Fire Insurance Co. V. Loomis, 11 Paige's C. E., 431.) SECTION xxni. • referee's deed. This Indenture, made the — day of in the year one thousand eight hundred and , hetween G. H., of, 8fc., referee in the action liereinafter mentioned, of the first part, and (purchaser) of the second part. Whereas at a special term of the court of — — held at , on the — day of , one thousand eight hundred and , it was, among other things, ordered, adjudged and decreed, hy the said court, in a certain action then pending in the said court, hetween: A. B., plaintiffs and C. D., defendant, that all and singular the mortgaged premises mentioned in the complaint in the said action, and in said judgment described, or so much thereof as might he sufficient to raise the amount due to the plaintiff for principal, interest and costs in said action, and which might he sold separately, without material injury to the parties interested, he sold at public auction, according to the course and practice of said court, hy or under the direction of the said Q. H., who was appointed a referee in said action, and to whom it was referred hy the said order and judgment of the said court, among other things, to make such sale ; that the said sale he made in the county where the said mort-^ 276 THE LAW OF EEFEEEES. gaged premises, or the greater part thereof, were situated, that the referee give public notice of the time and place of such sale, according to the course and practice of said court, and that any of the parties in said action might become purchaser or purchasers on such sale ; that the said referee execute to the purchaser or purchasers of the said mortgaged premises, or such part or parts thereof as should be sold, a good and sufficient deed or deeds of conveyance for the same. And whereas the said referee, in pursuance of the order and judgment of the said court, did, on the — day of , one thousand eight hundred and , sell at public auction at , the premises in the said order and judgment mentioned, due notice of the time and place of such sale having been first given, agreeably to the said order ; at which sale the premises, hereinafter described, were struck off to the said party of the second part, for the sum of dollars, that being the highest sum bidden for the same. Now this indenture witnesseth, That the said referee, the party of the first part to these presents, in order to carry into effect the sale so made by him as aforesaid, in pursuance of the order and judgment of the said court, and in conformity to the statute in such case made and provided, and also in consideration of the premises, and of the said sum of money so bidden as aforesaid, having been first duly paid by the said party of the second part, the receipt whereof is hereby acknowledged, hath bargained and sold, and by these presents doth grant and convey unto the said party of the second part : All (here insert premises as they appear in the judg- ment order.) To have and to hold all and singular TO COMPUTE AND SELL ON FOEECLOSUEE. 277 the premises above mentioned and descrihed, and hereby conveyed or intended so to be, unto the said party of the second part, his heirs and assigns, to his and their only proper use, benefit and behoof for ever. In witness whereof the said party of the first part, referee as aforesaid, hath hereunto set his hand and seal the day and year first above written. Sealed and delivered in the presence of The referee's deed divests the title as of the time of the sale. {M''Laren v. The Hartford Fire Ins. Co., 1 Seld., 151.) The referee's sale passes the title presently, and his deed, before confirmation, takes effect on delivery. {Fuller v. Van Geesew, 4Hil], 171; Fort v. Burch, 6 Barb. S. C. R., 60.) SECTION XXIV. EENTS. Though a purchaser at a referee's sale pay the deposit, he acquires no right to rents accruing inter- mediate that time and the payment of the balance by and the delivery of the deed to him ; nor does it make any difference that the money had been ready and lying unproductive in the meanwhile. {Strong V. Dollner, 2 Sand. Ch. R., 444.) The purchase is inchoate and defeasible until the acceptance of the title on his part and the confirmation of the report of sale on the part of the court. (lb.) 278 THE LAW OF EEFEEEES. SECTION XXV. EEPEREE PAYING OR DISTRIBUTING PURCHASE MONEYS. Upon a sale by a referee under a judgment, the money should be paid over without delay to the parties entitled thereto. If the referee neglects to pay it over, as directed by the order of the court, he should be chargeable personally with interest. {Law- rence V. Murray, 3 Paige's C. R., 400.) SECTION XXVI. REPORT OP SALE. No report of sale can be filed or confirmed, unless accompanied with a proper voucher for the surpkis moneys and showing that they have been paid over, deposited or disposed of in pursuance of the judg- ment. (Rule 72d of Supreme Court.) SECTION XXVII. FORM OF referee's REPORT OF SALE. To the Supreme Court of the State of New York : [Title.} In pursuance and hy virtue of a judgment order of this court, made in the above action and hearing date the — day of , 18 — , hy which, among other things. TO COMPUTE AND SELL ON FOEECLGSDEE. 279 it was ordered, Sfc. (recite order) : T, the subscriber, re- feree aforesaid, do resjjectfuUy certify and report that I advertised the said premises to be sold by me at the (Mer- chants' Exchange in the city of New York) on the — day of , 18 — ; that previous to the said sale, I caused notice thereof to be publicly advertised (if premises are situated in the city of New York, or in any other city, by causing the same to be printed three successive weeks immediately previous to the time of sale, at least twice in each week in a public newspaper printed in the said city of Neio York, which notice contained a brief description of the said mortgaged premises; if the lands are in any other part of the State than in a city, then say : for six weeks successively as follows, namely, by causing a printed notice thereof to be fastened up in three public places in the county where such pre- mises were sold, and by causing a copy of such notice to be printed once in each week during the six weeks imme- diately preceding the said sale in a public newspaper printed in the said county), which notice contained a brief description of the said mortgaged premises. And I do further report that on the said — day of , 18 — , the day on which the said premises were so adver- tised to be sold as aforesaid, I attended at the time and place fixed for the said sale and exposed the same for sale, at public auction, to the highest bidder; and tlce said premises were then and there fairly struck off to , at the sum of % , he being the highest bidder there- for, and that being the highest sum bidden for the same. ( If the premises were sold in more than one par- cel, then vary this portion of the report accordingly.) 280 THE LAW OF EEFEEEES. And I do further certify and report that I home executed, acknowledged and delivered to the said pur- chaser (purchasers) the usual referee's deed for the said premises (so purchased by them respectively). And have paid over or disposed of the purchase money or pro- ceeds of the said sale, as follows, namely : I have paid to tlie attorney for the plaintiff the sum of % , heing the amount of his costs of this action, as adjusted, and have taken a receipt therefor, which is hereto annexed. I have also retained in my hands the sum of $ , heing the amount of my fees, commissions and disbursements on the said sale, as will appear by reference to the statement of ite?ns thereof annexed to this my report, and to which I refer. Also, I have paid to the plaintiff, through his attorney, the sum of % , being the full amount of principal and interest due to the said plaintiff on the judgment in this action ; and have taken a receipt there- for, which is hereto annexed ; and have paid all balance in hand, namely, the sum of % to the clerk of this court (or, to the chamberlain of the city of New Yoj'k^, and taken his receipt therefor, which is also hereto annexed. ( If there is a deficiency. Also I have paid to the plaintiff, through his attorney, all balance in hand, namely, the sum of % ; and have taken a receipt therefor, which is hereto annexed. And I also report that the deficiency due to the said plaintiff", from the defendant C D., and for lohich he is personally liable under the judgment herein, is the sum of $ , loith interest from the date of this my report?^ All which is respectfully submitted. Referee. TO COMPUTE AND SELL ON FORECLOSURE. 281 RECEIPTS, ETC., ANNEXED TO REPORT. [ Title of action.^ Received this — day of , 18 — , of , re- feree herein, the sum of $ , being the amount of my costs in this action as adjusted ; ivhich costs are paid to me, hy the said referee, under and hy virtue of the pro- visions of the judgment of sale herein. Plaintiff's Attorney. [ Title of action.^ Received this — day of , 18 — , of , referee herein, the sum of % , under and by virtue of the provisions of the judgment order herein ; and being the full amount of principal and interest adjudged to be paid to the said plaintiff, in and by the said judgment order. Attorney for Plaintiff. Statement of referee's fees and disbursements on the sale referred to in the preceding report : Paid advertising, $ Paid for map, $ Referee' s fees, &;c., 8^c., 8^c., $ R. 36 CHAPTER YIIL REFERENCE IN RELATION. TO SURPLUS MONEYS ON SALES OF MORTGAGED PREMISES. Section'L General and particular observations. !!• Notice of claim on surplus moneys. III. Motion for reference. IV. Affidavit to ground order of reference as to surplus monevs. V. Order of reference on claim to surplus moneys. "VI. Proceedings on the reference. VII. Certificate op clere as to who have appeared or filed claims. VIII. Claims to surplus moneys on a mortgage sale. IS. Report where there is but one claimant. X. Order to pay surplus moneys where there is but one claimant. XI. Report where there have been conflicting claims. ^^ XII. Notiob that the referee's report is on file. XIII. Exceptions to report. XIV. Form of exceptions, XV. Costs. XVI. Final order on report. SECTION I. GENEEAL AND PAETICULAE OBSEEVATIONS. Parties having a lien on mortgaged premises can iBtain an order of reference to ascertain who are entitled to any surplus which, there may be after a sale of the same. This surplus, however, must have passed from the hands of the sheriff or referee who made the sale and been deposited in court (with clerk or chamberlain), before the application is made. {Snyder v. Stafford, 11 Paige's C. R, 71.) This was expressly required by the provisions of the late Chancery rule (136) ; and although the present rule (76) of the Supreme Court does not directly require it, yet practitioners generally are aware that they SURPLUS MONEYS ON MORTGAGE SALES. 283 should be armed with a certificate of the deposit, on the preliminary motion for a reference. It is true that attorneys, in order to save the funds from the commissions which attach to them on paying it out, will sometimes move on a report of sale and a mere certificate or proof that a balance (specifying- it) is in the hands of the sheriff or referee making the sale. But a proper report of sale should show that the balance has been paid into court. Under the Chancery rule, the report had to be filed and regularly confirmed before any order could be made upon it for the distribution of the surplus moneys. {Anonymous, in Chan., 17 March, 1830.) There appears to be no rule requiring a report of a sale by a sheriff to be confirmed ; but it would be best to put such a report on the same footing as that of a referee ; and, now, by the 32d rule of the Su- preme Court, in relation to references other than for the trial of the issues in an action, upon the coming in of the report of a referee, the same must be filed and a note of the day of the filing entered by the clerk in the proper book under the title of the cause or proceeding ; and the report will become absolute and stand, as in all things, confirmed, unless excep- tions thereto are filed and served within eight days after the service of notice of filing the same. If ex- ceptions are filed and served within such time, the same may be brought to a hearing, at any special term thereafter, on the notice of any party interested therein. 284 THE LAW OF REFEREES. SECTION n. NOTICE OF CLAIM. The rulfe of the Supreme Court to which we have before referred (the 76th), declares, that on fihng the report of sale, any party to the suit or any person not a party, who had a lien on the mortgaged premises at the time of the sale, either by judgment or decree, upon filing with the clerk where the report of sale is filed a notice stating that he is entitled to such surplus moneys or some part thereof, and the nature and extent of his claim, may have an order of reference to ascertain and report the amount due to him or to any other person which is a lien upon such surplus moneys, and to ascertain the priorities of the several liens thereon, to the end that, on the coming in and confirmation of the- report on such reference, such further order may be made for the distribution of such surplus moneys as may be just. Every party who appeared in the cause or who may have filed such notice with the clerk previous to the entry of the order of reference, will be entitled to service of a notice to attend on such reference and to the usual notices of subsequent proceedings relative to such surplus. But if such claimant should not have appeared or made his claim by an attorney of the court, the notice can be served by putting it into the post office, directed to the claim- ant at his place of residence, as stated in the notice of his claim. SURPLUS MONEYS ON MORTGAGE SALES. 285 The party intending to work such a reference wUl, first, file his notice with the clerk. NOTICE OF CLAIM ON SURPLUS MONEYS. ITitle.'] To , the clerk of the county of . Sir, Take notice, that I, the subscriber, have a claim on the surplus proceeds of the sale herein ; and that such claim amounts to $ , and interest thereon from the — day of , 18 — , by virtue of a lien under a judg- ment against C. D., the above defendant [or, mortgage executed by C. D., the above defendant, while the said C. D. was the owner of the equity of redemption of the mortgaged premises and before the commencement of this action"]. New York, the — day of , 18 — . A. B., E. F., attorney for the said A. B. No. — , street, New York. SECTION III. MOTION FOE EEFEEENCE. The motion for a reference is ex parte, based upon an afiidavit made by the applicant. 286 THE LAW OP REFEREES. SECTION IV. AFFIDAVIT TO GROUND OEDEE OF EEFEEENCE AS TO SUR- PLUS MONEYS. [Tiile.'] A. B., one of the defendants, being sworn, maketh oath and saith, tJiat this action icas commenced to fore- close a mortgage of certain premises ; that judgment has been entered in the said action, as this deponent is in- formed and believes ; that a sale has been made of the said premises under the direction of this court; that the claim of the plaintiff in this action has been paid ; and that there remains a balance over and above the money due on the said mortgage and costs of this action, which has been brought into this court, subject to the order thereof [or, paid into the hands of the chamberlain of the city of New Yorh to the credit of this action^. That the proper officer making such sale has filed his report of sale in the premises, and the same has been confirmed. And this deponent further saith, that he has a claim on the said surplus money, amounting to % ; and that such claim consists of a judgment obtained in this court on the — day of ,, 18 — , against , then the owner in fee of tlie premises described in tlie said mort- gage ; and that this deponent has filed ivith the clerk ivliere the said report of sale was filed, a notice, stating that he is entitled to the aforesaid surplus moneys or some part thereof and the nature and extent of his claim. Sworn, 8^c. SURPLUS MONEYS ON MORTGAGE SALES. 287 SECTION V. ORDEB OF EEFERENCE ON CLAIM TO SURPLUS MONEYS. [ 2\tle.'\ At a Special Term, 8^c. Present, Sfc. The referee's (or sheriff's) report of sale having been filed in this action and the same having heen confirmed, from which it appears that there is a surplus in the hands ^of the clerk of this court arising from the said sale. On reading and filing notice of claim by E. F. to such surplus moneys or some part thereof, by virtue of a lien thereon under a junior mortgage (or, a judg- ment against, S^c.) given by the defendant C. D. ; on motion of Mr. I. J., of counsel for the said E. F., it is ordered that it be referred to G. H., of, Sfc, counselor at law, as a referee to ascertain and report the amount due the said E. F., or to any other person which is a lien upon such surplus moneys, and as to the priorities of the several liens thereon. And it is further ordered, that such referee summon before him, on the reference hereunder, every party who has appeared in this action, and every person who has delivered written notice of his claim to such surplus moneys, and that he cause them to have the usual notice of all subsequent proceedings ; and also that the said referee report thereon with all convenient speed. 288 THE LAW OF EErEEEES. SECTION VI. PEOCEEDINGS ON THE EEFEEENCE. It will be well for tlie attorney who works the reference to procure and deliver to the referee, so that he may annex it to his report (and it be seen by the court), the certificate of the clerk or chamberlain, with whom the surplus money was deposited, show- ing the amount of the fund and the way in which it has been invested, together with the claims, if any, which have been made thereon, so that the proper order may be made to enable the applicant to with- draw the money. (Hidhert v. McKay, 8 Paige's C. R, 651.) The referee will issue his summons, with an : — UNDERTAKING To ascertain the amounts due to claimants which are liens upon the surplus moneys in the above action ; and, as to the priorities of such liens. Before the referee proceeds with the reference, he should require from the claimant affirmative evidence, by a certificate from the clerk with whom the report of sale was filed, stating the names of the claimants and of their attorneys, if any, and their respective places of residence. Every such claimant, as well as every defendant who has entered his appearance in the action, is entitled to a summons to attend the referee, to be served in the manner prescribed by the rule. SURPLUS MONEYS ON MOETGAGE SALES. 289 SECTION VII. CEETIFICATE OP CLKRK, AS TO WHO HAVE APPEARED OR FILED CLAIMS. [ Title of cause J\ 1 certify, that the following defendants have entered appearances in this action, namely : C. D. by J. H., his attorney ; and E. F. by I. J., his attorney; and that none of the other defendants have caused their appear- ance to be entered. And further, that no notice of claim to the surplus moneys arising from the sale of the mort- gaged premises in this action was annexed to the sheriffs [or, referefis\, report of sale filed in my office ; and that the only claim (or claims), to the surplus moneys filed in my office is (or, are), one on the part of , c^c., &;c., Sfc. Dated at {New York), this — day of , 18—. Clerk The referee should ascertain, by the proper cer- tificate or other evidence, that all proper parties and claimants have been duly notified or summoned to attend on the reference, before he proceeds to make an ex parte report upon the order of reference. And the fact that such evidence was produced before him should be stated in his report. Nor does the neglect of an incumbrancer to file his claim, before the entry of the order of reference, absolutely preclude him from making a claim to the surplus moneys on the reference ; although he may R.37 290 THK LAW OF EEFEREES. by such neglect, lose his right to a summons to appear before the referee. For if he comes in before the referee, pending the reference, and files a claim with him, duly verified, he has a right to be heard upon such claim, upon such equitable terms, as to costs or otherwise, as the referee shall think proper to impose upon him, if any of the other parties to the reference have been subjected to extra costs or otherwise prejudiced by his delay in filing his claim. [Hulhert V. McKay, 8 iPaige's C. R, 651.) A referee is right in requiring a claimant to swear to the justice of his claim and the amount actually due upon his judgment. (/&.) We here subjoin a form of claim which the referee should receive from a claimant. Its phraseology will, of course, be altered to suit circumstances ; and it may be well to add that while the referee may, if he pleases, examine claimants aside from any written proof of claim, adversary claimants would have a right to cross-examine one another. SECTION VIII. CLAIM TO SUEPLUS MONEYS ON A MORTGAGE SALE. [ Title of cause.] The claim of E. F., a specialty creditor of C. D., the defendant in this suit, to the surplus moneys arising from the sale of mortgaged premises, under the judgment in this action. The said E. F. states that he resides at , in the county of — ; and that he has a lien upon the said SURPLUS MONEYS ON MORTGAGE SALES. 291 surplus moneys hy virtue of a judgment recovered against the mortgagor, C. D., in the 8up7-eme Court, for the sum of$ , on the — day of , 18 — , and while he, the said C D., was the owner of the equity of re- demption in the mortgaged premises and before the com- mencement of this suit ; lohich lien is next in priority after the mortgage of the complainant; and the whole amount of which judgment is still due and unpaid. And he, therefore, claims the whole of said surplus moneys arising from the sale of the mortgaged premises, which, after paying the amount of the complainant'' s debt and costs, amounts to the sum of S . Dated ,18—. E. F. To G. H., Esq., Referee. County, ss : E. F., the above claimant, being duly sworn, deposeth and saith, that the facts set forth in the above claim, to which he has subscribed his name, are true ; that tJie amount therein claimed, as being due to him upon the judgment therein mentioned, is justly due ; and that neither he, nor any person by his order or to his knowledge or. belief for his use hath received the amount thus claimed, or any part thereof, nor any security or satisfaction whatsoever for the same or any part thereof, other than the said judgment. E.F. ore me, this ) day of ■ Sworn before me, this ) - 18— \ O. H., Referee. Usually, junior incumbrancers have their rights as- certained and settled as between themselves upon a reference of their claims to the surplus money, for it is 292 THE LAW OF EEFEEEES. not often that the rights of such junior incumbrancers as between themselves are settled by the decree or judgment of sale in foreclosure. {Miller v. Case, 1 Clarke, 395.) The liens referred to in the 76th, late 48th rule of the Supreme Court and through which claims are allowed to be made to surplus moneys, are those which subject the estate to be sold under execu- tion, without any further intervention of the court. Claims, however equitable, which are not matured into liens, under which the property can be charged in execution and sold without further adjudication, cannot be taken into consideration by the referee. {King V. West, 10 How. Pr. E., 333.) A judgment against the owner of an equity of re- demption, if obtained at any time before the sale on foreclosure, is an equitable lien on the surplus moneys. (Stveet v. Jacocks, 6 Paige's C. R., 355.) The legal liens of judgment creditors of a mort- gagor cannot be permitted to prevail against prior equitable claims upon the surplus. ( White v. Carpen- ter, 3 Paige's C. R, 217; Arnold v. Patrick, 6 Ih., 310 ; Sweet v. Jacocks, 6 Ih., 355.) If a person has an equitable interest in mortgaged premises superior to the mortgage, and is not made party to the action, the purchaser at the sale is pre- sumed to have bid with reference to the existence of the prior equity, and the owner of such interest has no claim on the surplus proceeds of the sale.' {De Ruyter v. St. Peters Church, 2 Barb. Ch. R., 555.) A lender of money to the owner of mortgaged premises, to be applied on the mortgage, who, rely- SURPLUS MONEYS ON MOETGAGE SALES. 293 ing on tlie assertion of tlie owner that there is no other incumbrance on the premises, takes a mortgage from him, instead of an assignment pro tanto of the first mortgage, has, on the foreclosure of the first mortgage, an equitable right to the surplus money, at least equal, if not superior to that of a prior judg- ment creditor. {Burchard v. Phillips, 11 Paige's C R, 66.) In a contest for a surplus, a general lien on the mortgaged premises will be preferred to a subse- quent specific one, where the holder of the former has no other fund to resort to for satisfaction. {Me- chanics' Bank V. Edwards, 1 Barb. S. C. R., 271.) It seems that a junior judgment creditor cannot claim a surplus arising on foreclosure, upon the ground that a prior judgment is infected with usury, without allowing the amount actually due. (Slosson V. Duf, Ik, 432.) In The Mechanics' Bank v. Ed- wards, supra, it was decided that it is not competent for a subsequent mortgagee to set up usury in the first lien ; but this appears to be overruled by the case o£ Morris v. Flotjd, 5 Barb. S. C. R, 130.) A judgment creditor, who has purchased under his judgment, is entitled to the surplus arising from a sale under a prior mortgage, in preference to a junior judgment. {Shepherds. (9'iVe^/, 4 Barb. S. C. R, 125.) A plaintiff who sets up a subsequent judgment lien, as well as his mortgage, may, upon procuring the consent of such junior incumbrancers as are par- ties have payment of the judgment out of the surplus without any reference. (Wheeler v. Van Kuren, 1 Barb. Ch. R, 490.) 294 THE LAW OF REFEREES. Where a wife joins with her husband in executing a mortgage upon his land which contains the usual power of sale, and in the event of a sale the surplus is expressly reserved to be paid to the mort- gagors, the wife has a right to have the residuum of the subject mortgaged, not required to satisfy the debt — whether it exists in lands unsold or in the proceeds of land sold under the decree of fore- closure — so appropriated as to secure to her, her dower in case she survives her husband. And where there are surplus moneys in court arising from the sale of the mortgaged premises, she is entitled, as against judgment creditors, to have one- third of the amount invested for her benefit and kept invested during the joint lives of herself and her husband and during her own life in case of her surviving her husband, as and for her dower in such surplus moneys. (^Denton v. Nanny, 8 Barb. S. C. E., 618.) A judgment, which is the oldest lien on the equity of redemption of mortgaged premises of the defend- ant, must first be paid out of the surplus moneys arising on the sale under the mortgage, notwith- standing the plaintiff may have obtaiiied a judgment against the sheriff for not returning an execution issued on the first judgment and has assigned it to a person other than the sheriff and the assignee applies for such surplus. {Lansing v. Clapp, 3 How. Pr. R„ 238.) The assignee in such a case must show that he is the absolute owner of the judgment ; and that it was not assigned to him nominally mei-ely and held in trust for the sherijff. (Jb.) SURPLUS MONEYS ON MORTGAGE SALES. 295 Althougli the sheriff may derive a benefit from the payment of such judgment out of the surplus moneys (in reducing the amount of the judgment against him for neglect of duty), yet, if he purchased the first judgment, or was the absolute owner without the consent of the defendant, it would operate as a satis- faction of it. (/&.) A judgment by confession, given to plaintiffs to secure and idemnify them as sureties on a guardian's bond, executed by a defendant, and being a lien upon the equity of redemption of the defendant's mortgaged premises, will be entitled to surplus moneys, in the order of lien, although the plaintiffs have not been damnified. Their lien is transferred from the equity of redemption to the surplus moneys arising on the sale, and can only be divested by their being discharged from their liability. (lb.) The referee, in his report, must cover the whole of the surplus moneys ; for the order not only directs him to inquire and report as to the amount due to the party obtaining the order of reference, but also as to the lien of any other person upon the surplus moneys. Indeed, a neglect in this particular would make his report defective and be referred back. The referee, therefore, on ascertaining the whole amount of such surplus moneys, which he will do by having before him the certificate of the clerk, and on finding that the amounts due to bona fide claimants are not large enough to exhaust the whole surplus moneys, should and must go further and ascertain who is en- titled to the residue of such surplus, so that, upon the coming in of the report, an order may be made to 296 THE LAW OF REFEEEES. dispose of the whole fund. Prima facie, the mortga- gor, or those who are stated or found to be his heirs, devisees or grantees, if he is dead or has sold the property, are entitled to the surplus. And if no one attends before the master and produces evidence of a better right, and there is no evidence before him that the person prima facie entitled has parted with his interest, the master should report that the residue of such surplus belongs to the mortgagor, or to the person prima facie entitled to it. {Franklin v. Van Cott, 11 Paige's C. E., 129.) SECTION IX. EEPOET WHERE THEEE IS BUT ONE CLAIMANT. To the Supreme Court of the State of New York: ITitle.} In pursuance of an order made in the above entitled action on the — day of , 18 — , whereby it was re- ferred to me, the undersigned G. H., as referee, to ascer- tain and report the amount, 8^c., &^c. I, the said G. H., the said referee, do respectfully report : That I have re- ceived the certificate of the clerk [or, chamberlain of the city of New York'], showing that there was, on the — day of , in the said clerk's hands [or, chamberlain's office] to the credit of this action, the sum of % , being the amount paid in hy the sheriff [or i-eferee'] less the clerk's [or chamberlain's] commissions. I received, also, the certificate of the clerk of this court, sliowing that the only party who had appeared in this action was the de- SURPLUS MONEYS ON MORTGAGE SALES. 29 T fendant E. F., and that he ivas the only party who had filed a claim to the said surplus. That he and his attor- ney appeared hefore me ; and I examined the said E. F. on oath, and from facts laid before me, and such exami- nation, I find that the said E. F. has a valid judgment in his favor against, Sfc, Sfc. ; that the ivhole amount thereof is due with interest from the — day of , 18 — ; and that such judgment is a lien upon the said surplus moneys. And I accordingly report that the net balance of the said moneys which may remnin, after pay- ing the costs of this reference, should he paid over to the said E. F., on account of the said judgment. A receipt should he given hy him on receiving the same. My fees are $ . All which is respectfully submitted. G. H., Referee. In a case like the above, where there is but one claimant and the proceedings are, in fact, ex parte, so that no person has a right to except to the report, the delay of a previous order of course to confirm the report appears to be wholly unnecessary ; and the order of confirmation and for the payment of the surplus moneys, in conformity with the referee's report, can be entered together. {Hulhert v. McKay, 8 Paige's C. R., 661.) In all other cases, however, the order to confirm the report must be entered, so as to give the parties who have appeared before the referee an opportunity to except. (lb. ; Rule 32 of the Supreme Court.) R. 38 298 THE LAW OF REFEREES. SECTION X. ORDER TO PAT SURPLUS MONEYS WHERE THERE IS- BUT ONE CLAIMANT. \Title.'\ At a Special Term, &;c. Present, Sfc. On reading and filing the report of G. H., the referee herein, wherein it appears that E. F., is entitled to the whole of the surplus ynoneys in this action noiv in the hands of the clerk of the court (or, chamherlairi), and after hearing Mr. , of counsel for the said E. F., it is ordered that the said report be and the same is hereby confirmed; and that the clerk of this court (or, the said chamberlain^) pay to the said I. J., $10, as costs in this matter, and % disbursements herein ; and, then, that the said clerk (or, the said chamberlaimi) pay the said E. F., or his attorney, on the receipt of either, the balance of the said surplus money, namely, $ less all proper commissions or charges. SECTION XI. REPORT WHERE THERE HAVE BEEN CONFLICTING CLAIMS. To the Supreme Court of the State of New York: [Title.] In pursuance of an order made in the above entitled action on the — day of , 18 — , whereby it icas referred to me, the undersigned G. H., as referee, to ascertain and report tlie amount, d^c, d^c, I, G. H., the said referee, do respectfully report : That I have received SURPLUS MONEYS ON MOETGAGE SALES. 299 the certificate of the clerk (or, chamberlain of the city of New York) showing that there was, on the — day of , 18 — , in the said clerk's hands (or, chamberlains office) to the credit of this action the sum of % , be- ing the amount paid in by the sheriff (or, referee) less the clerk's (or, chamberlain's) commissions. I received, also, the certificate of the clerk of this court, showing what defendants had appeared in this action, namely, Sfc, S^r. ; and also that there ivere no claims to the said surplus filed in the said action, except notice of a claim. Having issued a summons to p-oceed before me on the said order, returnable at my office on the — day of , 18 — , and delivered tlie same to Mr. (the attorney working the reference), 1 received due proof that the same was duly served on the said, S^c. livas also attended on the said reference by, 6^c., Sfc, Sfc. Witnesses were examined and deeds, exemplifications and documents duly proved before me. I find tlie following facts : That, Sfc, Sfc, Sfc. A. B. testified, 8^c., 8^c. The result is and I do report, that the net balance of the said surplus moneys which may remain, after paying the costs of this reference, should be divided and paid to the parties next hereinafter named or as far as the said surplus moneys will extend according to their priorities in the following order : 1st, To C. D. the sum of $ , on account of the said judgment, with interest thereon from tJig — day of , 18 — , he thereupon ackno^vledging satisfaction of the said judgment. To E. F., S^c, S^c, Sec. Receipts should be given by all persons receiving 300 THE LAW OF REFEREES. any moneys. My fees are $ , hesides $ disburse- ments. All ivJiich is respectfully submitted, G. H., Referee. This report will have to be filed under the provi- sions of the 32d Rule of the Supreme Court (and see Hulbert V. McKay, 8 Paige's C. R., 654) ; and notice has to be given to all the claimants. There is no occasion to serve copies of it. (32d Rule.) SECTION XII. NOTICE THAT THE EEFEEEE's REPORT IS ON FILE. lTitle.'\ Sir, Take notice that the report of the referee on the claims to surplus moneys herein is filed with the clerk of this court at the (City Hall in the city of New York), New York the — day of , 18 — . Yours, I. J., Attorney for C. D., Defendant. To K. L., Esq., Attorney for claitnant. M. N., Sfc, Sfc, Sfc. A certificate from the clerk that the report has become absolute and stands in all things confirmed (from no exceptions having been filed within the time fixed by the rule of court), had better be produced to the court when the application is made for an order to pay over such surplus moneys according to SURPLUS MONEYS ON MOETGAGE SALES. 301 the rights of the parties, as settled by the report of the referee. {Hulbert v. McKay, 8 Paige's C. R., 651.) And where there are no exceptions, an appUcation for the surplus can be made at chambers (as of special term), without waiting for a fixed special term or the necessity of putting the cause on a special term calendar. SECTION XIII. EXCEPTIONS TO EEPOET. Exceptions to the report of a referee touching surplus moneys must be filed and served on all parties in interest within eight days after the service of notice of filing the same. All parties who are interested in the matter in question may except to the report ; and where there are several sets of parties, appearing by difierent attorneys, they, if they are not disposed to join, each take exceptions, although their grounds of exception are the same. ( Trezevant v. Fraser, cited in 2 Dan., 953.) 302 THE LAW OF EEFEEEES. SECTION XIV. FOEM OF EXCEPTIONS. [Title.] Exceptions taken by C. D., defendant, to the report of G. H., referee, to whom it was referred to report claims and priorities on surplus moneys : First exception. For that the said referee has, in and by his said report, certified and reported that E. F., defendant (or, a claimant), lierein has a prior right and is entitled to the whole of the said surplus moneys, and that the said C. D. is not entitled, 8^c., S^c. ; whereas the said referee ought to have reported that the said C. D. was prior in right and ivas entitled to, 8^-c., 3^c. In cdl tohich particulars the report of the said referee is, as the said C. D. is advised, erroneous. I. J., Attorney for the said C. I)., Defendant. Copies of the exceptions (as we have before said) should be served on all the parties in interest or on their attorneys. The exceptions can be brought to a hearing at any special term thereafter, on notice of any party interested therein (Rule 32), and by placing the same on the calendar. It is presumed that the date of the issue should be the day on which the exceptions were filed. Counsel of all parties interested in the report are allowed to be heard in support of it and against the exceptions ; but, only the exceptant's counsel can be SUEPLTJS MONEYS ON MOKTGAGE SALES. 303 heard in support of the exceptions. (2 Smith's Ch. Pr., 344.) SECTION XV. COSTS. Unsuccessful contestants for the surplus money may be charged with the costs made by their unnecessary litigation. {Laicton v. Sager, 11 Barb. S. C. R, 349.) A creditor who filed a bill for the distribution of the surplus, was held not entitled to costs, as he might have proceeded by petition. And so, one who set up a claim to the whole amount of a judgment, instead of to a part. {De La Vergne v. Evertson, 1 Paige's C. R, 181.) A judgment creditor litigating unsuccessfully, but in good faith, a claim to surplus money, is not chargeable with costs. But, if he excepts to the report, and his exceptions are overruled, he must pay the costs produced by the exceptions. {Norton v. Whiting, 1 Paige's C. R., 578.) The court exempts a claimant of the surplus from costs, only where he establishes his claims to the surplus or to some part of it. And if a junior incumbrancer, knowing or having reason to believe that there are prior incumbrances sufficient to exhaust the surplus, interposes a claim and subjects those en- titled to the surplus to unnecessary costs, he may be charged with them ; but if the claim were made in 304 THE LAW OF EEFEEEES. good faith, upon grounds from which he had reason to suppose that the prior claims upon the surplus could not be sustained, he may be excused. {The Farmers' Loan and Trust Company v. Millard, 9 Paige's C. R, 620.) Although, where a report is so faulty as not to be complete, the court will send it back to the referee, yet, where a report in regard to surplus moneys is complete, but the referee has erred in the law as to who should be entitled, we presume the court would, at once, reform it by a final order, and so save a further reference. (2 Smith's Ch. Pr., 346.) There is no law requiring a report to be perfect and confirmed before the court can deal with the fund embraced by it. Rules are accommodations to courts and can be bent to save mere time. It is difficult to give a standard precedent of a final order on the report, as each case has its special circumstances ; but, perhaps, what follows may be some general guide. SECTION XVI. FINAL ORDER ON REPORT. \Title^ At a Special Term, Sfc. Present : , Esq., Justice. Exceptions having been taken to the report of G. H., referee, to whom it ivas referred to decide upon claims to the surplus moneys herein ; and the same having heen argued and the court having taken time for advisement ; SURPLUS MONEYS ON MORTGAGE SALES. 305 now, on motion of Mr. , of counsel for C. D., de- fendant, IT IS ORDERED, that the said exceptions he and the same hereby are overruled, and the said report con- firmed. And it is also ordered and adjudged, that the said C. D. is entitled to the said surplus moneys in the hands of the clerk of this court, namely, the sum of % less all proper commissions, and less the sum of % due to the referee, and the sum of $ hereby adjusted as costs to the attorney of the said claimant C. J). ; that the clei'k of the court [or, chamberlain?^ pay the said surplus, less all proper commissions, to the said C. D., or his attorney, on being furnished with receipts of his, the said defendants, having paid such amount of re- ferees fees and amount of costs to the said attorney ; and that the said clerk [or, chamberlain^ take the receipt of the said C. D., or his attorney, for the amount of such balance of surplus money. And no costs are allowed between the different parties as against each other. Or, it is ordered and adjudged, that the first ex- ception taken by the defendant to the said report is well taken and that the said defendant is entitled to a first lien on the said surplus moneys ; and, consequently, that the defendant C. D. has not such lien. And the said report is reformed in that particular accordingly ; but, in all other respects the said report, stands confirmed. And it is also ordered and adjudged, that the said is entitled, ^c. (as above.) Or, IT is ordered and adjudged, that the first ex- ception taken by the defendant is not well taken, and that the said defendant is not entitled to a first lien on the said surplus moneys, as against the defendant, C. D., lohose claim thereon is favorably reported by the R. 39 306 THE LAW OP EEFEEEES. said referee, and his report is hereby con^rmed in all respects. And inasmuch as the filing of exceptions herein was unnecessary, therefore, the said defendant has costs hereby awarded against him to the sum of $ in favor of the said defendant C. D. And it is also ordered and adjudged, that the said C. D. is entitled, 8^c., 8^c. (as above.) Where surplus money arising from a mortgage sale has been paid to a claimant under an order re- gularly obtained, the court cannot reclaim and award it to another person. (^Burchardy. Phillips, 11 Paige's C. R., 66.) But so long as the fund remains in court, there is no doubt that it is competent for the court to let in an incumbrancer to assert his claim to the surplus moneys, where the case is with him and his neglect to file his claim in due season is satisfac- torily accounted for. And where the money has been paid out under an order irregularly obtained, it is presumed that the court has jurisdiction, in a summary proceeding, to compel a party who has obtained possession of its funds improperly and without its authority to restore the same. (lb.) CHAPTEH IX. REFERENCE TO APPOINT A RECEIVER. Bection I. Observations' II. NOTIOa OP MOTION FOR ORDER OF RBFElTBNOfl TO APPOINT A BB0B1TEB. III. Order of reference to appoint a reoeiteb. IV. Proposal for a bbobiver. V. Rboeiter's bond, VT. Referee's report of appointment of beoeiter, VII- General assignment to a beoeiter op stock ih trade, etc. VIII. Transfer of real estate to a reoeitbr. SECTION I. OBSERVATIONS. A EECEiVEE may be defined to be, one appointed by tbe court to provide for the safety of property pend- ing a litigation or to preserve property in danger of being dissipated or destroyed by those to whose care it is, by law, intrusted or by persons having imme- diate but partial interests. (Bennet's Master, 89.) A receiver is considered as an officer of the court. {Hutchinson v. Lord Massarene, 2 Ball and B., 55 ; Curtis V. Leavitt, 1 Abbott's Pr. R, 274.) The main cases in which a receiver will be ap- pointed, are those which will be found in the books under the general class of suits for prevention of fraud. A court of equity will not interfere in favor of a party who omits to avail himself of his legal remedy in due time. (JDrewry v. Barnes, 3 Kuss. K., 94.) 308 THE LAW OF REFEREES. By the section 244 of the Code of Procedure, a receiver may be appointed : 1. Before judgment, on the application of either party, when he establishes an apparent right to property which is the subject of the action and which is in the possession of an ad- verse party, and the property, or its rents and profits, are in danger of being lost, or materially injured or impaired, except in cases where judgment upon failure to answer may be had without application to the court ; 2. After judgment, to carry the judgment into effect; 3. After judgment, to dispose of the pro- perty according to the judgment, or to preserve it during the pendency of an appeal, or when an exe- cution has been returned unsatisfied and the judg- ment debtor refuses to apply his property in satis- faction of the judgment ; 4. In the cases provided in the Code, and by special statutes, when a corpora- tion has been dissolved, or is insolvent, or in immi- nent danger of insolvency, or has forfeited its corpo- rate rights ; and in like cases of the property within the State of New York of foreign corporations ; 5. In such other cases as are now provided by law or may be in accordance with existing practice, except as otherwise provided in the Code. There can be no receiver to collect things not in esse, as taxes or assessments to be collected in the future. (Dreiury v. Barnes 3 Russ. R., 94.) In partner ship cases, a receiver is appointed to wind up and dispose of the concern, not to carry on and continue it. {Milbank v. Revett, 2 Meriv., 406 ; Peacock v. Peacock, 16 Ves., 57.) EEFEKENCE TO APPOINT A EECEIVEE. 309 A receiver maybe appointed before answer, on motion and notice, where danger to the property is contemplated. It is not usual, however, to move for a receiver before answer. On a motion for a receiver, the answer of one defendant put in (another material defendant not having answered), will be considered as an affidavit and read as such in opposition to those filed in sup- port of the motion. {Kershaw v. Matthews, 1 Russ., 362.) A reference to 1 Barbour's Chancery Practice (p. 658), and Edwards on Receivers (2d ed.), will be found to contain all such points on the appointment of a receiver as are not detailed in the present chapter. SECTION II. NOTICE OP MOTION FOB ORDER OF REFERENCE TO APPOINT A RECEIVER. ITitk.] Sir, Take notice that I intend to move this court at (the City Hall in the city of New York), at (chambers, as of) Special Term, on the — day of , instant, at the opening of court or as soon thereafter as counsel can be heard, for an order that it he referred to a referee to appoint a receiver of the rents and' profits oj the estate (or of the estate, property and effects) of the defendant C. D., referred to in the pleadings in this action, with usual powers ; which motion will be founded on the said pleadings and on affidavits, loith copies of 310 THE LAW OF REFEREES. ilohich you are herewith served. Dated the — day of , 18 — . Attorney for Plaintiff: To , Esquire, Attorney for Defendant. Notice of the motion for a receiver, when neces- sary, must be given to all necessary and interested parties. On hearing the motion for a receiver, the court will either make the appointment itself in the first instance, or refer it to a referee to do so or to inquire and report to the court a suitable person to be appointed by itself. SECTION III. ORDER OP REFERENCE TO APPOINT A RECEIVER. [ Title^ At a Special Term, S^c. On reading and filing affidavits and the pleadings in this action ; and on motion of Mr. , of counsel for the plaintiff, and Mr. , of counsel for the defendant, in opposition thereto ; it is ordered that it be referred to -"-r — , of, Sfc, as referee to appoint a receiver of the rents and profits of the estate (or, of the estate, property and effects), of the defendant, C. D., mentioned in the plead- ings in this action, with the usual powers and upon the usual directions ; and that the said referee take from, such receiver the necessary and usual security for the EEFEEENCE TO APPOINT A RECEIVER. 311 performance of his trust and file the same in the proper office. And that, upon the filing of the report of the said referee, and of such security, such receiver he vested with all his rights and powers as receiver according to the rules and practice of this court. The above is a general form of order for a receiver. It must be varied to meet special cases ; and in such cases care should be taken, in drawing the order for his appointment, that it contain and explain fully his powers. A neglect in this particular is very com- mon ; and it subjects an attorney to apply again and again to the court for instructions ; whereas, if the powers of a receiver be minutely defined in the order that appoints him, no such applications will be necessary. The party who properly moves for the order is en- titled to enter it. If such order should be special in any of its provisions, the party entitled to draw it up shovild submit a copy to the adverse attorney, to enable him to propose amendments. (Whitney v. Belden, 4 Paige's C. R., 140.) A certified copy of such order will be required by the referee. It will be observed, that our form of order directs the referee to appoint a receiver — not, to report a proper person to be appointed. This is best, because, ■when the order runs as we have drawn it, no order of Confirmation is necessary. The receiver, on filing the referee's report of his appointment and the bond , taken by him, may immediately enter upon the 312 THE LA.W OP EEFEEEES. duties of his office. {Matter of the Eagle Iron Works, 8 Paige's C. R., 385.) The referee, proceeding by summons, will make the underwriting so as to show the object of the reference ; and if the defendant is to be personally examined, -will add : and the 'personal attendance and examination of the defendant, C D., is required. Where a defendant, who is required to attend be- fore a referee, has appeared by an attorney, the service of the summons may be on such attorney. If a party has been summoned and does not attend, the referee may proceed ex parte. Where the referee has ascertained that he is at- tended by all parties interested or that they had been duly summoned, it is the most correct practice for the party who has obtained the order of reference to hand in a written proposal, containing the names of the intended receiver and his sureties. If the person, thus nominated for receiver, be objectionable, any other person may be nominated, by any interested party, by a counter-proposal, and the referee decides between them. {Bennet's Master, 95.) The referee is to appoint the person whom he thinks the most fit, without regard to the party as to who might propose or recommend him. (^Lespinasse V. Bell, 2 Jac. and W., 436.) But, under equal cir- cumstances, that is, supposing the parties equally interested in the funds and the persons proposed on both sides unobjectionable, the party who has enter- ed the order has, prima facie, a right to the preference. (Smith on Receivers, 8.) REFERENCE TO APPOINT A RECEIVER. 313 SECTION IV. PEOPOSAL FOE, A EECEIVER. [Tille.'] Proposal of the plaintiff (or, defendant) for the ap- pointment of a receiver pursuant to order of this court. Dated the — day of , 18 — . The plaintiff (ov, defendant) proposes A. G., of 8fc., to he such receiver. And the said A. G. proposes W. G., of, Sfc, and A. A., of Sfc, to be his sureties. , Attorney. If the sureties proposed are not satisfactory to the referee, the party can present an amended proposal, which will be in the precise form before given, with the mere substitution of the new names, and this addition, in the place of W. G. of, <^c., and .A A., of. Where the property over which a receiver is required is of any extent, its value or the annual rents and income had better be proved before the referee, in order that he may regulate the amount of security. A party in the cause should not be appointed receiver. (Davis v. Duke of Ma7-lborough, 2 Swanst., 118, 125; Cox V. Champneys, Jac, 576 ; Bunhury v. Winter, 2 Jac. and W., 255.) Nor a trustee. {Anony- mous, 3 Ves., 516.) Mortgagee. {Scott qui tarn v. Brest, 2 Term R., 238 ; Chambers v. Goldwin, 9 Ves., R. 40 314 THE LAW OF REFEEEES. 271 ; Lanstaffe v. Fenwick, 10 Ves., 405.) Officer of an insolvent corporation, {The Attorney-General v. Bank of Columbia, 1 Paige's C. R., 517.) Prochein Ami. {Stone v. Wishart, 2 Mad. Ch. R. 6, 4.) Attorneys in the suit. {Garland v. Garland, 6 Ves., 137.) When in the referee has approved of a person as receiver, he fixes the amount of the penalty ; and the attorney draws out and engrosses the proper bond. SECTION V. eeceiver's bond. Know all men hy these presents, that we, A. G., of^ 8^c., W. G., of, S^c, and A. A., of, 8^c., are held andjirmly bound unto the People of the State of New York, in, the sum of , lawful money of the United States of America, to be paid to the said the People of the State of New York. For which payment, toell and truly made, we and each of v^ bind ourselves respectively and our respective heirs, executors and administrators, estate and effects, firmly by these presents. Sealed with our seals. Dated the — day of , 18 — . Whereas by an order of the court of, 8^., bearing date the^ 8fc., made before, 8^c., wherein A. B. is plain- tiff" and C. D. and others are defendants, it was ordered, that it should be referred, Sfc. (Here recite the order.) Now the condition of this obligation is such, that if the above bounden A. G. (the receiver), shall and do, under the rules and practice of the court, duly file Ms inventory, and annually or oftener, if thereunto required, duly ac- KEFERENCE TO APPOINT A EECEIVEE. 315 count for what he shall receive or have in charge as receiver in the said cause ; and pay and apply what he shall receive or have in charge as he may, from time to time, he directed or ordered hy the court ; and do and perform his office of receiver in all things according to the true intent and meaning of the aforesaid order, then this recognizance to he void, or else to remain in full force. Sealed and delivered ) in the presence of ) The sureties must be within the jurisdiction {Cockhurn v. Raphael, 2 Sim. & S., 453) ; they must be real and substantial persons {Smith v. Scandrett, W. Black., 444 ; Beardmore v. Phillips, 4 M. & S., 173); and capable of contracting, i. e., not infants, lunatics, idiots, married women, &c. In a country like ours, where the wealthy men, having large mercantile and steady property, are to be found in boarding houses and hotels, such men, it is believed, would be good special bail; and, by parity, good sureties for a receiver, for the master would look to residence and general substance clear of debt and liability. (Edw. on Receivers, 93, 2d ed.) The practice has prevailed in New York, to let a plaintiff be one of the sureties for the receiver ; and there seems to be no decided objection to it, where he is every way responsible, (/ft.) The sureties had better justify (Rule 6 of Sup. Court), under a form at the foot of the bond, as thus : , ss. W. G. and A. A. of, 8^., being duly stvorn, say — and each for himself says, that he is rvorth $ , 316 THE LAW OF EEFEKEES. over and above all debts that he owes and all liabilities and responsibilities he has assumed or incurred. Sworn, 8^c. The bond will have to be proved or acknowledged in like manner as deeds of real estate, before the same can be approved or filed. (Rule 6 of SupreD|e Court.) referee's report op appointment of receiver. To the Justice^ of the Supreme Court of the State of New York: In pursuance of an order of this court, made in the above entitled action, by, S^c, bearing date the — day of , 18 — , whereby, among other things, it was referred to the undersigned, residing in the city of New York, to appoint a receiver in this cause of the partnership, stock, <^c., and to take from the said receiver the requisite security : I, S. C, the referee named in said order, do report : That I have been attended on the said reference by the attorney and counsel of the plaintiff and of the defendant. That I thereupon proceeded on the matters so referred. That A. G., of the city of Neio York, was proposed, on the part of the plaintiff, to be the receiver in this cause ; and no objection being made to his appointment and deeming him a fit and proper per- son for such trust, I have appointed him to be such receiver. That the said A. G. thereupon executed a bond, in the usual form, to the People of the State of New York, in the penal sum of S , conditioned for the faithful discharge of his duties as such receiver. That W. G. and A. A., of the city of New York, loere proposed as sureties of the said receiver ; and being satisfied, by their affidavits of justification, that they REFERENCE TO APPOINT A RECEIVER. 317 were each worth the requisite amount, I approved of the said sureties as sufficient ; and the said sureties there- upon executed the said bond jointly with the said receiver. And I do further report, that I have caused the said hand, with my approval indorsed thereon, and the said affidavits of justification, to he filed in the office of the clerk of this court at, Sfc. All which is respectfully submitted. Dated New York, December — , 18 — . The above form will answer in general cases. Even where there has been a contest for the appointment of a receiver, yet the referee is limited, in his report, to the fact of approval of the party by him, without setting forth any of the reasons which induced him to make his appointment ; for, as the Chancellor said in Garland v. Garland (2 Vesey, Jr., 137), questions are not to be brought up before the court in this way, merely to try which way the stick will fall, and for the chance that another judge may be of another way of thinking. And in Creuze v. The Bishop of London (2 Brown's Ch. Ca., 253), the court said that the report and approbation there should stand until the person recommended by the officer was impeached as an improper person. When the referee appoints a receiver, if either party is dissatisfied with the appointment, he cannot except to the referee's report ; but must make a special application to the court for an order that the referee review his decision, (lb.) This application may be made either by petition or motion. If by petition, the petition should state the grounds of-objec- 318 THE LAW OF EEFEEEES. tion. Notice of the application must be served on all parties interested. In order to support an objection to the referee's appointment of a receiver, a strong case of disquali- fication is necessary. In fact, it is the settled rule that the court will not set aside the appointment, unless the person selected is legally disqualified or his situation is such as to induce a belief that the interests of the parties will not be properly attended to by him. (lb.) If the court should order the referee to review his report, the parties will proceed by proposing a new person or persons and issuing a summons as before. When an order of reference is made for the selec- tion of a person to be a receiver, and a receiver is subsequently appointed, his title vests, by relation, from the date of the order and attaches upon all the property to which the receivership could properly extend, exactly in the same manner and with the same effect as if the order, instead of directing a reference, had named the receiver. (Ruder v. Tallis, 5 Sandf. Sup. C. R., 612 ; Fairfield v. Weston, 2 S. & S., 96.) Although it is pretty well conceded that a receiver is vested with the title of property from the date of the order appointing him (see Edw. on Receivers, p. 98, et seq., 2d ed.) without the requirement of any formal assignment, yet, in respect of the exercise of his powers in courts of law, such an assignment to him is proper; we, therefore, give here a general form of an assignment of a stock in trade (by part- ners) which would, also, carry all estate, and also a EEFEEENCE TO APPOINT A KECEIVEE. 319 transfer of realty, both copied from precedents in Edward on Receivers (pp. 101-103). It is believed that, from these precedents, almost any special form of a transfer to a receiver can be drawn. SECTION VII. GENERAL ASSIGNMENT TO A RECEIVER OP STOCK IN TRADE, ETC. This indenture made the — day of , in the year 18 — , between C. D. and E. F., heretofore partners in trade, doing business in the city of New York, under the style of of the first part, and A. B. of 8p., receiver of the estate and effects hereinafter referred to, appointed by the Supreme Court of the State of Neio York, of the second part. Whereas in and by an order of the said court, before, Sfc, in a certain action wherein the said C. D. was plaintiff and the said E. F. was de- fendant, it was ordered that it be referred, 8^c. (Here recite the order.) And whereas the said party of the second part has been duly appointed such receiver, and has given and filed tJie requisite security, pursuant to the rules and practice of the said court and to the pro- visions of the said order. Now this indenture witnesseth, that the said parties of the first part, in obedience to the said order, and in consideration of the premises afore- said, and of one dollar to each of them in hand paid by the said party of the second part^ at or before the execu- tion hereof, the receipt whereof is hereby acknowledged, have, and each of them hath, conveyed, assigned, trans- ferred and delivered over, and by these presents do, and 320 THE LAW OF EEFEEEES. each of them doth, convey, assign, transfer and deliver over unto the said party of the second part, under the direction of the said referee, testified by his approval indorsed hereon, all and every the stock in trade, good- will, estate, real and personal, chattels real, moneys, out- standing debts, things in action, equitable interests, property and effects whatsoever and wheresoever, of or belonging or due to the said parties of the first part, as partners of the said firm of , or to the said fi,rm itself, or in which they or either of them, as such part- ners, or the said firm, had any estate, right, title or interest at the time of filing the complaint in the above recited action ; and which complaint tvas filed on the — day of last. And also all deeds, writings, leases, muniments of title, booJcs of account, papers, vouchers and other evidences tohatsoever relating or appertaining thereto. To have and to hold the same unto him the said party of the second part, as such receiver as afore- said, and to his successors and assigns, subject to the present and future order, direction and control of the said Supreme Court. And for the better and more effectually enabling the said party of the second part, his successors and assigns, to recover and receive all or any part of the stock, estate, book-debts, property, choses in action and effects hereby conveyed, assigned and trans- ferred, they, the said C. D. and E. F., have made and appointed and by these present do make and appoint the said A. B., party of the second part, his successors and assigns, the attorney and attorneys of them the said parties of the first part, in their names or the style of their said firm of , to commence, continue, discon- tinue and again bring, perfect and carry out actions and EEFEEENCE TO APPOINT EECEIVEE, 321 suits against any corporated company, firm, persons or person for or on account of all or any part of the said estate, stock, property, hook-debts, choses in action or effects. In witness whereof the said parties of the first part have hereunto set their hands and seals the, day and year first above written. Sealed and delivered \ in the presence of j SECTION VIII. TRANSFER OF REAL ESTATE TO A EECEIVEE. This indenture, made the — day of , in the year 18 — , between C. D., of, 8^-c., of the first part, and A. B., receiver appointed by the Supreme Court of the State of Neiv York, of the second part. Whereas, in and by an order (here take the recitals in the last pre- cedent). Now this indenture witnesseth, that the said party of the first part, in obedience to the said order and in consideration of the premises aforesaid and of one dollar to him in hand paid by the said party of the second part, before the execution Jiereof the receipt whereof is hereby acknowledged, hath granted, bargained, sold, aliened, released and confirmed, and by these pre- sents doth grant, bargain, sell, alien, release and confirm unto the said party of the second part, all and every the right, title, estate and interest of the said C. D., party of the first part, of and in all that certain lot, 8fc., together with the appurtenances, rents, issues and profits thereof; and all deeds, evidences, leases and papers relat- ing thereto. To have and to hold all and every the same E. 41 322 THE LAW OP EEFEEEES. unto and to the use of the said A. B., party of the second part, as such receiver, his heirs, successors and assigns. In witness whereof the said party of the first part has hereunto set his hand and seal the day and year first above written. Sealed and delivered \ in the presence of j The receiver would do well to have the transfer recorded. A receiver ought not to interfere in any litigation between the parties. (^Comyn v. Smith, 1 Hogan, 81.) When the receiver is fully appointed, he should retain his own attorney and counsel, who ought not to be the same as are employed by any of the par- ties in the action : because, the attorneys of the several parties are bound, in duty to their clients, to watch the proceedings of the receiver and to see that he faithfully discharges his trust ; and the under- taking to act as the attorney or counsel for the receiver, under such circumstances, would, therefore, frequently cast upon the person thus assuming to act inconsistent and conflicting duties, both of which duties could not properly be discharged by the same person. (Ryckman v. Parkins, 5 Paige's C. R., 543 ; Ray V. McComh, 2 Edw. V. C. R, 165.) Nor will it be well for such receiver, even though he may be a professional man, to act as counsel in the business of his trust, as he will not be entitled to any extra counsel fees for his work. (In the matter of the Bank of Niagara, 6 Paige's C. R„ 213.) CHAPTER X. REFERENCE ON TITLE. Section I. Observations. II. Order to report if plaintiff oan make a good title to a pttrohasbb, III. Frooebbings on bbferenoe, and prinoiflbs. IV. Referee's report in favor of title. V. Referee's report against the title. VI. Form of exceptions to thb report. VII. Judgment order on report. VIII. Costs. SECTION I. OBSERVATIONS. If an action is commenced for the specific perform- ance of an agreement and the only question in dispute is on the title, it is not necessary that the cause should be brought to a hearing : for the court will, upon motion, order a reference on the title. {Bal- manno v. Lumley, 1 Ves. and B., 224.) It is said that it will be done even before answer (i5.) But we cannot see the propriety of this, for the very issue of the point is not apparent until the ven- dee makes it through his answer. Of course where an officer of the court sold, and a buyer objected to title, a certificate or affidavit of the fact would be enough to cause the court to take cognizance of the point and refer the matter. " If," says Hoffman (referring to 1 Turn.,. 225 ; 2 Fowler, 319-20), " the purchaser is not content with the title and wishes to procure his discharge and repayment of his deposit or the opinion of the court as to any point, his first step is to move for an order of reference to see 324 THE LAW OF EEFEREES. •whether a good title can be made." (Hoffman's Mas- ter, 231.) And where a plaintiff attempts to move for a refer- ence before an answer has been put in, he must undertake to do all such acts for the purpose of exe- cuting what the court should think right, as if the answer was in and cause brought to a hearing, with a direction, if the report should be against the title, for compensation. (Bonnet's Master, referring to Bal- manno v. Lumley, 1 Ves. and B., 224.) As a general rule, the court itself will not decide upon the title without a reference. (Jenkins v. Hills, 6 Ves., 646.) But where the parties choose, and the court consents, the matter -may be inquired into by the court. (Wright v. Delqfteld, 23 Barb., 498.) And in Rose v. Calland (5 Ves., 186), a bill by a vendor for the specific performance of a contract for the purchase of an estate was dismissed, upon an objec- tion to the title, without a reference. The rule seems to be to refer, except in cases where it manifestly appears to the court, on the record, that there are irrevocable objections to the title. (Bennet, 151.) A reference upon motion before judgment is confined to the question of title. (Gompertz v. , 12 Ves., 17 ; Morgan v. Bhaiv, 2 Meriv., 138.) The considera- tion of any other objection being matter for a hear- ing of the cause. (Gordon v. Ball, 1 S. and S., 178.) And a referee is bound, in strictness, to report no more than whether a perfect title, clear of incum- brances, can be made; although it may be more satisfactory that he should show how or in what manner the plaintiff could cause a good title to be made. (Scott v. Thorf, 4 Edw. V. C. R., 1.) REFERENCE ON TITLE. 325 Inquiries into title are not confined to suits for specific performance, but may occur incidentally in actions having other objects. It seems that, generally, either the vendor or pur- chaser may insist upon a reference of the title in the first instance ; the vendor being entitled to the oppor- tunity of perfecting it and the purchaser of fully investigating it before the referee. {Jenkins v. Hiles, 6 Ves., 646.) But either party may preclude him- self from this right by his mode of pleading. {8. C.) So, where the acts of the purchaser amounted to a waiver of his right, specific performance was decreed in the first instance. (Fleetivood v. . Gi'een, 15 Ves., 594; Margravine of Anspach Y. Noel, 1 Mad. C. R., 310; and see Fludyer v. Cocker, 12 Ves., 25 ; Balfour V. Welland, 16 Ves., 151.) The direction is, to inquire whether the vendor can, not whether he could, make a title at the time of entering into the contract {Langford v. Pitt, 2 P. Wms., 630) ; accordingly, where a title can be made before the hearing it is sufiicient {Wtjnn v. Morgan, 7 Ves., 202) ; or, before the report {Lang- ford V. Pitt, supra; Jenkins v. Hiles, 6 Ves., 655 ; Seton V. Blade, 1 Ves., 279 ; Matlock v. Buller, 10 Ves., 315) ; or upon a hearing for further directions. {Paton v. Rogers, 6 Mad., 256.) And a purchaser under a judgment will not be discharged upon the referee's report against the title, if it can be completed within a reasonable time. {Coffin v. Cooper, 14 Ves., 205.) But the rule is attended with hardship. {Lechmere v. Brasier, 2 J. & W., 289.) And where the vendor has not been able to make a title before the decree 326 THE LAW OF EEPEEEES. or judgment, it is material as to costs. {Seton v. Blade, supra.) With this view, an inquiry will be directed as to the time at which a good title could be made. In a suit for specific performance between vendof and purchaser, everything connected with the title may be the subject of the usual reference on motion as to the vendor's title, and may be added by way of inquiry to that reference. {Bennett v. Rees, 1 Keen., 405.) Where the purchaser becomes incapable of completing his purchase, he will be discharged and the estate will be resold. {Blackleard v. Lindigren, 1 Gox, 205 ; Hodder v. Ruffin, 1 V. and B., 544.) For a form of order by consent for the discharge of a purchaser and for a resale, see Hand's Pract, 153. SECTION II. ORDER TO REPORT IP PLAINTIFF CAN MAKE A GOOD TITLE tO A PURCHASER. At a Special Term of the Supreme Court held at, 8^c. ITitle.] Present, S^c. It appearing by the pleadings that this is an, action for specific performance ; and on reading and filing an affidavit showing that the only question involved is one of title ; and after hearing Mr. , of counsel for the plaintiff, and Mr. , of counsel for the defendant ; it is ordered and a(ljudged that it he referred to , of, Sfc, as referee, to see and report if a good title can he made hy the plaintiff to the premises comprised in the agreement in, the complaint mentioned. And he is also REFERENCE ON TITLE. 327 to examine and report when the title could he made, with liberty to state any special circumstances. SECTION III. PROCEEDINGS ON REFERENCE, AND PRINCIPLES. An abstract of title, with all proper searches attached, should be brought into the referee's office. It should be left there with the order of reference. (2 Dan. Ch. Pr., 871.) The referee will issue his summons, with an under- writing : To ascertain whether a perfect title, clear of incumbrances, can be made to the premises mentioned in the above order of reference ; and if so, from what time. The referee always proceeds on the abstract only, upon which alone he makes his determination, unless the vendee insists upon the production of title deeds ; the referee, as well as the court, always takilig it for granted that, whenever the vendee omits to call for the production of the title deeds, he is satisfied that the abstract is correct. (Poole v. Shergold, 1 Cox, 160.) On litigated questions of title, written objections to the abstract are generally brought into the referee's office by the party objecting. In the prosecution of the order of reference the referee, in his discretion, may examine the parties upon interrogatories and receive evidence upon affi- davit or by the examination of witnesses before him, either upon written interrogatories or viva voce. 328 THE LAW OF EEFEKEES. He maj also call for sucli deeds and other muni- ments of title as are necessary to its elucidation. (2 Dan. Ch. Pr., 872, 873.) "Written opinion of counsel are sometimes laid before the referee. (Bennet, 154.) By the English practice, as we have above shown, on a reference to see whether a good title can be made, the officer proceeds on the abstract only, unless a purchaser requires the production of the deeds themselves. {Poole v. Shergold, 1 Cox, 160.) And although we have the facility of a Registry to go to, yet it is fully believed that a referee can also require a complete abstract of title, which would, of course, embrace all proper searches, to be laid before him, and that it must mainly be through this he would make up his report ; for, it never could be expected that an officer of the court (a referee)^ should be put to the trouble of making up an abstract for himself through a register's or clerk's office. • A vendor of real estate must have in him the right of ownership, the right of possession (or, as these joined together is called by the old writers a jus duplicatum, or a right doubled), as well as tlie actual tangible possession of the estate sold ; and, therefore, no title is good in which these, in the person of the vendor, are separated. The property in and title to things real may be obtained by descent; by pur- chase ; by occupancy ; by prescription ; by forfeiture ; or, by alienation — and of this latter, it is either by 1. Deed; 2. By matter of record (3. By special custom) ; or, 4. By devise. EEFEEENCE ON TITLE. 329 It will be seen by the terms of the order of refer- ence that the referee is to state when it was first shown that a good title could be made. This is required to be done, because a suit for specific per- formance is not to be dismissed on the mere ground that the plaintiff''s title was not perfect at the time of filing his complaint. A specific performance may be decreed if it appears by the referee's report that the plaintiff is then in a situation to give a perfect title ; except where the purchaser has been materially injured by the delay. {Dutch Church in Garden Street V. Mott, 7 Paige's C. R, 78.) It has been said, that on a bill for specific per- formance, the vendee will not be compelled to take a title founded on a decree against an infant, because the latter may show cause against it when of age. (Brr/an v. Eead, 1 Dev. & Batt. Eq., 86.) The title should be such a one as, if the pur- chaser is disposed afterwards to sell, may be con- sidered a fair marketable title to the property. (Bennet's Master, 151.) When there is a considerable or rational doubt upon the title, whether as relates to the quantity or the title the court will not compel the purchaser to take. {Stapylton v. Scott, 16 Ves., 272 ; Wheate v. Hall, 17 Ves., 80). Where the title is clear, but there are incum- brances to be got in, the referee reports in favor of the title. Before he does so, however, he ought to be satisfied that the incumbrances can be got in. If he is not satisfied on this point, he should report that a good title cannot be made unless the incum- K. 42 330 THE LAW OF EEFEEEES. brances can be got in. So, although it appears that a suit has been subsequently instituted and is pend- ing in which part of the lands are claimed adversely to the vendor, this is not a sufficient ground for reporting that a good title cannot be made : for the referee must not go into circumstances at whose instance or from what motives it may have been instituted. (Osbaldeston\. Askew, 1 Russ. R., 160; and see Le Grand v. Whitehead, lb., 309.) Upon the consequent reference to prepare the conveyance, what persons are to be made the parties thereto comes to be considered, and all proper parties must be brought before the court to make a complete conveyance. (Omerod v. Hardman, 5 Ves., 725.) A purchaser must get such a title as he can force down upon a repurchaser from him. {Magennis v. Fallon, 2 Moll., 678.) Equity does not compel a conveyance of a doubt- ful title (^Seymour v. Delancey, Hopk., 436) ; and, therefore, equity will not compel a purchaser to take land which is involved in a doubtful and disputed question of boundary. ( Voorhies v. De Meyer, 3 Sand. Ch. R, 614.) A purchaser is not compelled to take a title de- pending upon the words of a will which are too doubtful ever to be settled without litigation. (^Sharp V. Adcock, 4 Russ., 374.) Nor where a presumption as to any title would have to be left to a jury. (Emery v. Grocock, 6 Mad., 57; and see Sloper v. Fish, 2 V. and B., 145.) A person who purchases two lots is not justi- fied in refusing to perform his contract for the pur- EEFEEENCE ON TITLE. 331 cliase of the second lot, because a good title is not shown to the first (Lewin v. (ruest, 1 Euss., 325) ; unless the court is satisfied, on a full examination of all the circumstances, that he would never have bought except in the expectation of possessing both lots. {Casamajor v. Strode, 1 Coop, temp., Brough., 510.) Equity does not compel a purchaser to take such a title as a willing purchaser might be satisfied with ; but a court will inquire whether a title can be had. {Knatchbull v. Orusher, 3 Mer., 137.) A prima facie title is not alone sufficient. {Eyton v. Dicken, 4 Price, 303.) Where a judgment of some amount is outstanding, a purchaser cannot be compelled to take an indem- nity against it. {Wood v. Bernal, 19 Ves., 221.) The principle of equity with respect to specific performance is that if, substantially, the purchaser can have the thing contracted for, a slight variation in the qualifications of it will not disable the vendor from having a decree for specific performance when the difference is such as can be compensated in money. (^Mdgennis v. Fallon, 2 MoUoy, 588 ; and see McQueen v. Farquhar, 11 Ves., 467.) The doctrine of compensation ought not to be extended. Jurisdiction has been exercised in giving compensation founded on the minuteness of the ob- ject compared with the estate sold, and not upon a,ny jurisdiction to find and adjust pecuniary equivalents where essential parts of the contract cannot be per- formed. (Prendergast v. Eyre, 2 Hog., 81.) With regard to taking a portion with a compensa- tion as to the remainder, the remarks of Selden, J., 332 THE LAW OF EEFEEEES. in the late case of Mills v. Van Voorhi's (6 E. P Smith, 20 N. Y., 412), are worth remembering : " The plaintiff, however, further asks, if the opinion of the court should be against him upon the two points already considered, that the defendant be required to ctonvey that portion of the premises to which he has a perfect title and offers to accept of such a conveyance. The Court of Chancery in England has frequently exercised the power here sought to be invoked, and our courts have, in some instances, followed their example. But it is obvious, that in this country, where the value of real estate is so fluctuating, changing not unfrequently from day to day, the practice of making such decrees, if generally adopted, would give to the purchasers of such pro- perty great advantages over the vendors. By availing themselves, as in this case, of some defect in the title to a portion of the premises, they might keep the matter in abeyance, perhaps for years, secure against loss in case of a fall, but ready to avail themselves of any rise in the value of the property. Although, therefore, the power of making such decrees no doubt exists, it should, in this country, at least, be exercised with great delibera- tion and caution." The description of the quantity of land in regard to the acres is not matter of compensation. It is a ground for setting aside the sale. {Price v. North, 2 Y. &. Coll., 620.; Still, a purchaser will not be entitled to abatement for deficiency in quantity, the particulars of sale describing a lot as containing " more or less." ( Winch v. Winchester, 1 V. and B., 375.) EEFERENCE ON TITLE. 333 And for information as to what may be considered a good title, see 1 Sugden's Vendor and Purchaser, 329. Also in the present work, under chapter VII, REFERENCE TO COMPUTE AND TO SELL IN CASES OF FORE- CLOSURE, 21. Pwchaser, and as to his completing pur- chase as well as to his being relieved from it. Also, resale, p. 265, ante. It may be observed, that a purchaser cannot, on a report of a defective title, insist upon being dis- charged, if the title is capable of being made good within a reasonable time. {Coffin v. Cooper, 14 Ves., 205 ; but see Lechmere v. Brasier, 2 J. and W., 289.) SECTION IV. referee's report in favor op title. To the Supreme Court of the State of New York : ITitle.] I, the undersigned referee, to whom it was referred hy a judgment-order herein, dated the — day of , 18 — , to see and report, Sfc. (Here recite order.) Do respectfully report, that I have had an ahsti-act of title (and deeds relating') to the saidjpremises as well as objections laid before me (and taken testimony, which, with such abstract, is contained in Schedule A. hereto annexed) ; and been attended by counsel for the plaintiff and defendant ; and having seen into and examined the matter of the title aforesaid and heard counsel on both sides. I do also report, that a good title can be made by the said plaintiff to the premises comprised in the agree- 334 THE LAW OF EEFEREES' ment in the complaint in this action mentioned; and that there was such good title at the time the abstract thereof was furnished by the plaintiff to the attorney for the defendant, which was on the — day of , 18 — , and which also was prior to the commencement of the present action. [Or, instead of the last para- graph, hut that there was not such good title until after the commencement of this action, the same having been, made good since then by a deed made, &^c., Sfc, or, by satisfaction of a certain mortgage, S^c. If an incum- brance is still outstanding, but the title is otherwise good : I do report in favor of the title to the said f remises, although there is an outstanding incumbrance in the shape of a mortgage thereon, inasmuch as I have ascertained, and so report, that it can be got in and satis- fied. This my report, therefore, is that a good title can he made.] All which is respectfully submitted. Dated at New York, the — day of , 18 — . Referee. REFERENCE ON TITLE. 335 SECTION V. EEFEEEE'S EEPOET against the TITLE. To the Supreme Court of the State oj New York : [Title.] I, the undersigned referee, to whom it was referred by a judgment-order herein, dated the — day of , 18 — ; to see and report, Sfc. (Here recite order.) Do respectfully report, that I have had an abstract of title and deeds relating to the said premises as well as objec- tions laid before me {and taken testimony which with such abstract is contained in Schedule A hereto annexed")', and been attended by counsel for the plaintiff and defendant; and having seen into and examined the matter of the title aforesaid and heard counsel on both sides. I do also report, that a good title to the said 'premises cannot be made by the said plaintiff: because there is an outstanding mortgage on a portion of the said premises, dated, S^c, between, S^c, recorded, Sfc, referred to in the said abstract, and the present holder refuses to satisfy the same (or, an outstanding life estate &^c., S^c, according' as the fact may be). All which is respectfully submitted. Dated at New York, the — day of , 18 — . , Referee. The report will be filed ; and notice given, and exceptions will have to be served within eight days. (32 Rule of the Supreme Court.) A copy of such exceptions must be served ; and they will be noticed for and argued at a special term. 336 THE LAW OP EEFEEEES. SECTION VI. FOEM OP EXCEPTIONS TO THE EEPOET. ITMe.'] Exceptions taken hy the above (plaintiff or defendant), to the report of , Esquire, referee, dated the — day of , 18 — . First Exception. For that the said referee has, in and hy his said report, reported that a good title can be made by the said plaintiff to the 'premises comprised in the agreement in the complaint in this action vientioned; whereas the said referee ought to have found and reported that there wom not a good title, and that a good title ■ thereto cannot be made by the said plaintiff". Second Exception. For that the said referee has, in and hy his said report, found and reported that there was such good title at the time the abstract thereof was fur- nished by the plaintiff to the attorney for the defendant, which was on, Sfc, and which, also, was prior to the com- mencement of this action. Whereas the said referee ought to have reported that there was not such good title at such time, 8^c., (^c., 8^c. Where the plaintiff (vendor) excepts : First Exception. For that the said referee has, in and hy his said report, found and reported that a good title to the said premises cannot be made hy the said plaintiff. Whereas the said referee ought to have found and reported that a good title to the said premises can he made. EEFEEENCE ON TITLE. 337 Second Exception. Fur that the said referee has, in and hy his said report, found and reported that an alleged incumbrance, &;c.. Whereas the said referee ought to have found and reported that as to such incum- brance, SfC, S^c. In all which particulars of the said report the said (^plaintiff ox defendant) doth except thereto ; and demands that the same may be set aside. Attorney for the said (^Plaintiff or Defendant). If the referee reports in favor of a title, and any- new fact afterwards appears by which tlie title is affected, the court will refer the title back, upon application by motion, even after the referee's report has been confirmed. {Jeudwine v. Alcock, 1 Madd. C. R., 697.) So, if the referee reports in favor of a title, but, upon hearing exceptions, the court thinks the evi- dence not sufficient to support the referee's finding, it will, on application of the vendor, refer it back to the referee to review his report, in order to give the vendor an opportunity of producing further evidence. (^Andrew v. Andrew, 3 Sim., 309.) And even after the exceptions have been heard and the referee's report has been overruled, the seller may, upon an early application, obtain a reference back, in order to show that the title is valid, upon a ground not before taken. (EgertonY. Jones, 1 R. and M., 694 ; Poriman v. Mill, lb., 697.) E. 43 338 THE LAW OF EEFEEEES. And, in general, where the referee has, by express- ing an opinion in favor of the title, prevented the vendor from showing the title was good — the course of the court appears to be, to send it back for review, the party who moves paying the costs of the motion. (1 Sugden's Vendor & P., 219.) So, where it appears at the hearing of exceptions to a report against a title, that the seller can clear up the objections, the court has sometimes sent the title back for review {lb.) ; and it has frequently occurred even at the hearing of the exceptions that, if the vendor can satisfy the court that he can make a good title by clearing up the objections which have been reported, the court will make a judgment in his favor, without a reference back. (2 Dan. Ch. Pr., 875; Paton V. Rogers, Mad. & Gel., 256 ; but see also EsdaileY. Stephenson, lb., 366.) SECTION VII. JUDGMENT OEDER ON REPORT. At a Special Term of the Supreme Court of the State of New York, held at, &;c., the — day of , 18 — . Present, (^c, \Title.\ This action having been brought for specific perform- ance, and a reference having been had under order of this — daij of last (18 — ), and the referee having reported (and exceptions having been taken by the plain- tiff or defendant) ; (or, and no exceptions having been filed within the time allowed by the rule) ; and the matter EEPEEENCE ON TITLE. 339 of the said report (and of the said exceptions) having now come regularly before the court in term time ; and after reading such report {and exceptions') ; and after hearing Mr. , &ic., it is adjudged that a good title can he made hy the said plaintiff to the premises comprised in the agreement in the complaint herein mentioned. And it is further adjudged and ordered, that the said plaintiff is entitled to a specific performance of the said agreement, and a reference is hereby ordered back to the same referee to take an account of what is due for prin- cipal and interest upon the purchase money from the — day of , 18 — (being the time when the purchase ought to have been completed). And the defendant is adjudged and ordered to pay the same upon the plain- tiff's executing a proper conveyance, to he settled hy the referee, in case the parties differ. And it is further ad- judged, that the plaintiff" is entitled to full costs and dis- bursements of this action against the defendant (or costs only to include, 8^c). Where the decision is in favor of the purchaser : It is adjudged that a good title cannot be made by the said plaintiff to the premises comprised in the agreement in the complaint herein mentioned; and that specific performance thereunder be and the same hereby is denied. And it is further ordered and adjudged, that the said plaintiff pay back to the said defendant the deposit sum of % , mth interest for the same, and also his, the said defendant's, costs and disbursements to be adjusted] and that such amount of deposit, with inte- rest and adjusted costs and disbursements, be paid ivithin — days of such adjustment of the latter, or that execution go for all and every the same. 340 THE LAW OF EEFEREES. Costs : He who fails is, prima facie, to be taken to be the person liable to costs, upon principles of both morality and justice ; and those parties who depend upon circumstances to govern the discretion of the court in withholding the costs, have it imposed upon them to show the existence of those circumstances in a sufficient degree to cut down the prima facie claim of costs. (Lord Eldon, in Vancouver v. Bliss, 11 Ves., 463 ; and see Wijvill v. Wyvill, 1 Price, 292.) The court has said, that where a party has not been able to make his title before the decree, it is always a question very important as to costs. {Slade V. Slade, 7 Ves., 279.) If a purchaser makes the suit necessary by a frivo- lous objection to the title, he must bear the costs which he has thus improperly occasioned ; but, if he states a serious objection, as to which it is reasonable that he should have the title fortified by the opinion of the court, the court will not compel him to pay costs, although the objection fails. The principles must be the same with respect to the purchaser's sug- gestions of doubt as to matters of fact. (Thorp v. Freer, 4 Mad. Ch. E,., 466 ; and see Aislabie v. Rice, 3 lb., 260 ; Hasker v. Sutton., 2 Sim. and Stu., 613.) As to a purchaser paying costs : Where a purchaser fraudulently insisted on the specific performance of an agreement, in which his name was inserted as a purchaser, though it was only intended that he shotild hold the property as a security, the complaint was dismissed with costs, on the ground of his dis- honorable conduct. (Davis v. 8ymonds, 1 Cox, 402 ; and see Hutchings v. Strode, Nels. R, 26 ; Bramley EEFERENCE ON TITLE. 341 V. AU, 3 Ves., 620 ; Oldjield v. Round, 4 lb., 508 ; Harrington v. Wheeler, lb., 686 ; Alley v. Deschamps, 13 Ves., 225.) A purchaser, being plaintiff, was compelled to pay costs of the suit, he having, previously to its institu- tion, been served with notice of a prior decision in favor of the same title against an objection similar to that which he insisted upon. (Biscoe v. Wilhs, 3 Meriv., 456) Where the purchaser resisted a performance on the ground of the opinion of his conveyancer, the court, thinking such opinion erroneous, compelled the purchaser to take the title, and ordered him to pay the costs on the ground that the mistake of a third person ought not to operate to the disadvantage of a party who was clearly in the right. {Maling v. Hill, 1 Cox ; and see McQueen v. Farquhar, 11 Ves., 467 ; Bishop of Winchester, lb., 194.) Vendor s paying costs : Where the vendor's com- plaint for specific performance was dismissed, on the ground that he could not make a good title, he was ordered to pay costs, although he was only a trustee to sell. {Edwards v. Harvey, Coop., 40.) In Knight v. Harden, before Leach, V. C. (MS.), Beames, 37, in which the plaintiff was a trustee for sale, it was suggested by the defendants that former trustees had conveyed to the plaintiff without a power to do so, and that children interested in the result ought to be made parties to the suit. The court, adopting this suggestion, ordered the cause to stand over, for these persons to be made parties, which they accordingly were. In the result, the 342 THE LAW OF EEFEKEES. 4 court decreed a specific performance, but made the plaintiff pay the costs of the suit. Where the vendors, by their mis-statement that a "will was proved, when, in truth, it was not so, occasioned a suit to have the will proved or de- posited, the vendors were fixed with the costs. {Har- rison V. Coppard, 2 Cox, 318.) If the vendor should not make a good title previ- ously to the complaint being filed, he must pay the costs up to the report of a good title. {Harford v. Furrier, 1 Mad. C. R, 532 ; and see Wynn v. Mor- gan, 7 Ves., 201 ; Newall v. Smith, 1 Jac. & W., 262 ; Pincke v. Curties, in note to Belt's ed. of Bro., vol. 4, p. 331.) Where the vendor failed on a reference to make out his title, and the report was against it, his bill for specific performance was, on motion, dismissed with costs. ( Walters v. Pynham, 19 Ves., 351.) But see Lewis v. Loxham (3 Meriv., 429), where a bill for specific performance by a purchaser was ordered to be dismissed without costs, a necessary party not choosing to concur in conveying. But where a vendor succeeded, on the reference, in making out his title, and the report was ultimately in favor of it, the vendor was ordered to pay, not only the costs of the reference upon the title, but the costs of several applications to the court ; because, although he had sucfteeded in obtaining a report in favor of his title, it was on a different ground from that relied upon by the abstract. {Fielder v. Higgin- son, 3 Ves. & B., U2.) REFEEENCE ON TITLE. 343 The vendee is considered entitled to Ms costs up to the time when the vendor evidences a good title. When that is done, the vendee is bound to declare that he is satisfied and will accept the title if the vendor will pay his costs up to that time ; if he omits to do so, the court will fix all the subse- quent costs on him. ( Wynn v. Morgan, 7 Ves., 202 ; Fuller V. Clayton, quoted in Beames, 41.) Where a purchaser is discharged on account of defect in title or error in the decree or judgment, and there is no fund out of which he can get his costs, the same will have to be paid by the plaintifi^, but without prejudice to the question how they are ultimately to be paid. {Smith v. Nelson, 2 S. & S., 557.) And whenever a purchaser is discharged, he must also get interest as well as his costs. (Pleasants V. Roberts, 2 Moll., 507.) Where costs have not been given : Where a vendor at length prevailed in obtaining a specific perform- ance, after having unsuccessfully contended that the purchaser had done acts amounting to an acceptance of the title, no costs were given ; but it is laid down in the same case that if the question had been merely one of title, the purchaser would have been fixed with costs, because they would have helped the title. (McQueen v. Farquhar, 11 Ves., 467.) Where the objection to the title is a fair objection, the court will not, on the gi'ound of that objection being overruled, give costs. {Cox v. Chamberlain, 4 Ves., 631 ; Aislabie v. Rice, 3 Mad. C. R., 260 ; Thorpe V. Freer, 4 IK, 466.) 344 THE LAW OP EEFEEEES. Whether the objection be or not a fair objection, is a question to be decided! by the discretion of the judge. {Cahery v. Williams, 1 Ves., Jr., 210; Bur- nahj V. Griffin, 3 Ves., 266 ; Poxcell y. Martyr, 8 Ih., 146; Bishop of Winchester v. Paine, 11 Ih,, 195; Fludyer v. Cocker, 12 lb., 25 ; Maling v. jHiY/, 1 Cox, 186.) Where a bill for specific performance was dis- missed, the judge, on accoiuit of the hardship of the case, dismissed it without costs. (Brodie v. St. Paul, 1 Ves., Jr., 326.) This course was adopted where the vendor had been guilty of laches (Guest v. Horn-pay, 5 Ves., 818) ; also, where there was mutual misapprehension {Stratford v. Bosivorth, 2 Ves. & B., 341) ; and see. Marquis of Townsend v. Stangroom (6 Ves., 328); and also, where the representatives of the vendor had given the purchaser " a probable cause of suit." (^enton v. Browne, 14 Ih., 144.) In another instance, although the court decreed a spe- cific performance, yet it was without costs, because the title was not clear on the abstract. ( v. Col- linge, 3 Ves. & B., 143, in note; 8. P. Wilson v. Clapham, 1 Jac. & W., 36 ; and see Harford v. Pur- rier, 1 Mad., 532 ; and Newall v. Smith, 1 Jac. & W., 262.) In Newall v. Smith (1 Jac. & W., 262), a specific performance was decreed without costs, the suit being occasioned by the refusal of the vendor to produce documents insisted on by the purchaser, some of which were necessary and others unnecessary, the Chancellor observing that, as both parties were wrong " no costs ought to be given on either side." REFERENCE ON TITLE. 345 Beames, in his work on Costs, and on whom we have largely drawn, observes in a note at page 36 : " Generally, on this subject, the reader may be referred to Sir E. Sugden's valuable work on Ven- dors and Purchasers, and the authorities he mentions. It is extremely difficult to extract the rules with respect to the costs of suits for specific perform- ance." Mr. Hilliard's work on Vendors will be found of service, at page 208. K. 44 CHAPTER XL REFERENCE TO APPOINT A GENERAL GUARDIAN FOR AN INFANT. Section I. Obsbrvatioks. II. Pkocbrdings to appoint a gtjaedian. III. Petition for appointment of a geseral gttabdian where thb infant is FOURTEEN YEARS OF AGE OR UPWARDS. IV. Petition for the appointment of a general guardian in behalf of INFANTS UNDER FOURTEEN TEARS OF AGE. V. Order of reference to nominate a general guardian. VI. Referee's report on petition for general guardian where the infant IS OVER the age of FOURTEEN TEARS. VII. Order appointing a general guardian for an infant oyer the age or fourteen years. VIII. Clerk's certificate of the filing of security. IS. Referee's report on petition for general guardian where thb infant IS under the age of fourteen tears X. Order. XI. Order for the appointment of guardian for infants under the agh of twenty-one years. XII. Security by guardian. XIII. Bond by guardian and his sureties. XIV. Powers of a guardian. XT. Responsibility of guardian and surety. XVI. Removing a guardian. XVII. Form of order superseding a guardian for oause. XVII [■ Petition of guardian to be discharged from his trust, XIX. Order on the last petition. SECTION I. OBSERVATIONS. Testamentary guardians are not very common ; and all other guardians are now appointed by the Supreme Court (taking the place of the Court of Chancery) or by the surrogates in the respective counties of the State. (2 Kent's Com., 226.) " The power of the court to appoint guardians for infants who have no testamentary or statute guardian, APPOINTING A GUARDIAN FOE AN INFANT. 347 is a branch of its general jurisdiction, -whicli has been long and unquestionably settled." (/J.) A guardian appointed by the court continues until the majority of the infant and is not con- trolled by the election of the infant when he arrives at the age of fourteen, (/ra the matter of Nicoll, 1 J. C. R, 25; 2 K. S., 151, § 9 [10]; In the matter of Dyer, 5 Paiges' C. R, 534.) Although guardians are liable to be cited and compelled to account before a siuTogate, still the powers of the latter are not exclusive The general jurisdiction over every guardian appointed by the surrogate or by will is as much under the superin- tendence and control of the Supreme Court taking the place of the late Court of Chancery, and the power of removal by it, as if he were .appointed by the court. (2 Kent's Com., 227, referring to Matter of Andrews, 1 J. C. R., 99 ; Ex parte Crumh, lb., 439 ; Duke of Beaufort v. Bert^J, 1 P. Wms., 703 ; 2 R S., 152, 153, 120.) The practice of the court, on the appointment of a guardian, is to require a referee's report approving of the person and security offered. (Kent, supra. ) The court may, in its discretion, appoint one per- son guardian of the person and another guardian of the estate. (lb.) The guardian of the estate always is required to give adequate security ; but the guardian of the person gives none. {lb.) The New York Life Insurance and Trust Company may, however, be appointed the general guardian for an infant, without giving security. (Laws of 1830, p. 348 THE LAW OF EEFEEEES. 77, § 6.) Where the responsibihty of a guardian or that of his sureties becomes precarious, the court, in a suit by the infants, for tliat purpose, will order the moneys in the hand of the guardian to be brought into court, to be put out for the benefit of the parties interested or that further and sufficient security be given by the guardian. {Monell v. Monell, 5 J. C. R, 283.) In case a person should be named as guardian in an instrument intended as a will, but not valid as such, the court would be inclined to appoint him guardian without a reference. (Hall v. Store?; 1 Young and Coll., 556.) The court will not appoint any of its officers, as such, to act as guardian, nor appoint any person without his written consent. (Mc Vickar v. Constable, Hopk., 102.) A guardian, acting within the scope of his powers, is bound only to fidelity and ordinary diligence and prudence in the execution of his trust. And his acts, in the absence of fraud, will be liberally construed. {Whi'e V. Parker, 8 Barb. S. C. R, 48.) But infants will be relieved ; as, for instance, by a resale, where their propertj' has been sacrificed at a sale, through the misapprehension or negligence of their guardians, on condition that a full indemnity is offered to the purchaser. (^Lefevre v. Laraway, 22 Barb. S. C. R., 167.) And whenever (in a suit or proceeding) the fact appears that the rights of infant parties have been invaded or are in danger of being prejudiced, the court ought, without waiting to be specially invoked, to exercise its protective jurisdic- APPOINTING A GUAEDIAN FOE AN IXFANT. 349 tion in behalf of such infant parties. Although no application for a resale is made in behalf of infants, yet such an order may be made on the court's own motion, in its capacity of universal gvxardian to all infants and by virtue of its obligation to exercise a general superintendence and protective jurisdiction over their persons and property. (Jh.) A guardian owes a duty to his ward which renders it improper for him to act in behalf of others. {Ih.) A court of equity possesses a controlling and superintending power over all guardians, whether testamentary or appointed by a surrogate, and it will exercise that power by taking 'the ward from the guardian and delivering it to its mother or some other person whenever the interest of the ward requires it. ( The People v. Wilcox, 22 Barb. S. C. R., 178.) A guardian, though appointed by the surrogate, may be removed from his office, compelled to ac- count, and another guardian be substituted by the Supreme Court, on petition. A complaint is not necessary; though the court may, in its discretion, order an action to be brought. (^Dishrow v. Henshaiv, 8 Cow. R, 350.) It is said, in an English case, that if two persons are appointed by the court guardians of an infant during his minority or until further order, the guar- dianship is at an end on the death of one of them, and there must be a new appointment. [B?-adshaw v. Bradshaw, 1 Russ., 528 ; but query this.) The guardian is an officer of the law, and he will not be allowed to employ his authority to the dis- 350 THE LAW OF EEFEEEES. advantage of his ward. He ordinarily possesses the custody of the minor's person, and the right to select his habitation, but no greater effect will be given to his acts in these respects than the nature of the case reasonably requires ; and although the act may be allowed and ratified, if judicious or necessary, its consequences should be limited so as not to affect the status, or the rights of the infant, or the succes- sion to his property. {Ex parte Bartlett, 4 Brad., 221.) There would, however, appear to be no ground for denying such a control on the part of the guardian over the residence of the ward as shall not withdraw him from the jurisdiction of his domi- cil of origin. A change of residence from one por- tion of the same sovereignty to another, as from one county to another, is completely within the scope of the guardian's authority, as no rights are impaired or effected, but there is simply a substitution of one local authority in the place of another, all under the same laws and jurisdiction. (Ex parte Bartlett, 4 Brad., 221.) It is the duty of the general guardian of an infant to provide for the support, maintenance and educa- tion of the infant out of his estate, notwithstanding the infant has a father living, provided the father is poor and unable to support him. [Clark v. Mont- gomery, 23 Barb. S. C. R„ 464.) Where a guardian dies, it is of course to obtain an order of reference to appoint a new one. The motion should be grounded on an affidavit of that fact and the order of appointment. In an action brought on behalf of an infant by his guardian, the due appointment of the guardian by APPOINTING A GUAEDIAN FOE AN INFANT. 351 the court or judge must be set forth, and set forth as a traversable fact. (JIulhert v. Young, 13 How. Pr. R, 413.) SECTION 11. PROCEEDINGS TO APPOINT A GUAEDIAN. By the 63d rule of the Supreme Court, for the purpose of having a general guardian appointed, the infant, if of the age of fourteen years or upwards, or some relative or friend if the infant is under fourteen, may present a petition to the court, stating the age and residence of the infant and the name and resi- dence of the person proposed or nominated as guar- dian, and the relationship, if any, which such person bears to the infant, and the nature, situation and value of the infant's estate. Upon presenting the petition, the court shall, by inspection or otherwise, ascertain the age of the infant, and if of the age of fourteen years or upwards, shall examine him as to his voluntary nomination of a, suitable and proper person as guardian. The court shall also ascertain the amount of the personal pro- perty, and the gross amount of value of the rents and profits of the real estate of the infant during his minority, and shall also ascertain the sufficiency of the security offered by the guardian. (Rule 64.) The petition is ex parte, and can be moved on at chambers, as of special term. 352 THE LAW OP EEFEEEES. SECTION III. PETITION FOE THE APPOINTMENT OF A GENERAL GUARDIAN WHERE THE INFANT IS FOURTEEN YEARS OP AGE OK UPWARDS.' To the Supreme Court of the State of New Yorli : The Petition of A. B., of 8^c., an infant over the age of fourteen years, respectfully shoiveth : That your petitioner was the son of E. B., late of 8^c., deceased; and is of the age of about fifteen years. That, as one of the devisees of his said father, no7v deceased, your petitioner is seised of and entitled to an estate in fee in and to a certain house and lot situated S^c, Sfc, the gross annual income of which is about % — . And that he . is also entitled to the following personal property, namely ( shares of stock, &c., a promis- sory note, &c., &c.) That he has not, to his knowledge or belief any other estate or property, real or personal, nor any right or interest in any realty or personalty other than what is above specified. That, on account of his tender age, and of his own inability to protect his rights and interests, he is desirous of having some suitable and proper person appointed by this court to take charge of such his estate' and property. Your petitioner, therefore, prays, that M. B., of S^c, who is his uncle, may be appointed the general guar- dian of his person and estate, upon his giving security ' 2 Barb. Ch. R , 645. APPOINTING A GUARDIAN FOE AN INFANT. 353 for the faithful performance of his trust as such guar- dian, according to the statute and in conformity ivith the rules and practice of this court. And, S^c. A.B. , Attorney and of counsel. , ss : The above petitioner, A. B., being sworn, maketh oath and saith, That he has read the above peti- tion and knows the contents thereof and that the same is true of his own knowledge, except as to any matters therein stated on information and belief, and as to those matters he believes it to be true. A. B. Sworn, Sfc. I, M. B., named in the prayer of the above petition, do hereby consent to be appointed the general guardian of the above petitioner A. B. ; and I offer, as my sure- ties, E. M. and G. F., both of S;c. M. B. SECTION IV. PETITION FOR A GENERAL GUARDIAN IN BEHALF OF INFANTS UNDER FOURTEEN YEARS OF AGE. To the Supreme Court of the State of New York : The petition of J. B., of, Sfc, father and as next friend of A. B. and C. D., infants, respectfully showeth : That your petitioner is the father of A. B. and C. D., each of lohom are infants under the age of twenty years ; and that the said infants now reside with and are pro- vided for and supported by your petitioner, their said father, in the city of . E. 45 354 THE LAW OF REFEREES. That the said A. B. became (twelve) years of age on the — day of last, 18 — , and the said C. D. became (nine) years of age on the — day of last, 18 — . That by the last will of P. B., late of, 8^c., the grand- father on the mother'' s side of the said A. B. and C. D., and who is now deceased, each of the said infants is entitled, S^c, Sfc, the value of which, Sfc, so bequeathed to each of the said infants, is unknown to your petitioner ; but he has been informed and believes that the same will not exceed the sum of % . That the said infants have no other estate or property ivhatever, nor any interest in any other property or estate other than that left to- them in and by the said will of the said P. B., deceased, as above set forth, according to the best of your peti- titioner''s knowledge and belief. That, on account of the tender age of the said infants and their own inability to protect their rights and inte- rests and their own incompetency to have the charge, control and management of their persons and estate, it is necessary that some competent and proper person should be appointed guardian of the estate of each of the said infants. That your petitioner, he being the father of the said infants, offers himself as such guardian ; and in case he should be appointed, he offers , of S^c, and , of, Sfc, as his sureties for the faithful and just performance of his trust as such guardian ; the said proposed sureties being severally possessed of a considerable real and per- sonal estate and are of full age and adequate to become APPOINTING A GUARDUN FOE AN INFANT. 355 sureties to the full value of the interest of both the said infants in the estate and property above mentioned. And, S^c. J- B. Attorney and of counsel for the Petitioner. (Jurat, as in last precedent.) The following form of order ,will answer for either of the former petitions : SECTION V. OEDEK OF REFERENCE TO NOMINATE A GENERAL GUARDIAN. [ Title.'] At a Special Term, 8^c. Present, 8^c. In the Matter of the petition of A. B., an / infant, for the appointment of a general > guardian. \ On reading the above petition, and, on motion of Mr. of counsel for the petitioner, it is ordered that the said petition be referred to of , as referee ; and with that view and to that end the said referee shall, by inspection or otherwise, ascertain the age of the said infant A. B. ; and if of the age of fourteen years or upwards, the said referee shall examine him as to his voluntary nomination of a suitable and proper person as guardian. And if the said infant be under the age of Jourteen years, the referee shall ascertain who is entitled to the guardianship, and shall name a competent and proper person as guardian. The referee shall also ascertain the amount of the personal property and the gross amount or value of the rents and profits of the real 356 THE LAW OP REFEREES. estate of the infant during Ms minority ; and also ascertain the sufficiency of the security offered hy the guardian. , And in making such inquiries, the referee, in his discretion, may direct notice to he given to such of the relatives of the infant as he may think proper, to appear before him and be heard in relation to the appli- cation. And he is to see that the rights of the infant are properly guarded and protected ; and he is hereby authorized to require the attendance of such witnesses before him to give testimony on the subject of the appli- cation as he may think necessary or proper. And it is also ordered that, in returning the above petition to the court {which is hereby sent to him for action in the premises^, he, the said referee, annex thereto his report containing the matters required of hi?n by this order, and also specifying therein what relatives or friends of the infant have been notified to appear before him, if any, and if none have been notified, stating the cause thereof And the said referee is also hereunder to pass upon the security to be given by the guardian in connection with the Qbth standing rule of this court ; and in doing so, he shall also state that each of the persons pro- posed as sureties for such guardian and for the perform- ance of his duties is worth the requisite amount over and above all his debts, or that the real estate proposed to be given as security is of the value required by such Qbth rule, and that the same is unincumbered. Relatives have no interest as parties, when they are summoned on a reference, and they are only so summoned in order to give information to enable the officer the better to judge who is the most proper APPOINTING A GUARDIAN FOE AN INFANT. 357 person to be the guardian. (Cozine v. Horn, 1 Brad., 143 ; Ex parte Datvson, 3 lb., 130.) Although a court is not bound down to appoint a relative as a guardian to an infant, yet they have a preference. And the usual order in such appoint- ment of a minor under fourteen years of age, the father being dead, is : 1, to the mother, if unmarried ; 2, the paternal ; and, 3, the maternal grandfather ; 4, to one or more uncles on the father's side ; 5, to the one or more uncles on the mother's side ; 6, to any other person. (2 Kent's Com., 226, note c.) As between an uncle of the infant and a stranger, other things being considered equal, the uncle ia entitled to the guardianship. (Morehouse . v. Cook, Hopk. R, 226.) In determining the question as to the care and custody of a child, in a contest between the sur- viving mother and the grand parents respecting such care and custody, the interest of the child should be the governing motive Avith the court ; and whenever that is ascertained, judgment should be pronounced accordingly irrespective of all other considerations. (The People, ex rel. Wilcox, v. Wilcox, 22 Barb. S. 0. R., 178.) Other things being equal, the mother of a female child, whose father is dead, is the most proper per- son to be entrusted with her nurture, care and cus- tody. (lb.) In making an appointment of a guardian for an infant, the true interest of the infant is to be con- sulted rather than the interests or the wishes of those who are desirous of the guardianship. {Bennet V. Byrne, 2 Barb. Ch. R., 216.) 358 THE LAW OF REFEEEES. The fact that the mother of an infant, upon her death-bed, expressed the wish that a particular rela- tive should adopt such infant and bring it up as his own and should see that its property was not wasted, should have a preponderating weight, other things being equal, in favor of the appointment of such person as guardian of the infant. (/&.) The probability, if a particular person should be appointed guardian of an infant, that the estate will be subjected to the expense of a new appointment within a very short time and to the other expenses incident to a change of guardianship, is a circum- stance entitled to some weight in favor of the appoint- ment of another person. (lb.) Where a person applying to be appointed guar- dian of an infant is already the trustee of such infant, for the purpose of expending the income of an estate for his support and education, it is a circum- stance in favor of his appointment as such guardian ; in order that the infant may not be subjected to the expense of separate accounts of the expenditures for his support ; the one on the part of the trustee, and the other by the guardian. {lb.) In selecting a guardian for an infant, the wishes of the nearest relatives or the declared wishes of the deceased parents will be considered ; but there is no arbitrary rule controlling the selection and the mat- ter is within discretion, to be exercised with a view ■'to the social relations and the welfare of the minor. {Cozine v. Horn, 1 Brad., 143.) APPOINTING A GUARDIAN FOE AN INFANT. 359 SECTION VI. eefeeee's eepoet on petition foe general guardian where the infant is over the age of foueteen TEARS. SuPEEME Court. In the Matter of the petition of A. B., an Infant. ! To the Supreme Court of the State of New York : In pursuance of an order of this court in the above matter, dated the — day of , 18 — , and wherein and whereby the petition herein ivas referred to me, the undersigned, as referee, &;c., Sfc. (Here recite order.) /, the subscriber, referee aforesaid, do certify and re- port that the petition of the above named infant in this matter having been presented to me ; and having been attended by the said infant A. B., and by his attorney, I have proceeded to make such inquiries and examination as the said order required — having previously directed notice to be given to the mother of the said infant with whom he resides, and to M. B., his uncle, to appear before me, if they desii'ed to be heard in relation to the said application and having required the attendance of such witnesses as appeared to me to be necessary to give testi- mony on the subject of such application. And I farther report that, from an inspection of the said infant, as well as from the affidavit of , his mother, taken before me, I am satisfied the age of the said infant is about (fifteen) years ; that I have examined 360 THE LAW OF REFEREES. him as to Ms nomination of a guardian, and that he voluntarily nominated his uncle the said M. B. to he his general guardian ; and that I am of opinion the said M. B. is a suitable and proper person to he appointed such guardian. I firther report that the amount, nature and value of the real and personal property of the said infant is cor- rectly stated in the said petition ; that the gross amount or value of the rents and profits of the said realty is about $ , annually ; and that the aggregate amount of such rents and profits during her minority will be the sum of S . And I further report that such guardian has offered E. M. and O. F., both of Sfc, as his sureties ; and hav- ing tahenfrom each of them an affidavit as to his suffi- ciency and made inquiries relative thereto, 1 am satisfied that the sureties so offered are sufficient ; and I certify that each of such sureties is worth the sum of % over and above all his debts. And I further report that the said proposed guardian should be required to give security in the sum of % . All which is respectfully submitted. Dated at , the — day of , 18 — . Referee. The standing rules of the late Court of Chancery carried with them more particularity, in regard to the appointment of a general guardian, than do the present rules of the Supreme Court. It will be ob- served, that the latter (by rule 64), leaves it to the court, "by inspection or otherwise^'' to ascertain proper particulars and appoint the guardian. Under the former system, the first proceeding was before the APPOINTING A GUARDIAN FOR AN INFANT. 361 taxing or injunction master, who had to go into mat- ters almost as minutely as a surrogate is required by statute (2 R. S., 151) to do in the appointment of a guardian. And as we see no reason why the old form of order should not still be of force and used, we here give a form of order of reference which covers all the useful matter that was embraced in the Chancery rules. (Rules 151, 152.) SECTION VIL OEDEK APPOINTING A GENERAL GUARDIAN FOR AN INFANT OVER THE AGE OF FOURTEEN YEARS.^ A( a Special Term of the Supreme Court of the State of New York, held at the City Hall in the city of New York, the — day of , 18 — . Present, , Esquire, Justice. In the Maiter of the PBtition of A. B., an Infaut over the age of fourteen years. On reading and filing the petition of A. B., an infant, over the age of fourteen years, praying for the appoint- ment of M. B., as the general guardian of his person and tstate, on his giving the requisite security, together with the consent of the said M. B. to be appointed such guar- dian, and the proposal by him of E. M. and O. F., of, ^c, as his sureties ; and on reading and filing the report of , Esquire, referee herein, and on motion of Mr. , of counsel for the said infant, it is ordered that • 2 Barb. Ch. Pr., 647. K. 46 362 THE LAW OF EEFEKEES. the said M. B. be and he hereby is appointed the general guardian of the person and estate of the said infant, on his executing a bond to the said infant, with the said E. M. and G. F. as his sureties, injhe penal su?n of$ , conditioned that the said M. B. shall faithfully perform his trust as such guardian, and file an inventory of the estate of the said infant within six months after his ap- pointment, and render an annual account or accounts of his guardianship, and observe and obey all the general rules and practice of this court respecting general guar- dians and such orders as shall be made by this court from time to time in relation to his duties as such guardian, and that he will render a just and true account of all moneys and property of the said infant which shall come to his hands as such guardian and of the application thereof and of his guardianship generally before any court having jurisdiction, whenever he shall be thereunto lawfully required. And it is further ordered that the execution of the said bond be acknowledged or proven, as required by statute and approved of as to its form and manner of execution by the said referee to be signified by his approval indorsed thereon, and filed in the office of the clerk of this court at the City Hall in the city of New York. And the said guardian shall be deemed fully appointed from tlie ti?ne such bond is so filed. And the clerk will give the said guardian a certificate of such filing at the foot of a certified copy of this order or other- wise, as may be reasonably required. Likewise it is ordered that the costs and disbursements attendant upon the appointment of the said guardian be paid out of the first moneys that shall come to his hands, to the amounts following : to the referee, for his fees herein, the sum of APPOINTING A GUARDIAN FOR AN INFANT. 363 — , and to the counsel and attorney for the' peti- tioner the sum of % ,for his fees, costs and disburse- ments ; that the said guardian take receipts therefor and he allowed all such payments in his accounts. SECTION VIII. clerk's certificate op the FILING OP SECURITY. ITitle.'] I do hereby certify that the security required by the {above') order of this court {dated, 5^c.), to be given by E. M., the general guardian, has been duly acknowledged, approved and filed in my office agreeably to the said order. Dated at , this — day of , 18 — . , Clerk. SECTION IX. EEFEREe's REPORT ON PETITION FOR GENERAL GUARDIAN WHERE THE INFANT IS UNDER THE AGE OF FOURTEEN TEARS. To the Supreme Court of the State of New York : In the Matter of the petition of J. B. of, &c., father and as next friend of A. B. and 0. D., infanta. In pursuance of an order of this court in the above matter, dated the — day of , 18 — , and wherein and ivhereby the petition herein was referred to me, the undersigned, as referee, &;c. (Here recite order.) /, the subscriber, referee aforesaid, do certify and report that the above petition has been presented to me ; and 364 THE LAW OF REFEREES. having been attended htj the said infants A. B. and C. D., and by their said father J. B., and their attorney, I have proceeded to make such inquiries and examination as the said order required; and have required the attendance of such witnesses as appeared to me to he necessary to give testimony on the subject of such appli- cation. And T further report that, from an inspection of the said infants, as loell as from the affidavit of their said father, taken before me, I am satisfied the age of said infants is as follows : the said A. B. was years of age on the — day of last, and the said C. D. was years of age on the — day of last. And I did thereupon examine them as to their choice of a general guardian ; and they did freely and volun- tarily select and notninate the said J. B., their said father, as such guardian. And I do further report, that it has also been proved to my satisfaction that the said A. B. and C. D. are each under the age of fourteen years, and that the said J. B., their father, is entitled to the general guardianship of the said infants and their estate ; and I have examined and , both of in the county of , on oath, and from their testimony I am satisfied that said J. B. is an honest, upright and respectable man, and is a competent and proper person to be appointed the general guardian of each of the said infants. And I do further certify and report, that being tvell satisfied upon that point, I did not deem it necessai-y to require any of the relations, nor any other of their friends than those above named, to appear before me. And I do further report that I have ascertained that each of the said infants is entitled, under APPOINTING A GUAEDIAN FOE AN INFANT. 365 and by virtue of the last will and testament of P. B., late of, Sfc, now deceased, and who was the maternal grandfather of the said infants, to personal property to about the amount of % , S^x. ; and it has been proved to my satisfaction, that the said infants are not entitled to any other property, real or personal, except that above mentioned. A.nd I do further report, that I am fully satisfied that and , the persons offered by the said J. B., as the guardian of the said infants, are each worth the requisite sum over and above all debts, and are sufficient and competent to become such sureties. SECTION X. OEDEE. The Revised Statutes (2 R. S., 52) have a require- ment for a committee of a lunatic to file an inventory of properties entrusted to him by virtue of his office ; and he is to continue to file inventories from time to time thereafter. The Chancellor, by a standing rule of the late Court of Chancery, put guardians in the same category (Rule 154) ; and although this rule is dropped in the present Supreme Court Rules, we are inclined to consider its provisions still sufficiently active to cause its phraseology to be adopted in an order appointing a guardian.' (See also In the matter of Seaman, 2 Paige's C. R., 409.) ' Rule 154, in Chancery. Every general guardian, receiver or com- mittee appointed by this court shall, within six months after his appoint- ment, and every special guardian for the sale of an infant'.s estate shall 366 THE LAW OF REFEREES. In cases under old rules and practice, guardians were expressly to possess themselves of the real and personal estate which the said infant was or might be entitled to within the State, and to manage and improve the same according to the best of their skill and judgment, for the benefit of the infant, and to commence, prosecute and defend all and every action and actions, suit and suits, in all and every court or courts which doth or may concern the said infant or her estate, &c. {In re Day, Feb. 23, 1819, MS.) But it is supposed that all these powers attach, as a matter of course, to a guardian, and that there is no occasion to specify them in the order of appointment. within six months after the order confirming a sale of the estate or any part thereof, file in the ofBce where the appointment is entered, a just and true inventory, uflder oath, of the whole real and personal estate committed to his care or guardianship, and of the manner in which any funds under his care or control, belonging to the estate, are invested ; stating the income and profits of the funds or estate, and the debts, credits and fiffects, so far as the same have come to his kno wledge. And he shall annually thereafter, so long as any pa rt of the estate or of the income or proceeds thereof remains in his hands, or under his care or control, file in the same office an inventory and account, under oath, of bis guardianship or trust, and of any other property or efifects belonging to the estate which he has since discovered, and of the amount remaining in his hands or invested by him, and of the manner in which the same is secured and invested ; stating the balance due from or to him at the time of rendering his last account, and his receipts and expen- ditures since that time, in the form of debtor and creditor. APPOINTING A GUARDIAN FOE AN INFANT. 367 SECTION XL ORDER FOR THE APPOINTMENT OP GUARDIAN FOJt INFANTS UNDER THE AGE OF TWENTY-ONE YEARS. Ai a Special Term, 8^c. Present, Sfc. In the Matter of the Petition &c,, father and as next B. and C. D., Infants ition of J. B., of, / next friend of A. > ,ts. V On reading and JUing the petition of J. B., in the above matter, praying for his appointment as general guardian of the estates and person of his infant sons, the above A. B. and C D., on giving requisite security, and he therein proposing E. M. and G. F., of, Sfc, as his sureties ; and on reading and filing the report of , Esquire, referee herein, wherein and whereby he approves of the said J. B. as such guardian, and of his proposed sureties ; and also reports that the security to the said A. B. should be in the sum of % , and to the said C. D. the sum of $ ; and on motion of Mr. of counsel for the said infants, it is ordered that the care and guardianship of the said infants, A. B. and C. D., respectively, be committed to the said J. B., as general guardian ; and that the said guardian, together with the said and , as his sureties forthwith execute to the said infants respectively a bond, in the penal sums respectively above mentioned, conditioned that, &;c. (Here adopt the same phraseology as ap- pears in the former precedent: " 7, Order appointing- a general guardian for an infant over the age of fourteen years," p. 361, ante, down to the end of the precedent.) 368 THE LAW OP EEFEEEES. SECTION XII. SECURITY BT GUAEDIAN. The security to be given by a general guardian of an infant will have to be a bond, in a penalty of double the amount of the personal property of his ward and of the gross amount or value of the rents and profits of the real estate during his minority, together with, at least, two sureties, each of whom shall be worth the amount specified in the penalty of the bond, over and above all debts. Or, instead of personal security, the guardian can give security by way of mortgage on unincumbered real estate of the value of the penalty of his own bond only. But the court, in its discretion, may vary the security, where, from special circumstances, it may be found for the interest of the infant; and may direct the principal of the estate or any part thereof to be invested in the stocks of the State of New York or of the United States or with the New York Life Insurance and Trust Company, the United States' Tmst Company or on bond and mortgage, for the benefit of the infant ; and so that the interest or income thereof only be received by the guardian. (Rule 65 of the Supreme Court.) Where a referee is directed to approve of sureties in any case and require them to justify, he should not only examine them on oath as to the extent of their pecuniary responsibility, but also as to their residences and other qualifications to become such APPOINTING A GUARDIAN FOE AN INFANT. 369 sureties according to law and the practice of the court, or he should require an affidavit of such quali- fications. [TenEicky. Simpson, 11 Paige's C. R, 177.) Where one of the sureties subsequently becomes insolvent, the court will order new sureties to be given. {Genet v. Tallmadge, 1 J. C. R., 561.) SECTION XIII. BOKD BY GUAEDIAN AND HIS SURETIES. Knoio all men by these presents, that we, M. B., of, 8fc., E. M., of, 8^c., and G. F., of, Sfc, are held and firmly hound unto A. B., an infant, son of the late of, Sfc, deceased, in the sum of dollars, laivful money of the United States of America, to be paid to the said A. B., his heirs, executors, administrato?-s or assigns ; for ichich payment, well and truly to be made, loe bind ourselves, our heirs, executors and administrators, jointly and seve- rally, firmly by these presents. Sealed with our seals. Dated the — day of , 18 — . Wliereas, by an order of the Supj-eme Court of the State of New York, made on the — day of , 18 — , the above bounden M. B. was appointed the general guardian of the person and estate of the above nayned A. B., an infant, under the age of — years, on his executing a bond to the said A. B., ivith the above bounden E. M. and G. F. as his sureties, in the penalty and upon the condition therein mentioned. Now, therefore, the condi- tion of this obligation is such, that if' the above bounden M. B. shall faithfully perform his trust as such guardian E. 47 370 THE LAW OF REFEREES. and shall file an inventory of the estate of the said infant within six months after his appointment, and render an annual inventory and account of his guardianship, and shall observe and perform all the general rules of the said court respecting general guardians and such orders as shall he made from time to time hy the said court in relation to such trust; and if he shall render a just and true account of all moneys and property of the said infant tohicli shall come to his hands as such general guardian, and of the application thereof and of }ds guar- dianship generally before any court having jurisdiction, whenever he shall he thereunto lawfully required, then this obligation to be void ; otheriuise to be and remain in full force and vh'tue. Signed, sealed and delivered ) in the presence of ^ (To be acknowledged in the same manner as deeds of real estate. Rule 6 of Supreme Court.) AFFIDAVIT OF SURETIES TO BE INDORSED. lTitle.\ The ivithin (or, above bounden) E. M. and Q. F., being sivorn, say, and each for himself saith, that he is worth at least $ , over and above all debts due by him or which he is liable to pay. E. M. Sivorn, Sfc, before ?ne, G. F. , Referee, APPROVAL OF BOND BY REFEREE. I approve of the within bond, as to its form and man- ner of execution. Dated at the city of New York, the — day of , 18 — . > Referee. APPOINTING A GUARDIAN FOE AN INFANT. 371 SECTION XIV. POWEES OP A GUARDIAN. A guardian, by the general nature of his trust, is entitled to the possession and care of the personal, and to the rents and profits of the real estate of the infant. {Genet v. Tallmadge, 1 J. C. R., 561.) But he has no control over the real estate, further than concerns the rents and profits. Nor over the pro- ceeds of the real estate vested in stock. (Jb., 561.) It is his duty to get possession and control of his ward's personal property and the rents and profits of his real estate ; ke.ep and protect the same ; continue it invested and to render a just and true account thereof, on the ward's becoming of age. {White v. Parker, 8 Barb. S. C. R, 48.) It is his duty to place his ward's land upon lease. {lb. ; Jones v. Ward, 10 Yer., 160.) He may lease during the minority of the ward and no longer. {Roe V. Hodgson, 2 Wils., 129, 135 ; Field v. Schieffelin, 7 J. C. R., 154.) His power being restricted as to the real estate, he cannot sell it without the special authority of the court. (2 Kent's Com., 228.) But he can dispose of the personal property for the pur- poses of the trust, without a previous order of the court. {lb.) He cannot convert the personal property of his ward into real estate, or buy lands with the ward's money. If he does so, his ward, when he arrives at full age, will be entitled, at his election, to take the 372 THK LAW OF EEFEEEES. land or the money with interest. ( White v. Parker, 8 Barb. S. C, 48.) And if he takes notes or other securities for money belonging to his ward, in his own name, he converts the property to his own use, and is jyrima fade accountable for it. (/&.) Conse- quently, also, if a guardian surrenders contracts for land, and takes deeds in his own name, and pledges his personal responsibility for a part of the purchase money, this will be held a conversion of the con- tracts to his own use ; and the ward may adopt the transaction or claim from the guardian the value of the land-contracts, at his election. (/&.) A parent, guardian by nature, has power over the person only of a child ; and has none over its estate, personal or real. {Genet v. Tallmadge, 1 J. C. R., 3 ; Jackson v. Combs, 7 Cow., 36 ; Hyde v. Smith, 7 Wend., 354.) And such parent would have to become guar- dian through act of the court, and give security under the rules, as though there was no consangui- nity, before it could take or control the property or estate of its own child. But if a father of an infant child, without authority, receives or takes possession of property of the infant, he will, in equity, be con- sidered as the guardian of the infant, and may be compelled to account as such. {Van Epps v. Van Deusen, 4 Paige's C. E., 64.) Even though the infant might be living out of the State, with property within it, still a parent here can- not touch it without being first appointed the guar- dian of the minor. {Williajns v. Storrs, 6 J. C. R., 353.) Nor can a person appointed a guardian to an infant in another State be entitled to receive from an APPOINTING A GUARDIAN FOR AN INFANT. 373 administrator liere a legacy or portion belonging to an infant. {Morrell v. Dickey, 1 J. C. R., 153.) It is fully believed that powers naturally attach to guardians (without the necessity of detailing them in an order of appointment) to possess themselves of the real and personal estate which the infant is or may be entitled to within the State, and to manage and improve the same according to the best of their skill and judgment, for the benefit of their ward ; and to commence, prosecute and defend all and every action and suit which may concern the infant's estate. We have said as much as this before, in referring to the contents of the order of appointment of a guar- dian. A guardian can do no act to the injury of his ward. {Jackson v. Sears, 10 J. E., 435.) Fraud always vitiates a sale ; and, therefore, a guardian who uses the court to cover any attempt to obtain its order in fraud of the rights or property of his ward, will not succeed. Thus, an order giving a guardian authority to sell and convey, fraudulently obtained from a court, is no better than a power fraudulently derived from the party whose rights are injuriously affected by it. It may always be annul- led at his instance, upon establishing the fraud, at least as to all persons who were parties or privies to such fraud. {Clark v. Underwood, 17 Barb. S. C. R, 202.) A guardian cannot trade liimself on account of hia ward, nor buy or use his ward's property for his own benefit ( White v. Parker, 8 Barb. S. C R., 48) ; and, therefore, all advantageous bargains which a guar- dian makes with the ward's funds will enure to the 374 THE LAW OF KEFEKEES. benefit of the ward, at his election (Ih) ; and he (the guardian) should keep his ward's property separate from his own, otherwise he will make it his own, so far as to be accountable for it, if lost. (/&.) The guardian of an infant may submit to arbitra- tion on behalf of his ward ; and a performance will be a bar to a suit by the infant when of age for the same matter. ( Weed v. Ellis, 1 Gaines' T. E., 263.) Act of guardian without authority, if beneficial to the infant, will be protected. (Milner v. Lord Hare- ward, 18 Ves., 273.) A guardian having the legal power to sell or dis- pose of the personal estate of his ward in any man- ner he may think most conducive to the purposes of his trust, a purchaser who deals fairly has a right to presume that he acts for the benefit of his ward, and is not bound to inquire into the state of the trust, nor is he responsible for the faithful application of the money, unless he knew or had sufficient information at the time that the guardian contemplated a breach of ti'ust, and intended to misapply the money; or was, in fact, by the very transaction, applying it to his own private purpose. {Field v. 8chieffelin, 7 J. C. R, 150.) Where a lease is made by a guardian of a minor Reserving rent, the action for the non-payment of the rent is properly brought in the name of the guardian as plaintiff, although the suit be brought after the ward has attained his age. The presumption in such case is, unless the contrary be shown, that the suit is prosecuted for the benefit of the ward. {Pond v. Curtiss, 7 Wend. R., 45.) APPOINTING A GUARDIAN FOE AN INFANT. 375 Where there are several guardians of an infant's estate, they may act either sepai'ately or in conjunc- tion. {Kirby v. Turner, Hopk., 309.) The general guardian has no right, as of course, to receive any moneys arising from the sale of the real estate of an infant on a mortg^ige or partition sale or under any decree, judgment or order of court, except so much thereof or of the interest or income, from time to time, as may be necessary for his support or maintenance, unless such guardian has previously given sufficient security on unincumbered real estate to account to the infant for the same in the usual form. (Rule 70 of Supreme Court.) And no order can be made for the payment of any such moneys to any person claiming the same, except upon petition, accompanied by a certified copy of the order in pursuance of which the money was brought into court, together with a statement of the county treasurer, city chamberlain or other deposi- tory of the money, showing the present state and amount of the funds, separating the principal and interest and showing the amount of each, and the court may take such proof of the truth of the matters stated in the petition as shall be deemed proper, or may refer the same to a suitable referee to take proof and report thereon. {lb.) A guardian, during an infant's minority, may, without the direction of a court, pay off a mortgage and the interest of any other real incumbrance. {Palmer \. Danby, Prec. Chan., 137; 8. C, 1 Eq. Abr., 261.) A guardian has no power to change the personal property of an infant into realty. If it is done, and 376 THE LAW OP EEFEREES. the infant dies under age, a court of equity considers it as personal property, and will divest the legal title out of the heirs-at-law, and vest it in the distributees. (Roberts v. Jackson, 3 Yerg., 77.) Notwithstanding what is put forth as a principle in the above case, it is said in Inwood v. Troyne (Ambl., 419), that the court has often changed the nature of an infant's estate for his convenience, and that guardians may change the nature of an infant's estate where it is manifestly for the infant's interest. A statutory guardian has not a right to commute the debts or judgments due to the infant ; if he do, he is responsible for the amount and interest. (Forbes V. MitcheU, 1 J, J. Marsh., 441.) But, query whether the insolvency of a debtor might not constitute an exception? {S, C.) A guardian cannot apply any part of the principal of the infant's estate to his education or maintenance without the previous consent of the court appointing the guardian. A parent, who is guardian of his children, is more bound than others to a strict observance of this rule ; for there is a natural, if not a legal obligation on all parents to support their children, if of ability to do so. If the expense of maintaining and educating infant wards exceed their annual income until they become of age to render service (say fourteen, fifteen, or sixteen years) and if, when they arrive at that age, their services are equal to their support, the sur- plus of expenditure, during the former period, ought to be set off against the income of their estates during the latter period, till they arrive at the age of twenty- one years. (Myers v. Wade, 6 Rand., 444.) APPOINTING A GUARDIAN FOE AN INFANT. 377 A guardian cannot, by his consent, bind an infant, unless his acts are deemed, by the Court of Chancery, beneficial to the infant. (Rogers v. Cruger, 7 John. R, 557.) The guardian is a proper judge at what school to place his ward. (Hall v. Hall, 3 Atk., 721 ; and see Tremain's Case, 1 Stra., 168.) The act of a guardian, where it is reasonable, will have the same consequence as if done by the infant at full age ; otherwise, if wantonly done by the guardian without any real benefit to the infant. (Pierson v. Shore, 1 Atk., 480.) While a child is in the custody of its general guardian, duly appointed, it cannot be deemed under illegal imprisonment or restraint merely from the guardian's refusal to deliver such child to its mother. ( The People, ex rel. Wilcox, v. Wilcox, 22 Barb. S. C. E., 178.) An order was made by the Court of Chancery appointing M. guardian for certain infants, to take charge of their property and estate, and authorising such guardian to release, discharge and cancel a bond and mortgage belonging to them " upon re- ceiving from J. S. a bond and mortgage upon unin- cumbered real estate of sufficient value to be ample security," &c. Held, that by this order the power to discharge the bond and mortgage was connected with a condition precedent that the moneys should be first secured upon other property; and that the guardian had no right to discharge the bond and mortgage without first receiving the security men- tioned in the order. (Sivarttcout v. Swartwout, 7 Barb. E. 48 378 THE LAW OF EEFEEEES. S. C. R., 354.) Held also, that by the order of the court, the guardian was constituted a special agent, as respected the discharging of the bond and mort- gage with limited and conditional powers ; and that, unless his power was strictly pursued, his acts were not binding upon his principals, the infants. (Ih.) The provisions of the Revised Statutes which authorize the general guardian of an infant tenant in common, with the consent of the Court of Chan- cery, to agree to a sale of the estate for the purpose of making partition, does not authorize the guardian to sell to a co-tenant, but only to join with the other tenants in common in a sale of the joint interest in the property. {Tn the matter of Congdon, 2 Paige's C. R., 566.) SECTION XV. EESPOXSIBILITT OF GUAEDIAN AND SURETY. Where there are several guardians of an infant's estate, they are jointly responsible for joint acts; and each is separately answerable for his separate acts and defaults. {Kirhy v. Turner, Hopk., 309.) But joint guardians are not placed in the relation of sureties for each other. In the above case of Kirhy v. Turner, Chancellor Sanfoed thus expressed himself in regard to the liability of suretes : The bond in respect to the guardians themselves, bound them, according to their legal obligations; rendering them jointly liable for joint acts, and each one severally for his own acts. If APPOINTING A GUAEDIAN FOE AN INFANT. 379 the bond were considered as making the guardians sureties for each other, in respect to the separate acts of each guardian, their responsibihties would be essen- tially altered and greatly extended. Joint guardians, like joint executors or administrators, may very will- ingly undertake the trust proposed to them, when each one knows that he is to be responsible only for acts in which he concurs, while he would not become surety for the fidelity or the separate acts of his colleagues. The rules of law are not altered by this bond, nor do its terms import that these guardians intend by it to incur any engagement different from their legal responsibilities. This joint and several bond is easily susceptible of the distribu.tive con- struction, which reconciles it with the rules of law, and holds the guardians liable, jointly, in some cases, and severally in others. The idea that all these guardians are bound for the several acts of each of them, is founded altogether on the terms jointly and severally used in the bond. This bond is not for the payment of money; but for the performance of a trust, which is joint and several in its nature. The whole bond is one entire contract, of which the true sense is expressed in the condition. All parts of the instrument are to be taken together in explanation of the sense and substance of the whole. The words jointly and severally must operate, not merely in the penal engagement of the bond, but also in its condition and throughout the whole contract. The guardians are bound jointly and severally in one part of the bond, as they are bound in another ; jointly and severally in the penalty, in the same 380 THE LAW OF KEPEEEES. sense and in the same cases as in the condition, which, is, to discharge theii' duty according to the laws of this State. The words jointly and severally have proper force and effect by referring them to the condi- tion, as well as to the penalty of the bond, and by applying them distributively to the different cases in which a failure to perform the trust may, in respect to the different guardians, be a joint or several breach of the condition. The practice of taking security from guardians is derived to us from the English Chancery ; and there, as in this court, it has never been supposed that the security taken from joint guardians involved suretyship for the separate acts of each other. Our law authorizing surrogates to appoint guardians, requires that the surrogate shall take from every guardian a bond, with condition that such guardian shall faithfully discharge his duty If this direction were literally pursued, a bond would be taken from each guardian ; but where all give a joint and several bond, it must have the effect of separate bonds, and must render all liable for their joint acts, and each one liable for his own separate acts. Our statute did not intend to place joint guardians in the relation of sureties to each other. Security to the ward is an object provided for in another manner. Every such bond is to be taken with sufficient surety ; and he who becomes surety is bound for the sepa- rate acts of each guardian, as well as for the joint acts of all. The surrogates usually take one bond from joint guardians or joint administrators, consider- ing the bond of all as the bond of each one, and requiring a surety or sureties, for the fidelity of all APPOINTING A GUARDIAN FOE AN INFANT. 381 and each of the trustees. This practice is conveni- ent, and a construction of such a bond, which should render the ti-ustees sureties for the individual defaults of each other, would be as inconvenient as it would be foreign to the real intentions with which such bonds are executed. When joint guardians or joint admin- istrators are appointed, one of them often becomes the acting trustee, while the others act not at all or act only in particular instances. This is frequently- done with the best intentions ; the funds of the trust are received and held by the acting trustee, and he sometimes wastes or misapplies the property. It is repugnant to reason and justice that the ^ innocent trustees, who have no part in the delinquency, should be answerable for it equally with the delinquent him- self ; and still more is it so, as loss does not follow and full redress is provided by the security which the delinquent has given for his own fidelity. They are not responsible by our law ; and though they may become sureties for each other by express con- tract, such a responsibility is not created by the ordinary bonds given upon their appointment. Bonds from guardians appointed by the surrogates are required by statute, are taken by public officers, are given by all guardians, and always with suffi- cient surety to the ward. These bonds are always meant to be such bonds as the law requires. A secu- rity thus required by a statute, and intended by the officer who takes it and the parties who give it, to be taken and given in pursuance of the statute, should operate according to the intention of the Legislature, and the words used in the bond should be so con- 382 THE LAW OF REFEREES. strued as to give effect to that intention. If the terms of such a bond are ambiguous or seemingly at variance with the object of the law, they should be construed according to the intention of the law and should have effect according to the duties which the bond is meant to enforce. The bond required by our law from guardians was not intended to enlarge their legal responsibilities ; or to bind all the guar- dians for the separate delinquencies of one of them. All the objects of the law are attained and the terms of a joint and several bond are satisfied by the con- struction that it renders the guardians jointly liable, where they act jointly, and severally responsible for separate breaches of the trust." A guardian is not responsible for open propositions made by him in a preliminary talk or friendly con- versation, before he assumes the duties of his trust. Nor is his surety liable for the conversations or open propositions of his principal before he became his surety. {White v. Parker, 8 Barb. S. C. R., 48.) An ordinary bond of a guardian renders him and his sureties liable to the wards for every obligation resulting from acts which he was legally authorized to perform. And if, when the bond was executed, he was authorized to sell land, it secures the proceeds to them. (Johnson v. Johnson's Heirs, 1 Dana, 367.) A guardian who invested funds of his wards in bank stock in good faith, for their benefit, and re- ceived the dividends in depreciated paper, was held accountable for their money, with interest. Under these circumstances, the interest shall not be com- pounded upon him. {Hughes v. Smith, 2 Dana, 252.) APPOINTING A GUARDIAN FOE AN INFANT. 383 It is the duty of guardians to keep the money belonging to the trust estate properly invested. If they neglect to make investments, they are charge- able with the interest of the unemployed funds, com- mencing six months after the receipt of the moneys. A guardian is not permitted to put the income of an estate into his own pocket, to be accounted for at the termination of his duties and, in the meantime, appropriate the capital to the payment of annual expenses. The interest or income should first be applied and exhausted in the support of the infant, and to answer other exigencies, before the principal is encroached upon. Where annual disbursements are required, and they are equal to the whole income of an estate, and the guardian is charged with inte- rest on the income used by him and not invested, he will have to pay the interest as it falls due ; but if the disbursements or investments that he makes are less than the income, then he will not be required to pay the interest which he may owe as it falls due, but it will be carried into the disbursement fund, which bears no interest. This rule, therefore, does not allow compound interest. {De Peyster v. Clarkson, 2 Wend. R, 77.) If two guardians join in a receipt for money, it is presumptive evidence that the money came equally into the possession or under the control of both ; and there must be direct and positive proof to rebut the presumption. {Monell v. Monell, 5 J. C. R., 283.) It seems that where there is no proof as to the ability of a guardian safely to invest his ward's money on interest, he will be allowed a reasonable 384 THE LAW OF EEPEREES. time to do so ; usually six months. ( White v. Parker, 8 Barb. S. C. R., 48.) It is erroneous to charge a guardian with the face of a receipt given by him for the ward's property, with interest on the amount therein specified, from its date, where it appears that he actually received no money, but only land contracts. (lb.) The liability of a guardian and his sureties are simultaneous in their commencement, and co- exten- sive in their subject and duration. ( White v. Parker, 8 Barb. S. C. E., 48.) A guardian must be first called to account through the court, before his surety is liable. ( Wiser v. Blachly, 1 J. C. E., 607.) Until the accounts of a guardian are thus settled, an action cannot be sustained on the bond. A guardianship is a trust, and it exclu- sively belongs to the court. (^Stihoell v. Mills, 19 J. E., 304.) In Wiser v. Blachly (1 J. C. E., 607), a guardian's bond had been taken in the name of the people, instead of the infant. The court corrected the mis- * . . . take, and this correction did not relieve the surety, it being considered that the bond was of equal validity as if taken in the name of the infant; for, where an intention is manifest, the court will always relieve against mistakes in agreements, and that as well in the case of a surety as in any other. It is no defense to a suit upon the bond of a guar- dian that such suit has been instituted without an order of the court in which the bond was taken, directing it to be put in suit. {Cuddehack v. Kent, 5 Paige's C. E., 92.) APPOINTING A GUARDIAN FOR AN INFANT. 385 The Revised Statutes, 2 vol., 194, § 179 (similar to the act of 1816), relative to the sale of infant's estates, does not confine the remedy of the infant to a common law action on the bond against the guar- dian or his sureties for a breach of the trust. The relation which a guardian maintains to his ward is not that of a contract debtor to his creditor. Where he has received the money of his ward, the law will doubtless raise an implied promise to pay it over when the latter arrives at age, if he chooses to bring an action. But thp guardian cannot, by any act of his own, change his duties and liabilities from those of a trustee to those of a mere contract debtor. (^Seaman v. Duryea, 10 Barb. S. C. R., 523.) Where a person is a guardian, and his property is reached through his being an absconding, concealed or non-resident debtor, the trustees are bound under 2 R. S., 47, § 34, to prefer debts owing by him as guardian. (^Matter of Faulkner, 7 Hill, 181.) Infants, even during minority, may, by a next friend, call a guardian to account. {Faulkland v. Bertie, 2 Vern., 742 ; 8. C, 12 Mod., 182 ; 2 Freem., 120; 3 Ch. Ca., 129 ; Sel. Ca. CL, 129.) SECTION XVI. REMOVING A GUARDIAN. If the guardian misconducts himself, the court has power to remove him at any time. {Matter of Ken- nedy, 5 Paige's C. R., 244.) R. 49 386 THE LAW OF EEFEEEES. The usual mode of application to change a guar- dian is by petition. (Ex imrte Earl of Bchester, 7 Ves., 348.) Orders may be made to regulate the conduct of guardian without his being thereby discharged. {Roach V. Garvan, 1 Ves., 160.) Guardians at common law may be removed or compelled to give security, if there appears any danger of their abusing the person or estate of their ward ; and of this there are many instances. {Han- hury V. Walker, 3 Ch. R, 58 ; Foster v. Denny, 2 Ch. Ca., 237 ; et vide Style, 456 ; Hard., 96 ; 1 Sid., 424; 3 Salk., 177.) A guardian removing out of the jurisdiction or becoming disabled from ill health can apply to be discharged. Where the guardian entered into a speculation with the husband of his ward, who was also an infant, in relation to her estate, and obtained a mortgage thereon from both, the court removed the guardian from his trust and ordered the mortgage to be deli- vered up and canceled. {In the matter of Cooper, 2 Paige's C. R., 34.) It seems that the insolvency of the guardian and one of his sureties is also a sufficient reason for the removal of the guardian. (li.) By the appointment of a second guardian in the room of a former one, the power of the former to receive and disburse moneys on account of the ward ceases ; and, therefore, payments made by him in depreciated paper, money to the subsequent guar- dian are not subject to the scale of depreciation. {Walker v. Walhr, 2 Wash., 95.) APPOINTING A GUARDIAN FOE AN INFANT. 387 A guardian who has become so intemperate as to be occasionally insane, is unfit for a guardian with- out evidence of a thorough reformation in his habits. He forfeits his guardianship and must be removed. {Kettletas v. Gardner, 1 Paige's C. R., 488.) Where a guardian is guilty of mal-appropriation, abuse of trust or neglect of his ward in point of educating or supporting him, in fact, guilty of any conduct which would disqualify, the case should come before the special term on the petition of the infant and some next friend, setting forth particularly the breaches of trust and praying for a reference through which the guardian might account and be removed and another person appointed in his place. The name of such other might be named in the petition and in its prayer ; and his consent to act added at the foot. However, this would not be absolutely necessary, because the question first to be decided would be on the conduct of a present guardian. It might be well to add corroborative afiidavits to the petition. Copies of the petition and any affidavits annexed would have to be served on the guardian, with full notice of motion thereon. If it were a case not clear of misconduct, an order of reference would be granted, which, probably, might, in the discretionary power to be given to a referee, direct him to take accounts. This would, as a matter of course, be inserted in a case where the guardian in the first instance (when the petition had been laid before the court and gone into) was found in default. 388 THE LAW OF EEFEEEES. The report of the referee would show that he had summoned the guardian ; also by whom he had been attended ; that the guardian had accounted (as ap- peared by schedules annexed) and that on such accounting it appeared that the guardian had appro- priated a considerable part (and naming what part) of the property of the infant to his own use ; adding any acts of neglect towards the ward ; also approv- ing of the person suggested as substituted guardian and naming his proposed sureties and fixing what would be a proper amount of their bond in the premises. On the filing of this report, notice of its being filed, and confirmation by lapse of time or, after the hearing and disallowance of exceptions thereon, an order of dismissal would be entered. SECTION XVIL FORM OF ORDER SUPERSEDING A GUARDIAN FOR CAUSE. Ai a Special Term, S^c. Present, 4*c- \Title:\ On reading and filing the report of , referee herein, dated, S^c. ; and whereby he reports that, Sfc. (recite report) ; and on proof that no exceptions have been filed to such report toithin the time prescribed by the rules (or, where exceptions have been filed com- mence with : Exceptions having been filed to the referee's report herein, and the same having come before the court), and after hearing Mr. , of counsel for and on behalf of the above infant, and Mr. ,for the said APPOINTING A GUARDIAN FOE AN INFANT. 389 guardian, it is ordered and adjudged that the said (old guardian) he and he is hereby discharged from the fur- ther performance of his trusts as guardian of the person and estate of the said infant A. B. ; that the said (new guardian) be and he is hereby appointed guardian of the said infant, on executing the bond in such amount and with such sureties as is approved by the said referee for the faithful execution of his trust ; and that he be deemed fully appointed after he and his sureties shall have executed such bond, and it shall have been acknow- ledged according to rule and be approved as to its form and execution by the said referee (or, by one of the jus- tices of this court) and been filed by the clerk of this court at (the city hall in the city of New York). And it is further ordered that the said (old guardian) pay over to the said (new guardian) within (fifteen) days after he shall have so given and filed such security as aforesaid, the balance of property in his hands accord- ing to the said referees report and surrender to the said (new guardian) all the property, real and personal, of the said infant in his hands. And in default of his doing so, in whole or in part, the said infant, by his next friend, is at liberty to move for attachment or to put the bond of the said (old guardian) in suit, as he may be advised. Also, inasmuch as the present reference and appointment of a neio guardian has been caused by the misconduct of the old one, it is also ordered and adjudged that the said (old guardian) pay all and every the costs and disbursements of the same, namely, % , to the attorney of the infant, and to the referee % , in all % ; and that execution go therefor. But which total, in the first instance, may he made good and paid by the 390 THE LAW OF EEFEKEES. said (new guardian) out of the first moneys which shall come to his hands, and in paying the same he take receipt therefor, and he allowed the amount in his accounts, hut if the said amount shall he paid hy or made out of the said (old guardian) hy execution, then the amount shall be paid to the said (new guardian) to make good the amount paid in the meantime by him. It is not a motion of course that when a general guardian is appointed and has given security, he shall put his ward to the expense of a change ; and in order to entitle himself to be discharged from his guardianship, he must show by petition (sworn to) some reasonable cause for such discharge, for instance, being about to reside out of the jurisdiction, failing health which has incapacitated him, &c., &c. The following form of petition may answer by way of precedent. SECTION XVIII. PETITION OF GUARDIAN TO BE DISCHARGED FROM HIS TRUST. To the Supreme Court of the State of New Ywk : In the Matter of, &c. f The petition of C. W., of, Sfc, general guardian of A. B,, an infant, showeth : That through certain petition and proceedings, and by an order of this court made on the — day of , 18 — , your petitioner was appointed the general guar- dian of the person and estate of A. B., an infant, 8fc., and your petitioner gave the requisite bond with , of, 8^c., and , of, Sfc, approved, sufficient sureties ; APPOINTING A GUAEDIAN FOE AN INFANT. 391 and entered upon the duties of Ms trust as such guar- dian. That as such guardian he took possession of the estate and property of his said ward, consisting of 8^c., and your petitioner has noio on hand, S^c. But your petitioner also shows, that {his own failing health, S^x., or, private business and arrangements compel him to visit Europe icithout loss of time and that he tcill have to remain out of the jurisdiction for, c^c.) ; and that it is necessary for the benefit of the estate of the said infant that another general guardian of the person and estate and effects of the said infant should be immediately appointed in the place and stead of your petitioner ; that your petitioner should account and close his guardian- ship in the premises pursuant to the rules and practice of the court, and pay over all proper amounts and bal- ances {which he is willing and hereby offers to do) and that his sureties may be discharged. Your petitioner, therefore, prays, that an order be granted, lohereby your petitioner may be required forth- with to account before a referee touching the receipts and disbursements of his said guardianship and pass his accounts before him ; that such referee may be directed to make to your petitioner all just allowances ; and that your petitioner, on paying over the amount of balance to be found due by a report of such referee, may be dis- charged from all his duties and responsibilities as such guardian ; and that the recognizance entered into by your petitioner's sureties, and , 7nay be there- upon considered as vacated and they be discharged from all responsibility in the premises, and so that a new guardian may be appointed in the place of your peti- tioner and your petitioner hand over all properties, 392 THE LAW OF EEFEEEES. documents and papers, or that this court will make such further or other order as may be proper. And, 8^c. SECTION XIX. ORDER ON THE LAST PETITION. At a Special Term, 8^c. In the Matter of the Petition, &o. On reading and filing the petition of C. W., general guardian of the person and estate of A. B., an infant ; and on motion of Mr. , of counsel for the petitioner, it is ordered that the said guardian do forthwith account before , as referee, touching the receipts and pay- ments relating to his guardianship of the estate and effects of the said infant, and pass accounts before him in the pi-emises ; that the said referee allow such guardian all just commissions, costs, fees and expenses which have been incurred relative to his said petition and this order or the reference thereunder, or relative to the duties which the petitioner has discharged as guardian ; and that, on the coining in of the referee's report and the said petitioner paying the amount of balance found due by a report to be made by such referee from the said peti- tioner to the future guardian, to be and after he is fully appointed in his place, he be discharged from all the duties and responsibilities of his guardianship, and that the recognizance entered into by his sureties and may be thereupon considered as vacated and each of them discharged fi-om all responsibility and liability as such sureties ; and so that a new general guardian of APPOINTING A GUARDIAN FOE AN INFANT. 393 the person and estate of the said A. B. may be appointed in the place of the petitioner ; and that the said present gtiardian hand over to him all the estate and properties, documents and papers belonging to his guardianship ; and that the costs and expenses of this application, includ- ing the referee's fees, be allowed, under the supervision of the said referee, out of the funds in the present guar- dians hands. And also that the said referee appoint a new receiver ; and take from him sufficient security for the performance of his trust, as substituted general guar- dian, and that the saine be filed with the clerk of this court at [the city hall, in the city of New York]. And when such last mentioned security and the referee's report herein shall have been filed and the latter stand confirmed, the security of the old guardian, petitioner, may be withdrawn from the files and given up to him to be canceled. The case of Roberts (3 J. C. R., 43), was the first in which an allowance to guardians was fixed. Now, by statute, guardians are to be allowed for their reasonable expenses and the same rate of com- pensation as is provided by law for executors. (2 R. S., 153.) The statute compensation to executors is the following: 1. For receiving and paying out all sums of money not exceeding one thousand dollars, at the rate of five dollars per cent ; 2. For receiving and paying any sums exceeding one thousand dol- lars, and not amounting to five thousand dollars, at the rate of two dollars and fifty cents per cent ; 3. For all sums of above five thousand dollars, at the rate of one dollar per cent ; and in all cases such K. 50 394 THE LAW OP REFEREES. allowance shall be made for their actual and neces- sary expenses as shall appear just and reasonable. The investment or re-investment of the fund in the hands of a guardian upon new security from time to time, for the purpose of producing an income therefrom, is not such a paying out of the trust moneys by him as to entitle him to commissions for collecting or receiving back the principal of the fund which he has thus invested. But he is entitled to commissions upon the interest or income, produced by such investments, received and paid out by him. One-half of the commissions specified in the statute are allowed for receiving and one-half for paying out of the trust moneys. And where the guardian performs one service and not the other, he is only entitled to half commissions. Upon passing the accounts of a guardian, periodi- cally, during the continuance of his trust, he should be allowed one-half commissions, at the rates speci- fied in the statute, upon all moneys received by him as guardian, other than the principal moneys received from investments made by him on account of the trust estate, and one-half commissions on all moneys paid out by him, other than moneys invested or re-invested by him, leaving the residue of his half commissions for paying out the fund' for future ad- justment, when the fund shall have been disbursed by him or when he makes a final settlement of his accounts upon the termination of his duties. {In the Matter of Kellogg, 7 Paige's C. R., 265.) Sums expended by a guardian for the support, maintenance and education of the infant out of his APPOINTING A GUAEDIAN FOE AN INFANT. 395 estate will be allowed to such guardian on the settle- ment of his accounts notwithstanding the infant has a father living, provided the latter be poor and unable to support his child. {Clark v. Montgomery, Barb. S. C. R, 464.) Upon the settlement of the accounts of a general guardian, no allowance can be made to him for ser- vices rendered or expenses incurred by him previous to his appointment as guardian. {Clowes v. Van Ant- werp, 4 Barb. S. C. R., 416.) Nor will the promise of the ward, made after coming of age, to pay the guar- dian for such services, authorize its allowance. (7&.) CHAPTER XIL REFERENCE TO OBTAIN A SALE OR OTHER DISPOSITION OF AN INFAjNt's REAL OR LEASEHOLD ESTATE. Section I. Observations. II. Application for sale. III. Form op petition for guardianship and sale* IV". Reference. V. Order op reference. VI. Sbodrity by special guardian. VII. Bond of special guardian, and justice's approval. VIII. Certificate of filing the bond. IX. Referee reporting. X Form of referee's report. XI. Order on the referee's report authorizing guardian to contract. Xn. Report of guardian of agreement to sell. Xni. Order confibming guardian's report and directing a oontbtanch. XIV. Deed by special guardian. XV. Guardian's report of disposition op proceeds of sale. SECTION I. OBSERVATIONS. The late Court of Chancery had not, nor has the present Supreme Court any inherent original juris- diction to direct the sale of the real estate of an infant. The jurisdiction rested and still rests altogether upon statute. {Rogers v. Dill, 6 Hill, 415.) And the court does not direct a sale of infants^ real estate even through the statute, except under special circumstances. The expectation of an increased income is not, of itself, sufficient. {Matter of Mason, Hopk., 122.) Nor will it be made for the merq pur- pose of increasing the income of the adult owner of a present interest in the estate. {Matter of Jones,-2 REFERENCE TO AN INFANT's ESTATE. 397 Barb. Ch. R., 22.) That the infant's undivided share is of small value and may be subjected to the expense of a partition suit, is always held a good reason for selling it. {Matter of Congdon, 2 Paige's C. R, 666.) The rules of the Supreme Court (Rules 62, QQ, 67, 68), have reference only to a "sale" of the real estate of an infant ; while the statute (2 R. S., 194, § 170), covers a " sale" ov disposition of his property. Under the term "sale or disposition" in the act, applications to mortgage are often entertained by the court. (2 Hoff. Ch. Pr., 210.) Sales have been made where an infant had only an estate in remainder. (Baker v. Lorillard, 4 Comst., 257 ; and see Pitcher v. Carter, 4 Sand. Ch. R., 1 ; Blakeley v. Calder, 13 Howard's Pr. R., 476.) But it is not the practice of the court to authorize the sale of a future interest in real estate belonging to infants, except under very special circumstances. It will not be done for the mere purpose of increasing the income of an adult owner of a present interest in the estate. {In the matter of Margaret Jones, 2 Barb. Ch. R, 22.) The sale or other disposition of the real or lease- hold estate of an infant can be made by the Supreme Court whenever " necessary or proper," either for his support and maintenance or education, or that his interest requires or will be substantially promoted by such disposition on account of any part of it being exposed to waste and dilapidation, or on account of its being wholly unproductive, or for any other peculiar reasons or circumstances. (2 R S., 194 § 181.) 398 THE LAW OF REFEREES. A County Court has jurisdiction of the sale, mort- gage or other disposition of the real property situated within the county of an infant (or a person of un- sound mind). (Code, § 30, sub. 6.) SECTION II. APPLICATION FOR SALE. The application is based upon a petition, and the present Supreme Court, in its 66tli rule, has, in all its terms and in nearly the same phraseology, adopted rule 158 of the late Court of Chancery. By such 66th rule, "An infant, by his general guardian, if he has any, and if there is none, by his next friend, may present a petition stating the age and residence of the infant, the situation, value and annual income of the real estate proposed to be sold, and the particular reasons which render a sale of the premises necessary or proper ; and praying that a guardian may be appointed to sell the same. The petition shall also state the name and residence of the person proposed as such guardian, the relationship, if any, which he bears to the infant, and the security proposed to be given ; and the petition shall be accompanied by affidavits of disinterested persons or other proofs, verifying the material facts and circumstances alleged in the petition. And if the infant is of the age of fourteen, he shall join in the application." Although the rule required an infant, who is over the age of fourteen years, to sign the petition. Chan- cellor Walworth dispensed with it where an infant of EEPEEENCE TO AN INFANT's ESTATE. 399 sucli maturity resided out of the State. (3 Hoff. Ch. Pr., cccliii, note A.) If there is a general guardian of the infant already appointed, he is the proper person to be appointed guardian to effect a sale. And this, whether he has been appointed by a surrogate or by this court. But if the general guardian is incompetent or cannot obtain the requisite security, another person may be appointed special guardian. (2 Barb. Ch. R., 213, referring to Matter of Wilson, 4 Paige's C. R,, 312.) The husband of the infant cannot be appointed, but a third person may be appointed guardian, with the consent of the husband, to join with him in the sale. {lb., referring to Matter of Lansing, 3 Paige's C. R, 265.) Where several infants are interested in the same premises as tenants in common, the application in behalf of all must be joined in the same petition, although they may have several general guardians ; and there will be but one reference to ascertain the propriety of a sale as to all (and but one bill of costs is to be allowed). (Rule 69 of the Supreme Court.) Where the matter is commenced in the Supreme Court, the petition should be directed : To the Supreme Court of the State of New York. {In the matter of Bookhout, 21 Barb. S. C. R., 348.) 400 THE LAW OF REFEKEES. SECTION m. FORM OF PETITION FOR GUARDIANSHIP AND SALE. To the Supreme Court of the State of New York. ' The petition of A. B., an infant over the age oj four- teen years, who has no general guardian, and of E. B., an infant under that age, who, also, has no general guardian, both of Sfc, by C. B., their mother and next friend, of the same place, respect- fully showeth : That your petitioner, A. B., is an infant, having been born on or about the — day of , 18 — , and that the said E. B., is an infant, having been born on or about the — day of , 18 — ; and that they are the only children and heirs at law of G. B., late of Sfc, deceased, who died intestate, 5fc. (or, as the case may be) ; and that your petitioners, the said infants, as heirs at law (or, devisees) of the said G. B., deceased, are, as they are advised and believe, seised of or entitled to the following real estate, natnely, all tliat, 8^c. Which said real estate is of the value of $ , or thereabouts, and the annual income thereof is about the sum of $ . That your said petitioners do not oicn and are not enti- tled to any other real estate within their knowledge, and have no personal property of any value, except their necessary wearing apparel. And your petitioner, C. B., the mother of the said infants, further represents, that she is entitled to dowe7 ' McCall's Forms, 273 ; 2 Barb. Ch. Pr., 633 ; 3 Hoff, Oh. Pr., 354. EEFEEENCE ON SALE OF INFANT'S ESTATE. 401 in the whole of the said real estate as the widow of the said G. B., deceased; and that she has no means of sup- port for herself and for the said infants, except what she and they may acquire by their industry ; and that it is necessary that the said premises or so?ne part thereof should be sold; and that the proceeds thereof or some part thereof should be applied towards the ^necessary education and maintenance of the said infants. Your petitioners, therefore, pray that your petitioner, C. B., may he appointed special guardian for the said infants, to sell the said real estate, or such parts thereof as it may be necessary or proper to sell ; and your peti- tioner, the said C. B., hereby offers to unite in such sale personally and ivaives her right of dower therein to the purchaser, provided she shall be authorized, by this court, to retain to her own use, out of the proceeds \ of the sale, such swn in lieu thereof as, according to rules and statute, shall be considered equivalent to her right of dower in the said premises ; and she hereby offers as her security for the- faithful discharge of her trust as such guardian, W. L., S^c, of, Sfc, and H. G.,ofSfc. A.B. E. B. by C. B., his next friend. C.B. Attorney for the petitioners. City, County and State of New York, ss : The above petitioners A. B. and C. B., being sworn, do depose and say, that they have read the above petition and knoio the contents thereof and that the same is true of their own knowledge, except as to the matters therein stated on K. 51 402 THE LAW OF REFEREES. information and belief, and as to those matters they believe it to be true. Sworn, Sfc. We liave added the above jurat, as Chancellor Walworth decided that the petition must be verified. {Matter of Lansing, 3 Paige's C. R., 265.) CONSENT. / consent to become the guardian of the infants named in the foregoing petition for the purposes therein ex- pressed. Dated, 8^c. C. B. It will be observed that, by the 66th rule (which we have before given) there must be appended to this petition affidavits of disinterested persons or other proofs verifying the material facts and circumstances alleged in the petition. This was not required in the Chancery rules. In the Matter of Bookhout (21 Barb. S. C. R, 348), Justice Balcom decides that proceedings cannot be entertained at chambers for the appointment of a guardian to sell infant's real estate, and will have to be taken at a special term. His honor chose to observe : " Sound policy requires that the Supreme Court, like the temple of Janus, should sometimes be shut, and that its business should be done at regular terms, and that the public should have prior notice of its sittings." His honor goes counter to two deci- sions which he refers to {Clark v. Judson, 2 Barb. S. C. R., 90 ; and Garde v. Sheldon, 3 lb., 232), observ- ing, that if literally followed, they " would compel EEFEEENCE ON SALE OF INPANT'S ESTATE. 403 the justices of the Supreme Court to carry the Code about with them." In Clark v. Judson, Justice Hand observed, that " the present Supreme Court is now always open as a court of equity as much as the former Court of Chancery, except so far as restricted by its own rules;" and in Garcie v. Sheldon, Justice Sill said: "The justices of this court possess the same powers at chambers, in equity cases, and can make the same orders there that the Chancellor could make out of term, unless restricted by the rules of the present court. The Court of Chancery was, and the equity side of this court is, always open." It was certainly a common practice in the late Court of Chancery to work ex parte proceedings in relation to the appointment of general and special guardians, and disposition of the real estate of infants at cham- bers, on ordinary motion, out of term. Inasmuch as the question of title in the future would be connected with the proceedings, it might be best to work the matter through special term. By the practice of the late Court of Chancery (coupled with its 159th rule), the petition was first presented to a master, who certified as to the pro- priety of the nominated person to be guardian ; age of infant ; value of his interest ; sufficiency of proposed sureties; and the amount of penalty to be inserted in the guardian's bond. It would seem, by the 67th rule of the present Supreme Court, that all this will be ascertained by the court itself. 404 THE LAW OP EEFEREES. SECTION IV. EEFEEENCE. And, then, will come any order of reference (covering, also, the fact of appointment of guardian), under Rule 67. "If it satisfactorily appears that there is reasonable ground for the application, an order may be entered appointing a guardian for the pur- poses of the application, on his executing and filing with the clerk the requisite security, approved of as to its form and manner of execution, by a justice of this court or a county judge, signified by his appro- bation indorsed thereon, and directing a reference to ascertain the truth of the facts stated in the petition, and whether a sale of the premises or any and what part thereof would be beneficial to the infant, and the particular reasons therefor; and to ascertain the value of the property proposed to be sold, and of each separate lot or parcel thereof, and the ' terms and conditions on which it should be sold; and whether the infant is in absolute need of any and wliat part of the proceeds of the sale for his support and maintenance, over and above the income thereof, and his other property, together with what he might earn by his own exertions. And if there is any person entitled to dower in the premises, who is will- ing to join in the sale, also to ascertain the value of her life estate in the premises, on the principle of life annuities. But no proceedings shall be had upon such reference until the guardian produces a certifi- REFERENCE ON SALE OF INFANT's ESTATE. 405 cate to the clerk, that the requisite security has been duly proved or acknowledged and filed agreeably to the order of the court, and which certificate shall contain the name of the officer by whom it was approved, and shall be annexed to the report." A part owner of land, having a demand against the infants' share, is hardly a proper person to be guardian, and if appointed, his acts and proceedings will be strictly scrutinized. (^Matter of Tillotsons, 2 Edw. V. C, R, 113.) SECTION V. OEDEE OF EEFERENCE. At a Special Term, 8^c. In Ihe Matter of, &o. \ On reading and filing the petition of A. B., of S^c, an infant over the age of fourteen years, who has no general giuirdian, and of E. B., an infant under that age, who also has no general guardian, by C. B., his mother and next friend, praying and applying for the sale of certain real estate of the said infants therein des- cribed, under the direction of this court, and for the ai)pointment of C. B. as special guardian, for the purpose of contracting for such sale ; and it satisfactorily appear- ing to this court that there is reasonable ground for the application; and on motion of counsel, it is ordered that the said C. B. be and she is hereby appointed the special guar- dian of the said A. B. and E. B.,for the purposes of such application and sale, on her executing, together with W. 406 THE LAW OF EEFEEEES. L., of, Sfc, and H. G., of, 8fc., as her sureties, bonds to each of the said infants, namely, a bond to the said A. B., in the penalty of % , and a bond to the said E. F., in the penalty cf % , conditioned for the faithful performance by the said C. B., of the trust reposed in her as such guardian, and for paying over, investing and accounting for all moneys that shall be received by her according to the order of any court having authority to give directions in the premises, and to observe the orders and directions of this court in relation to the said trust, andfiling the same in the office of the clerk of this court at the City Hall, in the city of New York, which bond shall he approved of as to its fm'm and manner of execution, by one of the justices of this court, signified by his approbation indorsed thereon. And it is further ordered, that it be referred to M. N., of, 8^c., as referee, to ascer- tain and report the truth of the facts stated in the said petition, and whether a sale of the premises embraced thereby or any and what part thereof xcould be beneficial to the said infants and the particular reasons therefor. And also, that the said referee ascertain and report the value of the property proposed to be sold and of each separate lot or parcel thereof; and the terms and condi- tions on which it should be sold, and whether the said infants are in absolute need of any and what part of the proceeds of sale for support and maintenance, over and above the income thereof and their other property, to- gether with what they might respectively ea?'h by their own exertions. And that the said referee also ascertain the value of the dower estate of the said C. B., as the widow of G. B., the father of the said infant, on the principle of life annuities. And it 'is further ordered. EEFEEENCE ON SALE OP INFANT's ESTATE. 407 that the said referee shall not proceed on such reference until the certificate oj the clerk of this court is produced to him, showing that the security required to he given by such special guardian has been duly proved or acknow- ledged and filed agreeably to this order ; and which certi- ficate shall contain the na?ne of the officer by whom it was approved, and shall be annexed to the report of the said referee. SECTION VI. SECUEITY BY SPECIAL aUAEDIAH. Where there are two or more infants (and,, conse- quently, separate bonds) with the same sureties, the latter must justify in amount covering the gross sum of all the penalties of the bonds. It will not be sufficient to take up each bond and justify as to its single penalty. In a case involving five infants and a like number of bonds, the sureties had indorsed on each bond an affidavit that he was worth the sum specified as the penalty of such bond. Sill, Justice : " The 63d rule requires that each of the sureties on a bond of a guardian to sell the real estate of infants shall be worth the penalty of the bond over and above all his debts ; and the form of the affidavit of justification is indicated by the 76th rule. These rules, it is said, and perhaps truly, have been literally complied with in the present case, for the sureties have made an affidavit on every one of these bonds, in which each of them swears that he is worth a sum as great as the penalty mentioned in it, over 408 THE LAW OF EEFEEEES. and above all debts and responsibilities which he owes or has incurred. " Under the circumstances of the cases, however, this is not a compliance with the spirit of these rules. Their design was (it is scarcely necessary to say) to provide ample security to every infant whose pro- perty should be sold under the order of the court, for the faithful discharge of his duties by the guar- dian appointed to make the sale. When these affi- davits of justification were made, no one of these five bonds were filed or delivered, so as to make it the foundation of any debt or existing liability of the sureties. " When justifying as sin-eties on tlie bond of one infant, no liability had been incurred on the bonds to the others. The affidavits may, therefore, all be true, and yet these sureties not be competent to become so in a sum exceeding $1,675, the penalty of the largest bond. " To make them competent as sureties on all these bonds, they should be worth S6,447, the aggregate penalties of all, over and above their debts and other liabilities. " One of these bonds might be approved, but as to the other four there must be other sureties, or a further justification." EEFEEENCE ON SALE OP INFANT's ESTATE. 409 SECTION VII. BOND. Know all men by these presents, that we, C. B., of, 8^c., W. L., of, 8^c., and H. B., of, Sfc, are held and firmly hound unto A. B. of S^c, an infant under the age of twenty-one years, child of G. B., late of 8^c., deceased, in the sum of S , lawful money of the United States of America, to he paid to the said A. B., her heirs, executors, administrators or assigns. For ^vhich payment, well and truly to he made, sve hind ourselves, our heirs, executors and administrators, jointly and severally, firmly hy these presents. Sealed rvith our seals. Dated the — day of , 18 — . Whereas the ahove hounden C. B. was, hy an order of the Supreme Court of the State of New York, mads and entered the — day of , 18 — , appointed special guardian of the ahove named A. B., for the purposes in the said order mentioned. Now the condition of this ohligation is such, that if the ahove hounden C. B. shall justly and faithfully perform the trust reposed in her as such guardian to the said A. B. ; and shall pay over, invest or account for all moneys that shall he received hy her, according to the order of any court having authority to give directions in the premises ; and shall observe the standing rules and such orders and directions as the said Supreme Court may from time to time make in relation to the said trust, then this obliga- tion to he void, otherwise to be in full force. Signed, sealed and delivered ) in the presence of 5 R. 52 410 THE LAW OF EEFEEEES. AFFIDAVIT OF SUEETIES TO BE PLACED AT THE FOOT OF THE BOND. In the Matter of. &o. City, County and State of New York, ss : The above bounden W. L. and H. G., being duly sworn, depose and say, and, first, the said W. L. saith that he is a house- holder of the State of New York, and worth the sum of % , over and above all his just debts and responsibili- ties which he otves or has incurred. And the said H. G., for himself saith, that, S^c. (Same form of bond as to the other infant.) The bond is to be duly proved or acknowledged in like manner as deeds of real estate, before the same can be received or filed. (Rule, 71.) justice's approval, to be indoksed. / haiie perused the within bond and do approve of the same as to its manner and form of execution. Dated the — day of , 18 — . , Justice. Before the referee takes anj proceedings under the order, the guardian will have to produce to him the certificate of the clerk of the court that the requisite security has been duly proved or acknow- ledged and filed agreeably to the order of the court ; this certificate must have the name of the officer by whom it was approved and will have to be annexed to the referee's report. (Rule 61.) EEFEEENCE ON SALE OF INFANT's ESTATE. 411 SECTION VIII. CERTIFICATE. Supreme Court. In the Matter of, &c. ^ / do hereby certify that the security required by the order of this court in this matter, dated the — day of , 18 — , has been filed in my office agreeably to the said order. Dated the — day of , 18 — . Clerk. If the bond is forfeited, the court may direct it to be prosecuted for the benefit of the party injured. (2 R. S., 194, § 179.) SECTION IX. EEFEEEE EEPOETING. A referee's report should conform, in all respects, to the rule of court, otherwise an order for sale to be founded upon it will be refused. Thus, it was refused where the report did not contain a statement of the other property of the infant, either real or personal. {Matter of Stiles, Hopk., 341.) The referee, to whom the petition for sale is sent, should take testimony as to facts and report the result briefly. {Matter of Morrell, 4 Paige, 44.) This should be done either by a reference to the petition, 412 THE LAW OF EEFEEEES. or otherwise; and he should not take down and retui'n to the court the testimony at length. And he should not rely upon the petition as the evidence of the facts he is directed to ascertain and certify to the court; but should examine witnesses as to them. {lb.) The 67th rule of the court requires that the report should contain in itself a statement of the particular reasons which, in the opinion of the referee, render a sale of the premises necessary or proper and of all the facts required to be ascertained and reported; and is not to refer to the petition or affidavits for such statement. SECTION X. FORM OF EEPOET.l To the Supreme Court of the State of New Yorli : In Ihe Matter (if, &o. i In pursuance and by virtue of an order of this court, made in the above matter, on the — day of , 1 8 — , referring it to me, the undersigned, referee, to report upon the matters embraced by the petition on which the said order was founded, I do respectfully report: That I have been attended by , attorney and of counsel for the petitioner, who produced to me the certificate of the clerk of this court that the requisite secwity to the said infants respectively had been duly proved or acknowledged ' 2 Barb. Ch. Pr., 638 ; 3 Mou'.ton's Ch. Pr., 6D0. REFERENCE ON SALE OF INFANT'S ESTATE. 413 and filed agreeably to the said order ; and having sum- moned before me such of the relatives and friends of the said infants and other persons as appeared likely to pos- sess any information in relation to the matters of the reference and examined them on oath in relation thereto : I am satisfied that all the material facts stated in the said petition are true, and that a sale of the ivhole of the premises embraced thereby would be for their benefit; and that my reasons for this opinion are (here set forth the reasons that there may be rendering a sale desirable). I do further report, that the following is the value of each lot or parcel of the said property : Lot first described in the said petition, and being situated, 8^c., as the same is 25 front and rear by 100 feet deep, is of the value of$ ; the lot secondly described, 8fc., Sfc, Sfc. That all the said premises are very unproductive, considering their value, as they only yield, altogether, an annual inco)ne to the said infants of % . And I do further report that, in my opinion, it ivill be for the interest of the said infants to have the said real estate sold upon the following terms and conditions : That so much of the proceeds of their shares or interests in the same as may be necessary to pay their respective proportions of the gross value of the right of dower of their mother, C. B., therein, and the costs of these pro- ceedings, be paid by the purchaser on the delivery of the deed ; and that the payment of the residue of the pur- chase money be secured by the bond of the purchaser and a mortgage upon the said premises to be given to the clerk of this court in trust for the said infants, condi- tioned to pay the interest thereon half-yearly, and the principal in two equal instalments, one oj which instal- 414 THE LAW OF EEFEEEES. ments shall he paid on the day when the said A. B. shall arrive at the age of twenty -one years, and the other on the day when the said E. B. shall arrive at full age ; and that the said petitioner, C. B., proposes to sell the said premises upon the aforesaid conditions. I do further report that the said infants are not in absolute need of any part of the 'proceeds of the said sale for their support or maintenance, over and above the inte- rest and income thereof, together icith what they may earn by their own exertions. And I do likewise report, that C. B., the mother of the said infants, and who is entitled to her dower in the premises, is willing to join in the said sale ; and that I have ascertained the value of her life estate in the pre- mises on the principle of life annuities ; and that the present value of the same is % . All which is respectfully submitted. Dated the — day of , 18 — - M. N., Referee. SECTION XI. * ORDER ON THE REFEREE'S REPORT ADTHORIZINa GUARDIAN TO CONTRACT. At a Special Term held, S^c. In the Matter of, &c. ^ On reading and filing the report of M. N., referee appointed herein, dated the — day of , 18 — , in pursuance of an order of this court, made the — day of , 18 — , from ivhich it appears satisfactorily to this court that the interests of the said infants will he pro- REFERENCE ON SALE OF INFANT'S ESTATE. 415 moted hy a sale of the premises mentioned in the petition in the above matter for the reasons stated in the said report ; and on motion of Mr. , attorney and of coun- sel for the petitioners, it is ordered that C. B., the special guardian of the said infants, be and she is hereby autho- rized to contract for the sale and conveyance of all the estate, right and title of the said infants in and to such pre?nises, at a price not less than the sum specified by the said referee in his report as the value thereof and upon the terms and conditions therein specified. And it is further ordered, that before executing any deed of the said premises to the purchaser or purchasers thereof the said guardian report to this court, upon oath, the terms and conditions of the agreement made by him for the sale of such premises. A guardian cannot have an order to compel a supposed purchaser to take property, without show- ing an agreement which is legally or equitably binding, so as to support the jui-isdiction of the court to enforce performance by a summary application. The proper course for a special guardian, in such a case, is to make an agreement in writing, for the sale of the property, subject to the ratification of the court, specifying, in such agreement, the terms and conditions of the sale and the manner in which the purchase money was to be secured and the time of payment. And such an agreement should be signed by himself and the purchaser, so as to prevent any dispute as to the terms and conditions of the sale. {In the matter of Hazard, 9 Paige's C. R., 365.) A guardian had better not become a purchaser at the sale of an infant's estate, either directly or indi- 416 THE LAW OF EEFEEEES. rectly ; for the sale would be voidable by the ward as against the guardian, or a purchaser claiming under him, with knowledge of the circumstances of the sale. {Wy?nan v. Hooper, 2 Gray, Mass., 141.) SECTION XII. EEPORT OF GUARDIAN OF AGREEMENT TO SELL.^ To the Supreme Court of the State of Neiv York : In the Matter of, &o. .! In pursuance of an order of this court, made in the above matter on the — day of , 18 — , authorizing me, as the special guardian of the infants therein named, to contract for the sale and conveyance of the estate, right and title of the said infants, in and to the premises described in the petition in this matter ; and to report, on oath, the terms and conditions of the agreement made hy me tvith the purchaser or purchasers before executing any deed thereof. I, the subsc7-iber, such special guardian, do certify and report, that I liave entered into an agree- ment, subject to the approbation of this court, with O. P., of — , S^c.,for the sale of such estate, right and title of the said infants in and to the said premises, on the following te7-ms and conditions, namely — the said O. p. to pay therefor the sum of $ — , as folloivs: So much of the said purchase money as may be necessary to pay the gross value of the right of dower of their mother, C. B., therein, and the costs of these proceedings on the ' 2 Barbour's Ch. Pr., 640. REFERENCE ON SALE OF INFANt's ESTATE. 417 delivery of the deed ; and the payment of the residue of the said purchase money to he secured by the bond of the purchaser, and his mortgage upon the said premises to he given hy him to the clerk of this court, in trust for the said infants, conditioned to pay the interest thereon half yearly and the principal in tivo equal instalments, one of lohich instalments is to he paid on the day when the said infant, A. B., shall arrive at the age of twenty- one years, and the other on the day when the said infant, E. B., arrives at full age. That the gross value of the right of doioer of the said C. B. in the said premises is $ — , and the costs of these proceedings amount to $ — , after deducting which sums there will remain the, sum of % — due to the said infants, jointly, to he secured as aforesaid, or % — to each. And I further report that the above are the best terms on which I could sell the said premises ; and that, in my opinion, the premises are an ample security for the pay- ment of the balance of the purchase money not paid down, and the interest. All which is respectfully submitted- Dated the — day of , 18 — . C. B., Special Guardian. , ss: C. B., the special guardian named in the above report, being duly sworn, deposeth and saith that she has read the above report, to which she has subscribed her name, and knows the contents thereof, and that the matters therein stated are true. Sworn, Sfc. E. 53 418 THE LAW OP EEFEEEES. SECTION XIII. OEDEE CONFIEMING GUAEDIAN'S EEPOET AND DIEECTING A CONVEYANCE. At a Special Term, 8^c. In the Matter of, &o. > On reading and filing the report of C. B., the special guardian of the above vfants, made in pursuance of the order of this court, dated the — day of , 18 — , stating that, in pursuance of such order, she had entered into an agreement, subject to the approbation of this court, with O. P., for the sale of the right, title and estate of the said infants, the premises mentioned in the said order, upon the terms and conditions specified in the said report ; and on motion of Mr. , of counsel for the said petitioners, it is ordered that the said report and the agreement therein mentioned be and the same hereby are ratified and confirmed. And it is further ordered, that the said special guardian do execute, acknoivledge and deliver to the said O. P., a good and sufficient con- veyance of the estate, right, title and interest of the said infants in and to the premises aforesaid, and so that the said C B., as dower tenant, join in such deed by releas- ing her doioer upon the said O. P.'s cojvjilying loith the terms and conditions upon which, by the said agreement, the deed ivas to be delivered. And it is further ordered that, out of the purchase money paid by the said O. P., on the delivery of the deed, the said special guardian do pay or retain the sum of % to C. B. for her doiuer right in the shares of REFERENCE ON SALE OP INFANT's ESTATE. 419 the said infants in the premises ; and that she execute a receipt in full discharge thereof ; and that he paij to the attorney for the petitioners the costs of these proceedings and embracing the fees of the referee herein, amounting, hy present adjustment, in all, to the sum of $ . Also, that the said special guardian have the residue of the purchase money secured by a bond of the purchaser and his mortgage upon the premises embraced by this matter, to be drawn to the clerk of this court, in trust for the said infants, conditioned to pay the interest thereon half-yearly , and the principal, in two equal instalments, one of lohich instalments is to be paid on tlie day when the said infant, A. B.,' shall ar?-ive at the age of ticenty- one years, and the other on the day tvhen the said infant, E. B., arrives at full age. And it is further ordered, that the moneys which shall be received by the clerk of this court, fi-om time to time, for interest on the bond and mortgage, given by the purchaser, be paid over by him to the special guardian, to be applied, by such special guardiati, to the maintenance and education of the said infants. It will be observed that, by tlie above forms, the proceeds are not retained by the guardian, the whole amount of the cash payment being applied to extin- guish the claim of dower and to pay costs. See 2 Barb. Ch. Pr., at pp. 642-3, for a form of order of confirmation where proceeds (he having given real security or the proceeds not exceeding $500), are retained by guardian ; and, another precedent where the amount of the proceeds exceed $500, and no real security has been given by the guardian. And in connection Avith these latter forms, it will be well to 420 THE LAW OF REFEREES. give here a copy of so much of the 69th rule of the Supreme Court as has reference to the proceeds of sale : " If the proceeds of the sale exceed five hun- dred dollars and the guardian has not given security by mortgage upon real estate, he shall bring the proceeds into court or invest the same under the direction of the court for the use of the infant ; and the guardian shall only be entitled to receive so much of the interest or income thereof, from time to time, as may be necessary for the support and main- tenance of the infant, without the order of the court," &c. The conditional agreement for the sale, &c., of the premises having been confirmed by the com-t, and the purchaser having complied with the terms of sale, the guardian then executes and delivers to him the deed or other conveyance. (2 Barb. Ch. Pr., 216.) The statute declares that all sales, leases, disposi- tions and conveyances made in good faith by the guardian in pursuance of the orders of the court, when so confirmed, shall be valid and eff"ectual as if made by the infant when of full age. (2 R. S., 195, § 184.) If a mortgage is given by the purchaser, for the purchase money or any part of it, the same should be taken in the name of the clerk with whom the order of sale is entered for the use of the infant. This was the Chancery rule (R. 161), and there seems to be no reason why the same course should not still be pursued. As to dower right, it is believed (judging from parallel cases), that the court cannot compel a REFERENCE ON SALE OF INFANt's ESTATE. 421 widow to release her dower. (Knowks v. McCamly, 10 Paige's C. R, 342 ; Emery v. Wase, 5 Ves., 846 ; 1 Sugd. Vend, and Pur., 330.) Nor on a sale of an infant's estate subject to dower, will the court compel the doweress, or her husband, to accept the statute compensation. The statute contemplates only a voluntary release. (2 R. S., 258, § 232 ; Matter of Lane, 1 Edw. V. C. R, 349.) The statute however, has express provisions where she consents. If the real estate of the infant, or any part of it, is subject to dower, and the person entitled thereto shall consent in writing to accept a gross sum in lieu of such dower, or the permanent investment of a reasonable sum, in such manner as that the interest thereof be made payable to the doweress during life, the court may direct the pay- ment of such sum in gross, or the investment of such sum as shall be deemed reasonable and shall be acceptable to the doweress in manner aforesaid ; which sums, so paid or invested, must be taken out of the proceeds of the sale of the real estate of such infant. (2 R. S., 196, § 187.) But before any such sum is paid or invested, the court is to be satisfied that an effectual release of the right of dower has been executed. {Ih., § 188.) 422 THE LAW OF REFEREES. SECTION XIV. DEED BY SPECIAL GUARDIAX AND INCLUDING RELEASE OP DOWEE.' This Indenture, made the — day of , 18 — , be- tween C. B., of, &;c., special guardian of A. B. and E. B., infants, under the age of twenty-one years, of the first part, the said C. B., as ividow of G. B , late of, &;c., and dower tenant of the second part, and O. P., of, S)X., of the third part. Whereas a petition ivas heretofore presented to the Supreme Court of the State of New York by the said A. B., who is an infant over the age of fourteen years, and liaving no general guardian, and hy C. B., the mother and next friend of the said E. B , who is an infant under the age of fourteen years, and having no general guardian on his behalf, praying for a sale of the right, title and interest of the said infants in the real estate therein mentioned. And wiiereas such proceedings were afterwards had in the said court upon the said peti- tion that, by an order of the said court made on the — day of , 18 — , the said C. B. was appointed the special guardian of the said infants for the purposes of the said application, on her giving the security therein required ; and such security, duly aj)proved and acknow- ledged, was subsequently filed by the said guardian in the proper office. And whereas, by another order of tiie said court, made on the — day of , 18 — , the said C, B. was authorized to agree to the sale and conveyance of ' 2 liarb., 042; 3 .M.-iiltoii's Uli. Pr., 056-001. REFERENCE ON SALE OF INFANT'S ESTATE. 423 the right, title and interests of the said infants in the said premises at a price not less than the sum specified in the referee's report referred to in the said order, and upon the terms and conditions therein mentioned. And whereas, in pursuance of the last mentioned order, the said special guardian afterwards made her report, dated the — day of , 18 — , to the said court, stating that she had entered into an agreement, subject to the appro- iation of the said court, loith the said O. P., party hereto of the third part, for the sale of all the right, title and interest of the said infants in and to the said real estate, upon the terms and conditions therein mentioned. And whereas, by another order of the said court, made on the — day , 1 8 — , it was ordered that the said report of such special guardian and the agreement therein men- tioned be and the same were thereby ratified and confirm- ed. And ichereas it was further ordered by the said court, in and by the said last mentioned order, that the said special guardian should execute, acknowledge and deliver to the said 0.,P. a good and sufficient convey- ance of all the estate, right, title and interest of the said infants in and to the said premises, and so that the said C. B., as dower tenant, should join in such deed releasing her dower, upon the said O. P.^s complying with the terms and conditions upon which, by the said agreement, such deed was to be delivered. And whereas the said O. P^ has complied wi.th the terms and conditions of the said agreement: Noiv, therefore, this indenture witnesseth that the said C. B., as special guardian as aforesaid^, party of the first part, by virtue of the power and autho- rity conferred upon her by the several orders above men- tioned, and in pursuance of the statute in sudi case made 424 THE LAW OF EEFEEEES. and provided, in consideration of the sum of S — , to her in hand paid at or before the ensealing and delivery hereof hy the party of the third part, the receipt lohereof is hereby confessed and acknoioledged, hath granted, bar- gained, sold, remised, released and conveyed, and by these presents, doth grant, bargain, sell, remise, release and con- vey ; and the said C. B., as such dower tenant and party of the second part, by virtue of the aforesaid orders and of one dollar paid to her hy the party of the third part, and other considerations coming to her out of the afore- said purchase amount, hath granted, remised, released and quit-claimed, and by these presents doth grant, remise, release and quit-claim unto the said O. P., his heirs and assigns, all that, Sj'c. (description and general words), To have and to hold the said premises, with their rights, members and appurtenances, unto the said O. P. his heirs and assigns, to and for the use and behoof of the said O. P. his heirs and assigns for ever. And the said C. B., as party of the second part, for herself, her heirs, executors and administrators, doth covenant and agree to and with the said O. P., party of the third part, his heirs and assigns, that she hath not done any act whereby or by 7neans whereof the said above described premises now are or at any time have been charged, incumbered or affected in any manner whatever. In Witness, &c. Signed, sealed and delivered > in the presence of, 8^c. ) When the sale has been consummated by the pay- ment of the purchase money and the delivery of the deed to the purchaser, the guardian should make a final report thereof, stating therein what deduction EEFERENCE ON SALE OF INFANt'S ESTATE. 425 has been made from the proceeds for costs, &c., and what disposition has been made of the balance. And it is the safer course to obtain an order confirming this report and the sale and conveyance and the dis- position of the proceeds. (2 Barbour's Ch. Pr., 217.) SECTION XV. guardian's report of disposition op proceeds of sale. To the Supreme Court of the State of New York : [Title.'] I, C. B., the special guardian of the above infants, having been required by an order of this court, made on the — day of , 18 — , to execute, acknowledge and deliver to O. P., S^c. (here recite order), do respectfully report : That I have executed, acknowledged and delivered to the said O. P. such sufficient deed, he having complied with the terms and conditions of the said agreement ; that I have retained the said smn of '$ — for my dower- right, and hereby acknowledge receipt thereof ; that I have paid the said costs, embracing referee's fees, to the said amount of $ — , and have taken the receipt of the attor- ney of the petitioners therefor^ and the same is hereto annexed ; and that I have taken such bond and mortgage from the said O. P. to the clerk of the court, as appears by the receipt of the latter hereto annexed. All which is respectfully submitted. Dated the — day of , 1 8 — . C. B., Sjjecial Guardian. E. 54 426 THE LAW OP REFEREES. City and County of New York, ss: C. B., the special guardian named in the above report, being duly sworn, deposRth and saith, that she has read the above report, to which she has subscribed her name, and she knows the con- tents thereof, and that the matters therein stated are true. C.B. Sworn, S^'c. See a neat form of guardian's report of tlie invest- ment, &c., of proceeds of sale, when they are retained by him. (2 Barb. Ch. Pr., 645.) All the proceedings on the sale of infants' estates should be filed and entered in the same office in which the order for the appointment of the special gviardian is entered. {Matter of Seaman, 2 Paige's C. R., 409.) The 69th rule declares, that only one bill of costs will be allowed, although several infants and there may be several general guardians. If the infant's interest in the property should not exceed one thousand dollars, the whole costs, includ- ing disbursements, must not exceed twenty-five dol- lars. In Chancer}-, an allowance might be made for extra expense (beyond $25), where several infants joined in the same application, or if several pieces of land were sold at different times. {Matter of Morrell, 4 Paige's C. R., 44.) Where the court has ordered a sale of the lands of an infant under the statute, to an extent showing an intention to give the puroliaser a full title and the avails of sale are in court, an infant, on coming of age, cannot be allowed to take the benefit of the sale and have the chance left open to him of contesting EEFEEENCE ON SALE OF INFANT'S ESTATE. 427 the purchaser's title. The court will require him (on so coming of age) to convey to a buyer as a condi- tion of receiving his share. Thus, where the court, under the statute, directed the sale of a farm in which four infants, as tenants in common, had a fee deter- minable as to each on his death without issue, and in which there was a devise over to the survivors upon such contingency, it was deemed that the court had intended that the purchaser should acquire the whole title, and, therefore, on the proceeds coming within the control of the court, a requirement was made on the infants, when coming of age, to convey to the purchasers as a condition of their receiving such proceeds. {Davison v. De Freest, 3 Sandf. C. R., 456.) By the statute authorizing a sale of infants' real estate by the court, it is enacted that no such sale shall give to the infant any other or greater interest or estate in the proceeds of sale than he had in the estate sold ; and that such proceeds shall be deemed real estate of the same nature as tlie property sold. (2 K. S., 19.5, § 88.) The conversion, C(msequently, by the sale, will not alter its character as to those who had interests which might be affected by the alteration. (Davison v. De Freest, 3 Sandf. Ch. R., 456.) So, where, upon the sale of the real estate of an infant, a bond and mortgage were given by the purchaser upon the same premises to secure the purchase money, and the infant died, after he attained his majority, being still the owner of such bond and mortgage, it was held that the money secured thereby and which remained unpaid at the 428 THE LAW OF EEFEEEES. time of liis death, Iselonged to his heirs and must be distributed among them as real estate, according to the statute of descents. {Foreman v. Foreman, 7 Barb. S. C, 215.) And in STiumway v. 8humway (16 Ih., 556), where the real estate of an infant feme covert was sold by order of the Court of Chancery, under the act authorizing the sale of infants' estates, and the purchase money secured to her, or for her, by bonds, and mortgages, which securities were never in her possession or in that of her husband, until after her death, when he obtained the same as administrator of his wife and received the moneys secured thereby: Held, That by the sale of the land, under the direc- tion of the court, there was no conversion of the real estate into personalty; but that the proceeds were impressed with the same real uses which attached to the real estate before the sale, and that such proceeds descended, as the real estate would have done, to the heirs-at-law of the infant, and did not go to her per- sonal representatives for distribution among the next of kin and others entitled thereto. CHAPTER XIIL PARTITION. Section I. Observations. II. Partition without salk. III. Affidavit op fact. IV. Notice op a motion for a keferbnce. V. Order op reference thereon. VI. Report. VII. Judgment order for partition. VIII. Partition where a sale is necessary. IX. Affidavit where a sale is necessary, X. Order op reference XI. Ascertainment of liens and incumbrances and notice. XII. NoTrcE, BY referee, to creditors having general hens or incum- brances. XIII. Report that a sale is necessary. XIV. Report under order op reference as to title, &o., and that a salb IS necbssaby. XV. Judgment order op sale and for distribution and partition of pro- ceeds. XVI. Assent by a wipe to have her share paid to her husband. XVII. Sale. XVIII. Notice of sale. XIX. Conditions op sale. XX. Report op sale. XXI. Form op report op sale. XXII. Confirmation of sale. XXIII. Order of confirmation op sale. XXIV. Purchaser declining ; and as to compelling him to take. XXV. Requirement that buyer complete his purchase. XXVI. Order requiring a purchaser to complete his purchase, XXVII. Enforcement thereof. XXVIII. Order against purchaser (on default to complete porohasb) an3> commitment. XXIX. Resale. XXX Order for resale, and that purohasbr make good any deficiency. XXXI. Resale and return of deposit. XXXII. Order for resale and discharge op purchaser, XXXIII. Report on a resale. XXXIV. Referee's deed. XXXV. Form of referee's deed. XXXVI. Receipt for a distributive share. XXXVII. Value of dower right. XXXVIII. Final report. XXXIX. Form op final report op sale. XL. Confirming the last report. XLT. Order confirming the same. XLII. Amendments. 430 THE LAW OF EEFEEEES. SECTION I. OBSERVATIONS The Code of Procedui-e expressly recognizes the provisions of the Revised Statutes relating to the partition of lands and premises held in joint tenancy and tenancy in common ; while the rules of the Supreme Court, adopted since its passage, are but echoes of the late Chancery Rules.' So that old decisions and forms are still applicable to present proceeding in partition. By the Code, the provisions of the Revised Statutes relating to the partition of lands, tenements and hereditaments, held or possessed by joint tenants or tenants in common, apply to actions for such parti- tion brought under the Code, so far as the same can so be applied to the substance and subject matter of the action without regard to form. (§ 448.) Since the cases of Foot v. Stevens (17 Wend., 483), and Hart V. Seixas (21 Ih., 40), it is settled that a judgment in partition in the Supreme Court is to be regarded as one in a court of general jurisdiction, where every intendment will be made in support of the judgment, unless the contrary appear on the face of the record or be affirmatively shown aliunde. ' Rule 72 of the Supreme Court, which requires all lands held in common to be embraced in one suit is, with a slight addition, the same as the 175th Chanoery rule. Rule 73 of the Supreme Court is the same in effect as Rule 177 in Chancery. Rule 7-1 of the Supreme Court is the same as the 178th Chancery rule. And Rule 75 of the Supreme Court is similar to the first part of 180th rule in Chancery. PAETITION. 431 {Castle V. Matthews, Hill and Denio (Lai or), 438 ; and see Blakeletjv. Calder, 1 E. P. Smith, 15 N. Y., G17.) The Superior Court of New York has jurisdiction of an action for partition of real estate situate within the city and county of New York, irrespective of the residence of the parties interested. ( Varian v. Stevens, 2 Duer's E., 635.) A petition for partition is a proceeding in rem, and the jurisdiction of the court is confined to the sub- ject matter set forth in it. {Cm-withe v. Griffing, 21 Barb. S. C, 9.) Partition does not decide title nor create any new title. It barely dissolves the tenancy in common and locates the right of each party in distinct parts of the premises, and extinguishes it in all other parts. {Tabler v. Wise7nan, 2 Ohio, N. S., 207.) Where a lunatic is an actual owner of an undivided part of premises, he is a necessary party to an action for partition ; and by his being made a party, his legal title to that portion of the premises which may be set off to the adverse party, in severalty, under the provisions of the Revised Statutes relative to the partition of lands, will pass without any conveyance, either from the lunatic or his committee. {Gorhamy. Gorham, 3 Barb. Ch. R, 24.) An action for a partition and sale may be main- tained by parties having an undivided right in mines. {Canfieldy. Ford, 16 How. Pr. R, 473.) Where one tenant in common expends money in making improvements upon land, although such expenditures do not strictly constitute a lien upon the land, yet a court of equity, in making partition, 432 THE LAW OP EEFEEEES. will first direct an account and suitable compensa- tion or assign to such tenant the portion on which the improvements have been made. And to entitle such tenant to an allowance, it is not necessary for him to show an assent to his making them, by his co-tenants, or a promise by them to contribute to- wards the expenses, or a request on them to join in making them and a refusal. {Green v. Putnam, 1 Barb. S. C. R, 500.) In suits for partition, a court of equity is not restricted to a partition of all the lands or a sale of the whole ; but, when it is necessary to prevent pre- judice and can be done without affecting the inte- rests of any of the parties, the court may allot their respective shares of land to some and direct a sale of the residue which cannot be divided without pre- judice. {Haywood v. Judson, 4 Barb. Sup. C. R, 228.) An order for sale in partition cannot be made upon the report of commissioners that a sale is necessary, after a referee has reported that the premises are so situated that an actual partition can be made with- out prejudice to the interests of the parties. But if the situation of the property or the rights of the parties therein have materially changed since the report of the referee, there should be a special appli- cation to the court for a new reference, to ascertain whether a partition can still be made. {Reynolds v. Reynolds, 5 Paige's C. R, 161.) Where a partition suit abates and new parties are brought before the court upon the revival of the suit, a new reference will be necessary, to ascertain their rights before a sale can be decreed. (7&.) PARTITION. 433' The statute toucliing partition contemplates two courses of proceeding in order to procure a division of real estate held in joint tenancy or in common : 1. By a partition of the premises without sale ; and 2. Where a partition cannot conveniently be made^ owing to the peculiar nature and situation of the property, by a sale thereof (2 Barb. Ch. R., 292.) The nature of the present work makes it only necessary to lay hold of references whenever th^ state of pleadings and proceedings cau.se them to arise ; and, therefore, it will not be required to lay down principles, rules or practice touching com- plaints or petitions in partition, the appointment of guardians or filing of notice of pendency of action. We take up the action where it is ripe for reference. SECTION II. PARTITION WITHOUT SALE. As to a partition of premises without sale, this is worked either through the court on a full hearing, where proof of title and issue of fact may have been joined, or by a reference through the provisions of the 78th rule of the Supreme Court. This, however, is said on the idea that the premises embraced in the complaint are susceptible of partition ; for, if not, an affidavit under the next rule, the 79th, will be neces- sary, and then a sale is had. But, recurring to the 79th rule, it declares that, " where the rights and interests of the several parties, as stated in the com- E. 55 434 THE LAW OF EEFEEEES. plaint, are not denied or controverted, if any of the defendants are infants or absentees, or unknown, the plaintiff, on an affidavit of the fact and notice to such of the parties as have appeared, may apply at a special term for an order of reference to take proof of the plaintiff's title and interest in the premises and of the several matters set forth in the bill or petition ; and to ascertain and report the rights and interests of the several parties in the premises, and an abstract of the conveyances by which the same are held." This 78th rule is supposed to spring out of the 23d section of the statute of partition (2 R. S., 321), which enacts that the court shall ascertain and de- clare and determine the rights, titles and interests of the parties and give judgment that partition be made between such of them as shall have any right therein according to such rights. SECTION III. AFFIDAVIT OF FACT UNDER EULE 78. [^Title of action.] ■ County, ss : E. F., attorney for the above plain- tiffs, being sworn, says, that the complaint in thi {Title.] In pursuance of a judgment order of the Supreme Court of the State of New York, the subscriber, as referee therein, will sell, in separate lots, at the Merchants' Exchange in the city of New York, on the — day of next (18 — ), at twelve o'clock at noon lots of land situated in the city of New York, at public auction, and hounded as follows, namely (boundaries). Dated the — day of , 18 — . A. B., Referee. The following are the ordinary form of conditions of sale as adapted to the city of New York. SECTION XIX. CONDITIONS OF SALE. {Annex copy of advertisement.) [Title.] Terms of sale. The premises described in the annexed advertisement of sale, will be sold under the direction of , referee, upon the following terms : Dated New York, , 18 — . Isi. Ten per cent of the purchase money of said 'pre- mises loill be required to be paid to the said referee, at PAETITION. 479 the time and place of sale, and for which the referee's receipt tvill be given. 2d. The residue of said purchase money will he, re- quired to he paid to the said referee, at his office. No. — , street, in the city of New York, on the — day of , when the said referee's deed will he ready for deli- very. 3d. The referee is not required to send any notice to the purchaser ; and if he neglects to call at the time and place ahove specified to receive his deed, he will he charged with interest thereafter on the whole amount of his purchase, unless the referee shall deem it proper to extend the time for the completion of said purchase. Mh. All taxes, assessments and other incumbrances which, at the time of sale, are liens or incumbrances upon said premises, will be allowed by the referee out of the purchase money ; provided the purchaser shall, pre- vious to the delivery of the deed, produce to the referee proof of such liens and duplicate receipts for the pay- ment thereof. hth. The purchaser of said premises, or any portion thereof, will, at the time and place of sale, sign a memo- randum of his purchase, and pay, in addition to the pur- chase money, the auctioneer's fee of ten dollars for each parcel separately sold. 6 th. The biddings will be kept open after the property is struck down ; and in case any purchaser shall fail to comply tvith any of the above conditions of sale, the premises so struck down to hitn will be again put up for sale, under the direction of said referee, under the same terms of sale, ivithout application to the court, unless the plaintiff's attorney shall elect to make such application ; 480 THE LAW OP EEFEEEES. and such purchaser will he held liable for any deficiency there may he hetween the sum for which said premises shall he struck down upon the sale and that for which they may he purchased on the resale, and also for any costs or expenses occurring on such resale. [Here insert as to a portion of the purchase money remaining on bond and mortgage, or special condi- tions, according to circumstances.] MEMOEANDUM OF SALE. I, , have this — day of , 18 — , purchased lot No. 1 (or, the whole) of the premises described in the above annexed printed advertisement of sale, for the sum of$ ; and hereby promise and agree to com- ply ivith the terms and conditions of the sale of said premises, as above mentioned and set forth. Dated New York, , 18 — . Neio York, , 18 — . Received from the sum of % , being ten per cent on the amount hid by for property sold by me, under the order in this cause. $ . Referee. Neither the referee nor any person for his benefit can be interested in the purchase, nor directly nor indirectly purchase any of the premises so sold. (2 R. S., 326, § 68.) Nor can a guardian of any infant, party in the action, purchase or be interested in the purchase of any lands being the subject of it, except for the benefit or in behalf of the infant. (lb.) All sales contrary to the section referred to will be void. {lb.) PARTITION. 481 Under the section last referred to, it has been determined that the guardian is justified in making a purchase to save the property from a sacrifice or obtain an advantage to the infant ; that he should distinctly announce that he bid for the benefit of the infant and on his behalf, when the property is struck down to him and should see that the minvite of sale of the auctioneer or referee is to that effect ; and that the report of sale should state such purchase and be accompanied by an afiidavit of the guardian, showing why he deemed the purchase beneficial to the infant. And, if the court thought his judgment right, it would ratify the sale, and the deed should be executed to the infant, with a power of sale to the guardian under the statute as to powers. And in the case in which this course was pursued, it was deemed advisable by the counsel of the purchaser that the usual application should be made under the statute for the sale of infants' estates, and that course was, accordingly, taken. (See 2 Hoffman's Ch. Pr., 194, referring to MS. case of Hannan v. O shorn.) Infant owners will be relieved by a resale, where their property has been sacrificed at the sale through the misapprehension or negligence of their natural or statutory guardians, on condition that a full indem- nity is offered to the purchaser. {Lefevre v. Laraivay, 22 Barb. S. C. E., 16 7. J And whenever, in a suit or proceeding in the Supreme Court, the fact appears that the rights of infant parties have been invaded or are in danger of being prejudiced, the court oiight, without waiting to be specially invoked, to exercise E. 61 482 THE LAW OF EEFEEEES. its protective jurisdiction in behalf of such infant parties. Although no application for a resale is made in behalf of infants, yet such an order may be made on the court's own motion, in its capacity of univer- sal guardian to all infants and by virtue of its obli- gation to exercise a general superintendence and protective jurisdiction over their persons and pro- perty. {Ih.) Also, a purchase by a guardian ad litem of infant parties at a referee's sale, not made for the benefit or in behalf of such infants, is void. {lb.) And it matters not that the purchase was not made by the guardian for his own benefit, but as agent for other persons. The guardian owes a duty to his ward, which renders it improper for him to act in behalf of others. {Ih.) Where the fact of a purchase by a guardian, for the benefit of third persons, at a price injurious to the interests of his infant ward, has, by a motion of the plaintiff for a resale, been brought to the knowledge of the court, it is the duty of such court, without waiting for an application to be made in behalf of the infants, to order a resale of the pro- perty for their benefit. {lb.) On a referee's sale, which reserves to the referee a right to consider the biddings open vmtil the deposit is paid, no sale can be enforced where the purchaser refuses to pay the deposit or sign an acknowledgment ; and no order for a resale is necessary. In such a case, the referee will go on as if no sale had taken place. {lieivlett v. Davis, 3 Edwards' V. C. R., 338.) PARTITION. 483 SECTION XX. REPORT OF SALE. The referee must make a report of sale. SECTION XXI. FORM OF REPORT OP SALE. To the Supreme Court of the State of New York: [Title.] In pursuance of a judgment order made in this court in the above entitled action, and dated the — day of , 18 — , /, , a referee duly appointed, to whom the execution thereof was confided, da report: That, having caused notice of the time and place of sale of the premises mentioned in the said judgment order, containing a brief description thereof to be published once in each week for six weeks immediately previous to such sale, in one of the public newspapers printed in the city of New York, where such premises are situated, and having also caused a copy of such notice to be put up at three of the most •public -places in the said city of Neio York, where the said premises are situated: I did, on the — day of last, (18 — ,) at 12 o'clock noon {that being the time specified in the said notice'), attend at the Merchants' Exchange in the said city, the place therein mentioned, and exposed the said premises for sale at public auction to the highest bidders, as directed by the said order. 484 THE LAW OF EEFEREES. / do further report that the several lots or parcels of land so directed to he sold, were put up for sale separately and were, each and every of them, struck off' to the follow- ing persons and for the sums following, namely : to the dwelling house and lot of land on the northerly side of street. New York, known as No. — ,for the sum of % ; to the dwelling house and lot of land on, S^c, 8^'c., SjX. And I further report that the terms and conditions of such sale were reduced to writing and made known to the persons attending such sale, previous to ■putting up the said lots, and were as follows : The pur- chasers of each lot and parcel were to pay 10 per cent of the purchase money down on the day of sale, and the resi- due ivhen the sale should be confirmed and the deed deli- vered. And that the aforesaid respective purchasers have signed the written conditions of sale before referred to, together loith an acknowledgment that they (^respectively') had purchased the premises so bought by them upon those terms. Also, I report that they have respectively paid to me the amounts required to be paid down. All which is respectfully submitted. Referee New York, , 18—. SECTION XXII. CONFIEMATION OF SALE. This report of sale will have to be filed and con- firmed before deeds are delivered to purchasers. Under the old, and even comparatively late practice, notice of motion at special term for an order of con- PARTITION. 485 firmation had to be given, as such an order was not one of course. (1 Barb. Ch. Pr., 529 ; 2 Ih., 310.) In ordinary sales by auction or by private agree- ment, the contract is complete when the agreement is signed ; but a different rule prevails in sales by a referee. In such cases, the purchaser is not con- sidered as entitled to the benefit of his contract till the referee's report of the purchaser's bidding is absolutely confirmed. (1 Sugd. V. & P., 58.) The former practice was to enter the following form of order : SECTION XXIII. ORDER OF CONFIRMATION OF REPORT OP SALE. At a Special Term, 8^c. [Title.'] Present, 8^c. On reading and filing the referee's report of sale in this action, dated the — day of , 18 — , and proof of due service of vioving thereon served upon the attorneys of the respective parties who have appeared; and on motion of Mr. , of counsel for the plaintiff, and no one appearing to oppose, it is ordered that the same he and it hereby is, in all respects, confirmed (and some- times there is added : with ten dollars costs of this inotion to be costs in the action). But the rules of the Supreme Court, as amended in 1 858, appear to dispense with the necessity of a motion and order consequent upon it. However, 486 THE LAW OF REFEREES. such a motion and order would do no harm. Still, the requirements of the present 32 d rule must be attended to, which directs the filing of the report, a note, by the clerk, of its being entered in the pro- per book under the title of the cause, and a service of notice of filing on all parties who have appeared. The report will become absolute and stand as in all things confirmed, without any further movement, unless exceptions are filed and served within eight days after the service of the notice of filing. If exceptions are filed, they can be brought on at special term on a notice by any party. SECTION XXIV. PUECIIASEE DECLINING, AND AS TO COMPELLING HIM TO TAKE. It may be that a purchaser will decline to com- plete his purchase on the ground of some alleged defect in title. The referee should make tender of his deed, duly acknowledged, and demand balance of purchase money on or soon after the day which has been fixed by the conditions of sale, for the com- pletion of the same. A motion to compel the pur- chaser to take will be made by the plaintiff's attorney. The motion is generally based upon the minute and conditions of sale, signed by the buyer, and an affidavit of tender of deed, and default in comple- tion of purchase. It may be a question how far the mere certificate of the referee of facts would prove sufficient to ground the motion. PAETITION. 487 The purchaser, also, may volunteer a motion, to be discharged and claim back his deposit. When- ever a purchaser is discharged on his own applica- tion, he is usually allowed his costs and interest. (Smith V. Nelson, 2 S. & S., 557 ; Pleasants v. Roberts, 2 Molloy, 507 ; Owen v. Foidkes, 9 Ves., 348 ; West V. Vincent, 12 lb., 6.) Costs have been withheld in such cases, as these were considered in the nature of a premium paid^ by him for the opportunity of bid- ding. (Rigby V. Macnamara, 6 Ves., 466.) Purchasers at all judicial sales, and consequently, at a sale in partition, have a right to receive, at the hands of the court, such title as is free from all reasonable objection. {Blakehj v. Colder, 13 How. Pr. R, 476.) If, in a partition action, the plaintiffs omit to file any of the papers necessary to the judgment, they may be allowed to file them nunc pro tunc and the purchaser is not compellable to take title until they are filed. ( Waring v. Waring, 7 Abb. Pr. R., 472.) A purchaser claiming to be discharged from his contract, should make out a fair and plain case of relief; and it is not every defect in the subject sold, or variation from the description, that will avail him. If he gets substantially what he bargains for, he must take a compensation for the deficiency. ( Weems v. Brewer, 2 Har. & Gill, 390.) Where notice has been given to creditors having general liens upon the undivided interests of one of the parties in a partition suit, to come in and estab- lish their claims before a referee or master, the lien of such creditors upon the estate will be divested by 488 THE LAW OF EEFEEEES. the sale; a purchaser at it, under the decree, cannot, therefore, object that the officer has decided wrong as to the existence of such lien. {Dunhavi v. Minard, 4 Paige, 441.) In an action for partition in the Supreme Court, as in equity, the omission of the guardian ad litem of an infant defendant to file his bond as required by statute, is a mere irregularity which is amendable and does not affect the jurisdiction of the court or the validity of a sale under its judgment. {Croghan v. Livingston, 3 E. P. Smith, 17 N. Y., 218; 8. C, 25 Barb. S. C. R, 336.) Where a decree is had in a partition suit, wherein an infant, among others, has been made a defendant, but no guardian ad litem has been appointed, a pur- chaser under the decree or judgment will be dis- charged from his bid, even though such defendant may have since attained his majority and offers to release his interest; the decree or judgment being so far irregular as to be incapable of enrolment. {Kohler v. Kohler, 2 Edw. V. C. R, 69.) If a purchaser has no design to baffle the court, and is unable to comply, he may be discharged on payment of costs. {Deaver v. Reynolds, 1 Bland, 50.) If there should be made to appear, either before or after a sale has been ratified, any injurious mis- take, misrepresentation or fraud, the biddings will be opened, the reported sale rejected, or the order of ratification rescinded, and the property again sent into the market and resold. {Anderson v. Foulke, 2 Ear. & Gill, 346.) PAETITION. 489 A resale will be ordered where there has been fraud or misconduct in the purchaser, fraudulent negligence or misconduct in any other person con- nected with the sale or surprise or misapprehen- sion, created by the conduct of the purchaser or of some person interested in the sale or of the officer who conducts the sale. {Lefevre v. Laraivay, 22 Barb. S. C. K, 167.) The biddings at a referee's sale will not be opened except in very special cases, and then it will not be done unless the purchaser is fully and liberally indemnified for all damages, costs and expenses to which he has been subjected. (Duncan v. Dodd, 2 Paige's C. R., 99.) The English practice of opening biddings and ordering a resale before the confirmation of the sale, upon an offer being made of an advance of ten per cent and an indemnity to the purchaser, has not been adopted in this State. Here, neither before nor after the confirmation of the report of the sale will a resale be ordered upon an offer of an increase of price alone. In this State special circumstances must in all cases exist, where the sale is not void, to justify an order for a resale. (Lefevre v. Laraway, 22 Barb. S. C. R., 167.) SECTION XXV. REQUIREMENT THAT BUYER COMPLETE HIS PURCHASE. If the purchaser is responsible, he will not be per- mitted to baffle the court ; and, therefore, instead of K. 62 490 THE LAW OF REFEREES. discliargmg him from his biddi)ig', the com't will, if required, make an order that he shall, within a given time, pay the money into court, or to the referee, and be let into possession. SECTION XXVI. ORDER REQUIRING A PURCHASER TO COMPLETE HIS PUR- CHASE. Ai a Special Term, &^c. {Title.] It sufficiently appearing that became a pur- chaser at referees sale herein of, S^c, for $ , paying deposit in conformity loith conditions of sale ; but tliat he has not completed such purchase in conformity there- with ; and on reading and filing affidavits pro a?id con; and after hearing counsel for and against the objections taken and due deliberation having been had, it is ordered and adjudged that the said complete his said pur- chase by paying all balance of the purchase money, loith interest thereon from the day he shoidd have completed his purchase (if there has been a fair question raised for the court, then leave out the matter of interest) and be let into possession and receive the referees deed ; that all this be done at the referees office on or before the — day of , with SIO costs to the plaintiffi, to be paid to him or his attorney ; and that, in default thereof, proved by an affidavit, an ex parte application may be made to the court in the premises. It is usual, in our practice, for the court to pass upon objections to title ; but the judge can, where PAETITION. 491 the purchaser appears and asks for it and has not precluded himself from objecting to the title, direct a referee to inquire whether a good title can be made. (1 Barb. Ch. Pr., 532, referring to 1 Newland's Pr., 336.) SECTION XXVII. ENFOECEMENT TIIEEEOF. The order for payment of the purchase money being made, must be served personally upon the pur- chaser ; and if not complied with, may be enforced by moving that he pay the money within a limited time or stand committed. {Lansdoivn v. Elderton, 14 Ves., 512.) SECTION xxvm. OEDEE AGAINST PUECHASEE IN DEFAULT, TO COMPLETE PUECHASE AND COMMITMENT. At a Special Term, Sfc. [Tide.] On reading and filing an affidavit, showing that ■ had not complied ivith an order in this action, dated, &fC., wherehy he ivas ordered, &;c., now, on motion of Mr. , of counsel for the plaintiff, it is ordered that a warrant of attachment, and commitment, directed to the sheriff of the city and county of New York, issue against the said , on account of the contempt aforesaid. 492 THE LAW OF EEFEEEES. SECTION XXIX. RESALE AND OEDEE. The court can direct a resale and compel the pur- chaser to make good any deficiency in the price obtained at such resale. (1 Barb. Ch. Pr., 536, refer- ring to 2 Smith, 186, 188 ; 1 Sugd. V. and P., 60 ; 2 Dan., 920.) SECTION XXX. OEDEE FOE A EESALE, AND THAT THE PEESENT PUECHASER MAKE GOOD ANY DEFICIENCY UNDER A EESALE. At a Special Term, 8^c. ITitle.'] It sufficiently appearing that became a purchaser at referee's sale herein, of, Sfc, at S , paying deposit in conformity with conditions of sale ; but that he has made default in a requirement that he should complete his purchase, and on reading and filing affidavits show- ing, among other things, due service of notice of present motion on the said ; and on motion of Mr. , of counsel for the plaintiff, it is ordered that the said pre- mises so purchased by the said be again put up for sale by the referee under the judgment herein. Also that if, on the coming in of the report of sale, there be any deficiency between the amount for which the said premises were heretofore sold to the said , and the su?n which the premises may make on such resale, then PARTITION. 493 that the said he liable for and make good such deficiency, together with $10 costs of the present order, and of all such future costs as may he properly put upon him. Also it is ordered that his deposit money he impounded and retained by the referee, so that the same may be applied, if necessary, to any deficiency. SECTION XXXI. RESALE AND EETUEN OF DEPOSIT. Where a purchaser succeeds in annulling the sale from defect of title or error, or insufficiency of pro- ceedings, the referee will be directed to return his deposit money, with costs, and make another sale. SECTION XXXII. OEDEE FOR EESALE AND DISCHARGE OF PUECHASEE. At a Special Term of this Court, held at the City Hall in the city of Neio York, on the — day of , 18—. [ Title.\ Present, , Justice. On reading and filing the certificate of , referee in this action, the affidavit of and the consent of J. P. and of the attorneys for the plaintiff and the guar- dian ad litem of the infant defendants : It is ordered that the said J. P., the purchaser of the premises known as No. — street, sold to him under the judg- 494 THE LAW OF EEPEEEES. ment in this action on the — day of last, as stated in said certificate, he discharged from the said purchase and that the said sale he and the same is hereby annulled; and that the said , the referee, under whose direc- tion the said sale was inade, refund and 'pay to the said J. P. the sum of % , heing the ten pier cent paid by the said J. P., to the said referee on the purchase moneys of said lot, and the sum of dollars for the expenses of said J. P., arising out of said purchase, in the exami- nation of the title and the disbursements relating tlureto. And it is further ordered that the said lot, situate on street as aforesaid, he resold at such time and place and in such manner and upon such te^-ms as may be determined upon by the said referee, pursuant to the judgment in this action ; and that, upon such resale, the •proceeds arising from said sale he distributed among the parties according to the judgment in this action. The referee will then proceed to advertise again and sell the premises, from which the late purchaser was discharged in the same manner as on the origi- nal sale. ' SECTION XXXIII. REPORT ON A RESALE. When the premises are again knocked down to a buyer, a report of sale as to it must also be made out, and filed and confirmed. PARTITION. 495 REPOET ON A RESALE. To, 8^C. [Title.] In pursuance of a ludgment crrder mack in this cause in the above entitled action and dated the — day of , 18 — , and also i?i pursuance of an after-order herein, dated the — day of , 18 — , whereby it teas ordered tJuzt the premises embraced by this action, known as No. — street, in the city of New York, should he resold at such time and place and in such manner and upon such terms as might be determined by me, the undter- signed A. B., referee herein, pursuant to the judgment aforesaid. Noio I, the said A. B., referee appointed in the said judgment, do report that having caused notice of the time and place, 8^c., &^c. [here follow the phrase- ology used in the former report of sale, at p. 483, anteJ] SECTION XXXIV. referee's deed. The referee will have to execute conveyances to the purchasers. In describing the premises, he had- better follow precisely the wording in the judgment or decree, and not vary or add by any more modern description, even though the properties may have been built upon or otherwise improved. The following is an ordinary form of referee's deed : 496 THE LAW OF EEFEREES. SECTION XXXV. FORM OF DEED. This indenture made the — day of , in the year one thousand eight hundred and sixty — . Betxveen , referee in the action hereinafter mentioned, of the first part, and , of, 8fc., , of the second part. Whereas, at a special term of the Supreme Court of the State of New York, held at, 8^c., on the — day of , one thousand eight hundred and — , it was, among other things, ordered, adjudged and decreed, by the said court, in a certain action then pending in the said court, be- tween, Sfc. That all and singular the premises men- tioned in the complaint in said action, and hereinafter described, he sold at public auction, according to the course and practice of said court, by or under the direc- tion of the said , who was appointed a referee in said action, and to whom it tvas referred by the said order and judgment of the said court, among other things, to make such sale ; that the said sale be made in the county where the said premises or the greater part thereof are situated; that the referee give public notice of the time and place of such sale according to laiv and the course and practice of said court; and that any of the parties in said action might become a purchaser or pur- chasers on such sale ; that the said referee, after said sale, make report thereof to said court, and after his report of sale shall have been duly confirmed, then that he execute to the purchaser or purchasers of the said premises, or such part or parts thereof as should be so sold, a good and sufficient deed or deeds of conveyance for the same. PARTITION. 497 And whereas, the said referees, in pursuance of the order and judgment of the said court, did, on the — day of , one thousand eight hundred and — , sell at public auction, at the Merchants' Exchange in the city of New York, the premises in the said order and judg- ment mentioned, due notice of the time and place of such sale being first given, agreeably to the said order ; at which sale the premises hereinafter described were struck off to the said party of the second part, for the sum of dollars, tliat being the highest sum bidden for the same, and the said referees report of said sale having been duly confirmed. Now, this indenture witnesseth, that the said referee, the party of the first part to these presents, in order to carry into effect the sale so made by him as aforesaid, in pursuance of the order and judgment of the said court, and in conformity to the statute in such case made and provided, and cdso in consideration of the prejnises and of the said sum of money so bidden as aforesaid being first duly paid by the said party of the second part, the receipt whereof is hereby acknowledged, hath bargained and sold, and by these presents doth grant and convey, unto the said party of the second part, all that, 8^c. To have and to hold, all and singular the premises above mentioned and described, and hereby conveyed, or intended so to he, unto the said party of the second part, his heirs and assigns, to his and their only proper use, benefit and behoof for ever. E. 63 498 THE LAW OF EEFEEEES, In witness ivhereof the said party of the first part, referee as aforesaid, hath hereunto set his hand and seal, the day and year first above written. Sealed and delivered in \ , the presence of j Referee. {Acknowledgment^ The conveyances executed by a referee to pur- chasers are to be recorded in the county where the premises are situated ; and they will be a bar, both in law and equity, against all persons interested in the premises in any way who shall have been named parties in the proceedings and against all such per- sons and parties as were unknown, if due notice has been given by the publication prescribed. (2 R. S., 327, § 16.) And by Laws of 1830, p. 397, such conveyances will also be a bar against all persons having general liens or incumbrances by judgment or decree on any undivided share or interest in the premises sold in all cases where the notice to such creditors as is prescribed shall have been given, and also against all persons having specfic liens on any undivided share or interest therein who shall have been made parties to the proceedings ; but no credi- tor having any such specific lien will be affected by such sale or conveyance unless he shall have been made a party to the proceedings. It is enacted (2 R S., 324, § 81), that if there are incumbrances upon the interest of any party named in the proceedings, the portion of such party must be brought into court. By the 46th section of the act, such party may apply to the com-t to order such moneys or such PAHTITION. 499 part thereof as lie shall claim to be paid to him. This is done upon a notice to the holders of each incumbrance. In connection with proceedings subsequent to the confirmation of the report of sale, the referee, after he has executed deeds to purchasers, will make a distribution of the proceeds of the sale among the persons entitled thereto ; ascertain whether any per- son entitled to an estate in dower is willing to accept in lieu thereof a sum in gross out of the net proceeds and what, upon the principle of life annuities, would be a reasonable satisfaction for such estate ; and if the tenant in dower accepts a gross sum, the referee will pay her such sum as he shall determine to be the gross value of her interest, unless the amount is objected to by other parties, on her executing and acknowledging a release of such interest. And if she refuse to accept a gross sum, the referee will pay into court one-third of the net residue of the proceeds for her benefit. The referee will also pay to the plaintiffs through their attorney, and to any guar- dian ad litem, their costs and retain his own fees, commissions and disbursements; divide the residue of the proceeds into shares according to the rights of the persons interested and bring into court (or pay to the chamberlain, &c., according to the word- ing of the judgment order), the shares belonging to infants, unknown owners, non-residents, &c., to be invested for their benefit ; pay over to other persons interested in the proceeds the amount of their re- spective shares and take their receipts for the same ; let purchasers into possession, &c., &c. 500 THE LAW OP EEFEEEES. SECTION XXXVI. POEM OF EECEIPT FOR A DISTEIBUTIVB SHAEE.' [Title of action.] New York, — day of , 18 — . Received of -, Esquire, referee herein, authorized by a judgment order to make sale of the 'premises in the proceedings in this action described, and who sold the said premises by virtue of the said judgment order, the sum of% , being my proportion of the net proceeds of the said sale agreeably to my right and title of, in, and to the said premises so sold as aforesaid. As witness my hand and seal. Witness. If the share was directed to be paid to a general guardian of an infant, then the receipt would run : being the proportion of the net proceeds of the said sale of and belonging to , a minor, to whom I have been appointed, by an order of the court, the general guar- dian, according to her right and title in and to the said premises so sold as aforesaid. SECTION XXXVII. VALUE OP DOWEE EIGHT. With regard to the value of an estate in dower, by the curtesy or other estate for life, Rule 75 of the Supreme Court declares that the same shall be esti- ' See another form, 3 Hoffman's Ch. Pi., cccxxix. PABTITION. 501 mated according to the then value of an annuity o£ six per cent on the principal sum during the proba- ble life of such person, according to the Portsmouth or Northampton tables. The following is a table, corresponding with the Northampton tables referred to in the 75th rule, showing the value of an annuity of one dollar at six per cent, on a single life, at any age, from one year to ninety-four years inclusive : Age. No. of years purchase the annuity is worth. Age. No. of years purchase the annuity is ■worth. Age. No. of years purchase the annuity is ■worth. Age. No. of years purchase the annuity is worth. 1 10.107 25 12.063 49 9.563 73 4.781 2 11.724 26 11.992 50 9.417 74 4.565 3 12.348 27 11 .917 51 9.273 75 4.354 4 12.769 28 11.841 52 9.129 76 4.154 6 12.962 29 11.763 53 8. 980 77 3.952 6 13.156 30 11.682 54 8.827 78 3.742 7 13-275 31 11.598 55 8.670 79 3.514 8 13.337 32 11.512 56 8.509 80 3.281 9 13.335 33 11.423 57 8.343 81 3.156 10 13.285 34 11.331 68 8.173 82 2.926 11 13.212 35 11.236 69 7.799 83 2.713 12 13.130 36 11.137 60 7.820 84 2.551 13 13.044 37 11.035 61 7.637 85 2.402 14 12.953 38 10.929 62 7.449 86 2.266 15 12.857 39 10.819 63 7.263 87 2.138 16 12.755 40 10.705 64 7.062 88 2.031 17 12.655 41 10.589 65 6.841 89 1.882 18 12.562 42 10.473 66 6.625 90 1.689 19 12.477 43 10.356 67 6.405 91 1.422 20 12.398 44 10.235 68 6.179 92 1.136 21 12.329 45 10.110 69 5.949 93 0.806 22 12.265 46 09.930 70 5.716 94 0.518 23 12.200 47 09.846 71 5.479 24 12.132 48 09.707 72 5.241 502 THE LAW OF REFEREES. RULE FOR COMPUTING THE VALUE OF THE LIFE ESTATE OR ANNUITY. Calculate the interest at six per cent for one year, upon tlie sum to the income of which the person is entitled. Multiply this interest by the number of years purchase set opposite the person's age in the table, and the product is the gross value of the life estate of such person in said sum. EXAMPLES. Suppose a widow's age is 37 ; and she is entitled to dower in real estate, worth $350.75. One-third of this is $116. 91f. Interest on $116.91, one year at six per cent (as fixed by 80th rule), is $7.01. The number of years' purchase which an annuity of one dollar is worth, at the age of 37, as appears by the table, is 11 years, and yWV parts of a year, which, multiplied by 7.01, the income for one year, gives $77.35, and a fraction, as the gross value of her right of dower. Suppose a man whose age is 50, is tenant by the curtesy in the whole of an estate worth $9,000. The annual interest on the sum at six per cent is $540.00. The number of years' purchase which an annuity of one dollar is worth, at the age of 50, as per table, is 9tWo- parts of a year, which, multiplied by $540, the value of one year, gives $5,085.18 as the gross value of his life estate in the premises or the proceeds thereof The values in this table are calculated on the sup- position that the annuities are payable yearly ; if payable half yearly, one-fifth of a year's purchase should be added to those values. PARTITION. 503 For the rule to compute the present value of an inchoate or contingent right of dower, vide Jackson v. Edwards (7 Paige, 408 ; McKean's Pr. L. Tables, 25, § 4 ; Hendry's Ann. Tables, 87, Prob., 4.) Where a decree in partition directs a third of the proceeds of the sale to be invested for the benefit of the widow, and that, upon her death, it be divided into as many parts as there are heirs tod paid to the heirs respectively, by name : if any of the heirs die in the lifetime of the widow, their executors or administrators, and not their heirs as such, are enti- tled to receive the payment of the respective shares of those so dying. (Robinson v. McGregor, 16 Barb. S. C, 531.) In case a decree in partition directs the share of one of the heirs, who is a married woman, to be paid to her husband in right of his wife, and he dies before actual payment leaving his wife surviving, she becomes reinstated in her original rights and is entitled to receive her share, not as her husband's widow or representative, but as the heir of the original owner of the land. (^Robinson v. McGregor, 16 Barb. S. C, 631.) And where an heir, being a female, may have married since a decree or judgment in parti- tion, her share will be ordered to be paid to her instead of to her husband, {lb.) 504 THE LAW OF EEFEEEES. SECTION XXXVIII. FINAL EEPOET. A referee has to make a final report of all he shall have done under and by virtue of the jxidgment or decree of sale, subsequent to the confirmation of his mere report of sale. All consents, receipts and cer- tificates taken by him will have to be annexed to such final report. SECTION XXXIX. FOEM OF FINAL EEPOET OF SALE. To the Supreme Court of the State of New York : [Title.'] In pursuance of a judgment or decretal order of this court, made in the above action on the — day of , /, the subscriber, sole referee herein, do respectfully report : That in obedience to the said decretal or judgment order, I have executed, acknowledged and delivered to , the purchaser of the lot and pre?}iises knoivn as No. — street in the city of Neio York, a deed thereof, on receiving from him the sum of $ , the price or sum for ivhich the said premises were sold to him, as mentioned in my former report of suc}i sale, made in pursuance of the said decretal order, and upon his comply- ing with all the conditions on which the said deed was to he delivered. And also, that, in obedience to the saidjudg- PARTITION. 505 ment or decretal order, I have executed, acknowledged and delivered to , the purchaser of the lot and pre- mises known as No. street, 8fc., S^c. A7id I further report, that I have paid the sum of S , for taxes due or in arrear on portions of the premises emhrcKcd by this action and have taken a receipt for the same, which is hereto annexed; that I have retained in my hands the sum. of % , heing the amount of my disbursements, fees and charges ; that I have paid to the attorney for the plaintiff the sum of % ,for the costs and allowance to the plaintiff in this action, as adjusted, and have taken a receipt therefor, which is hereto annexed ; that I have paid to the attorney for the guardian ad litem of the infant defendants the sum of % , for his costs and alloivance herein, as adjusted, and have taken a receipt therefor, which is hereto annexed; that I have paid to G. B. the surU'Of % , being the amount, with interest, due to him on the mortgage referred to in tlie said judgment or decre- tal order, and have satisfied the same of record ; that I have paid to 8. G. the sum of % , being the amount, with interest, due to him on the judgment referred to in the said decretal or judgment order and have caused the same to be satisfied of record ; that the defendant M. 8. being willing to accept, in lieu of her dower interest in the said premises, a sum in gross in satisfaction thereof out of the net proceeds of the same, I computed the value of her said doiver interest upon the principal of life annuities, and ascertained the same to be % ; and the said M. 8., consenting to accept that sum, I have paid the same to her and have taken from her a release duly executed and acknowledged and approved by me of K. 64 506 THE LAW OF EEFEEEES. ■all her right, title and interest of, in and to the said pre)7iises, ivhich release is hereto annexed. That I have ascertained the probable value of the inchoate 7-ight of dower of the defendant A. S. and make it $ , and after deducting therefrom % , being the proper proportion of the costs and expenses to be borne thereout, have "paid the balance into the hands of the clerk of the court as directed and have taken his receipt therefor, lohich is hereto annexed; that 1 have paid the plaintiff, E. 8., the sum of $ , being one equal fourth part of the residue of the net proceeds o^ sale, after deducting the said amount of his mortgage to the said G. B., and the said amount of the said inchoate 7-ight of dower of the said A. S., a?id have taken a receipt for the same, which is hereto annexed ; that I luive paid the defend- ant G. M. the sum of % , being one equal fourth part of the said residue and have taken a receipt for the same, which is hereto annexed; that I liave p)aid the said defendant H. S. $ , being one equal fourth part of the said residue, after deducting therefrom the amount of the said judgment in favor of the said S. G., satisfied by me as aforesaid ; that I have paid into the hands of the chamberlain of the city of New York (or, brought into court) the sum of % , and the like su7n, % , being the re7naining two-eighths of the said net proceeds and shares of the infant defendants P. S. and R. S., less the gross sum of $ , paid, as aforesaid, to the said defendant M, 8., in lieu of her doicer interest. PAETITION. 507 SECTION XL. CONFIRMING THE LAST REPORT. It has been the practice to move on the final report for an order confirming it. SECTION XLI. ORDER FOR CONFIRMATION OF FINAL REPORT.^ On reading and filing the report of , referee herein, hearing date the — day of , showing that he had executed and delivered to purchasers deeds of the premises sold hxj him pursuant to the judgment order of this court made on the — day of ; and that he had distributed and paid the net proceeds of the sale of the said premises in the manner directed in the said judgment order, and as particularly specified in such report, and to which report are annexed the receipts and releases of the several persons and parties to whom the said proceeds have been paid ; on motion of Mr. , of counsel for the plaintiff: ordered that the said report he confirmed, unless the contrary he shown within eight days from the time of entering this ord^r. » 2 Barb. Ch. Pr., 728. 508 THE LAW OF EEFEEEES. SECTION LXII. AMENDMENT. With regard to amendments of proceedings in partition, by an act to protect purchasers of real estate at sales on partition of land owned by several persons, passed April 16, 1857 (chap. 679, p. 184), the 173d section of the Code is made applicable to the Revised Statutes touching the partition of lands owned by several persons. Under that section, the court may, before or after judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading, process or proceeding, by adding or striking out the name of any party or by correcting a mistake in the name of a party or a mistake in any other respect or by inserting other allegations material to the case, or when the amendment does not change substantially the claim or defense by conforming the pleading or proceeding to the facts proved. And even before the Code, the Court of Chancery was liberal in correcting error in partition cases. Thus in Safford v. Safford (7 Paige's C. R., 259), Chancellor Walworth decided, that where, in a par- tition suit, a report showed the actual interest of parties, the court, of its own motion, could correct any erroneous error which might appear to the extent of such interest, although no formal exceptions had been filed. CHAPTER XIY. EEFEKENCES IN ACTIONS FOE DIVORCE AND SEPARATION. Section I. Obsekvations. II. Reference in an action to dissolve a maeeiage because of adttlteet, WHERE there IS A FAILURE TO ANSWER OR THE CHARGE IS NOT DENIED. III. Order op reference on default, etc. IV. KeFEEEB'S report on complaint to dissolve MARRIAGE BECAUSE OP ADULTERY (ON DEFENDANT'S DEFAULT). V. Judgment (on report) dissolving marriage beoausb of aiIulteet (on DEFAULT OP DEFENDANT). VI. Reference in mattee of limited divorce, where there is a default OR THE charge OF CRUELTY IS NOT DENIED. VII. Order of ebference. VIII. Report finding cruelty, on complaint for a limited divorce. IX. Judgment foe a limited divorce, on default, etc. X. Eeferenob foe trial of issues in a divorce case. XL Oeder eeferring the issues. 211. Referee's report in favor of plaintiff (applicable to adultery or CRUELTY). XIII. Judgment dissolving marriage after a trial op issues before a REFEREE. XIV. Judgment op separation after trial of issues before a eefeeee. XV. Report of referee in favor of a defendant. XVI. Judgment on the last report. XVII, Reference in an action fob divorce for that one op the parties WAS an idiot or lunatic. XVIII. Affidavit of the continued lunacy of the plaintiff. XIX. Affidavit (where plaintiff is rational) of non-cohabitation. XX. Order of reference in case of alleged lunacy. XXI. Report finding lunacy at the time of marriage. XXII. Judgment (on report) dissolving marriage because op lunacy. XXIII. Referenoe in an action for divorce where one op the parties had NOT attained the AGE OF LEGAL CONSENT. XXIV. Affidavit of non-oohabitation where marriage is sought to bk ANNULLED FOB NON-AGE. XXV. Order of reference where marriage is sought to be annulled for NON-AGE. XXVI. Reference in an action for divorce because the former husband ok wipe of one of the parties is living. XXVII. Order of eefeeence where former husband or wife is living. XXVIII. Reference in an action foe divorce on the ground that one op the parties was obtained by force or fraud. XXIX. Affidavit of no voluntary cohabitation where poece or feaud is THE GROUND FOR a DIVORCE. XXX. Reference in an action to annul a marriage for physical incapa- city. XXXI JSToTicE of motion for order of reference in a case op alleged physical incapacity. 510 THE LAW OF REFEREES. Section XXXII. Order op reference on complaint to dissolve marriage because OP PHYSICAL INCAPACITY. XXXIII. Costs in divorce oases. XXXIV. Eefbrbnce to ascertain proper amount op temporary alimony AND EXPENSES TO CARRY ON A DEFENSE. XXXV. Petition for alimony and expenses. XXXVI. Order of reference as to alimony and expenses. XXXVII. Report on temporary alimony and expenses. SECTION T. OBSERVATIONS. If a marriage be valid where celebrated, it is valid everywhere. (Fornshill v. Murray, 1 Bland, 485.) The marriage contract may be dissolved, in an action brought in the Supreme Court for that pur- pose, for two causes : 1. On the" ground of the ntallity of the marriage; and 2. For adultery. Under the first ground, namely, the nullity of the marriage, the court may, by a sentence of nullity, declare void the marriage contract on any one of five grounds, namely : 1. Because the parties, or one of them, had not attained the age of legal consent ; 2. That the former husband or wife of one of the parties was living, and that the marriage with such former husband or wife was then in force ; 3. That one of the parties was an idiot or lunatic ; 4. That the con- sent of one of the parties was obtained by force or fraud; or 5. That one of the parties was physically incapable of entering into the marriage state. (2 R. S., 142 ; 2 Barb. Ch. Pr., 245.) Suits to annul a marriage are to be conducted in the same manner as other suits prosecuted in courts of equity ; and the court has the same power to ACTIONS FOE DIVOECE AND SEPAEATION. 511 award issues, decree costs and enforce its decrees as in other cases. (/&.) The Svxpreme Court has authority to decree a separation from bed and board for ever or for a limited time on the complaint of a married woman, in the following cases : 1. Between any htisband and wife, inhabitants of the State of New York ; 2. Where the marriage was solemnized or took place within the State and the wife is an actual resident at the time of exhibiting her complaint ; 3. Where the marriage took place out of the State and the parties have become and remained inhabitants of the State at least one year, and the wife is an actual resident at the time of exhibiting her complaint. (lb., 146, § 63, orig. 50.) If the wife resides in the State, she is to be deemed an inhabitant, although her husband may reside elsewhere. (lb., 147, § 71, orig. 57.) And such separations may be decreed for the following causes : 1. The cruel and inhuman treatment of a wife by a. husband; 2. Such conduct on his part towards her as may render it unsafe and improper for her to cohabit with him ; or, 3. The abandon- ment of the wife by the husband and his refusal or neglect to provide for her. (/&., § 64, orig. 61.) Chancellor Walwoeth decided that the principles of the English decisions respecting condonation apply with full force to suits in the State of New York for separation from bed and board, for cruel treatment; and that, according to those principles, former injuries would be revived by subsequent misconduct of a slighter nature than would have been necessary to constitute original cruelty enti- 512 THE LAW OF EEFEEEES. tling the Injured party to a decree of separation. (2 Barb. Ch. Pr., 262, referring to Burr v. Burr, In decree of Oct. 21, 1842, 10 Paige's C. K, 20.) A married woman need not sue by a next friend in any case. (Code, § 114, amend, of 1857.) Neltlier party can obtain a divorce for adultery if the other party recriminates and can prove a corres- pondent infidelity. The offense In that case must be of the same kind, and not an offense of a different character. (2 Kent's Com., 100.) It is declared by statute that, although the fact of adultery be established, a divorce may be denied in the following cases : 1. Where the offense was committed by the procurement or with the con- nivance of the plaintiff; 2. Where It has been for- given, and the forgiveness proved by express proof or by the voluntary cohabitation of the parties with knowledge of the fact; 3. Where the suit has not been brought within five years after the discovery by the plaintiff of the offense charged ; or, 4. Where the plaintiff shall be proved to have committed adul- tery. (2 R. S., 145.) 1. To constitute connivance, active corruption is not necessary. Passive acquiescence, with the in- tention and In the expectation that guilt will follow, is sufficient. But, on the other hand, there must be consent — not mere negligence, Inattention, confi- dence or dulness of apprehension. {Rogers v. Rogers, 3 Hogg. Eccl. R, 59.) The injured party may wait for adequate proof, but no longer. {Crewe v. Crewe, lb., 131.) Connivance is generally proved by cir- cumstantial evidence. {Rogers v. Rogers, supra.) ACTIONS FOE DIVORCE AND SEPARATION. 513 2. Forgiveness or condonation is embraced in a voluntary cohabitation between husband and wife, after full knowledge of an act of adultery committed by one party. {Johnson v. Johnson, 4 Paige's C. R., 460 ; Wood v. Wood, 2 Ih., 108 ; Williamson, v. Wil- liamson, 1 J. C. R., 492.) It seems that the cohabi- tation of the wife with her husband, after his private confession to her of an act of adultery, but which she has no means of proving so as to justify her in leaving him, is not such a condonation of the offense as will bar her suit for a divorce upon a subsequent discovery of the means of establishing his guilt. {Hofmire v. Hofmire, 7 Paige's C. R., 60.) To found legal condonation as a bar to adultery, there must be a complete knowledge of all the adulterous con- nection and a condonation subsequent to such know- ledge. Condonation is only a conditional forgive- ness of the injury ; and, therefore, a repetition of the offense will revive the condoned adultery. (Smith v. Smith, 4 Paige's C R., 432 ; Bramwell v. Bramioell, 3 Hogg. Eccl. R., 629 ; Worsleij v. Worsleij, 1 lb., 745 ; Durant v. Same, lb., 761 ; D'Aguilar v. VAguilar, lb., 781; Calkins v. Long, 22 Barb. S. C. R., 97.) But a condoned adultery will not, in the State of New York, be revived by an act of cruelty alone on the part of the husband, so as to entitle, the wife to a divorce. {Johnson v. Johnson, 4 Paige's C. R., 460.) To revive a condoned adultery, the subsequent mis- conduct of the defendant must appear to have been of the same character. But the complainant in a suit for a divorce on account of subsequent misconduct of the defendant, may give the condoned adultery E. 65 • 514 ■ THE LAW OF KEFEEEES. in evidence in support of the charge for the new offense. {lb.) If it appear in any stage of the action, previous to a final judgment, that the adultery com- plained of has been actually forgiven, and has not been ref\^ived by subsequent misconduct, a divorce will not be granted. And if there is reason to sus- pect that such a defense exists, although the defend- ant neglects to set up the same, the court may direct an inquiry to ascertain the fact. {Smith v. Bmith, 4 Paige's C. E., 432.) The principle of condonation attaches to cases of separation as well as to suits for absolute divorce. Condonation of cruel treatment is always subject to the condition that the husband shall afterwards treat his wife with conjugal kindness. If such condona- tion is attempted to be inferred from cohabitation, the presumption may be rebutted by the accom- panying circumstances. ( Whispell v. Whispell, 4 Barb S. C, 217.) 3. The true construction of the subdivision touch- ing the bringing a suit in time, was held by Chan- cellor Walworth to be, that if the plaintiff knew that his wife had contracted a second marriage and continued openly to cohabit with such second hus- band or that she was living in open and continued adultery with another person, even without the usual form of a marriage, the right to commence an action for a divorce for such adultery would be barred after the expiration of five years, although such cohabita- tion or adulterous intercourse is continued down to the time of the commencement of the action. {lb.) If the wife, after the husband has abandoned her and ACTIONS FOE DIVORCE AND SEPAEATION. 515 been absent more tban five years, marries a second husband, the first husband cannot obtain a divorce on the ground of her adultery with the second hus- band subsequent to such marriage, unless he can establish the fact that, at the time of the second mar- riage, the wife knew that her first husband was living within five years then next preceding. Nor can he obtain a divorce in such a case on account of the cohabiting with the second husband after the dis- covery of the mistake, until after the second marriage is judicially annulled ; for, until it is annulled, the second marriage is voidable merely and not void. (lb.) Where a husband knows of the adultery of his wife and lays by five years, he will be barred. (Valleau v. Valleau, 6 Paige's C. R, 207.) 4. Although the defendant denies the adultery charged, she may set up adultery by the plaintiff in bar of the action. ( Wood v. Wood, 2 Paige's C. E,., 108 ; Smith v. Smiih, 4 lb., 432.) The adultery of the plaintiff, although committed after the com- mencement of the action, is a bar to a divorce. And where such adultery is committed after the answer of the defendant has been put in, she will be permit- ted, if she applies immediately after the discovery of the fact, to set up that defense in a supplemental answer or by a cross action in the nature of a plea puis darrien continuance. (Smith v. Smith, supra?) There must be a definite charge of adultery in a complaint, or a reference cannot be had. Thus, where a complaint charged merely " adul- tery in November, 1851, in the city of New York, committed with a female whose name is unknown to 516 THE LAW OF EEFEEEES. the plaintiff, and the particular circumstances where- of are unknown to the plaintiff, it was held, on default, that the charge was too indefinite, and a reference was denied. {Heyde v. Heyde, 4 Sand. Sup. C. K., 692 ; and see Codd v. Codd, 2 J. C. R, 224 ; Wood V. Wood, 2 Paige's C. R., 109.) The ^^nsupported evidence of two prostitutes is not sufficient proof of adultery to authorize the granting of a divorce. {Turney v. Turney, 4 Edw. V. C. R, 566.) No decree can be had in a divorce suit where the only acts proved' have occurred not within the period alleged in the complaint, but after it was filed. {Fer- rier v. Ferrier, 4 Edw. V. C. R., 296.) No decree for a separation will be granted where the acts of cruelty set forth in the bill occurred so long since that the statute of limitations has attached. {Moulton V. Moulton, 2 Barb. Ch. R, 309.) Independently of the acts of April 7th, 1848, April 11, 1849, and March 20, 1860, in New York, courts of equity, in suits for divorce or separation, have the power of restoring to the wife the whole or a portion of her property, and of restraining the hus- band, in an action by the wife, from receiving gifts or legacies given or bequeathed to her after such divorce or separation. {Holmes v. Holmes, 4 Barb. S. C. R, 295.) After a divorce for adultery, the marriage contract is at an end, and the relation of husband and wife no longer exists ; and if the guilty party marries again, he is not within the statutes against bigamy. {The People v. Hovey, 5 Barb. S. C. R, 117.) But such second marriage is prohibited by statute in ACTIONS FOR DIVORCE AND SEPARATION. 517 New York; and tlie guilty party so marrying is punishable as for a misdemeanor. (Jb.) A sentence of nullity of marriage, if pronounced during the lifetime of the parties, is conclusive evidence of the invalidity of the marriage in all courts and proceedings. But if pronounced after the death of either of the parties to the marriage, it is only conclusive as against the parties in the suit and those claiming under them. (2 R. S., 144.) In divorce cases, under the late system in Chan- cery, coupled with the Revised Statutes, if the offense charged was denied, the court directed a feigned issue to be made up for the trial of the facts contested by the proceedings by a jury at some circuit court. (2 R. S., 145.) In Parker v. Parker (3 Abb. Pr. R., 478), it was decided that, under the Code, where issues were raised by the pleadings themselves in an ac- tion for a divorce, it would not be necessary to frame issues for trial, as the issues so made by the plead- ings will be tried. {Parker v. Parker, 3 Abb. Pr. R., 478.) An amendment of Rule 33, since the above decision was made, says this : " In all actions for a divorce, when issue is joined by the pleadings upon the question of adultery, such issue shall not be tried by a jury until the issue to be tried shall be settled in like manner as in other actions, where issues arising 0M# of the pleadings are required to be settled.' Under the Code, an issue of fact in an action for a divorce from the marriage contract on the ground of adultery must be tried by a jury (Code, § 253), un- less a jury be waived, 1. By the opposite party fail- ing to appear at the trial ; or, 2. By written consent, 518 THE LAW OF REFEREES. in person or by attorney, filed with the clerk ; or, 3. By oral consent, in open court, entered in the minutes {Ih., § 266), or, where there is a written consent of the parties to refer the issues in the action (§ 270), or where the court compels a reference from a question of fact, other than on the pleadings, arising in any stage of the action. (^ 271.) The statute directs that no sentence of nullity of marriage shall be pronounced solely on the declara- tions or confessions of the parties ; but that the court shall, in all cases, require other satisfactory evidence of the existence of the facts on which the allegation of nullity is founded. (2 R, S., 144.) In all cases to obtain a divorce or separation or to declare a marriage contract void, if the defendant fail to answer the complaint or if the facts charged in the complaint are not denied in the answer, the court to which application is made for judgment will order a reference to take proof of all the material facts charged in the complaint. (Rule 86 of the Supreme Court.) The court will, in no case, order the reference to a referee nominated by either party. (lb.) And no sentence or decree of nullity, declaring void a marriage contract or decree for a divorce or for a separation or limited divorce, will be made of course by the default of the defendant or in conse- quence of any neglect to appear at the hearing of the cause or by consent. And every such cause will have to be heard after the trial of the issue or upon the coming in of the proofs at a special term of the court ; but where no person appears on the part of the defendant, the details of the evidence ACTIONS FOE DIVORCE AND SEPAEATION. 519 in adultery causes are not to be read in public, but must be submitted in open court. (Rule 91 of the Supreme Court.) SECTION II. EEFEEENCE IN AN ACTION TO DISSOLVE A MAERIAGE BECAUSE OF ADULTERY WHERE THERE IS A FAILURE TO ANSWER OR THE CHARGE IS NOT DENIED IN AN ANSWER. On proof of service of summons and complaint and that no answer or other pleading has been served within the time required by the Code, or, if answer served, that the facts charged in the com- plaint are not denied in the answer, the court will name a referee and grant an order of reference. The motion for this will be ex parte, and nothing further will be necessary unless the complaint should be faulty in not containing the averments set forth in the 86th rule of the Supreme Court, and in that case an affidavit, stating such facts, must be pro- duced to the court. SECTION III. ORDER OP REFERENCE ON DEFAULT, ETC. At a Special Term of the Supreme Court, &;c. Present, Sn^c. [Title.'] On reading and filing proof that the defendant had failed to answer within the time required hy the Code (or, the defendant having put in {her or his) answer, 620 THE LAW OF EEFEEEES. hut the facts charged in the complaint in this action not being therein denied, and on proof of due notice of motion on the attorney for the defe7idant); and on motion of Mr. , of counsel for the plaintiff, it is ordered that it he referred to , of, S)X., as referee to take proof of all the material facts charged in the complaint. The old rale in Chancery (Rule 164), in addition to ordering the master to take proof of all the material facts charged in the bill, required him to do so " with his opinion thereon ;" and we do not see why it was not continued in the present rules, nor why these words might not, very well, still be added to the usual order ] On a reference in a case of divorce for adultery, it is the duty of the referee to examine witnesses and report the evidence as to all the material facts charged in the complaint, together with his opinion thereon ; particularly as to the averments in the complaint which are required to be inserted under the present 86th rule of the Supreme Court as to condonation, collusion, &c. {Dodge v. Same, 7 Paige's C. R., 589.) And among such material facts must not be forgotten the proof of marriage and non- cohabitation, as well as of the acts of adultery. {Dobhs V. Same, 3 Edwards V. C. R., 377.) In the State of New York in a suit for divorce a vinculo matri?nonii, the court must have it clearly appear, that the plaintiff was an actual inhabitant of the State, as well at the time of filing the bill as at the period when the adultery was committed. A marriage in the State, and residence for three months afterwards, and the coming again casually and to ACTIONS FOR DIVORCE AND SEPARATION. 521 commence an action, is not sufficient. {McNeil v. McNeil, 3 Edw. Ch. R., 550.) Non-cohabitation cannot be proved by a witness deposing that the parties had not resided together since their separation "to the best of deponent's knowledge and behef ;" but the person with whom the wife had resided since that time should be called to prove the fact. {Turney v. Turney, 4 Edw. Ch. R, 566.) Testimony, whereon to obtain divorce for adul- tery, should be full and explicit ; and the proceed- ings ought to show that the suit is not got up by collusion. A divorce shoixld only be had where one party is innocent and aggrieved. {Hanks v. Hanks, 3 Edw. V. C. R., 469.) In this case, Vice-Chancellor McCouN observed : " A due regard for public morals requires that, before the court proceeds to dissolve a marriage, it should be satisfied not merely that the delinquency has happened but that there is no col- lusion between the parties in laying a foundation for the suit and in bringing it before the court. Parties bound together by the strongest ties may, in moments of irritation and disappointment, become dissatisfied with each other and be mutually willing to be divorced; and then, resorting to this court, find great facility in carrying a proceeding through upon a bill taken pro confesso ; and from the fre- quency of applications of this sort, I am convinced it is the duty of this court to hold a strict hand over the proceedings and not to grant a decree which is to absolve them from their marriage vows, except where the complaining party is entirely innocent R. 66 522 THE LAW OF EEFEKEES. and is really aggrieved by the misconduct of the other and seeks the relief which the law affords from a sincere desire to avoid a greater shame." And, in an action by the husband against the wife, the referee must also take proofs and report his opinion upon the question of the legitimacy of the children of the defendant. (Rule 90 of the Supreme Court.) .The referee is not authorized to receive the testi- mony of a physician disclosing information which he has acquired in the course of his professional employment, such testimony being prohibited by statute. {Hanford v. Hanford, 3 Edw. V. C. R., 468.) Where a husband asks a decree of divorce from his wife on the ground of adultery, and the inference from the whole testimony is very strong that he had, for years, abandoned his wife and family and thrown them upon the world for support, he must present to the court testimony which, upon its face, clearly proves the charge of adultery he makes against his wife. {Trust v. Trusti 11 Barb. S. C. R., 522.) In a suit for a divorce, on the ground of adultery, the allegation of adultery may be proved by circum- stances : such as the facts that the husband, charged with adultery, had lived for several weeks, during an illness, in the house of a woman of bad character and had subsequently spent several nights at her house, especially when accompanied by other evi- dence, though from witnesses of bad character, that he had been repeatedly seen in bed with the same ACTIONS FOR DIVOECE AND SEPAEATION. 523 woman. ( Van Epps v. Van Epps, 6 Barb. S. C. R., 320.) On a bill for a divorce containing an allegation (and no other) of adultery with E. M., it is not enough for the referee to report that the act was committed with a woman whose name is unknown. The charge in the bill is the one to be proved. {Bokel V. Bokel, 3 Edw. Ch. R., 376.) Referees, in divorce cases, must take proof of the material facts in the bill, e. g., marriage and non-co- habitation, as well as of the adultery. (JDobbs v. Dohbs, 3 Edw. Ch. R., 377.) And, in adultery cases, they should not rely on depositions prepared and brought to them, but will have to take down the testimony from the witnesses themselves. {Banta v. Banta, lb., 295.) Where the testimony in a divorce case does not correspond with the complaint in relation to the time, place and person named therein, a judgment will not be made, although there be evidence of barefaced acts of adultery with persons " to the plaintiff unknown." {Kane v. Kane, 3 Edw. Ch. R., 389.) Where the legitimacy of the children of the mar- riage is wished to be questioned by the plaintiff husband, an allegation that they are or that he be- lieves them to be illegitimate will have to be dis- tinctly made in the complaint. (Rule 90.) And when a reference is ordered, proofs will have to be taken upon the question of legitimacy, as well as upon the other matters stated in the complaint. {lb.) 524 THE LAW OF EEFEEEES. When a wife is the plaintiff, the legitimacy of any children of the marriage, born or begotten of her before the commencement of the action, is not to be affected by any judgment of dissolution. (2 R. S., 145, § 41.) "When the husband is plaintiff, the legi- timacy of children born or begotten before the com- mission of the offense charged, is not to be affected by the judgment ; but the legitimacy of other chil- dren of the wife may be determined upon the proofs. In every such case, the legitimacy of all children begotten before the commencement of the action will be presumed, until the contrary is shown. (Jh., §42.) A plaintiff husband who asks for judgment, declar- ing the children of his wife (defendant) illegitimate, must produce some further evidence of the non- access than the mere fact that his wife was living in adultery with another person. The maxim pater est quern nuptice demonstrant is founded upon very strong reasons of policy as well as of law. And courts should not unsettle the title to property, nor put the status of any one in jeopardy, by speculating upon the mere probabilities in fa^^or of the illegitimacy of a child who may or may not have been begotten by the husband of its mother. The ancient rule of the common law that the hus- band must be presumed to be the father, if he was within the realm during any part of the period of gestation, has long since been repudiated by the courts. It is not necessary, in order to bastardize the issue, that the evidence should be such as to render it impossible that sexual intercourse should ACTIONS FOE DIVORCE AND SEPARATION. 525 have taken place between the husband and wife. It is sufficient, if it proves, beyond a reasonable doubt, that no such intercourse did take place during the usual period of gestation previous to the birth of the child. A Court of Chancery, upon dissolving the marriage contract for the adultery of the wife, is not authorized to declare one of her children illegi- timate who must have been begotten before the com- mission of the adultery charged in the complainant's bill. Where the wife of the complainant was for several years living in the same place with him, as the concubine or kept mistress of another person, the husband in the meantime making no exertjons to break up the adulterous intercourse : held, that, in the absence of evidence of non-access, the complain- ant must be presumed to be the father of the chil- dren begotten upon his wife during that time ; and that he was not entitled to a decree declaring such children to be illegitimate. ( Van Aernam v. Van Aer- nam, 1 Barb. Ch. E,., 375.) Where husband and wife are living separate and apart, it is not sufficient ground for decreeing the custody of their minor children to their mother that the husband is a bad manager and provided there being no evidence against his moral character. {Far- kington v. The State, 1 Smith, 168.) Where a wife has, without good cause, sepa- rated from her husband, she will not be entitled to the cu.stody of a child of the marriage even though it be less than six months old, unless the health of the child imperatively demands the care of the mother. {People v. Humphreys, 24 Barb. S. C. R., 521.) 626 THE LAW OF EEFEEEES. Where a limited divorce is decreed in favor of the wife against the husband, the custody of their chil- dren, when of tender years, will usually be given to the wife. {Ahernfeldt v. Ahernfeldt, 4 Sand. Ch. R., 493.) The future welfare and happiness of the children is, however, entitled to the highest if not paramount regard. (/&.) Therefore, where there was but one child, a daughter, whose worldly prospects were mainly dependent on her father, the court, after such a divorce, on the child's becoming ten years of age, directed a scheme to be framed by which she was to be placed in a ladies' boarding school under the special charge of the mistress of the school, to be under the care of her mother, and the latter to have as much of her society as would be compatible with her situation as a scholar ; with liberty to her father to visit her and to enjoy her society in a manner to be prescribed. (Ih.) SECTION IV. eefeeee's report ok complaint to dissolve marriage BECAUSE of adultery (oN DEFENDANT'S DEFAULT).' To the Supreme Court of the State of New York : [Title.'] In pursuance of an order of this court made in the ahove action, and dated the — day of , 18 — , by which it was referred to me, the undersigned, as referee ' 2 Barb. Oh. R., 682. ACTIONS FOR DIVOECE AND SEPAEATION. 527 to (here recite order), I, the subscriber, referee afore- said, do hereby certify and report : That I have taken proofs in this action, on the part of the plaintiff; and that such proofs are hereto sub- joined and make a part of this my report. And I do further certify and report that, in my opinion, all the material facts charged in the plaintiff's complaint in this action are true and have been suffi- ciently proved before me ; and that the said defendant has committed the {several^ acts of adultery charged in the said complaint. [And I do further certify and report, that I am of opinion that all the children of the defendant named in the complaint are legitimate except M. B., and that she, the said M. B., is not the child of the plaintiff, but is illegitimate. \ All which is respectfully submitted. Dated at the city of New York the — day of , 18 — . Referee. (Depositions annexed to the report.) \_Title:\ Depositions taken this — day of , 18 — , in the above action, on the part and behalf of the plaintiff, before , referee. 18 — , January — . Mr. appears as counsel for the plaintiff; no one appearing for the defendant. , a witness produced, was duly sworn by the said referee, and on being orally examined by counsel for the plaintiff, deposeth as follows : I am acquainted with both the parties in this action {Sfc, S^c, (^c). , another witness produced, 8^c., Sfc. 528 THE LAW OP REFEREES. (Each witness will sign his testimony and the referee will add this jurat : Suhscribed and sivorn to this day of , 18 — , iefore me, ■\ Referee.) SECTION V. JUDGMENT (on EEPOET) DISSOLVING MARRIAGE BECAUSE OF ADULTERY (ON DEFAULT OF DEFENDANT). Dece7nber — , 18 — . [Title.'] The defendant having made default herein ; and this action having been brought on to be heard upon the complaint and upon the report of , a referee duly appointed herein, from which it appears that all the material facts charged in the said complaint are true ; and that the defendant has been guilty of the (several) acts of adultery therein charged, and that M. B. is not the child of the plaintiff, but is illegitimate. On motion of Mr. , of counsel and attorney for tlie plaintiff , it is ordered and adjudged that the marriage between the said plaintiff A. B., and the defendant C. B., be dis- solved, and the same is hereby dissolved accordingly. And the said parties are and each of them is freed from the obligations thereof And it is further adjudged that it shall be lawful for the said plaintiff A. B. to marry again in the same manner as though the said defendant C. B. ivas actually dead ; but it shall not be lawful for the said defendant C. B. to marry again until ACTIONS FOR DIVORCE AND SEPARATION. 529 the said plaintiff A. B. is actually dead. And it is fur- ther adjudged that the said M. B., the daughter of the said defendant C. B., is not the child of the said plain- tiff A. B., and she is hereby declared to he illegitimate _ (In case the action shall have been brought by a wife against a husband, then the matters of custody of children, of alimony and costs, would here be added, as in precedent of judgment, section ix, post. And, on the point of amount of permanent alimony to be awarded on granting a divorce for adultery, the defendant should be permitted to produce proofs; and, either on a reference or a hearing before the court, should be allowed to show such facts as are proper to be considered in determining the amount of alimony, the time when it should commence, &c.) {Forrest v. Forrest, 3 Abb. Pr. R., 144.) SECTION VI. BEFERENCB IN MATTER OP LIMITED DIVORCE, WHERE THERE IS A DEFAULT OR THE CHARGE OF CRUELTY IS NOT DENIED. We have, in the introductory part of this chapter, shown in what cases application may be made for a divorce from bed and board. An order of reference can be obtained, where there has been no answer or no denial in the same manner and way as is pointed out in " Section II, Reference in an action to dissolve marriage because of adultery" S^c, at page 519, ante. R. 67 530 THE LAW OF EEFEREES. SECTION VII. OEDER OP EEFEEENCE. ITitie.] At a Special Term, &;c. Present, S^c. On reading and filing proof that the defendant had failed to answer loithin the time required hy the Code (or, no answer having been interposed in this action ivithin the time required hy the Code, or, the answer herein not denying any facts charged in the complaint in this action, and on proof of due notice of motion on the attorney for the defendant), and this action having been commenced for the purpose of obtaining a limited divorce or separation between parties to this action ; on motion of Mr. , of counsel for the plaintiff' (and after hearing Mr. , of counsel for tlie defendant), it is ordered that it be referred to , of, Sfc, as referee, to takeproofofthe material facts charged in the complaint, and to report such proof to the court, with his opinion thereon. And it is further ordered that, on such refer- ence, the said referee may take tlie examination of the plaintiff, on oath, as to any cruel or inhuman treatment alleged in the complaint which took place when no loit- nesses were present who are competent to testify to tlie facts on such reference (^pursuant to the 88^^ standing rule of the Supreme Court). In a suit in equity for a limited divorce, grossly indecent language, spoken to, or of the wife by the husband, will find neither palliation nor excuse in ACTIONS FOR DIVORCE AND SEPARATION. 531 the fact that the parties have not enjoyed the advan- tages of cultivated society. ( Whispell v. Whispell, 4 Barb. S. C. R, 217.) To authorize the interposition of a court of equity for the purpose of declaring a limited divorce, there must in all cases be ill treatment and personal in- jury or a reasonable apprehension of personal injury. Words of menace, accompanied by a probability of bodily violence, will be sufficient. It may be enough if they are such as inflict indignity and threaten pain. {lb.) Upon a reference to take proofs in a suit for a separation where the defendant admits the charges in the bill to be true, either by answer or by want of an answer, such defendant may appear and cross- examine the witnesses of the plaintiff and may pro- duce witnesses to disprove the charges in the com- plaint : for the rights of the defendant are the same upon such a reference, where the charges in the complaint are all admitted in the answer, as where they are admitted by neglecting to answer. {Perry V. Perry, 2 Barb. Ch. R, 285.) But where the wife is the defendant, if she attends upon the reference and cross-examines the plaintiff 's witnesses, such cross-examination must be at her own expense and not at the expense of her husband. Nor is the referee bound to take testimony for the defendant without compensation, in such a case. (/&.) 532 THE LAW OF KEFEEEES. SECTION VIII. EEPOET FINDING CEUELTT, ON COMPLAINT FOR A LIMITED DIVORCE. To the Supreme Court of the State of New York : [Title,'] In pursuance of an order of this court made in the above action and dated the — day of , 18 — , hy which it was referred to me, the undersigned, as referee, to (here recite order), I, the subscriber, referee afore- said, do hereby certify and report : That I have taken proofs in this action on the part of the plaintiff; and that such proofs are hereto subjoined and make a part of this my report. Also I certify and report that I have taken the examination of the plaintiff, on oath, as to cruel and inhuman treatment alleged in the complaint, which took place when no witnesses were present who are competent to testify to the facts on the reference before me herein. And I do further certify and report that, in my opinion, all the material facts charged in the plaintiff^ s complaint in this action are true and have been suffi- ciently proved before me ; and that the said defendant has committed and been guilty of the (severaT) acts of cruelty and inhuman treatment on and towards the plain- tiff, and of such cruelty towards her as are charged in her said complaint, and lohich renders it unsafe and improper for her to cohabit and live with him. ACTIONS FOE DIVORCE AND SEPAEATION. 533 All which is respectfully submitted. Dated at the city of New York the — day of , 18 — . Referee. (Depositions to be annexed to report. See footing to report, section iv, p. 527, ante.) SECTION IX. JUDGMENT FOE A LIMITED DIVORCE ON DEFAULT, ETC.' December, — , 18 — . [ Title of action.^ This action having this day been brought on to be heard upon the complaint {or pleadings) and referee's report, together with the proofs thereto annexed ; and the court having duly considered the said referees report {and the arguments of counsel) ; and it appearing to this court that the defendant has been guilty of cruel and inhuman treatment of the plaintiff and of such con- duct towards her as to render it unsafe and improper for her to cohabit and live with him ; it is ordered and adjudged, and this court, by virtue of its authority and power and of the statute in such case made and provided, doth order and adjudge that the said plaintiff and defendant be separated from bed and board for ever ; pro- vided, however, that the said parties may, at any time hereafter, by their joint petition, apply to this court to have this judgment modified or discharged ; and that ' 2 Barb. Ch. Pr., 688 ; MoCaU'a Forms, 90. 534 THE LAW OF EEFEEEES. neither of the said parties shall he at liberty to marry any other person during the life of the other party. And it is further ordered and adjudged that the defendant pay to the plaintiff the sum of % p>^^ annum from the date of this judgment, in semi-annual payments, for the support and maintenance of the complainant (and the cMldren of the marriage named in the complaint) ; and that he give security to the clerk of this court at the City Hall in the city of New York, to he approved hy one of the justices thereof, for the payment of the said sum. (And it is further ordered and adjudged, that the said plaintiff have the care, custody and educa- tion of the said children of the marriage until the further order of the court.) And it is likewise ordered and adjudged that the defendant pay to the said plain- tiff or her attorney $ , as the costs of this action, and that she have execution therefor according to the rules and practice of this court. SECTION X. REFERENCE FOR TRIAL OP ISSUES IN A DIVORCE CASE. In an action for a divorce, a consent to a reference must be given in writing, personally or by attorney, and filed with the clerk as required by the 266th section of the Code, " by written consent, in person or by attorney, filed with the clerk ;" and if this be not done before proceedings are had under the reference, they will be set aside. {Diddell v. Diddell, 3 Abb. Pr. R, 167.) ACTIONS FOE DIVORCE AND SEPARATION. 535 On account of the serious character of cases of divorce, it would be well for attorneys to get their clients to sign the consent for a reference, or, at any rate, to get a written authority to sign it on their behalf FORM OF CONSENT TO A REFERENCE OF TRIAL OF ISSUES. [Title.] It is hereby consented and stipulated, hy and hetween the parties to the alove entitled action (or, by the attor- neys of the parties to the above entitled action and on their respective behalf), that the right of trial by jury therein be and the same is hereby waived ; and that the said action be referred to , of, 3^c., Esquire, as referee to hear and determine the issues therein. New York, , 18—. A. B., Plaintiff. C. D., Defendant. (Or, E. F., Plaintiff's Attorney, G. H., Defendants Attorney.) SECTION XI. ORDER EEFEEEINa THE ISSUES. ITitle.] At a Special Term, 8^c. Present, 8^c. This being an action brought for an absolute {a limited) divorce; on reading and filing with the clerk a consent and stipulation made and signed by the plain- tiff and defendant (or, by the attorneys for the respec- tive parties) whereby the right of trial is waived and a 536 THE LAW OF EEPEEEES. reference of issues to the under mentioned referee agreed to; and on motion of Mr. , of counsel for the plaintiff, it is ordered that this action he referred to , of, &;c., as sole referee to hear and determine all the issues therein and make his report to the court with all convenient speed. It is decided in Morrell v. Morrell (3 Barb. S. C. R., 236), that in suits for divorce on the ground of adul- tery, feigned issues are only to be made up for the trial of the facts contested by the pleadings. The allegations expressly made on one side and denied on the other, and those only are to be tried. It may, therefore, be understood, that when the issues in a case of alleged adultery are referred to a referee, those allegations expressly made on one side and denied on the other, are solely such as should be con- tested before him. And see Parker v. Parker (3 Abb. Pr. R, 478). The general proceedings before the referee, on a trial of issues in a case of divorce, will be the same as on issues in other actions ; the same notices given ; like subpenas served ; and usual rules of evidence will apply. Indeed, issues now are on the same footing as where a feigned issue was made for a court of law ; so that the facts must be made under ordinary rules of evidence. However, the liberality of the Code which allows a plaintiff or defendant generally to testify on his own side, does not go so far as to trench upon the important and politic rule of not allowing husband or wife to testify against each other, except where the latter comes for a limited divorce ; for there her evidence on oath may . ACTIONS FOR DIVORCE AND SEPARATION. 537 be taken as to any cruel or inhuman treatment alleged in the complaint which took place when no witnesses were present who were competent to tes- tify to the facts on the reference. (Rule 88 of the Supreme Court.) With the exception last mentioned, neither wife nor husband can be witness against each other. {Smith V. Smith, 15 How. Pr. R, 165; Sweet v. Sweet, lb., 169.) One cannot call the other as a witness in his or her favor. (Arborgast v. Arborgast, 8 How. Pr. R., 297.) In that case, Justice Strong ob- served : " This is an action for a divorce for adultery. The defendant not having appeared in the action, the court ordered a reference to take proof of all the material facts charged in the complaint ; and the report of the referee is now presented and application made for judgment. It appears by the report that the defendant was sworn and examined by the refe- ree and that she testified to the adultery charged, and to the marriage of the parties, their residence and the other matters in the bill. Two other persons were examuied as witnesses for the plaintiff, in refer- ence to the adultery only, but their testimony fails satisfactorily to establish it. One of them testified to circumstances, from which it was doubtful whether or not the defendant had actually committed the act when surprised by the witness ; the other is lewd conduct short of adultery. The question in the case is, then, whether the testimony of the defendant will warrant a judgment for a divorce \ And I have no hesitation in deciding that it will not. It is an old and familiar rule of the common law that husband and R. 68 538 THE LAW OF REFEREES. wife cannot be witnesses for or against eacli other ; and this rule is founded, in part, on public policy. {Burr ell v. Bull, 3 Sand. Ch. E., 15, and cases cited.) It has not been abrogated or changed in any respect by the statutory provisions on the subject of the examination of a party to an action at the instance of the adverse party. Those provisions were not designed to render persons competent as witnesses who were not before incompetent from some other cause than being parties to the record. (5 Barb., 156 ; 4 Sand. S. C. R, 596 ; 2 Sand. S. C. R, 340.) There is a peculiar propriety in the rule referred to, in cases like the present. A contrary rule, in such cases, would lead to the greatest frauds and abuses." This doctrine was followed in Smith v. Smith (15 How. Pr. R, 165). The reader will find, under different sections of this chapter, leading cases and principles touching the sufficiency of facts and circumstances which will amount to a conclusion of law on the points of adultery, cruelty, &c. Where the issues are left to the referee, he does not return his minutes of the testimony, but keeps them by him for protective use in case an appeal is had, &c. ACTIONS FOK DIVOECE AND SEPAEATION. 539 SECTION XII. eefeeee's eeport in favor of plaintiff (applicable to adultery or cruelty). To the Supreme Court of the State of New York : [Title.] In pursuance of an order of this court, made in the above action and dated the — day of , 18 — , hy ivhich the issues herein were referred to me, the under- signed as referee, to hear and determine the same. I, the subscriber, referee aforesaid, do hereby certify and report : That I have heard the proofs and allegations of the parties and the argument of their counsel. Also, I do certify and report that I find for facts in this action the following : That on the — day of , 18 — , the plaintiff intermarried with the defendant at, 8^c. That the plain- tiff continued to live ivith the defendant as {his wife or, as her husband) until about the — day of , 18 — ; and that from the time of such marriage and at the times of the commission of the acts of (adultery or cruelty) hereinafter set forth, they were and are inhab- itants of the State of New York. That during the time the said plaintiff and defend- ant cohabited as man and wife together, the said (^plaintiff or defendant, or they) had (five) children, namely, -, aged, 8^c., Sfc. That in the month of , 18 — , the said defendant did, in the city of {commit adultery and have 540 THE LAW OF KEFEREES. carnal connection with one and one — guilty of the following cruel and inhuman treatment of the defendant, which renders it unsafe and improper for her to live and cohabit with him, namely, that while she, the plaintiff, ivas sitting on a chair, in their home in No. street. New York, the defendant pulled the chair from under her, dragged her by the hair across the room under circumstances which showed an utter disregard of the said plaintiffs health if not of her life ; that on another occasion, namely, on the — ^y of ' 18 — , at, Sfc. (Here specify further acts of cruelty and inhuman treatment, which may include refusal to provide for her support. Also as to the property and estate of the defendant and its approxi- mate income.) That Jive years have not elapsed since {he or she) discovered the fact that the aforesaid adultery had been committed by {her or Ztm) ; and that he {she) has not voluntarily cohabited with her (hirn) since its discovery ; that such adultery was committed by her {him) mthout his {her) connivance, privity or procurement. That, with regard to the said (five) children of the said defendant, the first named four, namely, 8^c., were horn while the said plaintiff and defendant were living and cohabiting together as man and wife, but that the last, namely, M. B., loas born on the — day of , 18 — , at, 4"c-, while the defendant was living in adul- tery with the said , and the said plaintiff being at , or at sea, away from the State of New York for more than a year before its birth, during all which time the defendant was living ivithin the said State. ACTIONS FOE DIVORCE AND SEPAEATION. 541 And as a conclusion of law, I find that the said mar- riage referred to and embraced hy the complaint herein, between the plaintiff and defendant, should be dissolved, and that the plaintiff A. B. is entitled in this action to a divorce from the said defendant C. B., according to the statute in such case made and provided. Also that the said M. B. is an illegitimate child and not the child of the plaintiff ; or, that the said plaintiff and defendant should be separated from bed and board for ever under the statute in such case made and provided. And that the defendant pay to the plaintiff the sum of $ each year from the date of judgment herein, in (^quarterly^ payments for the support and maintenance of the plain- tiff and the said children of the marriage, giving secu- rity as the court may direct ; that the plaintiff have the care, custody and education of the said children until the court should otherwise order. And that the defend- ant pay the costs of this action and have execution therefor. All which is respectfully submitted. Dated at the — day of , 18 — . Referee. SECTION xm. JUDGMENT DISSOLVING MAEEIAGE AFTER A TRIAL OP ISSUES BEFORE A REFEREE. December — , 18 — . {^Title.'] This action having been tried on all the issues before — , sole referee, duly appointed; on reading and 542 THE LAW OF REFEREES. filing the pleadings and report of the said teferee, hy which report it appears that the said defendant has been found guilty of the acts of adultery charged against him in the complaint in this action ; and on motion of Mr, of counsel for the plaintiff (and Mr. of counsel for the defendant), it is ordered and adjudged that the marriage hetween the said A. B. and the defend- ant C. B. he dissolved, and the same is hereby dissolved accordingly. And the said parties are and each of them is freed from the obligations thereof. And it is further adjudged that it shall be lawful for the said plaintiff A. B. to marry again in the same manner as though the said defendant C B. ivas actually dead ; but it shall not be lawful for the said defendant C. B. to marry again until the said plaintiff A. B. is actually dead. SECTION XIV. JUDGMENT OF SEPARATION AFTER TRIAL OF ISSUES BEFORE A REFEREE. December — , 18 — . [Title.] This action having been tried on all the issues before sole referee duly appointed ; on recording and filing the pleadings and report of the said referee, by which report it appears that the defendant has been guilty of cruel and inhuman treatment of the plaintiff and of such conduct towards her as to render it unsafe and improper for her to cohabit with him ; it is ordered and adjudged (here take the active part of the judgment ACTIONS FOE DIVOECE AND SEPAEATION. 543 from the form in section ix, at p. 533, '■'Judgment for a limited divorce on default" &;c?) In case the plaintiff should not make out a case and the referee have to find for the defendant, the following might form a precedent for his report : SECTION XV. EEPORT OF EEFEEEE IN FAVOR OF THE DEFENDANT. To the Supreme Court of the State oj New York : [ Title.'\ In pursuance of an order of this court made in the aiove action and dated the — day of , 18 — , hy which the issues herein were referred to me, the under- signed, as referee, to hear and determine the same. I, the subscriber, referee aforesaid, do hereby certify and report : That I have heard the proofs and allegations of the parties and the argument of their counsel. Also, I do certify and report that I find for facts in this action the following : That on the — day of , 18 — , the plaintiff intermarried with the defendant, at, &^c. That they continued to live together from the said day of their marriage until the — day of , and had, during that time, {^five) children, and all of whom were born in wedlock, and all were the children as well of the. plaintiff as of the defendant. That the said plaintiff has failed in proving that the said defendant committed any of the acts of adultery 544 THE LAW OF EEFEEEES. charged against him (or her) in the complaint in this action. (Or, has failed in proving that the defendant committed towards or upon the said plaintiff" any of the cruel and inhuman acts charged in the complaint so as to make it unsafe and improper for her to live and cohabit with him or so as to show an utter disregard of the said plaintiff'' s health or life.) And, as a conclusion of law, I find that the said defendant is not guilty of any of the acts of adultery (or, cruelty) charged in the said complaint in this action ; (that all the said five children are the lawful issue of the said plaintiff and defendant and are consequently legiti- mate) ; and that the complaint herein should he dis- missed as against {her or him, and if against the man, with costs). The dismissal of a complaint is equivalent to judgment as in case of nonsuit under the former practice and is a substitute for it. {Holmes v. Slocum, 6 How. Pr. R., 218.) SECTION XVI. JUDGMENT ON THE LAST EEPOET. December — , 18 — . ITitle.] This action having been tried on all the issues before sole referee duly appointed; on recording and filing the pleadings and report of the said referee, by which report it appears that the said defendant is not guilty of any of the acts (here follow the wording of ACTIONS FOR DIVORCE AND SEPARATION. 545 the report) ; and on motion of Mr. , of counsel for the defendant, it is ordered and adjudged that the said complaint he dismissed (and if the finding be against the man add : and also that the said defendant recover of the said plaintiff the su?n of % , for her costs and disbursements which she has wrongfully sus- tained in this action and that she have execution there- for) SECTION XVII. EEFEEENCE IN AN ACTION FOR DIVOKCE, FOE THAT ONE OF THE PAETIES WAS AN IDIOT OE LUNATIC. All persons who have not the regular use of the understanding sulficient to exercise discretion in the common affairs of life, as idiots and lunatics (except in their lucid intervals), are incapable of agreeing to any contract ; and, of course, to that of marriage. But, although marriage with an idiot or lunatic be absolutely void by the common law, and no sentence of avoidance be absolutely necessary, yet, as well for the sake of the good order of society as for the peace of mind of all persons concerned, it is expedient that the nullity of the marriage should be ascertained and declared by the decree of a court of competent jurisdiction. (2 Kent's Com., 75 ; Wightman v. Wight- man, 4 J. C. K, 343.) Accordingly, the Revised Statutes provide for an action to annul a marriage of that kind. And they declare that such marriages shall be void from the R. 69 546 THE LAW OF EEFEEEES. time their nullity shall be established by a court of competent authority. (2 K. S., 139.) If the ground for annulling the marriage is the idiocy of one of the parties, it may be declared void on the application of any relative of such idiot inte- rested to avoid the marriage at any time during the lifetime of either of the parties. {lb., 142.) ' If lunacy is the ground upon which the marriage is sought to be annulled, it may be declared void at any time during the continu.ance of the lunacy or after the death of the lunatic in that state, during the lifetime of the other party to the marriage, on the application of any relative of the lunatic interested to avoid the mamage. {lb!) If the marriage of an idiot or lunatic is sought to be annulled during the lifetime of both the parties to the marriage, and no suit is brought by any rela- tive, a sentence of nullity may be pronounced on the application of any person admitted by the court to prosecute as the next friend of the idiot or lunatic. {lb., 143.) The lunatic himself may also apply, after his restoration to reason, to have the marriage annulled. But in such case, no sentence of nullity will be pro- nounced if the parties have freely cohabited as hus- band and wife after the lunatic was restored to a sound mind. {lb.) The children of a marriage annulled on the ground of lunacy or idiocy, are entitled to succeed to the real and personal estate of the parent who was of sound mind, in the same manner as legitimate chil- dren, {lb.) ACTIONS FOR DIVOECE AND SEPARATION. 547 The term lunatic, as used in the statute, extends to every person of unsound mind other than idiots. If a plaintiff seeks to annul a marriage on the ground that the plaintiff was a lunatic, an affidavit must be produced, showing that the lunacy still con- tinues ; or, the plaintiff must show, by his affidavit, that the parties have not cohabited as husband and wife after the plaintiff was restored to reason. (2 E. S. 142 ; Rule 87 of Supreme Court.) On moving for a reference, the attorney for the plaintiff will be prepared, not only with proof of service of complaint and summons and default, but also with an affidavit showing that the lunacy still continues — or the plaintiff must show, by his or her affidavit, that the parties have not cohabited as hus- band and wife after the plaintiff was restored to reason. (Rule 87 of Supreme Court.) SECTION XVIII. AFFIDAVIT OF THE CONTINUED LUNACY OF THE PLAINTIFF. [Title.] Covjity of , ss. J. F., of, S^c. M. D., being sworn, maketh oath and saith : That he well knows the above plaintiff A. B., and has been attending him (or her) ever since the month of , 18 — ; that he saw the said A. B. this very day, and he finds and so deposes that the said A. B. was and is and continues to be a lunatic. Sworn, Sfc. 548 THE LAW OF EEFEREES. SECTION XIX. AFFIDAVIT (WHEEE PLAINTIFF IS RATIONAL) OF NON- COHABITATION. [Title.'] County of , ss. A. B., the above plaintiff, being sioorn, makelh oath and saith, That he (or sAe) and the above defendant C D. have not cohabited as inan and wife since this deponent was restored to reason. 8worn, 8^c. Of course, if the defendant has appeared, notice of motion for a reference, founded on the summons and complaint and service and on one of the above afiida- vits, will have to be made. SECTION XX. OEDEE OF EEFBEENCE IN A CASE OF ALLEGED LUNACY. [Title.] At a Special Term, S^-c. Present, S;c. On reading and filing proof that the defendant had failed to answer ivithin the time required by the Code (or, no answer having been interposed in this action within the time required by the Code, or the answer herein not denying any facts charged in the complaint in this action, and on due notice of motion on the attor- ney for the defendant'), and on reading and filing an affidavit of the continued lunacy of the plaintiff (or, ACTIONS FOE DIVORCE AND SEPARATION. 549 affidavit of non-cohabitation pursuant to rule of court) ; and this action having been brought to obtain a divorce on the ground of lunacy at the time of marriage ; on motion of Mr. of counsel for the plaintiff (and after hear- ing Mr. of counsel for the defendant), it is ordered that it be referred to of, 8^c., as referee to take proof of the material facts charged in the complaint, and to report such proof to the court, with his opinion there- on. If the defendant has appeared, he (as well as his attorney), had better have notice to attend before the referee. ( Wightfnan v. Wightman, 4 J. C E., 343.) In case a commission of lunacy should have been issued and an inquisition had finding the plaintiff to be a lunatic, such inquisition should be laid before the referee, although it may not be conclusive. (Ser- geson V. Sealey, 2 Atk., 412 ; Den v. Clark, 5 Halst., 217 ; Hart v. Deamer, 6 Wend., 497 ; Faulder v. Silk, 3 Campb., 126; 2 Mad., 578.) Still, there is no necessity for the issuing and return of a commission of lunacy in order to avoid a marriage on proof of lunacy. (^Turner v. Meyers, 1 Hagg. Cons. C, 416.) SECTION XXI. EEPORT, FINDING LUNACY AT THE TIME OF MARRIAGE. To the Supreme Court of the State of New York : [Title.] In pursuance of an order of this court made in the above action and dated the — day of , 18 — ,by 550 THE LAW OF EEFEEBES. which it was referred to me, the undersigned, as referee, to (here recite order), I, the subscriber, referee afore- said, do hereby certify and report : That I have taken proofs in this action on the part of the plaintiff I and that such proofs are hereto subjoined and make a part of this my report. And I do further certify and report that, in my opinion, all the material facts charged in the plaintiff'' s complaint are true and have been fully proved and estab- lished before me ; and that the said plaintiff A. B. icas a lunatic at the time of his (or her') marriage with the defendant as stated in the complaint herein. All which is respectfully submitted. Dated at the city of New York the — day of , 18 — . Referee. (Depositions to be annexed to report. See footing to report, section iv, p. 527, ante.) SECTION XXII. JUDGMENT (on EEPOET) DISSOLVING MARRIAGE BECAUSE OF LUNACY. [_Title.\ December, 18 — . The defendant having made default herein ; and this action having been brought on to be heard upon the complaint and upon the report of, 8^c., referee duly appointed herein, from which it appears that all the material facts charged in the said complaint are true. ACTIONS FOE DIVORCE AND SEPARATION. 551 and that the plaintiff was a lunatic at the time of his (or, her) marriage with the defendant as stated in the complaint. On motion of Mr. , of counsel and attorney for the plaintiff, it is ordered and adjudged that the marriage between the said plaintiff, A. B., and the defendant, C. B., is null and void, and the said par- ties plaintiff and defendant are free from the ohligations of marriage with each other. And it is further ordered and adjudged that the defendant pay to the plaintiff or her attorney % , as the costs of this action. SECTION XXIII. EEFERENCE IN AN ACTION FOR DIVORCE WHERE ONE OF THE PARTIES HAD NOT ATTAINED THE AGE OF LEGAL CONSENT. No persons are capable of binding themselves in marriage until tbey have arrived at the age of con- sent, which by the common law, is fixed at fourteen in males and twelve in females. (2 Kent's Com., 78 ; Co. Litt., 33 ^) The Revised Statutes originally contained a provision making the marriageable age of the male seventeen and of the female fourteen. But this section was repealed by the act of 1830. (Laws of 1830, ch. 320, § 24.) Marriages contracted by parties within the age of consent are not void, however, ai initio, but only from the time their nullity shall be declared by a court of competent authority. (2 R. S., 139.) Hence, a suit is necessary to dissolve a marriage thus con tracted. 552 THE LAW OF REFEREES. The action may be brought by the parent or guardian entitled to the custody of the minor or by the next friend of the minor. (lb., 142.) In a case where the defendant married an infant under twelve years of age, who immediately declared her ignorance of the nature and consequences of the marriage and her dissent to it : the court, on a com- plaint filed by her next friend, ordered her to be placed under its protection, as a ward of the court, and forbade all intercourse or correspondence with her by the defendant, under pain of contempt. {Atjmar v. Roff, 3 J. C. R, 49.) Where a plaintiff seeks to annul a marriage on the ground that the party was under the age of legal assent, an affidavit must be produced showing that the parties thereto have not freely cohabited for any time as hu'Sband and wife, after the plaintiff had attained the age of consent. (Rule 87, of the Supreme Court ; 2 R. S., 142.) This affidavit should be made use of at the time the court is applied to for an order of reference. SECTION XXIV. AFFIDAVIT OF NON-COHABITATION WHERE MAREIAGE IS sought to be annulled for non-age. Court. A. B. against G.B. ss : A. B., plaintiff" herein, being sworn, maketh oath and saith, That this is an action for divorce ACTIONS FOE DIVORCE AND SEPAEATION. 553 on tlie ground that she, this deponent, was under the age of legal assent when it took place ; also, that she has noio attained, and is over the age of consent, she being, at this time, upwards of years of age. Likewise she deposes that she and the said defendant have not freely cohabited for any time as husband and wife since or after this deponent attained the said age of consent. Sivorn, S)X. And to this must be added proof of service of summons and complaint; and, default, as referred to under section ii, p. 519, ante. Presuming that a reference is had on default or where no issuable answer is interposed, the foUow- inof order will be obtained and entered : SECTION XXV. OEDER OF KEPERENCE WHERE MARRIAGE IS SOUGHT TO BE ANNULLED FOR NON-AGE. At a Special Term of the Supreme Court, 8^c., 8^c. A. B. against C. B. Present, &^c. On reading and filing proof that the defendant had failed to answer within the time required by the Code (or, the defendant having put in his ansioer, but the facts charged in the complaint in this action not being denied therein, and on proof of due notice of motion on the attorney for the defendant) ; and also on reading and E. 70 554 THE LAW OF EEFEEEES. filing the affidavit of the plaintiff", required hy the 81th rule of the court, that the parties to this action have not freely cohabited for any time as husband and wife after the plaintiff had attained the age of consent ; and on motion of Mr. of counsel for the plaintiff, it is ordered, that it be referred to , of 8)X., as referee, to take proof of all the material facts charged in the complaint, with his opinion tJiereon. It is deemed unnecessary to give a precedent of a report or judgment in a case where the marriage is sought to be annulled on the ground of non-age, as forms heretofore appearing in this chapter (for instance, under sections xxi, xxii, ante) can be easily varied so as to answer. Evidence of non-age can be gathered from parent, nurse, doctor and registers. And see cases collected in 2 Cowen and Hill's Notes, 256 (note 101). SECTION XXVI. ' EEFEEENCB IN AN ACTION FOE DIVOECE, BECAUSE THE FOEMBE HUSBAND OE WIFE OF ONE OF THE PAETIES IS LIVING. No person can marry while the former husband or wife is living. Such marriage is, by the common law, absolutely null and void. (2 Kent's Com., 70 ; Cro. EHz., 858 ; 1 Salk, 121.) And such second marriages are forbidden, also, by the Revised Statutes, unless the former marriage has been annulled or dissolved and that for some cause other than the adultery of the former husband or ACTIONS FOE DIVORCE AND SEPARATION. 555 wife ; or, unless the former husband or wife has been sentenced or imprisoned for hfe. (2 E. S., 139.) The 6th section of the statute declares that no pardon granted to any person sentenced to imprisonment for life shall restore him or her to the rights of a previous marriage. The statute pronounces every marriage contracted in violation of the above provisions absolutely void, except in one case particularly specified, and that is, when the husband or wife, as the case may be, of the party who remarries shall have absented from the other for the space of five successive years ; the one remarrying not knowing the absentee to be living within that time. In such case, the marriage will be void only from the time its nullity is pro- nounced by the court of competent authority. (Jb.) A marriage may be annulled and declared void on the ground that a former husband or wife was living, on the application of either of the parties to the second marriage during the lifetime of the other or upon the application of the former husband and wife. {lb., 142.) Whenever it appears and is so decreed that the subsequent marriage was contracted in good faith and with the full belief of the parties that the former husband or wife was dead, the issue of such marriage born or begotten before its nullity is declared, are entitled to succeed in the same manner as legitimate children to the real and personal estate of the parent who, at the time of the marriage, was competent to contract. And the issue so entitled must be specified in the sentence of nullity. 556 THE LAW OF EEFEEEES. In a suit for a nullity of marriage on account of another wife living, the affidavit of non-cohabitation, connivance, &c., is not necessary. [Borradaile v. Bor- radaile, 1 Edw. V. C. R., 40.) The only affidavit will be that containing proof of service of summons and complaint and default. SECTION XXVII. ORDER OF REFERENCE WHERE FORMER HUSBAND OR WIPE IS LIVING. ITitle.] At a Special Term, 8^c. Present : On reading and filing proof that the defendant had failed to answer ivithin the time required by the Code (or, the defendant having put in his answer, hut the facts charged in the complaint in this action not heing denied therein, and on proof of due notice of motion on^ the attorney for the defendant^ ; and on motion of Mr. , of counsel for the plaintiff", it is ordered that it be referred to , of, S^c, as referee, to take proof of all the material facts charged in the complaint. And the said referee is also required, in his report, to certify and report whether the subsequent marriage of the defendant, alleged in the complaint, was contracted in good faith and with the full belief of the parties thereto that the former husband (or, wife^ was dead, so that it may be thereby ascertained, whether the issue of the subsequent marriage, born or begotten before its nullity be declared, are entitled to succeed in the same manner as legitirnate ACTIONS FOE DIVOECE AND SEPARATION. 557 children to the real and personal estate of the parent who, at the time of ihe marriage, was competent to con- tract. Also, that the said referee ascertain such issue and specify thetn in his report. And the said referee is also ordered to report his opinion upon the matters thus referred to him. It is presumed that evidence similar to what would be required on an indictment for bigamy, must be necessary under this reference. The mere confession of the prisoner is not sufficient evidence of the first marriage ; but a marriage in fact must be proved. {The People v. Humphreys, 7 J. R., 314.) The husband cannot be a witness against the wife, nor the wife against the husband, to prove the first marriage ; but the second wife or husband may be a witness, the second marriage being void. (Bull. N. P., 287 ; 1 Hale's P. C, 693 ; and for further rules of evidence on this subject, see 1 Russell on Crimes, 189, et seq.) SECTION XXVIII. EEFERENCE IN AN ACTION FOE DIVORCE ON THE GROUND THAT THE CONSENT OF ONE OF THE PARTIES WAS OB- TAINED BT FORCE OR FRAUD. A marriage procured by force or fraud is, by the common law, void ah initio and may be treated as null by every court in which its validity may be inci- dentally drawn in question. The basis of the mar- riage contract is consent ; and the ingredient of fraud or duress is as fatal in this as in any other contract, 558 THE LAW OF EEFKEEES. for the free assent of the mind to the contract is wanting. (2 Kent's Com., 77 ; and see Ferlat v. Gojon, Hopk., 478 ; FornsUU v. Murraij, 1 Bland, 483.) And although such a marriage is void, it is equally proper in this case, as in those of idiocy or lunacy, that the fraud or violence should be judicially investigated in a suit instituted for the very purpose of annulling the marriage. (/Z>.) The statute, therefore, authorizes an action on the ground that the consent of one of the parties was obtained by force or fraud. (2 R. S., 143.) And such a marriage is declared void (by the statute) as in the cases of idiocy, lunacy, &c., from the time its nullity shall be established. {lb., 139.) The complaint, for this purpose, must be filed by the party whose consent was obtained by force or fraud, or of his or her parent or guardian, or by some relative interested to contest the validity of the mar- riage. (Th., 143.) It must be filed during the lifetime of the parties or one of them. (Jb.) But no marriage will be annulled upon this ground, if it appears that, at any time before the commence- ment of the action, there was a voluntary cohabita- tion of the parties as husband and wife. {lb., and see Glinsmann v. Glinsniann, 12 How. Pr. R., 32.) In a case in the late Court of Chancery, where the parties were white persons and the plaintiff, on being charged by the oath of the defendant as the putative father of her bastard child and believing the child to be his, married her, to obtain his dis- charge from the proceedings against him, and he ACTIONS FOR DIVORCE AND SEPARATION. 559 subsequently ascertained that the child was a mulat- to and that the defendant knew that fact at the time she swore it to be his ; it was held, that the plaintiff was entitled to a decree declaring the marriage con- tract void, on the ground that his consent was ob- tained by fraud. {Scott v. Shufeldt, 5 Paige C. R., 43.) In the case just referred to, the Chancellor directed a reference to a master to report as to the truth of the matters alleged in the complaint ; and, particularly whether the child was a negro or mulatto child, and whether at the time the defendant swore it was the plaintiff's child and at the time of the marriage, she knew or had reason to believe it was a negro or mulatto child, and intentionally concealed that fact from the plaintiff; and, whether the parties had voluntarily cohabited as husband and wife since the alleged marriage. The officer, to whom the matter was referred, was also directed to report the testimony, with his opinion thereon, to the end that, on the coming in of the report, a decree of nullity might be pronounced if the allegation of fraud should be established, by proof. If there is any issue of a marriage which is annul- led because of force or fraud, the coiirt will adjudge their custody to the innocent parent ; and may, also, decree a provision for their support and maintenance out of the property of the guilty party. (2 R. S., 143.) In the State of New York, a suit to annul a mar- riage on the ground that the consent of one of the parties thereto was obtained by fraud must be brought within six years after the discovery, by the aggrieved party of the facts constituting the fraud.. {Montgomery v. Montgomery, 3 Barb. Ch. R., 132.) 560 THE LAW OF EEFEEEES. The meaning- of the provision of the New York sta- tute relative to suits of that nature, which declares that a marriage may be annulled on account of force or fraud, during the lifetime of the parties, or one of them, is not that the suit can be brought at any dis- tance of time after the right to institute it occurred, provided either of the parties is still living, but that the suit can only be brought during the lifetime of one of them, and not afterwards. {lb.) Where the plaintiff seeks to annul a marriage on the ground that the plaintiff's consent was obtained by force or fraud, the plaintiff must show, by affida- vit, that there has been no voluntary cohabitation between the parties as man and wife. (/&.) The affidavit here referred to, should be made use of when application is had for an order of reference. SECTION XXIX. AFFIDAVIT OF NO VOLDNTAKT COHABITATION WHKEE FORCE OE FRAUD IS THE GROUND FOE A DIVORCE. Court. A. B. against C. B. — , ss. A. B., plaintiff' herein, being sworn, maketh oath and saith : That this is an action for divorce on the ground of fraud {or force) ; and he further deposeth that there has been no voluntary cohabitation between this deponent and the defendant C B., as man andinfe, at any time. Sworn at, Sfc. ACTIONS FOR DIVORCE AND SEPARATION. 561 A court of equity will not annul a marriage con- tract as having' been fraudulent, upon the mere admission, by the defendant, of the facts charged in the bill. (Montgomery v. Montgomery, 3 Barb. Ch. R, 132.) Besides the above affidavit, the attorney for the plaintiff will be prepared with proof of service of complaint and summons and default. The order of reference, report and judgment can easily be framed from prior precedents in this chap- ter, especially from sections sx, xxi, xxii, ante. The judgment would end by adjudging that the marriage between the said plaintiff A. B., and defendant C. B., stated in the complaint in this action, was obtained by the fraud of the defendant ; and the same is utterly null and dissolved. (Ferlat v. Gojon, Hopk., 495.) A marriage obtained through terror or abduction is a marriage obtained by fraud. (Ferlat v. Gojon, supra; Fornshill v. Murray, 1 Bland, 483.) SECTION XXX. EEFEEENCE IN AN ACTION TO ANNUL MAEEIAGE FOE PHYSI- CAL INCAPACITY. An action to annul a marriage on the ground of the physical incapacity of one of the parties, can only be maintained by the injured party against the . party whose incapacity is alleged. And it must, in all cases, be brought within two years from the solemnization of the marriage. (2 E. S., 143.) R. 71 562 THE LAW OF REFEREES. A case of the above kind will be founded on a motion for a reference. SECTION XXXI. NOTICE OF MOTION FOE OEDEE OF EEFEEENCE IN A CASE OF ALLEGED PHYSICAL INCAPACITY. ITitk.'] Sir, Take notice that I intend to move this court {at chambers) as of special term, on the — day of next, at the opening of the court or as soon as counsel can be heard that this action be referred to a referee to take proof of the facts charged in the complaint and directing the referee, to whom the said matters may be referred, to examine the defendant, on oat\ as to the several matters set forth in the said complaint, and direct- ing the defendant to submit herself to such surgical examination and examination by matrons as the said referee ma,y direct, for the purpose of ascertaining the truth of the matters set forth in the said complaint ; and for such other or further order as the court may grant. Which motion will be founded on the complaint and answer herein, and on an affidavit of which a copy is annexed. Dated , 18 — . Yours, Attorney for Plaintiff. To , Esquire, Attorney for Defendant. ACTIONS FOE DIVORCE AND SEPARATION. 563 In the above notice, we have referred to a copy of an affidavit : for we presume, although there is no rule requiring it, that it would be well to have an affidavit read upon the motion to the eifect that the impotency continues — as also proof of service of summons and complaint, and default. SECTION XXXII. OEDER OF EEFERENCE ON COMPLAINT TO DISSOLVE MAE- EIAGB BECAUSE OP PHYSICAL INCAPACITY.' imie.] At a Special Term, Sfc. Present, Sfc. On reading and filing proof of service of notice of motion for a reference herein and after hearing Mr. of counsel for the plaintiff and Mr. of coun- sel for the defendant (or, no one appearing on behalf of the defendant), it is ordered that it he referred to , of, S^c, as referee to take proof of the material facts charged in the complaint, and to report such proof to the court, with his opinion thereon. And it is furtTier ordered that the said referee inquire and report whether the defendant, at the time of the solemnization of the marriage with the plaintiff, loas physically incapable of entering into the marriage state ; and whether she is still incapable of consummating the marriage contract by reason of incurable impotence. That the said Veferee examine the defendant, on oath, as to the several matters ' 2 Barb. Ch. Pr., 679. 564 THE LAW OF EEFEEEES. alleged in the complaint ; and that the defendant commit herself to such surgical examination and to such exa?ni- nation hy matrons as tlie said referee may think proper to direct, for the purpose of ascertaining the fact of her alleged impotence ; but that no person shall be present at any such examinations, except the surgeons and matrons for that purpose, the said referee having a due regard to the feelings and wishes of the said defendant. And it is further ordered that no person shall be permitted to he •present before the referee, on the said reference, except the parties to this action and their counsel and witnesses and such of the friends of either of tlie parties as they or either of them may request to attend upon such reference. And it is further ordered that the said referee do return the proofs before him in a schedule to his report. And it is further ordered, that the provisions of the %\st rule of the Supreme Court relative to copies of pleadings, testimony and substance of details he deemed to apply to this case, and that those provisions be binding upon and observed by the several officers therein referred to, so far as relates to the pleadings, testimony and substance of testimony in this action. A sentence of nullity, declaring a marriage invalid on the ground of the physical incapacity of the defendant, cannot be pronounced upon a complaint taken as confessed for want of an appearance or answer, without examining the defendant on oath before the referee (to whom it is referred to take the proofs of the facts and circumstances stated in the complaint). {Devanbagh v. Devanbagh, 5 Paige's C. R., 554.) To authorize a sentence of nullity, the phy- sical incapacity of the defendant must have existed ACTIONS FOR DIVOECE AND SEPARATION. 565 at the time of the marriage, and must be incurable ; and both these facts must be established by the most satisfactory evidence, although they are admitted by the defendant. (Jh.) The court will not decree a marriage void on the ground of the impotence of the defendant, until a surgical examination has been had for the purpose of ascertaining whether the alleged incapacity is incurable, if such defendant is within the jurisdiction of the court. {lb.) In a suit to annul a marriage, on the ground of the physical incapacity of the defendant, if the answer admits the present incapacity, but denies that it existed at the time of the marriage, and the nature of the incapacity is such as to render a surgical exami- nation of the defendant necessary, in connection with a personal examination on oath, as to the com- mencement and progress of the disease which has created the incapacity, the court will direct the defendant to submit to such examination, although she has been previously examined ex parte, and with- out oath, by her own medical attendants. (Newell v. Newell, 9 Paige's C. R., 25.) On a complaint filed to annul a marriage on the ground of impotence, the court has the necessary power and will compel the parties to submit to such a surgical or other examination as may be necessary to ascertain the facts. But in a suit brought against a female, the court will not compel her to submit to a further examination, if it appears that she has been already sufficiently examined by competent surgeons, whose testimony can be obtained by the plaintiff to show that her physical incapacity is 566 THE LAW OF EEFEEEES. incurable. {Devanbagh v. Devanbagh, 5 Paige's C. R., 554; S. a, 6 lb., 176.) Although Chancellor Walworth declared, as ap- pears above in Devanbagh v. Devanbagh, that the court has power to compel surgical or other exami- nation, we do not see precisely how it could be accomplished where a party should peremptorily refuse to permit it. Force may be used in the detec- tion of crime ; but would it be tolerated in a civil suit? In the case of Devanbagh v. Devanbagh, supra, on examination, a disability in the woman was proved, but it seemed that it might be cured by a proper surgical operation, although the result was deemed to be doubtful. The wife refused to submit to the necessary surgical operation; and the Chancellor stated that this refusal of hers was no ground for annulling the marriage, as the court had no jurisdic- tion, in any case, to enforce the performance of the marriage vows. For general and particular facts and much inte- resting matter on this subject, see Beck's Medical Jurisprudence, vol. 1, p. 85, chap. Ill, " Impotence and Sterility:'' Cases of alleged impotency are fortunately so rare, that we deem it unnecessary to add precedents of report and judgment, especially, too, as prior sections of the present chapter will furnish forms which can easily be varied to meet an existing case. ACTIONS FOE DIVORCE AND SEPARATION. 567 SECTION xxxni. COSTS IN DIVORCE CASES. It is provided by statute, that in every suit brought either for a divorce or for a separation, the court may decree costs against either party and award execu- tion for the same ; or, it may direct such costs to be paid out of any property sequestered or in the power of the court or in the hands of a receiver. (2 E. S., 148.) Where the wife has no separate estate, it is not usual to make a judgment against her in favor of her husband for costs. ( Wood v. Wood, 2 Paige's C. E., 454.) But, no doubt, such a judgment might be had in any case where there had been great miscon- duct in commencing or prosecuting her suit. ( Thomas v. Thomas, 18 Barb. S. C. E., 149.) If a judgment is in her favor, costs may be adjudged against the husband. {De Rose v. De Rose, Hopk., 100.) Under the old system, a reasonable counsel fee could be allowed and taxed against a husband where the wife obtained a divorce on the ground of adultery {Graves v. Graves, 2 Paige's C. E., 62) ; but there does not appear to be any present provision in the Code authorizing it. 568 THE LAW OP EEFEEEES. SECTION XXXIV. EEFEEENCE TO ASCEETAIN PEOPER AMOUNT OF TEMPORARY ALIMONY AND EXPENSES TO CARRY ON A DEFENSE. Alimony signifies that proportion of the husband's estate which, by the sentence of the court, is allowed the wife for her maintenance, upon any separation from him pendente lite. (Floyer's Proctor's Prac, 60.) Separation is the foundation of the claim for alimony. The wife cannot sue for it during cohabitation. (1 EoUe's Ab., 110 ; Croke Car., 220.) In every suit brought, either for a divorce or for a separation, the court may, in its discretion, require the husband to pay any sums necessary to enable the wife to carry on the suit during its pendency. (2 R S., 148.) It is not a matter of right, under all circumstances, for a wife, who has commenced a suit for a divorce or for a separation, to require the court to direct an allowance to be paid to her, by the defendant, for the purpose of defraying the expenses of the suit. Nor is it a matter of right that she should be allowed her ad interim alimony in all cases. But the Legislature has left the allowance of both to the sound discretion of the court. Where it is pro- bable, however, that the wife may succeed — especi- ally in a suit for a divorce on the ground of the adul- tery of the husband — in which the wife is allowed to prosecute in her own name and where it appears that she is entirely destitute of the means of carrying on her suit, it is almost a matter of course to require the husband to make her a reasonable allowance, ACTIONS FOR DIVORCE AND SEPARATION. 569 according to his ability, for the necessary expenses of the suit. {Jones v. Jones, 2 Barb. Ch. R, 146.) When, in an action for a divorce or a separation, the defendant has appeared (and, in general, answer- ed, under oath), an application for alimony and expenses can be made on petition, after due notice to the opposite party. {Longfellow v. Longfellow, 1 Clarke, 344.) The amount will be settled at once by the court, without a reference, whenever the facts are suffi- ciently before it. {Hammond v. Hammond, lb., 161 ; Monroij V. Monroij, 1 Edw. V. C. R, 382.) Very frequently, however, a reference is directed. The question of the guilt or innocence of the wife ought not to be entered into through conflicting affida- vits {Wood V. Wood, 2 Paige's C. R, 114; Osgood V. Osgood, lb., 621), certainly not by a referee. She must, however, in her petition for alimony, deny the adultery, &c., or show some valid defense to the husband's suit, unless she has denied it on oath in her answer. {lb.) Where the wife, who is the defendant in a suit for a divorce, applies for an allowance for ad interim alimony and for the expenses of her defense, upon a positive affidavit that she is innocent of the adul- tery charged, proof that the husband has recovered a verdict in an action of crim. con. against the alleged paramour of the wife, is no defense to the application : such proof not being even presumptive evidence of the fact of adultery, as against her. ( Williams v. Wil- liams, 3 Barb. Ch. R., 628 ; and see Fowler v. Fow- ler, 4 Abb. Pr. R, 411.; R. 72 570 THE LAW OF EEFEEEES. Although not absolutely necessary, it will be well to annex to the petition affidavits showing the parti- cular nature and extent of the husband's estate and property. SECTION XXXV. PETITION FOE ALIMONY AND EXPENSES. To the Supreme Court of the State of New York : [Title.] The petition of the defendant C. B., respectfully showeth : That the plaintiff A. B. has commenced this action against your petitioner to obtain a judgment dissolving the marriage solemnized between him and your petitioner , because of the alleged ground of [adultery] of your 'peti- tioner. That your petitioner has appeared and put in her answer, under oath, to the complaint herein denying such [adultery]. That your petitioner is wholly desti- tute of the means of support or of money for carrying on her defense or of defraying the costs and expenses attend- ing the same. That she is informed and believes that the plaintiff has real estate and personal property to the amount of more than % , and that his annual in- come is about $ . (If children, state number, sex and age, and how far they are dependent on the petitioner.) Your petitioner, therefore, prays that the plaintiff may be ordered to pay your petitioner a reason- able sum for her support and maintenance during the pendency of this action ; and such sum or sums of money as may be necessary, to enable her to carry on her defense and defray necessary costs and expenses. And, S^c. ACTIONS FOE DIVOECE AND SEPAEATION. 571 {Jurat, similar to what is at foot of a pleading. And add, affidavits showing nature and extent of the defendant's properties.) Regular service of notice of motion on the petition must be made. On the motion, the defendant may be able to make such an explanatory opposition to it, as to cause the court itself to make a decisive order, and thereby a reference be saved. Where, however, the extent of the defendant's means is in conflict, a reference will be had. The court makes a distinction, on applications for alimony, between suits brought for divorce by a husband and those commenced by a wife for a divorce a mensa et thoro. In the latter case, no alimony or advance to counsel will be allowed, un- less an injury and a meritorious cause of action appear. {Worden^. Warden, 3 Edw. V. C. R, 387; and see Jones v. Jones, 2 Barb. Ch. R., 146.) Nor will alimony be allowed to a wife for her support during the progress of the action, when it appears that she has left her husband and gone to her father's, who had agreed with the husband that he would make no claim for the wife's support, if the husband would make no claim for her services. {Bartlett v. Bartlett, 1 Clarke, 460.) When the husband is plaintiff, his poverty will not protect him from supplying money for temporary support and to enable the wife to make a defense. He must conform to the general rule or abandon his suit. {Purcelly. Purcell, 3 Edw. V. C. R., 194.) 572 THE LAW OF EEFEEEES. The order directing a referee to inquire and report as to ad interim alimony, during the pendency of an action for divorce, should direct that, on the coming in and confirmation of the referee's report, the hus- band pay to the wife the sum allowed by the referee for alimony, and payable as directed by the report. {Gerard y. Gerard, 2 Barb. Ch. R, 73.) SECTION XXXVI. ORDER OF REFERENCE AS TO ALIMONY AND EXPENSES. At Chambers as of a Special Term, $^c. [Title.'] On reading and filing the petition of the defendant, verified [and also, its accompanying affidavits], and affidavit of the plaintiff in opposition ; and after hear- ing Mr. , of counsel for the defendant, and Mr. , contra, it is ordered that it he referred to , of S^c, Esquire, as referee to inquire and report what could he a reasdnahle sum to he allowed to the said defendant for her support and maintenance [and for the support and maintenance of such of the children of the marriage as reside with her] during the pendency of this action. And it is further ordered that the said referee inquire and report what would he a reasonable sum, to he alloived to the said defendant, in order to enable her to carry on her defense in this action and to defray the necessary costs and expenses thereof. And that the said referee report as to the times and manner in which the said sums should he paid by the plaintiff. Also that ACTIONS FOR DIVORCE AND SEPARATION. 573 the said referee, at the same time, report the amount of his fees on such reference, so that the same may be added in any order of payment of such alimony by the plaintiff. And it is further ordered that on the coming in and con- firmation of the said referee! s report hereunder, the plain- tiff,. A. B., pay to the said defendant the amount of her ad interim or temporary alimony and the allowance for the prosecution or defense of this action, including the amount of the referees said fees at the times and in the manner to be specified by the said referee in his report, so that the said plaintiff, A. B., will be bound to pay such allowance without the expense and delay of any further order. There can be no appeal from an order granting temporary alimony. {Abbey v. Abbey, 6 How. Pr. R., 340.) Such an order does not amount to a provi- - sional remedy and is one resting in the discretion or favor of the court. {lb.) The referee will proceed through the usual sum- mons. Under the Chancery system, the solicitor for the defendant laid before the officer to whom the matter of alimony was referred, a proposal and state of facts, setting out the property of the husband and its yeai'ly income ; also, as to whether the children of the marriage, if any, were living with her ; and any other material circumstances bearing upon the ques- tion of an allowance, and it concluded with pro- posing a certain' sum to be allowed, for alimony, and a sum for expenses. (Hoffman's Master, 167.) As to the proportion allotted, the general rule of the ecclesiastical court was, to assign a third, or, at 574 THE LAW OF EEFEEEES. least, a fourth part of the yearly value of the hus- band's real estate ; and if he had none, then to tax him according to the common repute of his per- sonalty. This rule seems derived from the amount of the dower right of the wife ; and, as to personal property, perhaps an analogous one derived from her interest under the statute of distributions, if her husband were dead, intestate, would be proper ; that is, to allow a moiety or one-third, as there are chil- dren or not, of the yearly income of that propery. {lb.) However, the proportion of the husband's estate or income to be assigned to the wife for alimony is in the discretion of the court. In fixing its amount, the court must take into consideration the nature and amount of the husband's means, the claims of his children and others upon him for suste- nance and education, and his ability to support him- self by his own exertions. {Lawrence v. Lawrence, 3 Paige's C. R, 267 ; 6 J. C. R, 91.) In one case, on a decree for divorce in favor of the wife, an annuity equal to the value of one-third of the husband's property, at six per cent, was allowed to her during her life, for her alimony ; and the court observed that if the conduct of the wife had been discreet, prudent and submissive to her husband, the allowance would have been greater. {Peckfordy. Peckford, 1 Paige's C. R, 274.) In Mix V. Mix (1 J. C. R., 108), the defendant was an officer in the navy, in the receipt of about seventy dollars a month. There were no children of the marriage, and the court allowed the wife thirty dollars per month. ACTIONS FOE DIVORCE AND SEPARATION. 575 In Denton v. Denton {lb., 364), it appeared by- affidavits that the husband was worth about $200,000. The court ordered a monthly allowance of $100 to the wife, and a deposit of $250 for her costs. The general rule is stated by Chancellor Kent to be, in cases of limited divorce, to allow the wife one- third or, at least one-fourth of the annual income of the husband's real estate. However, he states that it is in the power of the court to vary the allowance from time to time according to the circumstances of the parties. {Miller v. Miller, 6 J. C. K., 91.) The alimony allowed to the wife pending the liti- gation is always much smaller in proportion than that which is assigned to her as a permanent provi- sion, after she has established her right to a divorce or separation. {Lawrence v. Lawrence, supra.) It will be estimated according to the expense of board and clothing at the place where her relations reside, if she selects that as the place of her residence, after her separation from her husband, unless the expense of living there is disproportioned to the property of the husband. {Germond v. Germond, 4 Paige's C. R., 643.) Such allowance for temporary alimony pend- ing the suit will be limited to the actual wants of the wife, until the result of the suit in her favor establishes her right to a more liberal allowance. {Ih-) Upon an order directing the payment of a monthly sum for alimony, during the pendency of the suit, it was held that the wife was entitled to this allowance up to the termination of the suit, by a final decree, and not merely to the time of the trial, which resulted 576 THE LAW OF KEFEEEES. in her favor. {G-er7nond v. Germond, supra.) By our practice, generally, the allowance is given monthly. If alimony is demanded in the complaint, it should be allowed from the time of service of summons ; but if not, then from the date of the order of refe- rence. {Mix V. Blix, supra.) In a reference to report amount of alimony and an advance to counsel, the referee's report should show the means and ability of the defendant. ( War- den V. Warden, 3 Edw. V. C. K., 387.) No doubt, the referee would be justified in taking testimony which showed that the wife had other means of support or any other facts that should fairly test or lower the amount of proposed alimony : because the allowance for alimony should be only so much in addition to the wife's own resources {Morrell v. Marrell, 2 Barb. S. C. R., 480), as will maintain her in decency and comfort during the separation {Logan v. Logan, 2 B. Mon. E., 142) ; and in such case it would be right to refer to such special facts in his report. SECTION XXXVII. REPORT ON TEMPORARY ALIMONY AND EXPENSES. To tlie Supreme Court of the State of Neio York : [Title.] In pursuance of an order of this court dated the — day of , 18 — , whereby it was referred to me, the undersigned, as referee, to inquire and report a reason- ACTIONS FOE DIVOECE AND SEPAEATION. 577 able sum to he allowed to the defendant in this action for her support and maintenance (and that of her children residing with her) and a reasonable sum to enable her to carry on this action and defray costs and expenses ; and also, as to the times and manner in which such sums should be paid, as likewise the amount of my fees herein. I, the said subscriber, referee as aforesaid, do report : That I have been attended by the attorneys for the plain- tiff and defendant ; and having heard the allegations and proofs as to the value of the plaintiff ' s estate at the time of the commencement of this action and the allow- ance proper to be made : do also report that the property of the plaintiff A. B. consisted, at the time of such com- mencement of action, of a lot, Sfc, on which are — tene- ments, Sfc, the whole value being estimated at $ , and the yearly rent and income being about $ . That there is a mortgage thereon for % , at — per cent per annum ; but the defendant did not join in executing it, so that I have not deducted anything therefor in coming to conclusions in this my report. That the whole personal property of the said plaintiff consists of Sfc, and its value is about $ . / also report that two children of the plaintiff and defendant live with and are entirely supported by the defendant : one being a boy aged — years and the other a girl, now — years of age. And I further report that I have considered it as a general rule, in allowing a sum for separate maintenance, to make it by analogy to the right of dower of the wife, and to her interest, under the statute of distributions, if her husband was dead, intestate, subject, however, to alteration in the discretion of the court, according to E. 73 578 THE LAW OF EEFEEEES. ' circumstances. And I find and so report that, in my opinion, the sum of % a year, payable monthly, is a suitable allowance for the present separate maintenance and alimony of the plaintiff; and that it ought to he payable from (the time this action was commenced, namely, the — day of , 18 — , or from the — day of , 18 — , being the date of the said order of reference^, on her receipt from time to time. Also, I certify and report that $ would be a reasonable sum to he allowed to the plaintiff to enable her to carry on her defense and defray the necessary costs and expenses of this action. Also, I report that my fees amount to Under the 32d rule of the Supreme Court, the report will have to be filed, copy served and eight days elapse before it can be considered as confirmed. CHAPTER XV. REFERENCE TO APPOINT A COMMITTEE OF A LUNATIC, IDIOT OR HABITUAL DRUNKARD. Section I. Obsehvations. IT. Petition for a committee. III. Form op order, where the oodrt confirms the finding op the jury AND SUCH court ITSELF APPOINTS a COMMITTEE, BUT DIRECTS A REFER- ENCE TO APPROVE OF BOND AND TO FIX AMOUNT OF ALLOWANCE, ETC. IV. Order confirming the finding op the jurt and directing a referee TO report a suitable person as committee and to fix amount of ALLOWANCE. V. Report op referee. "VI. Bond and securttt bt a committee and his sureties. VII. Order confirming referee's report and appointing a committbh. VIII. Commission op commitment of lunatic, etc., to committee. IX. Costs op commission and op subsequent proceedings. SECTION I. OBSERVATIONS. The Code of Procedure does not affect the provi- sions of the Revised Statutes (2 R. S., 51), relative to the custody of the person or estate of a lunatic, idiot, person of unsound mind or habitual drunkard. (§ 471 of Code.) The Code, however, increased jurisdiction by giving to county courts the care and custody of the person and estate of a lunatic or person of unsound mind or an habitual drunkard residing within the county. (§ 30, sub. 8.) As to an habitual drunkard, when a man has been found, by inquisition duly taken in pursuance of the statute, to be incapable of conducting his own affairs in consequence of habitual drunkenness, his property. 580 THE LAW OF EEFEEEES. real and personal, is taken out of his hands and put into the custody and control of a committee. The object of this proceeding, as declared in the statute, (2 E. S., 52) is to prevent the property being wasted and destroyed and to provide for the maintenance of himself and his family and the education of his children. The committee is required to file an inven- tory of the property and to give security for the performance of the trust. This trust continues with- out interruption until the death of the drunkard or the superseding of the commission. The right of the committee to the custody and control of the pro- perty is not superseded during the drunkard's sober intervals ; and, therefore, during such intervals, the drunkard has no more authority to deal with or dis- pose of the property than while he is in a state of intoxication. If it were otherwise, the proceedings would furnish a very inefi'ectual security against waste and improvidence. Every transaction would be open to litigation upon the question whether it took place while the drunkard was in a state of sobriety or intoxication; and the committee could not execute his trust with safety to himself or benefit to the drunkard or his family. Similar consequences would unavoidably follow from permitting the drunk- ard, during sober intervals, to contract debts or incur liabilities by which the property might be seized and sold on judgment and execution. The effect of the inquisition is that the drunkard is incapable at all times of conducting his affairs ; and they are, therefore, taken wholly out of his control. From the very nature and object of the proceeding, there- APPOINTING COMMITTEE OP LUNATIC, ETC. 581 fore, the inquisition must be regarded as conclusive evidence of the incapacity of the drunkard to dis- pose of his property or to contract debts from the time when it is found. ( Wadsworth v. 8harpsteen, 4 Seld., 388.) On the return of a commission, and where the inquisition finds the party lunatic, idiot or of un- sound mind, and the same has been confirmed, an application is made for the appointment of a com- mittee. The court has no jurisdiction to appoint a com- mittee of a lunatic before a commission of lunacy has been issued and returned. {In re Payn, 8 How. Pr. R, 220.) Nor will the court allow any sum to be expended, even for the maintenance of the lunatic's wife and children, until a committee of his person is appointed. {Gardner v. Gardner, 22 Wend., 526 ; In the Matter ofB , 1 Irish Equity, 181.) The court will, in a proper case, as where the pro- perty is small and the evidence satisfactory as to qualifications, appoint a committee without a refer- ence. {Ex parte Farrow, 1 Russ. & M., 112 ; Ex 'parte Lacy, 1 CoUinson, 196.) Notice of an application for the appointment of a committee should be given to heirs-at-law and next of kin. (2 Hoff. Oh. Pr., 258.) A committee of the person may be whoever the court thinks fit. (Stock, 121.) Formerly the heir-at-law or person next in remain- der was thought objectionable, on account of his interest in the decease of the non compos mentis 582 THE LAW OF EEFEEEES. Lord Macclesfield was the first to overrule this objection, by continuing Mr. Justice Dormer in the guardianship of his nephew, a lunatic, to whom he was heir-at-law, observing that it was founded on a cruel and barbarous presumption that a brother or uncle would commit murder on his nearest relatives for the sake of the estate. {Dormer's Case, 2 P. Wms., 262.) But Lord King afterwards considered it as still a prevailing objection, though more considerable formerly than of late. {Ex parte Ludlow, 2 P. Wms., 635.) And it has been observed that there is cer- tainly nothing monstrous in the supposition that the heir-at-law of a lunatic, especially if bound by no ties of previous intimacy or affection, would often be inclined to treat him with less kindness and attention than other persons ; and would, therefore, make a less proper committee than they. (Stock, 122.) But the present practice of the courts is, to consider the heir and next of kin as entitled, of right generally, to propose themselves for the charge of the person. If the lunatic has a son of proper age, and in the country, and no objection exists to him, it is almost of course to appoint him committee of the estate. {Matter of Lord Bangor, 2 Molloy, 518.) The next of kin being open to a similar suspicion, to what formerly seemed to attach to an heir-at-law, (on the ground of interest in the death of the nort compos mentis), were formerly objected to {NeaVs Case, 2 P. "Wms., 544), but whether successfully at any period, does not appear. At present, the established practice is not only to admit, but to prefer them {Ex parte Ludlow, 2 P. Wms., 635 ; Ex parte Cockayne, 7 APPOINTINa COMMITTEE OF LUNATIC, ETC. 583 Ves., 590^) ; and this naturally enough: for generally the next of kin, or at any rate the relatives, must be more proper than mere strangers, though the latter have been sometimes preferred under peculiar cir- cumstances. {Lady Cope's Case, 2 Ca. Ch., 239.) Whenever a person connected with the family can be found eligible and willing to give the security, he ought to be appointed the committee. {Matter of Hmsey, 1 MoUoy, 226.) It has been decided in Kentucky that the father of a lunatic, having the custody of his estate, should be appointed his com- mittee. {Coleman Y. Commissioners of Lunatic Asylum, 6 B. Mon., 239.) Married persons, lunatic, are usually entrusted to the care of their spouses. ( Wenman's Case, 1 P. Wms., 701.) In committing the person of a lunatic husband to the wife, the court appears disposed to unite some person, especially a medical man, with her. {Lord Wenman's Case, 1 P. Wms., 701 ; Ex parte Hoep, 18 Ves., 22.) Persons whose places of residence admit of their frequently visiting the lunatic and inspecting the management of his concerns, should be preferred as committees. {Ex parte Firmer, Jacob's E.., 405.) In the appointment of the committee of the person of a lunatic, the court will attend, as far as possible, to the wishes and inclinations of the lunatic. {Tn the Matter of Leacock, Lloyd & Gr. Temp. Plunk., 498.) In other cases^, also, a female may be a committee of the person ; and if the lunatic be a female, is usually preferred. {Ex parte Ludlow, 2 P. Wms., 635, 584 THE LAW OF EEFEEEES. Ex parte Le Heup, 18 Ves., 221.) A daughter has been preferred to the brother of a lunatic. (In the Matter of Livingston, 1 J. C. R., 436.) And the practice is to so appoint a female committee, even though a feme covert, or not sui juris. {Ex parte Kingswill, in note 2 P. Wms., 11 if) But in such case her husband is usually joined with her in the com- mitteeship. {Ex parte Mildmay, 3 Ves., 2.) The object in view being to secure the most profitable management of the estate, the heir-at-law, as having the most interest in effecting this, is pre- ferred to all other persons. (1 Black. Com., 305.) But no great preference is shown, as in the com- mitteeship of the person, to the next of kin or other relatives, but strangers, if likely to manage better, are ehgible. {NeaVs Case, 2 P. Wms., 544.) It is unusual to appoint a feme sole committee of the estate. But where the custody of a lunatic's property was granted to husband and wife, and the wife died, it was held that the grant determined. {Ex parte Lyne, Ca. Tern. Talbot, 142.) An insolvent or bankrupt is an unfit person for a committeeship of either person or estate ; and the bankruptcy of a committee has been held a sufficient ground for appointing a new one {Ex parte Mildmay, 3 Ves., 2) ; but not for changing the custody of the lunatic, if his comfort is sufficiently provided for by tlie substituted arrangement. {lb., and Ex parte Proctor, 1 Swanst., 531.) A referee will occasionally be directed to make a separate report as to the committee of the person or estate. (1 Collinson, 197.) APPOINTING COMMITTEE OF LUNATIC, ETC. 585 Among sufficient objections to a particular com- mittee of the person may be noted the aversion of the lunatic {Ex parte Ludlow, 2 P. "Wms., 635) ; or, an intention to make a profit of the appointment. {Lady Copers Case, 2 Ca. Ch., 239; Ex parte Fletcher, 6 Ves., 427.) It has been said that the aversion of the lunatic is a good objection to a committee of the estate {Ex parte Fletcher, supra), as well as of the person ; but this can only be understood of those non compos mentis who, notwithstanding their malady, continue to interest themselves in the management of their aiFairs. (Stock, 123.) No one should be appointed a committee out of the jurisdiction or who will not be otherwise sub- ject to the control of the court. {In re Tottenham, 2 M. & C, 39.) Although heirs-at-law and next of kin now have, as we have before observed, a general right to nomi- nate themselves for the office of committee, still, as Chancellor Walwoeth observed in The Matter of Taylor (9 Paige's C. R., 611) it is not a matter of course to commit the guardianship of the estate of a lunatic to those who are presumptively entitled to it upon his death ; but that they will be appointed the committee of his estate, where it satisfactorily appears to the court that they are the persons who are the most likely to protect his property from loss. An heir-at-law or next kin will be required to give security as well as a stranger, unless it appears to the court, or by the report of a referee, that no one can be found to act as committee who will give it {In the Matter of Frank, 2 Russ. R., 450), and 586 THE LAW OF REFEREES. then the court can (in a proper case) appoint a person committee without security. (In the Matter of Burroughs, 1 Conn. & Law., 309.) SECTION II. PETITION FOE A COMMITTEE. The petition for the appointment of a committee is generally presented at the time the inquisition is returned to the court, and the order on the former generally contains a confirmation of the latter. Although a committee has very generally been left unrestricted as to the amount he will expend upon the lunatic, having regard entirely to his care, comfort and health and applying all the income which is necessary to his maintenance, yet it is well that he should, at the start, get the court to fix the amount of yearly allowance, and, also, where the lunatic has immediate needy ties upon him, also have the court fix any amount to dependent rela- tives, although next of kin and expectants are not so much to be regarded. {Ex parte Chumley, 1 Yes., Jr., 296 ; Ex parte Baker, 6 Ves., 8.) In connection with what we have said, we have accordingly drawn a petition for a committee and forms of orders. The parts having reference to a fixed allowance, &c., can easily be disregarded where cases do not seem to require precision in this particular. A lunatic, by the appointment of a committee, loses none of his estate, rights of property or rights of action. All suits affecting his person or property APPOINTING COMMITTEE OF LUNATIC, ETC. 587 must be prosecuted in his name, except any debt, claim or demand transferred to the committee or to the possession and control of which the latter is entitled. {McKillip v. McKillip, 8 Barb. S. C R, 552 ; Laws of 1845, ch. 112, Session Laws, p. 90.) PETITION FOR THE APPOINTMENT OF A COMMITTEE.' To the Supreme Court of the State of New York: In the Matter of the Lunacy of, &o. The petition of R. D., of, Sfc, and C. H., the wife of G. H., of 8^c., respectfully showeth : That the commission in the nature of a writ de lu- NATico (or idiota) inquieendo, heretofore issued out of this court, in pursuance of an order made the — day of , directed to certain commissioners therein named, to inquire of the lunacy (or idiocy^ of J. D., of, Sfc, who is the brother of your petitioners, has been duly executed and returned by the said commissioners. That, from the inquisition annexed to the said commission and returned therewith, it appears that the jury have found the said J. D. is a lunatic and of unsound mind and does not enjoy lucid intervals (or, that he is an idiot), so that he is incapable of the government of himself or of the management of his lands, tenements, goods and chattels. That, by such inquisition, it appears that the estate and properties of the said lunatic consist of, S^c, and also that his heirs and next of kin are, 8^c. Your petitioners, therefore, pray, that they may be appointed the committee of the person and estate of the said J. D., • 2 Barb. Ch. B., 660. 588 THE LAW OF REFEEEES. upon their giving security for the faithful performance of their trust as such committee, according to the statute and in conformity tvith the rules and practice of this court; and that this court will fix the allowance to he made for the support of the said lunatic and the comfort of his family ; and, if proper, what allowances shall be made to needy heirs-at-law or next of kin (or, that it be referred to a referee, to he appointed hy this court, resid- ing in the city of New Yorh, to inquire and report who is a suitable and proper person to be appointed the com- m.ittee of the person and estate of the said J. D., and to approve of the bond and sureties offered by him ; and that the court will fix the allowance, et get., as above). And for such other or further relief as shall be just. And, 4"c. (Jurat.) The order whicli refers the matter to a referee to appoint a committee, may very well contain a pro- vision for the officer to report a proper amount of allowance to be made for the support of the lunatic, instead of having to make an original application after the full appointment of a committee has been had, and which used to be commonly done. It will be seen that we have acted on this idea in our pre- cedents. It would be well for the courts, generally, in cases involving large estate, to expressly require, in the order appointing a committee, that he should file inventory and render annual accounts, under oath, and have them passed before a referee, as was done before a master under Chancellor Walworth's rules. APPOINTING COMMITTEE OF LUNATIC, ETC. 589 SECTION III. FOEM OF OEDEE WHEEE THE COUET CONFIEMS THE FIND- ING OF THE JUET AND SUCH COUET ITSELF APPOINTS A COMMITTEE, BUT DIEECTS A EEFEEEE TO APPEOVE OF BOND, AND TO FIX AMOUNT OP ALLOWANCE, ETC. At a Special Term, 8^c. In the Matter, &o. \ On reading and filing the inquisition in this matter, taken under commission, from which it appears that the jury have found that the above named J. D. is a lunatic and of unsound mind and does not enjoy lucid intervals (or, that he is an idiot), so that he is incapable of the government of himself or of the management of his lands, tenements, goods and chattels ; and that he is seized ajid possessed of certain real and personal estate in the said inquisition specified ; on motion of Mr. of counsel for R. D. and O. D., and on hearing Mr. of counsel for, S^c, it is ordered that the finding of the jury upon the execution of the said commission, as set forth in the said inquisition, be and the same is hereby confirmed. And on reading and filing the petition of R. D. and C. H., the wife of O. H., the brother and sister -of the said J. D., duly verified, praying for the appointment of a committee of the person and estate of the said J. J)., it is, on like motion, ordered (*) that the said R. D. be and he is hereby appointed the committee of the person and estate of the said J. D., upon his giving bond, ivith two sufficient sureties, to be approved of by , of the citi/ of New York, counsellor at law, who is appointed a 590 THE LAW- OF EEPEEEES. referee for that purpose ; such bond to be in the penalty of double the value of the estate and property of the said J. D., as found by the said inquisition, conditioned for the faithful performance of his trust as such committee, according to the statute, and to account, whenever required, in conformity with the rules and practice of this court. Also, that the said referee report what will be a suitable allowance for the support of the said lunatic (and whether any sum, and if so, what sum should or might be set apart for any unprovided relative). And it is also ordered that, after the said R. D. shall have been fully appointed committee by filing a bond as aforesaid, he shall, within six months thereafter, file in the office of the clerk where this order of appointment is or will be entered, a just and true inventory, under oath, of the whole real and personal estate committed to his care or guardianship and the manner in which any funds under his care or control, belonging to the estate, are invested; stating the income and profits of the funds or estate, and the debts, credits and effects, so far as the same have come to his knowledge. And they shall annually thereafter, so long as any part of the estate, or the income or pro- ceeds thereof remain in his hands or under his care or control, file in tlie same office an inventory and account, under oath, of his guardianship or trust and of any other property or effects belonging to the estate which he has since discovered and of the amount remaining in his hands or invested by him and of the manner in which the same is secured or invested, stating the balance due from or to him at the time of rendering their last account, and his receipts and expenditures since that time, in the form of debtor and creditor. APPOINTING COMMITTEE OP LUNATIC, ETC. 591 SECTION IV. GUDEE CONFIRMING THE FINDING OF THE JURY AND DIRECT- ING A REFEREE TO REPORT A SUITABLE PERSON AS COMMITTEE AND TO FIX AMOUNT OF ALLOWANCE. [As is in -the last form to the asterisk (*), then as follows :] that it he referred to , residing in 'the city of New York, counsellor at law, as referee, to inquire and report who is a suitable and proper person to be appointed the committee of the person and estate of the said J. D., and to inquire and report as to the form and penalty of the bond to he given by such com- mittee, and as to the sufficiency of the sureties offered by Am ; and that the said referee cause ( five ) days' notice, in writing, to he given to L. M. and R. S., the heirs- at-law and next of kin of the said J. D., of the time and place of executing the said reference ; also that the said referee report what will be a suitable allowance for the support of the said lunatic {and whether any sum, and if so, ivhat sum should or might he set apart for any unprovided relative^ ; and that he report thereon with all convenient speed. The amount of allowance for the support of a lunatic ought always to be ample and in proportion to the estate of the party ; and if not so fixed, the court will not confirm a report, but refer it back for reconsideration. {Ex 'parte Baker, 6 Ves., 7.) It should be increased with the increase of the estate of the lunatic. {Ex parte Chumley, 1 Ves., 296 ; Ex parte Whitbread, 2 M^riv., 99.) And the 592 THE LAW OF REFEREES. allowance has no necessary limit, excepting that of the income itself. It is not to be restricted, for the sake of creditors, below that which would be a com- fortable maintenance. (Ex parte Hastings, 14 Ves., 182 ; Ex parte Bikes, 8 Ih., 79^) It ought to be large enough to afford the non compos every comfort he is capable of enjoying, consistently with the extent of his fortune. {Ex parte Baker, 6 Ih., 8.) The allowance for maintenance is not always strictly confined in its application to the benefit of the lunatic himself; but after his comfort has been fully cared for, may be used in benefiting his kin- dred otherwise unprovided for. This is done either directly or indirectly, either by setting apart a fixed sum for the support of a relative, as where a reference may have been ordered to decree a proper mainte- nance to the lunatic's son {Foster v. Merchant, 1 Vern., 262), or by making the allowance sufficiently large for all purposes combined, in cases where the next of kin are destitute and have the immediate care of the lunatic. The principles upon which the court will thus consult the interest of any other persons besides the principal object of its care, have been thus stated by Lord Eldon : ' "In cases where the estate is considerable and the persons who will probably be entitled to it hereafter are otherwise unprovided for, the court, looking at what it is likely the lunatic himself would do if he were in a capa- city to act, will make some provision out of the ' It is but just we should admit that we are freely borrowing from Stock's Law of Non Compotes Mentis, in this branch of our work. APPOINTING COMMITTEE OF LUNATIC, ETC. 593 estate for those persons. So, where a large property devolves upon an elder son, who is a lunatic, as heir at law, and his brothers and sisters are slenderly or not at all provided for, the court will make an allow- ance to the latter for the sake of the former, upon the principle that it would be naturally more agree- able to the lunatic and more for his advantage that they should receive an education and maintenance suitable to his condition, than that they should be sent into the world to disgrace him as beggars. So, also, where the father of a family becomes lunatic, the court does not always look at the mere legal demand which his wife and children may have upon him, and which amount, perhaps, to no more than may keep them from being a burden to the parish ; but considering what the lunatic would pro- bably do, and what it would be beneficial to him should be done, makes an allowance proportional to his circumstances for them. There is a difficulty as to the extent of relationship to which an allowance ought to be granted. There are instances in which the court has, in its allowances to the relations of the lunatic, gone to a farther distance than grand- children to brother's and other collateral kindred ; but the principle is not because the parties are next of kin to the lunatic, or, as such, have any right to an allowance, but because the court will not refuse to do, for the benefit of the lunatic, that which it is probable the lunatic himself would have done." {Ex parte Whithread, re Hinde, 2 Meriv., 99.) In an English case {Re Blair, 1 M. & C, 300), where the officer to whom the matter was referred, K. 75 594 THE LAW OF EEFEEEES. reported, inter alia, that the lunatic was never likely to recover and that the incomes of the next of kin, who were nephews, and one of them the heir-at-law and committee, were insufficient for their support, whereupon he recommended £900 additional to be allowed for the lunatic's maintenance, the report was disapproved of and referred back to him ; but on his second recommendation of a smaller sum, £600, to be applied in the same way, the Chancellor con- sented to make an order directing this additional allowance and that £300 of it should be allowed to the nephew who was committee (and £300 to the other nephew) for his maintenance and support. But his honor expressed some doubt as to his power of so doing, and said " he would never exercise such a jurisdiction without the greatest possible jealousy and caution." It is to be observed that this case {Re Blair) goes further than the preceding ones, as the nephews were not destitute or nearly so, but had about £300 a year each. The allowance made out of a lunatic's estate for the maintenance of himself and his daughters, was increased in consideration of the intended marriage of one of the daughters, and a portion of such increased allowance was appropriated to the joint establishment of her and her husband and was directed to be settled to her separate use. And a sum of money, approved by the master to whom the matter had been referred, was also ordered to be paid to her out of her father's estate, by way of out- fit on her marriage. {In the Matter of Drummond, 1 Myl. & Cr., 627.) Similar orders have been made in other cases. (Stock, 193.) APPOINTING COMMITTEE OF LUNATIC, ETC. 595 It has been said that a report ought to set out the particular payments fit to be made to each relative in such cases, and there is an instance of a report being sent back for not so doing. (In re Cotton, 2 Mer., 100, in notes.) The relief given to the relatives is not confined to legitimate relations, but natural children have had an allowance of this kind directed to them, although in the same case it was refused to the mother. {Ex parte Haycock v. Jones, 5 Russ., 154.) SECTION V. To the Supreme Court of the State of New York : [Title.] In pursuance of an order of this court made in the above matter, on the — day of last, directing a reference to the undersigned as referee, to inquire and report who is a suitaile and proper person to be appointed the committee of the person and estate of the said J. D. ; and to inquire and report as to the form and penalty of the bond to he given hy such committee and as to the sufficiency of the sureties offered by him ; and by which I, the said referee, was directed to cause — days' notice in writing to be given to and the next of kin of said J. D., of the time and place of executing the said reference. I, the subscriber, referee aforesaid, to whom the execution of the said order was confided, do ' 2 Barb. Ch. Pr., 662. 596 THE LAW OF EEFEEEES. report that, having caused — days^ notice in writing to he given to and of the time and place of exe- cuting the said reference, I did, on the — day of , 18 — , proceed to execute the said order of reference, in the presence of , the attorney for the petitioner in this matter, and , the said , and not attending. That having made the necessary inquiries, I am of opinion that R. D., of, 8^c., the brother of the said J. D., is a suitable and p?vper person to be appointed the committee of the said J. D. That the said R. D. proposes to give a bond in the penalty of % , being double the value of the property of the said J. D., as found by the inquisition of the jury, conditioned for the faithful performance of his trust as such committee, according to the statute, and to account, whenever re- quired, in conformity with the rules and practice of this court. And I do further report that the said R. D. offers as his sureties and , of, Sfc. ; and having taken from each of them an affidavit as to his sufficiency, and made inquiries relative thereto, I am satisfied that the sureties so offered are sufficient, each being worth the sum of $ over and above all his debts. And that I have indorsed upon such bond my approval of its form and manner of execution. All which is respectfully submitted. Dated, (^c. Referee. A party wishing to object to the confirmation of a referee's report in lunacy, should present a counter petition in the nature of exceptions to it. {In re Saunders, 7 Eng. Law and Ec[. R., 105.) APPonsfTma committee of lunatic, etc. 597 SECTION VI. BOND AND SECUEITT BT COMMITTEE AND HIS SUEETIES. The bond of the committee should be made out either to the people or to the clerk of the court with whom it is filed. (Matter of White, 3 Paige's C. R., 146.) We should prefer to have it made in the name of the people. Bonds of this kind are con- ditioned for the performance of a trust ; and a secu- rity of this character can be sued in the name of the people, they being " trustees of an express trust " within the meaning of section 113 of the Code of Procedure. {The People v. Norton, 5 Seld., 176.) BOND OF committee.' Know all men hy these presents. That we R. D., of, S^c, and J. M. and N. O., of the same place, are held and firmly hound unto the People of the Btate of New York, in the penal sum of % , to he paid to the said people or their assigns ; for ivhich payment, well and truly to he made, we hind ourselves our heirs, executors and administrators, jointly and severally, firmly hy these presents. Sealed with our seals. Dated the — day of , 18 — . Whereas hy an order of the Supreme Court of the State of New York, made on the — day of , 18 — , fhe ahove hounden R. D. was appointed committee of the person and estate of J. D., who, hy an inquisition, taken ' 2 Barb. Ch. Pr., 663. 598 THE LAW OP EEFEEEES. under a commission issued out of the said court, had pre- viously thereto heen found to he a lunatic, upon his giving the bond required by the said order. Now, therefore, the condition of this obligation is such, that if the above hounden R. D. shall faithfully perform the trust reposed in him as such committee and render accounts whenever required in conformity with statute,^ and rules and practice of the said Supreme Court, and shall observe its orders and directions in relation to such trust, then this obligation to be void, otherwise to be and remain in full force and virtue. Sealed and delivered in the presence of (Acknowledged Before an officer authorized to take acknowledgment of deeds. Rule 6 of Supreme Court.) • Every committee of the estate of any idiot, lunatic or other person of unsound mind, and persons who shall be incapable of conducting their own affairs in consequence of habitual drunkenness, shall, within six months after their appointment, file in the ofBce of the clerk of the court which appointed such committee a just and true inventory of the whole real and personal estate of such idiot, lunatic or other person, stating the income and profits thereof and the debts, credits and effects, so far as the same shall have come to the knowledge of such committee. And whenever any property belonging to such estate shall be discovered after the filing of any inventory, it shall be the duty of such committee to file, as aforesaid, a just and tra« account of the same, from time to time, as the same shall be discovered. (2 R. S., 53, § 8.) Such inventories shall be verified by the oath of the committee, to be taken before a judge of any court of record. {lb., § 9.) The filing of such inventories may bo compelled by the order and process usual in such cases of the court which appointed the committee. {lb., § 10.) APPOINTING COMMITTEE OF LUNATIC, ETC. 599 (justification of sureties TO BE INDORSED ON BOND.) City, S^c, ss : J. M., of, 8^c., and JSF. O., of, &;c., being severally sworn, depose and say, and first the said J. M., for himself, saith, that he is a resident of the city, county and State of New York, and worth the sum of $ , over and above all just debts and responsibilities ; and the said N. 0.,for himself saith, that he (in same form as above). Sworn, Sfc. (approved.) I approve of the ivithin bond, as to its form and man- ner of execution. Dated the — day of , 18 — . Referee. In case a referee approve of improper persons, the court, on application, will direct him to review his report or may appoint others, without referring it to him to review it. (1 Collinson, 198.) SECTION VII. OEDER CONFIRMING REPEEEE'S REPORT AND APPOINTING COMMITTEE. At a Special Term, Sfc. [Title.] On reading and filing the report of , a referee appointed for that purpose, bearing date the — day of , 18 — , made in pursuance of an order of this court, dated the — day of last ; and on motion of , of counsel for the petitioner in this matter : ordered GOO THE LAW OP EEFEEEES. that such report he and the same is hereby confirmed. And it is further ordered that R. D., in the said report mentioned, be and he is hereby appointed the committee of the person and estate of the said J. D., upon his exe- cuting the bond in the said report mentioned, together with his sureties and upon his and their acknowledging such bond and filing the same in the office of the clerk of this court at the City Hall in the city of New York. And it is further ordered that, upon the filing of such bond, a commission may be issued to such committee under the seal of this court. Also it is ordered and adjudged that the said committee be allowed the annual sum of % , to be expended at such times and amounts as may he necessary and most proper, for the support of the said lunatic, it being hereby a required duty of the said committee to see that all and every said annual sum is fairly and properly expended. (Here add as to any special fixed payment which the court may order to be paid to any relative.) Under peculiar circumstances, when a committee of the person has been appointed, a reference has been directed to consider and approve of a specific place of residence for the non compos. (1 CoUinson, 229.) SECTION VIII. COMMISSION OF COMMITMENT OF LUNATIC, ETC., TO COM- MITTEE. Barbour observes, that there are some advantages arising from the taking out of a commission. Being under the seal of the court, it will be legal evidence APPOINTING COMMITTEE OF LUNATIC, ETC. 601 in all courts, of the rights of the committee, without anything further ; but the order appointing him would not show his rights without the introduction of the prior proceedings to lay a foundation for it ; and he adds, that Chancellor Walwoeth recom- mended the taking out of a commission in all cases. (2 vol. of Ch. Prac, 664, note ^). POEM OP COMMISSION TO COMMITTEE. The People of the State of New York : To all to whom these presents shall come, greeting. Whereas, by a certain inquisition taken at the [l. s.] City Hall in the city of New York on the — day of , 18 — , hy virtue of our commis- sion in the nature of a ivrit de lunatico (or, idiota) INQUIRENDO, in that hehalf duly made and issued, to inquire, among other things, of the lunacy (or idiocy^ of J. D., of, Sfc, it is found, amongst other things, that the said J. D., at the time of taking the said inquisition, was a lunatic not having lucid intervals (or, an idiot), so that he was incapable of the government of himself or of the management of his lands, tenements, goods and chattels, as by the said inquisition remaining of record in our Supreme Court may more fully appear ; for the care and custody of whom and for the management of whose estate it belongs to us, in our Supreme Court, to provide. And whereas sufficient security is given to us, on behalf of the said J. D., by R. D., of, Sfc, as is - customary in such cases, now, therefore, know ye, that we have given, granted and committed, and by these presents do give, grant and commit unto the said R. D., the care and custody of the person and the possession, E. 76 602 THE LAW OP REFEREES. care and manage7nent of the estate, as icell real as personal, of the said J. D., during our pleasfire, to be signified in our Supreme Court. And the said R. D. is hereby required, within six months from the date of these presents, to return and file in the office of the clerk of our said Supreme Court, at the City Hall of the city of New York, a just and true inventory, under oath, of the whole real arid personal estate of the said J. D., stating the income and profits thereof, and the debts, credits and effects of the said J. D., so far as the same shall have come to the knowledge of the said R. D. ; and that out of the said estate, or the rents, issues and profits thereof, he provide for the maintenance, suste- nance and support of the said J. D. and his family ; and that annually thereafter the said R. D. file in the office of the said clerk a si?nilar inventory, and an account, under oath, of the management of his said trust and of any other property or effects belonging to the said estate, which he shall have since discovered. And the said R. D. is further required to abide and obey all and every such order or orders in the premises as may hereafter be made in our said Supreme Court ; and to render a full and just account of the execution of the said trust and of the estate, property and effects which shall have come to his hands when and as often as required by our said court. Witness, , Esquire, one of the justices of the Supreme Court of the State of New York, at the City Hall in the city of Neio York, the — day of , in the year 18 — . The committee of the person should always re- member that it is incumbent upon him to consult, APPOINTING COMMITTEE OF LUNATIC, ETC. 603 by every possible means, tbe comfort and advantage of the unhappy person committed to his care : for to this end, and this alone, was he appointed com- mittee. A confidential trust of a peculiar nature is reposed in him, and the weakness and imbecility of his charge impose the strongest obligations on his honor and integrity ; nor let it be forgotten that the allowance for maintenance is given for the sake of the non compos, not of the committee ; and ought to be expended in a manner the most conducive to the welfare of its afflicted owner. (1 Collinson, 248.) Persons having the possession of the lunatic will be compelled, by direct order of the court, to deliver him to the committee or it may be effected through the writ oi habeas corpus. (Ex parte Cranmer, 12 Ves^ Jr., 732 ; 1 Collinson, 232.) SECTION IX. COSTS OF COMMISSION AND OF SUBSEQUENT PEOCEEDINGfS. The committee of a lunatic, idiot or drunkard may pay to the petitioner on whose application the commission was issued, or to his attorney, the costs and expenses of the application and of the subse- quent proceedings thereon, including the appoint- ment of the committee, and without an order of the court for the payment thereof, when the bill of such costs and expenses has been duly taxed and filed with the clerk in whose office the appointment of such committee is entered, provided the whole amount of 604 THE LAW OF REFEREES. such costs and expenses does not exceed fifty dollars. But where the costs and expenses exceed fifty dol- lars, the committee shall not be at liberty to pay the same out of the estate in his hands without a special order of the court directing such payment. (Rule 85, of the Supreme Court.) Where a committee dies before his duties are ended, a petition will have to be presented for renewed appointment. In case there has been more than one person appointed committee, then the sur- vivor should be the petitioner (see form, 3 Moulton's Ch. Pr., 537) ; but where there was only one, then the petition can emanate from a near relative. In the latter case, a reference would have to take place, in the same manner as on an original application. The committee should, not only file an inventory within six months after his appointment (2 E,. S., 53), but, also, annually thereafter, render an account of his trust. (Rule 154 of the Court of Chancery.) If a committee neglects to file an inventory of the estate or to render his accounts periodically, every presumption in reference to the justness and fairness of his accounts, in a suit or proceeding for the settle- ment thereof, will be taken most strongly against him. (In re Carter, 3 Paige's C. R., 146.) A creditor having a claim against the estate of a lunatic, which is under the care and management of a committee, must apply to the court, by petition, to enforce his claim. He will not be allowed to com- mence a suit at law against the lunatic or his estate, without the express direction or sanction of this court. {Williams v. Estate of Cameron, 26 Barb. S. C. APPOINTING COMMITTEE OF LUNATIC, ETC. 605 R, 172.) And even where there appears to be a right of action, yet, if no particular advantage will accrue from a suit, the preference will be given to a reference under the control of the court, over an action at law. (Jh.) CHAPTER XYI. REFERENCE ON AN APPLICATION BY A COMMITTEE OF A LUNATIC, ETC.,' TO MORTGAGE, LEASE OR SELL REAL ESTATE. Section!. Observations. IL Fbtitios foe sale or to lease or mortgage a lttnatio's real estate. III. Order of reference. IV. Report op referee, recommending A sale of part op the real estate. V- Order for sale. VI. Report op sale. VII. Order for contetanoe on report of sale. VIIL Conveyance bt committee. IX. Form of deed of committee of lunatic. SECTION I. OBSERVATIONS. It is made a statute duty and right on the part of a committee of an idiot, lunatic, person of unsound mind or habitual drunkard to apply to the court, by which he was appointed, to mortgage, lease or sell so much of the real estate of such idiot, lunatic or other person as shall be necessary for the pay- ment of debts, whenever the personal property shall not be sufficient for their discharge. (2 R. S., 53, § 12.) _ This is to be done by a petition, which must set forth the particulars and amount of the estate, real and personajl, and the application which may have been made of any personal property, and an account of the debts and demands existing against the estate. (/Z>.) SALE, ETC., OF LUNATIc's EEAL ESTATE. 607 Hoffman observes, that the application will have to be by petition, as the statute directs it ; and that no other mode can be adopted. (2 Hoff. Ch. Pr., 265.) He likewise remarks, it seems also abso- lutely necessary that a reference should be directed, however clear the case may be upon the petition and documents ; adding, that there was no such provision in the act of 1813. (1 R S., 147.) The real estate of a lunatic cannot be sold until, not merely the income but the capital of the person- alty has been exhausted in his support or, at least, until the court can see that it must, in the natural course of events, be exhausted. {In the Matter of Pettit, 2 Paige's C. R, 598.) SECTION II. PETITION FOE SALE OR TO LEASE OB MORTGAGE A LUNA- TIC'S REAL ESTATE.l To the Supreme Court of the State of Neiv York : The petition of R. D., committee of the person and estate of J. D., of 8^x., a lunatic, respectfully showeth : That your petitioner was appointed the committee of the person and estate of the above named lunatic by an order of this court, in that behalf duly granted in the matter of the said lunatic, bearing date the — day of , 1 8 — , and has complied with the exigencies of the said order as to the security thereby required for the ' 3 Moulton's Ch. Pr., 519. 608 THE LAW OF REFEREES. faithful discharge of the trust committed to him as such committee. That the said has not been restored to his right mind or exhibited any favorable symptoms of speedy recovery ; and your petitioner further shows that he has duly made out and verified, by his affidavit, an inventory of the whole estate, both real and personal, of the said lunatic, so far as the same has come to his knowledge or information, and has therein stated, according to his best judgment and belief the income and profits thereof and the amount of debts and credits of the said lunatic, which inventory accompanies this petition and is intended to be filed with the clerk of this court. And your peti- tioner farther shows that, according to the said inven- tory, the value of the real estate of the said lunatic amounts to % , and which real estate is situate in the said county of , and is of the annual value of $ . That the amount of the said personal property of the said lunatic is % , consisting principally of debts, household furniture, farming utensils and stock. That the petitioner is informed and believes, and has so represented in the said inventory, that the said lunatic is indebted to divers persons in the aggregate amount of % , the principal part of which \s bearing an annual interest of seven per cent. And your petitioner further shows that the annual income or proceeds of the estate, both real and personal, of the said lunatic will be altogether inadequate to the discharge of his said debts and the payment of the annual allowance made by this court for his maintenance and support ; and that your petitioner is, therefore, decidedly of the opinion that it is proper and expedient that so much of the said lunatic's SALE, ETC., OP lunatic's REAL ESTATE. 609 real estate should he sold, mortgaged or leased as will he sufficient to extinguish the existing debts against the said lunatic and the net proceeds thereof applied to that ohject. Wherefore your petitioner prays, that he may accord- ingly be authorized to mortgage, lease or sell so much of the real estate of the said lunatic as shall he neces- sary for the payment of the said debts ; and that^ by an order of this court, in the matter of the said luna- tic, it may be referred to a referee or to the clerk of this court to inquire into the truth of the various matters herein above stated; and to report thereon, to the end that, upon the coming in of the said report, the court may be enabled to make such order in the premises as the case may require. R. D., Committee. , Attorney and of Counsel. City, County and State of Neio York : R. D., the above petitioner and committee, being sworn, maketh oath, that he has read the above petition and knows the contents thereof, and that the same is true of his own knowledge, except as to the matters therein stated on information and belief, and as to those matters he believes it to be true. Sworn, S^c. E. 77 610 THE LAW OF EEFEEEES. SECTION III. OEDEE OF EEFEEENCE. Ai a Special Term of the Supreme Court, held at the City Hall of the city of New York, the — day of , 18 — . Present, Sfc. In the Matter of tlie lunacy of J. D. On reading the petition of R. D., the committee of the person and estate of the above named lunatic, duly ver-ified, for the sale, lease or mortgage of tKe said luna- tic's real estate, and which petition is accompanied with an inventory of the real and personal estate of such luna- tic, with their annual income and profits and the amount of his debts and credits ; and on motion of Mr. , of counsel for the said committee ; it is ordered that the said petition and inventory he filed in the office of the clerk of this court at the City Hall in the city of Neio Yoi-k ; and that it be referred to , of, S;c., Esquire, as a referee, to inquire into the truth of the various mat- ters in the said petition stated; and to report thereon, with all convenient speed, to the end that, on the coming in of the said report, the court may be enabled to make such order in the premises as the exigencies of the case may require. SALE, ETC., OF LUNATIC'S REAL ESTATE. 611 SECTION IV. REPORT OF REFEREE, RECOMMENDING A SALE OF PART OP THE REAL ESTATE. To the 8upreme Court of the State of New York : Supreme Court. In the Matter of the application of the J Committee of J. D., a lunatic, to sell ( certain premises for the payment of [ his debts. \ In 'pursuance of an order of this court, in the above matter, hearing date the — day of , 18 — , whereby it was referred to me, the undersigned, as referee, to (here recite order), /, the subscriber, referee as afore- said, do respectfully report that the attorney and counsel for the said committee has appeared before me on the matters so referred to me ; and that I took testimony therein ; and, from such testimony, I have ascertained that the following circumstances stated in such petition are true and were proved to my satisfaction, namely, that the personal property of the said lunatic amounted to the sum of % , and that of this only the sum of $ was made available, the residue being unavailable or bad debts ; that the unpaid debts of the said lunatic amount to % , which are running with interest. That of the real estate of the said lunatic, a sale of the following piece or parcel will he most eligible, as the same is not very productive, namely, all that, S^c. ; that a sale of said piece or parcel of land would fetch suffi- cient to pay off the aforesaid debts, with interest ; and that such a sale loould, on the whole, he for the advan- 612 THE LAW OF EEFEEEES. tage of the said lunatic. All which is respectfully sub- mitted. Dated New York the — day of , 18 — . Referee. SECTION V. OEDEE FOE SALE. At a Special Term, 8fc. Present, S^c. In the Matter of the application of the 1 committee of , a lunatic, to ( sell certain premises for the pay- ment of his dehts. On reading and filing the report of , Esquire' referee, made in the above matter, bearing date the — day of instant, by which it appears that the pro- perty of the above named lunatic consists principally of real estate sitvMte in the county of ; that his per- sonal estate has been principally exhausted ; and that he is indebted to divers persons in considerable amounts, to the payment of which the annual income of his estate is altogether inadequate. On motion of Mr. , attor- ney for the committee of the person and estate of the above named lunatic, it is hereby ordered and decreed that the said report be and the same is hereby accepted and confirmed ; and, on like motion, it is hereby further adjudged, ordered and decreed that R. D., being the said committee, be and he is hereby authorized, empowered and directed to sell so much of the real estate and the timber standing thereon of the said lunatic as he shall judge sufficient for the payment of his debts ; and that SALE, ETC., OP lunatic's REAL ESTATE. 613 such sale or sales may he public or private, as the said committee may deem best, but not below what may be deemed a fair and reasonable price and upon such terms as to credit and security as he shall deem safe and best for the interest of the said lunatic ; and that before any contract or contracts, deed or deeds be executed the terms of such sale or sales shall be reported to the Supreme Court by the said committee, in writing, and upon his oath, to the end that the same may be passed upon by the Supreme Court before the said sale or sales be con- firmed. SECTION VI. d EEPORT OF SALE. To the Supreme Court of the State of New York: In the Matter of, &c. \ I, the undersigned, R. D., the committee of the person and estate of the above named lunatic, having, by an order made in the above matter, under date of the — day of , 18 — , been authorized to sell so much of the real estate (here recite the order). Do respectfully report, that, by virtue of and in obe- dience to the said order, I did, pursuant to previous notice by me for that purpose given (if in the city of New York, in one or more of the daily papers of that city for three weeks, immediately previous to the time of sale, at least twice in each week ; and where the pre- • 3 MoultoD, 425. 614 THE LAW OF KEFEEEES. mises are in any other part of the State, then six weeks. See 2 R. S. [369] ), sell hy public auction, at, Snjc, the following piece of land and premises. (&c.) And I do further report, that the said sale luas not below ivhat may be deemed a fair and reasonable price ; and that the proceeds thereof will all be required to extinguish the debts now due and owing by the above named lunatic and will prove insufficient for that purpose ; and that the terms of the said sale are {S)C.) ; and which said sale has been made subject to the ratification of this honorable court. All which is respectfully submitted. Dated at , this — day of , 18 — . (Signed.) City and county of , ss : The above R. D., being duly sivorn, deposes and says, that the preceding report is true in substance and matter of fact. Sworn, S^c. The court will direct the manner in which the proceeds of a sale (with the before-mentioned view of maintenance or education) shall be secured and its income or produce appropriated. (2 R. S., 54, § 17.) SECTION VII. ORDER FOR CONVEYANCE ON REPORT OF SALE. At a Special Term, 8^c. In the Matter of the application of the committee of R. D., a lunatic, to sell certain premises for the payment of his debts On reading and filing the report of R. D., the com- mittee of the person and estate of the above named luna- SALE, ETC., OP lunatic's REAL ESTATE. 615 tic, hearing date the — day of , 18 — , duly verified, hy vjJiich it a/ppears that the said committee had, hy vir- tue of an order of this court, made in this matter, dated the — day of , contracted to sell (here recite report). Now, on motion of Mr. of counsel for the said committee, it is ordered and adjudged that the said report he and the same hereby is confirmed. And, on like motion, it is further ordered and adjudged that the said committee do execute and deliver to the purchaser of the said piece of land and premises a sufficient convey- ance therefor, on the receipt of the purchase money con- tracted to he paid for the same. And that the said committee do apply the net proceeds of the said sale, after deducting the costs and charges and the other necessary expenses in this matter, now fixed and adjusted hy the court at % , in or toivards the extinguishment of the debts noio due and otving by the above lunatic, and here- tofore exhibited to this court, holding himself amenable under the statutes and the rules and practice of this court to account in the premises. SECTION VIII. CONVEYANCE BY COMMITTEE. Every conveyance made under the order of the court, pursuant to the provisions of the act, will be as valid and effectual as if the same had been exe- cuted by the idiot or lunatic when of sound mind. (2 R. S., 54, § 21.) 616 THE LAW OP EEFEEEES. SECTION IX. FORM OF DEED OP COMMITTEE OP LUNATIC.' This- indenture made the — day of , 18 — , between R. D., committee of the person and estate of J. D., a lunatic, appointed by the Supreme Court of the State of Neva York, of the first part and C. D., of, 8^c., of the second part. Whereas, at a special term of the said Sup-rente Court, it was, among other things, ordered that the party hereto of the first part he and he thereby was authorized and directed to sell the premises herein- after described, for the purpose of paying the debts of such lunatic. And whereas an agreement was entered into, by and between the parties to this conveyance, for the sale of the said premises to the party of the second part for the sum of % ; which agreement for such sale was reported to the said court by the party of the first part, whereupon, by an order of the same court, bearing date the — day of , 18 — , it ivas ordered that such report be and the same was thereby confirmed. And it was {therein') also ordered that the said party of the first part should execute to the party of the second j^art a good and sufficient conveyance of such premises, on receiving the said sum of % . Now this indenture witnesseth that the said party of the first part, in consideration of the premises and by virtue of the orders of the said Supreme Court herein- before recited and of the statute in such case provided and > 3 Hoff. Ch. Pr., cccc. SALE, ETC., OF LUNATIC'S REAL ESTATE. 617 in consideration of the said sum of $ , to him paid at or before the execution of these presents, the receipt xohereof is hereby acknowledged, hath granted, bargained and sold, remised, released and conveyed, and by these presents doth grant, bargain and sell, remise, release and convey unto the said party of the second part his heirs and assigns, all that, 8^c. And also all the right, title and interest, property, possession and claim of the said lunatic, J. D., of in and to the satne and every part and parcel thereof, with the appurtenances. To have and to hold the same, with the appurtenances, unto the said party of the second part his heirs and assigns, to his and their only proper use, benefit and behoof for ever. In witness whereof the said parties to these presents have hereunto set their hands and seals the day and year first above written. Signed, sealed and delivered in the presence of K. 78 CHAPTER XYII. REFERENCE FOR A COMMITTEE OF A LUNATIC, ETC., TO PASS HIS ACCOUNTS. Section I. Observations. II. Petition by committee to pass his accounts. III. Order op reference to pass accounts. IV. Allowances and liabilities. V. Report of referee on a final accounting by the committee. VI. Order confirming report, declaring balance and canceling bond. SECTION I. OBSERVATIONS. EvEEY committee of the estate of any idiot, lunatic, person of unsound mind and persons who shall be incapable of conducting their own affairs in conse- quence of habitual drunkenness, must, within six months after appointment, file in the office of the clerk of the court which appointed such committee, a just and true verified inventory of the estate, stat- ing income and profits, debts, credits and effects ; and, as and when further estate is discovered, the commit- tee is to file an account of the same. (2 R. S., 63, § 8.) The filing of the inventory can be compelled by the order and process usual in such cases of the court which appointed the committee. {lb., 10.) In default of the committee passing his accounts, or paying in the balance when required, his recog- nizance may be put in suit against him and his sure- ties. (1 CoUinson, 309.) COMMITTEE PASSING • ACCOUNTS. 619 If a committee neglects to file an inventory of the estate or to render his accounts periodically, every presumption in reference to the justness and fairness of his accounts, in a suit or proceeding for the settle- ment thereof, will be taken most strongly against him. {In re Carter, 3 Paige's C. R., 146.) An application of the committee to account, will be ad interim or final. The latter will occur when the lunatic dies ; and this will be the most common, consequently our precedents will have reference to a final accounting. The statutes declare that the powers of a committee cease on the death of the lunatic (2 R S., 55) ; and the same principle is applicable in Maryland, where it is decided that, on the death of the lunatic, the only power retained by the court over the committee, as such, is to compel him to account and deliver possession of the property as the court shall direct; but the committee is to retain and preserve the property until some person shall appear properly authorized to receive it from him and if there is danger of delay in ascertaining who are entitled to possession, a receiver may be appointed on application of parties in interest. {In re Colvin, 3 Md. Ch. Decis., 278.) There will also be an accounting whenever a lunatic is restored to his right mind and becomes capable of conducting his affairs : for the statute requires that then his estate shall be restored to him. (2 R. S., 55.) The application will be based on a petition of the alleged lunatic, and (unless the court itself desires to examine him, Matter of Hanhs, 3 J. C. R., 567), an order of reference to examine him 620 THE LAW OP EEPEEEES. and take proof of such testimony as might be offered touching his returning sanity, and for the referee to report such proof, with his opinion thereon. Then, an order of reference for the committee to account. (See form of such an order, with its accompanying recitals, 3 Moulton's Ch. Pr., 548.) On the death of a surety, the accounts ought to be passed and the balance paid into court. (1 CoUinson, 309.) On the death of the committee, his executors or administrators ought to pass his accounts and pay what shall be found due from him out of his estate. {lb., 309.) On the recovery of the non compos, the accounts of the committee ought to be passed, and the balance paid into court or to the party himself who had been non compos. (lb.) It does not seem necessary to serve a notice of the application for an order to account finally upon any interested party, as the order itself will direct the referee to notice the next of kin and representa- tive of the deceased lunatic of the time of proceeding on the reference. COMMITTEE PASSING ACCOUNTS. 621 SECTION II. PETITION BY COMMITTEE TO PASS ACCOUNTS. To the Supreme Court of the State of New York : \ In the Matter of A. B. , a Lunatic. > The petition of C. D., of, Sfc, Committee of the person and estate of the ahove lunatic, respectfully showeth : That a commission having issued to inquire of the lunacy of the above named A. B., he was, by inquisition duly taken thereon, found to be a lunatic. That, in pursuance of an order of this court, bearing date the — day of , 18 — , made in the above mat- ter for that purpose, the custody of the person and estate of the said lunatic has been committed to your petitioner, as the committee thereof That your petitioner, as the committee of the said luna- tic's estate, has received and paid divers sums of money on account of the said lunatic and his estate, and is de- sirous of passing his accounts thereof Your petitioner, therefore prays that it may be referred to a referee to take and pass your petitioner s accounts of receipts and payments of the said lunatic's estate, from the time he was appointed committee thereof (or, if there has been a former accounting, since the time he last accounted therein to this court) ; and, therein, to make unto your petitioner all just allow- ances ; and particularly, an allowance of his costs of passing the said accounts and all other accounts in this matter. {Signed.) 622 THE LAW OP EEFEEEES. City and County of New York, ss : C. J)., the above petitioner, being sivorn, maketh oath and saith : That he has read the above petition, and knows the contents thereof, and that the same is true of his oivn knowledge, except as to the matters therein stated on information and belief, and as to those matters he believes it to he true. Sworn, 8fc. SECTION III. OEDER OF REFERENCE TO PASS ACCOUNTS. In the order for passing accounts, notice of pass- ing them is invariably directed to be given to such persons as would be entitled to distributive shares of the personal property in case the non compos were dead intestate. (1 CoUinson, 307.) The persons answering this description are ascertained upon in- quiry by the referee. {lb.) It is so much, however, for the benefit of the non compos that the accounts of the committee should be watched by persons interested in their accuracy, that the costs of the next of kin are now allowed, as a matter of course. {lb., 308.) In case the sureties of an insolvent or bankrupt committee or either of them be living, they will be entitled to notice of passing his accounts, because liable to the payment of what shall be found due from his estate. {Ih., 309.) The referee may be directed to inquire what sums have been in the hands of the committee from time COMMITTEE PASSING ACCOUNTS. 623 to time, in order to ascertain whether interest ought to be computed upon them. {Ex parte Cotton, 1 Ves., Jr., 156.) OKDEE OF REFERENCE TO PASS ACCOUNTS. At a Special Term, Sfc. Present, Esq., Justice. In the Matter of A. B., a Lunatic. [ On reading and filing the petition of C D., the com- mittee of the person and estate of the above lunatic A. B. ; and on motion of Mr. , of counsel for the petitioner, it is ordered that it he referred to , of, t^r., as referee, to take and state the accounts of the said C. D., as committee of the estate of the said A. B., a lunatic ; that he make to such coinmittee all just allowances, and, report thereon ivith all convenient speed. Also, it is ordered that before the taking and passing the said accounts, the said referee cause reasonable notice of the time when such taking will be had to be given to such persons as would be entitled to distributive shares of the personal property of the lunatic and to the adminis- trator of the goods, chattels and credits of the lunatic. SECTION IV. ALLOWANCES AND LIABILITIES. The committee is chargeable with interest for balances remaining in his hands, during any consid- erable time. {In Ex parte Chwnley, 1 Ves., Jr., 156 ; Bocock V. Reddington, 5 lb., 794.) 624 THE LAW OF EEFEEEES. In case the committee has made greater profit of the money, he will be chargeable to the extent of such profit. (1 CoUinson, 305.) A committee of a lunatic is entitled to an allow- ance, by way of compensation for his services in receiving and paying out moneys within the equity of the statute of New York (2 R. S., 93, 153), which directs a surrogate to make the following allowance to executors, administrators and guardians : five per cent for paying and receiving all sums not exceeding one thousand dollars ; two and a half per cent on the excess between one thousand dollars and five thousand dollars ; and one per cent for all above five thousand dollars. {Matter of Roberts, 3 J. C. E,., 43.) If the situation of the estate warrant it, the court will permit the committee to employ an agent or clerk, to be paid out of the estate. But, in addition to actual expense and disbursements, the court can- not allow the committee for his personal services any other or greater compensation than that which is fixed by the Revised Statutes for executors, adminis- trators and guardians. {Matter of Livingston, 9 Paige's C. R., 440, affirmed, 2 Denio, 575.) A committee is viewed in the light of a trustee, or rather, bailiff, and is consequently chargeable only with what he has received, or might have received, but for his wilful default. (1 Collinson, 306.) A referee is not authorized to make extraordinary allowances, except under the special directions of the court, such as for repairs, improvements, fines on renewal of leases, salary of agents, maintenance of COMMITTEE PASSING ACCOpNTS. 625 children, advancement to children, payment of debts to children, costs. (1 Oollinson, 306.) In taking an account of the separate estate of a fe^ne covert non compos, as against her husband, an allowance may be made for the extra expense of her maintenance. {Attorney General v. Parnther, 4 Bro. C. C, 409.) SECTION V. EEPOET OF REFEREE ON A FINAL ACCOUNTING BY THE COMMITTEE. To the Supreme Court of the State of New York : In the Matter of C. D., committee of ) the estate of A. B., deceased, a \ person lunatic. C I, the undersigned, , referee appointed hy an order of the above court, dated the — day of , 18 — , to take and state the accounts of C D., as committee of the estate of th^ above named A. B., and to make to him all just allowances, do respectfully report : That I have been attended by the said committee C. D., Sfc, Sfc, and that I have examined the said C. D., as such committee, touching the said accounts ; that the items in such accounts are duly substantiated by pro- per and sufficient evide?ice ; and that, after charging the said committee with all moneys received by him and credit- ing him with all moneys paid by him 'and for lohich he has become legally holden and liable as such committee, there appears to be a balance of$ due to the said C. E. 79 626 THE LAW OF EEFEREES. D., as such committee, from the said estate. And I also certify and report, tliat such accounts are hereto annexed} and marked Schedule A, and form part of this my account. All which is respectfully reported. Dated , 18—. {Schedule A, (^c.) Referee. SECTION VI. OE0EE CONFIRMING EEPORT, DECLARING BALANCE AND CANCELING BOND. At a Special Term, 8^c. In the Matter of C. D., committee of the estate of A. B., deceased, a person lunatic. Present, , Esquire, Justice. On reading and filing the petition of , Esquire, as referee to whom the accounts of the said C. D., as cofn- mittee aforesaid, were heretofore hy an order of this court referred to examine and report relative thereto ; by ivkich report it appears that the said referee has been attended hy, Sfc, &jc. ; and that he, the said referee, has examined the said committee touching the said accounts ; that tiie items in such accounts are duly substantiated by proper and sufficient eiiidence ; and that, after charging the committee with all moneys received by him and cre- diting him with all tnoneys paid by him and for which he has become legally holden and liable as such commit- COMMITTEE PASSING ACCOUNTS. 627 tee, there appears to he a halance of$ due to the said C D., as such committee, from the estate of the said A. B., deceased; and on motion of Mr. of counsel for the said petitioner ; it is ordered, that the said report he and the same herehy is approved, confirmed and sanc- tioned; and that the said amount, together with the sum of % , heing costs and disbursements of the applica- tion to account and reference consequent thereon herehy allowed and adjusted hy the court, in all amounting to % , he retained hy the said committee out of the estate in his hands, and which said sum of % this court adjudges to he a legal deht, and claim, to all in- tents and purposes, in favor of the said C. D., against the estate of the said A. B., and against his administra- tor, as such, in the same manner as if it had heen a debt contracted hy the said A. B. in his lifetime. Also, it is ordered that the sum of % be paid out of the said estate to the next of kin, or to their attorney, and the sum of $ , to the said administrator of the goods, 8^c., of the said A. B.,or to his attorney, for their respective costs of attending on the reference. And it is also ordered that, on the said C D., com- mittee as aforesaid, presenting to the clerk of this court, at the City Hall in the city of New York, a receipt signed hy the administrator of the goods, chattels and credits of the said A. B., deceased, for all balance of moneys, property and estate which came to the hands or possession of the said C. D., as such committee, then the bond given by the latter and his sureties, for the faith- ful performance of his trust as committee, shall be can- celed, given up and discharged by the said clerk. 628 THE "law op referees. The Court of Chancery sometimes made an order to show cause why a report, on a final accounting by a committee, should not be confirmed, and directed the same to be inserted for a certain nu.mber of weeks in a public newspaper. CHAPTEH XYIII. REFERENCE OF CLAIMS AGAINST THE ESTATE OF DE- CEASED PERSONS WHICH ARE CONSIDERED OF A DOUBTFUL CHARACTER BY EXECUTORS OR ADMIN- ISTRATORS. Section I, Observations. II. Form op claim, III. Agreement to refer the claim. IV. SURROSATE'S APPROVAL. V. Rule. VI. Form of oath of referees. Vri* Prooeedings before the beferees. VIII. Referee's reporting. IX. Form op report. X. Form op rule or order for confirmation. XI. Form of judgment. SECTION I. OBSERVATIONS. The part of the Revised Statutes whicli has refer- ence to executors and administrators rendering an account and to a course which might be pursued by them on doubtful claims (2 R. S., p. 88, § 36 ; lb., p. 92, § 52), has been amended by an act passed April 12, 1859 (ch. 261, Sess. Laws, p. 569). The sections bearing upon the above, now, run thus (§ 52) : " An executor or administrator, after the expiration of eighteen months from the time of his appointment, may be required to render an account of his pro- ceedings, by an order of the surrogate, to be granted upon application from some person having a demand against the personal estate of the deceased, either as a creditor, legatee or next of kin ; or of some person 630 THE LAW OF EEFEREES. in behalf of any minor having such claim ; or, with- out such application. And in the case of an admin- istrator, upon the application of any person who is or has been his bail or of the legal representatives of such person. " If the executor or administrator doubt the justice of any claim so presented, he may enter into an agreement, in writing, with the claimant, to refer the matter in controversy to three disinterested persons ; or, to a disinterested person, to be approved by the surrogate ; and upon filing such agreement and ap- proval of the surrogate in the office of the clerk of the Supreme Court in the county in which the par- ties or either of them reside, a rule shall be entered by such clerk, either in vacation or term, referring the matter in controversy to the person or persons so selected." It will be seen that a reference can now be had to one disinterested person ; the Revised Statutes made the number of three necessary; while the persons who can come into a reference now embraces the sureties of administrators and the legal representa- tives of such sureties. The agreement, it will be seen, is now to be filed in the office of the clerk of the Supreme Court, and not elsewhere ; by the provi- sion of the Revised Statutes, it could have been filed in the office of the clerk of Common Pleas of the county in which the parties or either of them resided or with the clerk of the Supreme Court. An executor, like all trustees, is bound to exercise the utmost care and circumspection before he accepts a claim as entitled to payment from the estate ; and DOUBTFUL CLAIMS AGAINST DECEDENt's ESTATE. 631 the law will afford him all reasonable means for so doing. The statute seems to consider an executor or administrator, not merely as the representative of a deceased debtor, but as a trustee of a fund which he holds for the benefit of the creditors of the deceased. Hence the creditors are to present their claims at the residence or place of business of the trustee ; and not only so, but they must exhibit their vouchers. {Rohert v. Ditmas, 7 Wend., 525.) He cannot be coerced to pay debts short of a year from the time of granting the letters testamentary, because the various statutory provisions, made for the protec- tion of the estate, cannot be executed short of that time. In the meantime, the remedies of the creditor are not absolutely suspended. He may prosecute his action, but he must do so at his pwn cost and expense, and not at the cost and expense of the estate, unless he can show that the executor had been guilty of some laches or illegal act in regard to the adjustment of his claim. When the claim is presented, the executor may require that it shall be verified by the oath of the creditor ; and if he still doubt its justice, he may enter into the agreement in writing with the claimant contemplated by the statute. {Buckhout v. Hunt, 16 How. Pr. R., 407.) Proceedings of reference of claims against execu- tors and administrators (under the statute) do not amount to an ordinary action in the common and accepted sense of that term. {Akely v. Akely, 17 How. Pr. R, 21.) Where a creditor holds a claim against executors or administrators and desires a reference under the 632 THE LAW OF REFEREES. statute, he must first move on tlie subject of the reference. Neither party is bound to refer ; and if either desires a reference, he must offer to refer. The executor cannot be said to refuse until the claimant, in some way, manifests his willingness to refer. This was said by Justice Welles, in Proude V. Whiton (15 How. Pr. R., 304), referring to the statute (2 R. S., 90, § 41), and to Stephenson v. Clark (12 How. Pr. R., 282). There mugt be a refusal or something equivalent. A neglect to answer an offer or proposition to refer may be deemed a refusal, but the creditor must first move. {Proude v. Whiton, sup?-a.) An unqualified rejection of the claim, unaccom- panied with an offer to refer, is equivalent to a refusal to refer. {Fort v. Gooding, 9 Barb. S. C. R., 394.) The same proceedings are to be had on a doubt- ful claim thus referred by the surrogate, in all respects ; the referee and referees will possess the same powers and be subject to the like control as in cases of reference in the usual manner ; and the court can confirm or set aside the referee's report and enter judgment thereon as in other cases of reference. (2 R. S., 88, § 37.) The liability of the estate of a deceased executor for assets held by him as such at his death, is not a debt of the estate which can be referred under the pro- visions of the 2 Revised Statutes (88, § 36). The representatives of the deceased executor are bound to refuse to refer such a claim and are not liable for costs by reason of refusal. {Sands v. Craft, 10 Abb. Pr. R„ DOUBTFUL CLAIMS AGAINST DECEDENt's ESTATE. 633 216 ; 8. a, 18 How. Pr. R, 434.) And, where a claim against an estate was presented to the adminis- trator, by a creditor of the intestate, and the adminis- trator claimed an offset, consisting of matters of account and matters of tort, upon which an agree- ment in writing was entered into, to submit the matters in controversy to three individuals named, to determine and awarJupon the same and judgment to be entered upon such award and determination and the surrogate approving of the persons selected as proper persons to whom to submit the said claims and demands, and an order entered referring the matter in controversy to said persons to hear, deter- mine and award the same, the administrator through- out occupying the position of plaintiff: it was held that whatever might have been the intention of the parties, the pi-oceedings were not in form or in substance a reference under the statute as to claims against deceased persons and that there was no legal authority for including the plaintiff's costs or dis- bursements in the judgment entered upon the award of the persons named as referees. {Akely v. Akely, 17 How. Pr. R., 21.) Where a claim is presented to executors against the estate of their testator, the justice of which is disputed and the parties agree to refer the same under the statute, the agreement to refer need not notice matters of defense to the claim. {Tracy v. Suydam, 30 Barb. S. C R, 110.) On the approval by the surrogate of the agree- ment to refer, and filing the same in the office of a K. 80 634 THE LAW OF EEFEEEES. clerk of the Supreme Court, the agreement becomes operative as a voluntary appearance by the parties in the Supreme Court and a submission to its juris- diction for the purpose of adjudicating upon the claim presented. (7J.) The account presented is, in effect, the plaintiff's complaint and the defendant is limited to no parti- cular defense ; and, consequently, any and every legal defense against the claim must necessarily be available. (Jh.) On the trial before the referees, the plaintiff must prove his claim and satisfy the referees of its justice and validity ; and every species of legal proof, adopted to show the injustice of the claim or its invalidity as a whole or in degree or amount, is admissible. (/Z>.) Within this rule a setoff may be proved or a payment in whole or in part or proof given to reduce the amount. (Jb.) And the execu- tors are at liberty to make any defense that their testator could himself make if alive and the same were properly pleaded in an action upon such claim. (Jb.) They may, therefore, insist upon the statute of limitations ; and if that defense is sustained, it is a complete answer to the whole cause of action. (/&.) The section of the statute which provides for references where an executor or administrator doubts the justice of a claim, extends to all claims presented and is not confined to those only which are sent in within the six months succeeding the first publi- cation of notice for debts to be brought in. (Russell v. Lane, 1 Barb. S. C. R, 519.) DOUBTFUL CLAIMS AGAINST DECEDENt's ESTATE. 635 An executor or administrator may consent to refer a claim presented to him, notwithstanding he has not required vouchers or an affidavit of the justice of such claim. (Jb.) The statute makes no provision for pleadings in such cases. The agreement to refer is the commence- ment of the suit. It must, however, present sub- stantially the issue between the parties, stating the claim upon one side and the denial of its justice on the other ; it is a substitute for declaration and plea or complaint and answer. {Woodin v. Bagley, 13 Wend., 453 ; and see Tracy v. Suydam, 30 Barb. S. C. R, 110.) The claim and denial will be considered a part of the record, as much as though they took the forms of pure pleading. (/&.) And there ought to be a record of the proceedings for the protection of the executor or administrator and so that execution may issue upon the judgment rendered on the report of the referees. {Robert v, Ditmas, administrator, Sfc.j 7 Wend., 522.) 636 THE LAW OF EEPEEEES. SECTION II. FORM OF CLAIM. Claim and debt due from C. D., late of, Sfc, at the time of his decease, and still due from his estate to A. B., of, &^c. : 18—. May — . For the following goods sold and delivered hy the said A. B. to the said C. D., 8fc., 8^c., &;c., $ Interest thereon from, 8^c.,' 18—. May — . A promissory note, now held and owned in full hy the said A. B., dated, S^c, 8^c., S^c, for,. . $ X Interest thereon, from, S^c, City and County of New York, ss : A. B. of, S^., being duly sivorn, doth depose and say, that the foregoing claim against the estate late of C. D., of, 8<;c., deceased, is justly due and owing to this deponent ; and that no payments have been made thereon, nor are there any offsets against the same, to the best of his knowledge and belief Sworn, Sfc. DOUBTFUL CLAIMS AGAINST DECEDENT's ESTATE. 637 SECTION III. AGREEMENT TO EEFEE THE CLAIM. Whereas A. B., of, &;c., has lately presented a claim to E. F., the executor of the last ivill of C. D., late of the city of New York, deceased, against the estate of the latter. And whereas the said executor denies and doubts the justice of the said claim, alleging that, 8^c. (here state distinctly the grounds of objection, so as to form an issue). It is, therefore, agreed in pursuance of the statute in such case made and provided, by and between the said A. B. and E. F., executor as aforesaid, that the said claim in controversy he referred to G. H., of, 8^c., I. J., of, Sfc, and K. L., of 8^c., three disin- terested persons, as referees (or, to G. H., of, S^c, a dis- interested person'), to hear and determine upon the same with all convenient speed. Dated this — day of , 18 — . A. B., Claimant. E.F., Executor of the last will of C. D., deceased. SECTION IV. sueeogate's appeoval. The surrogate of the county of New York, hereby approves of the three persons named as referees (or, of the person named as referee) in the above agreement. Dated this — day of , 18 — . Surrogate. 638 THE LAW OF EEFEEEES. SECTION V. RULE (to be entered BY THE CLERK OP THE SUPREME court). The — day of 18—. In the Matter of the Claim of A. B.. of, &c., agt. The Estate of C. D., late of, &o.. , deceased. On reading and filing an agreement, signed hy the above A. B. and C. D., executor of the last will of E. F. of 8^c., and the approval of , Esq., surrogate of the county of New York ; and, on motion of Mr. , on hehalf of the said A. B., ordered, hy this rule en- tered hy the clerk of the court, that the above claim and matter in controversy he and the same hereby is referred to G. H., of &;c. I. J., of, &;c., and K. L., of, 8^c., (or, to G. H., of &;c.,) pursuant to the said agreement and approval and by force of the statute in such case made and provided. Clerk of the above court. (On filing the above, have a duplicate or certified copy, as well of the claim and agreement as of the order or rule for the referees ; and serve a copy on the claimant or his attorney.) DOXJBTFUL CLAIMS AGAINST DECEDENt's ESTATE. 639 SECTION VI. FORM OF OATH OF EEFEKEES. In the Matter of the Claim of A. B. agt. The Estate of , deceased. We, the undersigned G. H., of, &jC., I. J., of, S^c, and K. L., of, 8^c., do, each for himself, make oath and say, that we will faithfully and fairly hear and examine the claim or controversy hetween A. B. and E. F., executor of the last will of C. D., deceased, loherein we are appointed referees, and make a true and just report, according to the best of our skill and understanding. Bworn to, 3fc. The referees had better be sworn to the above before a judge of the court wherein the rule for their appointment is made ; although it would probablj, be sufficiently deposed to before any person autho- rized to take affidavits, to be read in the court in which the matter is pending or by any justice of the peace in the county. (2 R. S., 384, § 45 ; lb., 89, § 37.) SECTION VII. PEOCEEDINGS BEFORE THE REFEREES. The referees are to proceed to hear and determine the matter and make their report thereon to the 640 THE LAW OF EEFEEEES. court in wMcli tlie rule for tlieir appointment shall have been entered. (2 R. S., 89, § 37.) And the same proceedings will be had, in all re- spects, and the referees will have the same powers and have the like compensation and be subject to the same control as if the reference had been made in an action in which the court might, by law, direct a reference. (Jh.) Witnesses may be compelled to appear before such referees, by subpcenas issuing out of the court in which the matter and rule are pending in the same manner and with the like effect as in cases of trials. (2 R S., 384, § 46.) One of the referees may administer the necessary oath for examination. {lb., § 47.) They may grant adjournments. {lb., 49.) Where the matter is before three referees, they must meet together and hear all the proofs and al- legations of the parties. {lb., § 47 ; lb., 89, § 37.) The referees may be compelled, by an order of court, to proceed to the hearing of the matter. {lb., 384, § 48.) The referees will fix the time and place of meeting ; and the attorney for the claimant will give notice of hearing before them, for the length of time and in the same manner as on a hearing where the issues of an action are left with referees. DOUBTFUL CLAIMS AGAINST DECEDENT'S ESTATE. 641 SECTION VIII. EEFEEEES EEPOETING. A report by any two out of three referees will be valid, where three have met together and heard all the proofs and allegations. (2 R. S., 384, § 47 ; Ih., 89, § 37.) A report is in the nature of a general verdict and it must find the simple fact of due or not due. (Caines' Pr., 492.) The referees may be compelled, by order, to make a report ; and the court can require them to report their decision in admitting or rejecting any witness, in allowing or overruling any question to a witness or the answer thereto and all other pro- ceedings by them, together with the testimony before them and their reasons for allowing or disallowing a claim put in by either party. (2 E. S., 384, § 48.) SECTION IX. FOEM OP EEPOET. SUPEEME COUET. In the Mattor of the Claim of A, B., of, &c., agt. The Estate of C. D., late of, &c., deceased. ' In pursuance of a rule of court in the above matter, made on the — day of , 18 — , loe, the referees therein and thereby appointed, having heard and examined on oath R.81 642 THE LAW OF EEFEEEES. the several witnesses produced to us therein, do find that there is due to the above A. B. from the above E. F., as executor of the last will of C. D. late of, 8^c., deceased, the sum of $- , over and above disbursements, (or, that there is not due to the above A. B., from the above E. F., as executor of the last will of C. D. late of, Sfc, deceased, the sum of % or any other su7n). All which we do hereby respectfully report to this honorable court, as we are, by the above mentioned rule, com- manded. (Signed.) The referees had better annex the oath they took to the report. Before the amendment of the present 32d rule of the Supreme Court, there would have been a neces- sity to enter a rule or order of confirmation of the report, based upon a notice of motion to that effect. But we presume that now, under that rule, it will be merely necessary to file the report and give notice of its being filed ; and that, if exceptions to it are not filed and served within eight days thereafter, the report will become confirmed. If practitioners feel disposed to adopt this practice, it is also sug- gested that they had better have ready with their form of judgment (to be handed to the justice for his fiat of entry) an afiidavit to the effect that no excep- tions have been filed within the time prescribed by the 32d rule. Notice of adjustment of fees and disbursements should be served. (Code, § 317.) But if the lawyer who receives the report deter- mines to take what was the customary course (see Avery v. Smyth, 9 How. Pr. E., 349, where Justice DOUBTFUL CLAIMS AGAINST DECEDENt's ESTATE. 643 Allen says: "It is proper that the defendants should make a motion to confirm the report"), then he will serve a copy of the report with notice of motion at Chambers, as of special term, for confir- mation. And such a course would, certainly, give the other side the opportunity of bringing up ques- tions of conduct which cannot very well appear upon the face of exceptions ; and there is no doubt as to the power of the court to set aside the report of the referees in these kind of" cases, as well for irregularity as for mistake in point of law or because it may be against the weight of evidence. {Kauff- man v. Copus' Executors, 16 Wend., 478.) Supposing, then, that the course last referred to is adopted, the following will be the rule for confirma.- tion: SECTION X. POEM OF EULE OE OEDEE FOE CONFIEMATION. At a Special Term of the Supreme Court of the State of New York, held at, Sfc, the — day of , 18—. In the Matter of, &o. Present, Sfc. On reading and filing the report of G. H., I. J. and K. i., the referees (or, of O. H. and K. L., two of the referees) appointed in this matter, dated the — day of , 18 — , whereby they report that there is due from E. F., as executor of the last will of C. D., deceased, the 644 THE LAW OF EEFEEEES. swn of$ over and above disbursements about this matter expended ; and on reading and filing proof of due service of notice of motion on said report ; and on motion of Mr. 8., of counsel for the said A. B., it is ordered that the said report be confirmed, and judgment. Where a report is made and the claimant dies afterwards and before judgment actually entered, the court, on motion, will give leave to have judgment entered in the names of the original parties. {Bur- hans V. Burhans, 10 Wend., 601.) No allowance can be given under the Code to a successful litigant in cases of this kind. It is not an action. {Van Sickler v. Graham, 7 How. Pr. R, 208.) Nor can costs be had under the Code. Nothing but " fees of referees and witnesses and other neces- sary disbursements " (Code, § 317) can be allowed. (/J.) In Avery v. Smyth (9 How. Pr. P., 349), Justice Allen observed : " It is proper that the defendants should make a motion to confirm the report in this case, and I should be inclined to grant them costs, but for the amendment inserted in sec- tion 317 of the Code of 1851, 1862. Before that, it had been decided that such a proceeding was a suit at law and that costs could be allowed. But the insertion of the provision just alluded to alters the law. It is as follows : " Whenever any claim against a deceased person shall be referred, pursuant to the provisions of the Revised Statutes, the prevailing party shall be entitled to recover the fees of referees and witnesses and other necessary disbursements, to be taxed according to law. I think the intention was to exclude all other costs. The section, like DOUBTFUL CLAIMS AGAINST DECEDENT's ESTATE. 645 many of its fellows, is somewhat dark and obscure ; and although it is not at all times easy to bring light out of darkness, yet the small ray afforded by this phraseology, in my judgment, warrants this construction. Such was the conclusion in Van Sick- ler V. Graham (7 How., 208), decided since the amendment. I am of opinion, therefore, that I can only allow items there mentioned. There is no pre- tense here that plaintiffs have mismanaged or have acted in bad faith. They are clearly assignees of an express trust, within the meaning of the section. The order, therefore, must be to confirm the report ; and for judgment that the amount reported with the fees of referees and witnesses and other necessary disbursements be collected out of the funds or estate of Reuben Sanford, in the hands of the plaintiffs as his assignees." SECTION XI. FORM OP JUDGMENT. At a Spexial Term of the Supreme Court of the State of New York held at (the City Hall in the City of New York), the — day of , 18 — . In the Matter of the Claim of A. B, of, &c., agt. The Estate of 0. D., late of, &o., deceased.* [Here copy the claim ; agreement to refer ; surro- gates's approval ; and, rule.] And this claim and matter in controversy, hy virtue of the last aforesaid rule in that behalf made, having been heard and examined 646 THE LAW OF EEPEEEES. hy the said G. H., I. J. and K. L., as referees in and hy the said rule and pursuant to the statute in such case made and provided ; and they having made their report in writing, under their hands to this court, in the ivords and figures following (here insert their report). And it seeming to the court that such report is good and valid, the same stands confirmed in all respects. And, the7-efore, it is adjudged that the said A. B. recover against the said E. F., as executor aforesaid, the said sum of S , ahove awarded to him hy the referees aforesaid, and also $ for the fees of referees, icit- nesses and other necessary disbursements taxed^ herein, amounting in all to the sum of % , to he levied and collected of the personal assets of the said C. D., the testator (or, intestate) aforesaid. The — day of , 18 — . Enter judgment. , Justice. In case the court should set aside the report, then the following will be the entry on the judgment, after the words, " and it see?ning to the court that such report is " : in all respects irregular and void. There- fore, the said report of the said referees is, hy the court now here, vacated and set aside. Then will follow, either a reference back to the same referees or to others. In the former case, thus : And hereupon the court now here again refers the said matter to the same referees, and that they or any two of them report thereon with all convenient speed. But if other refe- rees are appointed, then the following entry will be made : ' The Code, § 317, uses the word " taxed." DOUBTFUL CLAIMS AGAINST DECEDENT's ESTATE. 647 And the court now here discharge and remove the said referees from the further burden of hearing or report- ing in the said matter as referees as aforesaid ; and noio here appoint , and referees in the said matter, in lieu and instead of the referees aforesaid first above named ; and the said referees now here last ap- pointed or any two of them are directed to report there- in with all convenient speed. The judgment, as thus varied and sent back, could be signed by a justice, delivered to the attorney having charge of the reference and be left with the ultimate referees, to be worked (as before laid down), and the future proceedings, by way of continuance, could be appended to it. CHAPTER XIX. EEFERENCE TO ACCOUNT BETWEEN PARTNERS. Section I. Observations. 11. General form of the active part of a jxtdgmbnt order foe an acooumt in partnership. III. Mode of takino partnership aocountb. IV. Books and accounts. v. Charge and discharge. VI. Examining partners. VII. Settled accounts. VIII. Surcharging and falsifying an account. IX. Profit and loss. X. Charges particularly against and allowances to partners* XI. Sale of partnership property. Xlt. Interest. Xin. Settlement of report and objections. XIV. Form op objections. XV. Form of report. XVI. Form of exceptions to report. XVII. Form of active part of judgment order on the ebpoet. XVIII. Costs. SECTION L OBSERVATIONS. Although the action of accoiint by one or more partners against another partner has fallen into dis- use, yet, provision for a reference in cases of such an action appears on the statutes. It is enacted (^ R. S., 385, § 50), that when any action of account shall be brought by one or more partners against another partner and judgment shall be rendered that the defendant account to the plaintiff, the cause shall be referred to referees in the same manner and subject to the same provisions as are prescribed in the sta- tutes in the case of a long account. Such referees REFERENCE TO ACCOUNT BETWEEN PARTNERS. 649 shall proceed in the manner required by law in other cases of reference, with the like powers and subject to the same provisions in all respects ; and they are to have the same power to examine the parties on oath to be administered by the referees or either of them ; and to require the production of all books of account, papers and documents in the custody or under the control of either party. (§ 51.) The refe- rees are to notify the party or parties required to account before them of the time and place at which they will take such account; and shall take, audit and settle such account and report thereon to the court. (§ 52.) If any party shall neglect or refuse to account according to the judgment of the court, pursuant to such notification or to produce any books, papers and documents required by the refe- rees, the latter shall report the same to the court, who are to proceed thereon against such party for his disobedience and impi-ison such party until he submit to account or produce such books, papers and documents or until he satisfy the plaintijff his demand, with costs. (§ 53.) If the referees should report a balance in favor of either party, and such report be confirmed, judgment is to be rendered there- on as in other cases of reference. And if they report that no balance is due to either party, judgment is to be rendered against the plaintiff with the like effect as on a verdict. (§ 54.) The modern remedy which one partner has against another is through an equity suit for an account. {Harrison v. Armitage, 4 Mad., 143.) R. 82 650 THE LAW OP EEFEEEES. An account will be adjudged at the suit of any of the partners or their representatives. (Collyer, 165.) The accoilnt which a court of equity decrees between partners is usually consequent upon a dis- solution ; and Lord Eldon was inclined to hold that it must depend upon a dissolution. {Forman v. Hom- Jray, 2 Ves. & B., 329.) In a subsequent case, how- ever, Sir John Leach was clearly of opinion that one partner might file a bill against another for an account, without praying for a dissolution, since it was the only remedy he had. {Harrison v. Armitage, 4 Mad. C. R, 143:) The latter seems to be the more approved opinion. Few cases, however, can be conceived in which the continuance of the part- nership would be desirable, after an account has been judicially enforced; and, consequently, it can seldom be required of a court of equity to adjudge an account without also decreeing a dissolution of the partnership. (Collyer, 163.) A case may arise, as it did in Palmer v. Palmer (13 Barb. S. C. K, 363), where a partnership was denied, and the whole of the issues went to a referee. The better practice, there, would seem to be, to make a separate report declaring the existence of the partnei'ship and the liability to account, before any account was stated. This, however, was not the course pursued in Palmer v. Palmer ; but, still, the judgment held water, and as the decision is intelli- gent and useful to the practitioner, we give it : E. Daewin Smith, Justicei, "The chief ground upon which the defendants apply for the reversal of the judgment in this case and for a new trial is, that EEFEEENCE TO ACCOUNT BETWEEN PAETNEES. 651 the referee determined the liability of the defendants to account and then proceeded to take the account "without requiring the defendants to bring in their accounts in the form of debtor and creditor, under the 107th rule of the old Court of Chancery and in conformity with the practice in Chancery in cases of accounting. " The complaint is in the form of a bill in equity in cases of partnership and prays for an account. The answer denies the partnership and sets up a setoff and counterclaim. Before the Code, the issue in such a case would have been brought to a hear- ing before the Chancellor or Vice-Chancellor ; and if it was found that the complainant established the part- nership and the liability of the defendant to .account, an interlocutory decree, to that effect, would have been made and it would have been referred to a master to take and state the account. The pro- ceedings in the master's office would then have been had as prescribed in Eules 107, 108, 109 and 110 of the old Chancery rules. (Rules of 1844.) " As this court has made no rules in respect to the taking and stating of accounts in such cases, where a reference is made to a referee simply to take and state an account, he is a mere substitute for a master in Chancery ; and I suppose he must conform to this practice. Section 469 of the Code, and Rule 89 of this court, retain in force all the old Chancery prac- tice in such cases when it can be applied. " The difficulty in this case is that, by the order of reference, the whole issue was referred to the referee. In such cases, the referee, by the consent and act of 652 THE LAW OP EEFEEEES. the parties and the law, is substituted in the place of the court. The trial is to be had before him, as before one of the judges of the court ; and, for the purposes of its trial and disposition, he has, for the time being, the ordinary powers of the court. "Section 272 of the Code declares that: 'The trial by referees is conducted in the same manner and on similar notice as a trial by the court. They have the same powers to grant adjournments as the court upon such trial. They must state the facts found and the conclusions of law separately and their decision must be given and may be excepted to and reviewed in the like manner, and not otherwise ; and they may, in like manner, settle a case or exceptions. The decision of the referee upon the whole issue stands as the decision of the court ; and judgment may be entered thereon in the same manner as if the action had been tried by the court.' " This section confers upon the referee complete jurisdiction over the cause, as much so as any judge could possess at special term for its trial. The mode of conducting its trial, therefore, must be within the discretion of the referee, so far as relates to all ques- tions within the ordinary discretion of a judge on the trial of a cause. If this cause had been tried in court, the judge would most likely have gone so far as to make an interlocutory order or decree for an account and, then, referred it to a referee to take and state the account. But it would have been entirely competent for one of the judges of this court, at special term, to have gone on and tried the whole cause and taken and stated the account, and found REFERENCE TO ACCOUNT BETWEEN PARTNERS. 653 its result, as the referee has done here. That would have been entirely within the discretion of the judge and, in respect to such question, no exception lies, nor can the discretion be reviewed ; and so it is with a referee, to whom, as in this case, the whole issue is referred. No exception lies to his decision, so far as it relates to the mode of proceeding. The referee here had united in him the powers of the court with that of the master, as formerly exercised. He might have made, and I think it would be the better prac- tice in such cases for him to make, a separate report, declaring the existence of the partnership and the liability to account, which report might be confirmed upon special application to the court, so as to allow an appeal, and get the decision of the court on that point before the account is taken. But the referee was not requested to do so here ; and, as it does not appear that any injustice has been done by him upon the merits, we can do no less, therefore, than to affirm the judgment." When the existence of a partnership is referred and the referee reports that it does exist and that an account ought to be taken, the course to be then had will be, to confirm the report and obtain an order to take an account. The party who works the report cannot file it and enter an order dissolving the part- nership and directing an accounting. {Bantes v. Bradij, 7 How. Pr. R., 216.) Where a partnership is admitted, an account can be had, notwithstanding one partner denies there is anything due to the other, and even though his 654 THE LAW OF EEFEEEES. answer alleges that the latter is indebted to the former. {8cott v. Pinkerton, 3 Edw. V. C. R., 70.) When partners get into court in a case which must dissolve their copartnership or go there after a dissolution, the usual first step is to have a receiver appointed ; and all the partners will be called before a referee to aid in delivering over the estate and pro- perties of the firm to the receiver for safe custody ; but the court may, and often does, ultimately direct the receiver to distribute. (Law v. Ford, 2 Paige's C. R., 310.) But, before such distribution and in connection with a judgment order and forming part of it, a direction is given for the partners to account before a referee. SECTION n. GENEEAL FOEM OF THE ACTIVE PAET OP A JUDGMENT OEDEB FOE AN ACCOUNT IN PAETNEESHIP. , it is ordered and adjudged that it be refer- red to , as referee, to take a mutual account of all dealings and transactions between the plaintiff and defendant, as partners, under the style of ; and for the better clearing of which account the parties are topro- duce before the said referee, upon oath, all boohs, deeds, papers and writings in their custody or power relating thereto ; and are to he examined upon interrogatories or otherwise, as the said referee shall direct, who, in taking the said account, is to make unto the parties all just allowances ; and what, on the balance of the said account, shall appear to be due from either party to the other, is REFERENCE TO ACCOUNT BETWEEN PARTNERS. 655 to he paid as the said referee shall direct. And the referee is at liberty to state any special circumstances, as well as to state his reasons for allowing or disallowing any allowances which may be claimed. And the court doth reserve the consideration of the costs of this action and of all further directions until after the said referee shall have made his report, when either side is to be at liberty to apply to the court as occasion shall require. SECTION III. MODE OF TAKING PAETNERSHIP ACCOUNTS. In taking partnership accounts, it is mainly to be considered : 1. What was the value of the joint property ? 2. What was the amount of the joint debts at the time of the dissolution ? 3. What was the share of the retired, deceased or insolvent partner in the joint property I 4. Whether and to what extent the joint capital has been employed or joint debts incurred since the dissolution ? 6. Whether any of the joint property in specie has been sold since the dissolution ; if so, what the gross ' amount, and what the interest of the profits ; and, on the other hand, whether any of the joint property in specie having been sold, the profits have been applied to the purchase of other property in specie. 6. Generally, whether and to what extent the joint property has been traded with since the disso- lution. 656 THE LAW OF EEFEEEES. These, with many other considerations bearing on each particular case, must be duly weighed in the arrangement of complicated partnership accounts. And it may here be remarked that the account is founded on the same principles, in whatever manner the dissolution may have taken place — whether, therefore, the affairs are to be adjusted between the remaining and retiring partner, the surviving part- ner and the executors of the deceased partner, or the solvent partner and the assignees of the insolvent partner. (Collyer on Partnership, 171.) If a method of taking partnership accounts is set forth in the articles of copartnership and the parties have acted upon it, the same must be taken by the referee in conformity, (Jackson v. Sedgwick, 1 Swanst., 469 ; Worts v. Pern, 3 Bro. P. C, 548.) Although articles of copartnership may stipulate for the taking of accounts at specified times and under special circumstances, yet, if a different mode has been really adopted for years and a business has been engaged in, to which the stipulations could not apply without injustice, such an accounting will be considered as waived and the articles be looked at as though the stipulation was expunged. {Jackson . V. Sedgwick, 1 Swanst., 460.) SECTION IV.. BOOKS AND ACCOUNTS. In general cases, where A referee has to settle the accounts of a mercantile concern, ih a contro- REFERENCE TO ACCOUNT BETWEEN PARTNERS. 657 versy between the partners only, it will be sufficient to examine and state the books of the copartnership, without requiring vouchers in support of each speci- fication (Fletcher v. Pollard, 2 Hen. and Munf., 544 ; Brickhouse v. Hunter, A lb., 361) ; and the true dates, as furnished by the books of accounts themselves, ought to be assumed. {Stoughton v. Lynch, 2 J. C. R., 209.) This is so, where all the partners have had access to the books at the time entries were made. It is, however, subject to the right of any partner to show mistakes or errors in the account. {Heartt v. Corning, 3 Paige's C. R., 566.) The common direction that a party shall produce before a referee all books and papers relating to the matters in question as the referee shall direct, enti- tles the referee to require, by his warrant or sum- mons, that all such books and papers generally shall be left in his office ; and a refusal to leave them, in pursuance of such a warrant, is a disobedience of the order of the court which has directed their produc- tion. (Shirley v. Ferrers, 1 My. and Craig, 304.) SECTION V. CHAEGE ; AND DISCHARGE. A referee will be much relieved by his claiming that the parties produce their charges and work up their discharges. In this way, the only litigant points will be known and much time and labor saved. The " charge " will, in fact, embrace all such R. 83 658 THE LAW OF EEFEEEES. amounts as the one party charges the other with having received or with being liable to make good, adding dates and sums ; while the " discharge " will satisfy or very shortly explain, with dates and sums, each item of the former. Both charge and discharge should be sworn to. (107 rule in Chancery.) FORM OF CHARGE. ITitle.'] The charge of the 'plaintiff A. B.for the partnership estate and effects of the late firm of , 4" ^o., come to the hands of and received hy the defendant C. D., or for which he is liable or must account. $ c. 18—. Jany. 3. Cash received iy the said C D. frotn and not entered upon the partnership hooks or ever accounted for hy him, claimed against him with interest from, S^c. 18—. March — . A promissory note of the part- nership made, S^c, received hy the said C. D. and never accounted for, claimed with interest from its maturity, 5^c., 4'c., 5^c. And the plaintiff craves leave to add to or alter this charge as he may he advised, A.B., hy , his Attorney. REFERENCE TO ACCOUNT BETWEEN PARTNERS. 659 City and county of New York, ss : The above A. B., being sworn, deposes to the truth of the above charge, to the best of his knowledge, information and belief. 8worn, 8jc. A. B. FORM OP DISCHARGE. ITitU:] The discharge of the defendant C. D., to the charge of the plaintiff' in respect of the partnership, estate and effects of the late firm of &; Co., come to the hands of this defendant as a partner. $ c. 18 — . Feb — . The cash {% ,) charged against him in the first itetn of the plaintiff's charge was paid Mway as follows : $ , part thereof paid fo^, Sfc, and accounted for, see cash book, Sfc, 8fc., S^c, Sfc, And the defendant craves leave to add to or alter this discharge as he may be advised. CD., by , his Attorney. City and County of New York, ss : The above C. D., being sivorn, deposes to the truth of the above discharge, to the best of his knowledge, information and belief. Sworn, SfC. It would be well for the referee to annex the charge and discharge to the schedules to his report. 660 THE LAW OP EEFEEEES. SECTION VI. EXAMINING PAETNEES. When an account is adjudged by the court, the referee to whom the accounts are referred is fre- quently at liberty, under the judgment or decree, to examine the parties in the action. Still, it is his duty to go on with the accounts, until he finds a difficulty arising from the want of sufficient powers ; and if it be necessary and he had no original authority to examine the parties, he may apply to the court for that purpose. (Collyer on Partnership, 166.) Accountings before a referee should, as far as pos- sible, be in the form of debtor and creditor. An account brought in by a party should embrace his whole account and for the whole period for which he is accountable. It should also be verified by the usual affidavit, that the account, including both debits and credits, is correct and that the party accounting does not know of any error or omission therein to the prejudice of the other parties. (Sto7y v. Brown, 4 Paige's C. R., 112.) Parties not satisfied with accounts should be at liberty to examine an accounting party on interroga- tories, as the referee might direct. (107 Rule in Chancery.) EEFEEENCE TO ACCOUNT BETWEEN PARTNERS. 661 SECTION vir. SETTLED ACCOUNTS. In taking a partnership account, the referee is to begin from the last settled balance. If there has been no settled balance, then from the commence- ment of the partnership. {Beak v. Beak, E., temp. Finch, 190.) The taking an account away to see whether it is correct and keeping it for several months, with the passing of letters which appeared to recognize its amount, will become a settled account. Thus, where mutual dealings had taken place between the plain- tiffs and the defendant and the plaintiffs delivered to the defendant a statement of the accounts between them, showing a balance of $842.09 due to the former, and the defendant took the account away with him to see if it was correct and kept the same several months, writing to the plaintiffs, from time to time, that he intended to make good the balance of account against him, that the account should be examined and the balance paid, that he had no objection to sending his notes for the balance, but not at thirty or sixty days, admitting that his obliga- tion to pay the amount was no less, as the matter then stood, than if the plaintiffs had his notes, and promising that, if they desired it, he would send his due bill/or the amount ; saying, at another time, that he could not pay the plaintiffs the balance they claimed against him just then, but that he should pay what 662 THE LAW OF EEPEEEES. he owed them at the earliest date possible, &c., but in none of these letters was any fault found with the plaintiffs' account or any complaint that the balance claimed was too large : it was held that these letters taken together constituted a strong admission of the accuracy of the account and that the same became a settled account. (Powell v. Noye, 23 Barb. S. C, 184.) To constitute a settlement of accounts between partners, all must consent and be bound by it or none can be bound. (Lamalere v. Caze, 1 Wash. 0. C, 435.) Silence may amount to acquiescence. Thus, one partner who receives from the other a statement of accounts and is silent thereon for a length of time, will be considered as acquiescing in them. (Atwater V. Fowler, 1 Edw. V. C. R., 417 ; Philips v. Belden, 2 Ih., 13, 14.) A stated account need not be signed, if the acqui- escence of the party be satisfactorily made out and proved. (Bennett's Master, 87.) SECTION VIII. SUECHAEGING AND TALSIFTING AN ACCOUNT. A party cannot surcharge and falsify an account, unless on the ground of mistake or error distinctly charged. [Stoughton v. Lynch, 2 J. C. R., 217.) The rule on which accounts can be surcharged or falsified, is different with us to what it is in England ; and this has been very clearly laid down by Assistant REFERENCE TO ACCOUNT BETWEEN PARTNERS. 663 Vice-Chancellor Hoffman in Bullock v. Boyd (1 Hoff. CL R., 297) : "The court, in England," observes his honor, " has gone the length of holding that where an account has been surcharged or falsified in one or more items, the complainants may go into the master's office with liberty to surcharge or falsify it at large. This doctrine has met, in our State, with this restriction, that the account can only be cor- rected in the items which the bill points out as erroneoxis or alleges should be supplied. Something must depend, I conceive, upon the character of the items stated in the bill and in which the account is proven to be wrong. If they tend to cast a suspi- cion of unfairness upon the whole, the liberty should be unrestricted; if they maybe justly considered as arising from error or mistake, it should be restrained. (See Ex parte Toivnsend, 2 Mol., 242 ; Davis v. Skirl- ing, Taml., 213 ; Philips v. Belden, 2 Edw., 1 ; Kins- man V. Barker, 14 Ves., 579 ; Johnson v. Curtis, 3 Br. C. C, 266 Belt's Ed. ; Lord Colchester's note of the case Brownell v. Broicnell, 2 Br. C. C, 62.)" The distinction between surcharging and falsifying and accounting generally is this : Where liberty is given to surcharge and falsify, the court takes the account to be a stated and settled account and estab- lishes it as such. If either party can show an omis- sion, for which an entry of debit or credit ought to be made, each party surcharges, that is to say, adds to the account, and if anything should be inserted which is wrong, he is at liberty to show it, and this is a falsification. The onus prohandi is always on the party making the surcharge or falsification ; and if he 664 THE LAW OF EEFEEEES. fails to prove it, the account must stand as correct. But in a general accounting, the party producing the account must show the items to be correct. {Philips V. Belden, 2 Edw. Y. C. R., 1.) SECTION IX. PEOFIT AND LOSS. And an account of profit and loss is indispensable to the settlement of a partnership. {Philips v. Turner, 2 Dev. & Batt., 123.) In the absence of any special agreement between partners for a division of the profits and loss, the law implies that they were equally interested. {Done- lear's Administrators v. Posey, 13 Ala. R., 752 ; Pea- cock V. Peacock, 16 Ves., 49 ; hee v. Lashhrooke, 8 Dana, 214.) In cases where there has been a dissolution of partnership from death or the insolvency of one partner and the remaining partners continue to trade with the stock and capital of the original partner- ship, the profit and loss made by such trading must be brought into the account with the original firm. The survivors or remaining partners are answerable for the gains. {Brown v. Litton, 1 P. W., 224 ; Ham- mond V. Douglas, 5 Ves., 539 ; Hill v. Burnham, 15 Ves., 220 ; Crawshaij v. Collins, 16 Ves., 218.) All profits must be accounted for, whether arising through open transactions or those which may have been worked fraudulently or privately, for all the partnership property and contracts should be man- REFERENCE TO ACCOUNT BETWEEN PARTNERS. 665 aged for the equal benefit of all partners, according to their respective interests and shares therein. (Story on Part., 268.) Where a sum of money is advanced as a loan to an individual partner, his profits are first answer- able for that sum ; and if his profits shall not be sufficient to answer it, the deficiency shall be made good out of his capital, and if both his profits and his capital are not sufficient to make it good, he is considered a debtor for the excess. {Craivshay \. Col- lins, 2 Russ, 325.) Contracts which were complete during the part- nership, but the events of which, by reason of their nature, were not known at the dissolution, must, of course, be taken into the account and the partners or their representatives must abide by the event. (Stnith V. De Si/lva, Cowp., 471 ; Holderness v. Shac- kles, 8 Barn, and Cress., 618 ; Jackson v. Sedgicick, 1 Swanst., 468.) SECTION X. CHAEGES PAETICULAELT AGAINST AND ALLOWANCES TO PAETNEES. Partners are chargeable only with what they may have respectively received. {Richardson's Executors V. Wyatt's Executors, 2 Desau., 471.) And it is not a correct principle that one partner is chargeable with all the earnings of the concern, without evi- dence that he had received them; while he is credited only with such sums as he proves he has paid away ; 666 THE LAW OF EEFEEEES. especially where the other copartners had equal access to the books and equal management of the affairs. (lb.) Nor is a partner to be charged with all the debts of the firm, simply on the ground that the books of the concern are in his possession and without any evidence of any special undertaking that he would collect the debts. He should be charged with only what he collected. {McRae v. McKenzie, 2 Dev. and Batt, 232.) Where no provision for taking the account is set forth in the articles of copartnership, the principle of the court is that each partner is entitled to be allowed against the other everything he has advanced or brought in as a partnership transaction and to charge the other in the account with what that other has not brought in or has taken out more than he ought, and nothing is to be considered his share but his proportion of the residue or balance of the account. {Per Lord Haedwicke in West v. 8kip, 1 Yes., 242.) Where one partner has boarded the journeymen and apprentices employed in the joint business, he is to be allowed for such board. {Richardson's Executors V. Wyatt''s Executors, 2 Desau., 471.) There is a general rule running through the law of partnership, that partners are not entitled to charge each other for care, management or other services in relation to the partnership business. {Franklin v. Robinson, 1 Johns. C. R., 158 ; Bedford V. Kimberley, 3 Tb., 434; Philip v. Turner, 2 Dev. and Batt., 123 ; Reyboldy. Dodd's Adm., 1 Har., 401 ; Lee V. Lashhvoke, 8 Dana, 214 ; Philips v. Turner^ REFERENCE TO ACCOUNT BETWEEN PARTNERS. 667 2 Dev. and Batt. Eq., 123 ; Dougherty v. Van Nostrand 1 Hoff. Ch. R, 68.) In the absence of special agree- ment, a partner cannot be allowed to claim for his services in settling the affairs of the firm. {Coursen v, Hamlin, 2 Duer's S. C. R., 513.) Even though one partner be made manager, yet, in the absence of all agreement to that effect, he cannot claim a salary. {Dougherty v. Van Nostrand, 1 Hoff. C. E,., 68, referring to Wilson v. Greenwood, 1 Swanst., 483 ; although there does not appear to be anything at that page to carry this principle.) The general rule that partners cannot charge each other for services, will be considered as broken in upon where any one is specially appointed to a par- ticular service which implies special agreement and pay. Thus, where partners, who are joint owners in a cargo, appoint one of their number as their agent and factor to receive, sell and distribute its proceeds, he will be entitled, under such special agency, to a commission or compensation for his services as a factor or agent in the same manner as a stranger. {Bradford v. Kimherly, 3 J. C. R., 431.) And surviving partners who necessarily carry on the business for some time after the death of a part- ner, may be allowed something in regard to their skill and personal services. This is a matter pecu- liarly for the consideration of the referee, and will be one of those just allowances which a judgment or decree usually directs him to make to the parties ; the extent or necessity of which the court does not usually settle beforehand, it not being in the ordi- nary course for the court to say, in the first instance, 668 THE LAW OP EEFEEEES. what is a just allowance. (CoUyer on Partnership, 182, referring to Jac, 294.) Where, however, by articles of copartnership, the children are to succeed to the share of their parent, the surviving partner is not entitled, unless the arti- cles say so, to an allowan-ce for his management, time or labor in carrying on the trade. For, as he has agreed that the partnership shall continue be- yond the death of his copartner, his management, after that time, is in fact voluntary. [Burden v. Same, 1 Ves. and B., 170.) But he will be allowed ex- penses lona fide incurred since the death of his copartner where he may have acted under an erro- neous belief that he was the sole proprietor. (/&.) A partner who goes abroad on his own personal affairs, is not entitled to charge his expenses to the partnership. {Mumford^. Murray, 6 John. C. R., 17.) If one partner uses partnership funds in his own private business, he must account, not only for inte- rest on the money withdrawn, but for the profits of the business ; if he make no profits, he is chargeable only with simple interest ; otherwise, with compound. {Stoughton V. Lynch, 1 Johns. Ch., 467 ; 2 lb., 209.) All the members of a firm are chargeable with knowledge of entries on their books by their agent. [Allen V. Coit, 6 Hill, 318.) On a dissolution of a copartnership, a settling of its accounts must include all debts due to it, whether from its members or others, and all debts due from the company, either to the partners or to strangers. {Attorney-General v. State Bank, 1 Dev. and Batt., 553.) EEFERENCE TO ACCOUNT BETWEEN PAETNEES. 669 Partnership debts must be first paid, before any of the partners or their personal representatives or any individual creditor of a partner can claim any right or title thereto. {Donaldson's Administrators v. Posey, 13 Ala. R, 752.) A firm name, which the firm has rendered valua- ble, is, like other assets of the partnership, the common property of survivors of a partnership and of a deceased partner's representatives. (Fenn v. Bolles, 7 Abb. Pr. E., 202.) Where a partner has been improperly excluded, the accounting will not stop at the end of the part- nership term, but will be carried on until a final settlement should take place. {Broivn v. Vidler, 15 Ves., 223 ; Brown v. De Taslet, Jac, 284.) SECTION XI. SALE OF PAETNEESHIP PEOPEETT. There are many cases in which the court will assist the settlement of partnership accounts, by decreeing, in a prior stage, the sale of the property. And this (where not already ordered to be done by a receiver), can take place through a motion. ( Craw- shay V. Maule, 1 Swanst., 523.) And we are inclined to believe that where a referee found he could not come to conclusions in partnership accounts until a sale was had and its pecuniary results known, he could adjourn the reference with a view to give the party working it time to move for a sale — such motion being founded upon a certificate of the referee 670 THE LAW OF REFEREES. showing its necessity and an affidavit by some one, further explaining such necessity. SECTION XII. INTEREST. On any reference to take or state an account, a referee is at liberty to allow interest as shall be just and equitable, without any special directions for that purpose, unless a contrary direction is contained in the order of reference. (Rule 107, in Chancery.) When continuing partners are allowed or au- thorized to wind up the business, they are entitled to interest when in advance and must be chargeable with it when in funds. {Dougherty v. Van Nostrand, 1 Hoflf. Ch. R, 68.) There does not appear to be any general or fixed rule for taking the dissolution of a partnership as the period from which interest is to be computed against the partner who is indebted to his associate. The allowance or refusal of interest in such cases depends upon the circumstances of each. (Beacham V. Eckford's Executors, 2 Sandf Ch. R., 116.) Still, the time of the dissolution of a partnership is the proper period to adjust the balance between partners ; and the party who is then found to be debtor is justly chargeable with interest on such debt. It would be very unreasonable that the balance then truly due should be retained in his hands, free of all interest. It is the general practice, EEFERENCE TO ACCOUNT BETWEEN PAETNEES. 671 and such is the good sense of the thing, that a rest should be made on the liquidation and adjustment of accounts at the period of the final dissolution of the concern. {Btoughton v. Lynch, 2 J. C R, 219.) The true mode of computing interest on an account between debtor and creditor, where partial pay- ments are made, is lucidly explained by Chancellor Kent, in Stoughton v. Lynch (2 J. C. R., 212 ; warrant. county, ss : A. B., of, S^c, being duly sivorn, maketh oath and saith, that a certain debt or demand, the items and 'particulars whereof are hereafter detailed, is justly due to him for and on account of work done for and towards the building of a certain ship (schooner, sloop) or vessel, and which debt or demand amounts, over and above all payments and discounts, to the sum of $ ; and was contracted with this deponent by , the master of such vessel within the State of Neio York. And this deponent further saith the following are the true particulars and items forming the cbccount in writing of such demand, with correct dates and amounts annexed. (Here insert particulars.) Sworn, Sfc. This deposition, in respect to the nature of the demand, must be altered and adapted, when necessary, to the circumstances and so as to show that the claim PROCEEDINGS AGAINST SHIPS, ETC. 687 is within the provisions of the Statutes. There is no necessity, now, to annex any affidavit by a dis- interested person. (Act of April 17, 1860, § 3.) Supposing the judicial officer to have ordered a sale of the vessel or of her tackle, apparel and fur- niture and such sale to have taken place (2 R. S., 493, §§ 20, 21, 22), he will, at the same time, order and direct a notice to be published (in the same newspaper in which the notice of seizure was printed) requiring all persons who may have exhibited any claims against the vessel and the owner, agent, con- signee, master and all other persons interested in the vessel to appear before him at a dsij therein to be specified, to attend a distribution of the proceeds arising from the sale. {lb., 24.) On the day appointed, a distribution will be had, unless the claims of such creditors or of some of them are contested, by owner, agent, consignee or master or by some other creditor. (lb., 25.) In case of such contest, the party making the objection has to file with the said judicial officer a written statement of objection to any particular claim and his desire that the claim so objected to be referred to referees to examine and report thereon. {lb., 26.) 688 THE LAW OF EEFEEEES. SECTION III. STATEMENT OF OBJECTION. In the Matter of the sloop or vessel called ( the , attached under a warrant, i Written, statement of objection and by way of contest to the claims of E. F., made by C. D., owner (or, agent, consignee, master, charterer, builder or a creditor^ of tlie said vessel. The said C D., by this his written statement of objection, does object and contests against the claim of E. F., interposed herein, for that the same (has been satisfied, or, satisfied in part, or, 8fc., 8^c.). And the said C. D. desw'es that such claim of the said E. F. be referred to referees to examine and report thereon pur- suant to the statute in such cases made and provided. Dated at the — day of , 18 — . CD., O.H., Attorney for the said C. D. To His Honor Justice , the officer granting the warrant in the above matter. SECTION IV. REFEREES. The party thus making the objection and the creditor whose claim is contested, may agree upon PEOCEEDINGS AGAINST SHIPS, ETC. 689 three indifferent persons, by a writing to that effect, signed by them and filed with the judicial officer. {IK § 27.) SECTION V. AGEEEMENT TO REFER. In the Matter of the sloop or vessel called f the , attached under a warrant. I On the contested claim of E. F., by C. D., filed with the officer granting the warrant herein. The said E. F. and C. D. do hereby agree that the said contested claim of the said E. F. be referred to I. J., of &;c., K. L., of 8^c., and M. N., of S^c, as referees to examine and report thereon. Witness the hands of the said E. F., and C. D. this — day of , 18 — . CD. Witness, E. F. M.N. To His Honor Justice , the officer granting the warrant in the above matter. This agreement will have to be ultimately filed, by the judicial officer, in the office of the clerk of the Supreme Court, or, if the vessel was seized within the city and county of New York, " with the clerk of the Superior Court of law therein," or, with the clerk of the Court of Common Pleas thereof, as shall be directed by such officer ; and a rule is to be thereupon entered by such clerk (in vacation or in E. 87 690 THE LAW OP EEFEEEES. term), appointing the persons so selected referees to determine such controversy. (2 E. S., 498, § 31.) SECTION VI. FORM OP RULE TO EEFEE UNDER AOREEMENT. In the Matter, &c. (as before). jf The agreement of C. D., objector and E. F., creditor, lohose claim is contested, being filed: ordered that the said claim of the said E. F. he and the same herel>y is referred to I. J., of, S^c, Sfc, Sj-c, to examine and report thereon, they being referees hereby selected and agreed upon and hereby accordingly appointed for that purpose. Dated at the City Hall in the city of New York the — day of , 18—. Clerk of the court of, S^c. If referees be not so selected by agreement, then the party making such objection, is to noihinate two disinterested persons and the creditor or creditors, whose claims are contested shall also nominate two indifferent persons ; and if either of them refuse or neglect, the officer (before whom the proceedings are pending), will name two indifferent persons for the party or parties so I'efusing or neglecting. (/&., § 28.) The names of the persons so nominated are to be written on four distinct pieces of paper, as similar in all respects as may be, which must be rolled up PEOCEEDraGS AGAINST SHIPS, ETC. 691 separately and put into a box. And from thence the said officer is to draw out three of them; and the persons whose names are so drawn are to be the referees to determine the controversy. (Jb., 29.) The officer is to certify the selection in writing and deliver a duplicate of the same to each of the parties. (Jb., 30.) SECTION VII. CEETIFICATE OF JUDGE OF SELECTION OP EEFEEEES. In the Matter of, &c. (as before), \ I, the officer granting warrant and orders herein, do certify that I. J., of, S^c, have been selected {by agree- ment, or by due nomination) to examine and report on the claim of . Dated at New York the — day of , 18 — . K.L., Justice, Sfc. This certificate is to be filed (as though there was an agreement to refer) with the clerk of the Supreme Court, or, if the vessel was seized in the city and county of New York, with the clerk of the Superior Court or Court of Common Pleas ; and, a rule is to be entered by such cleik (in vacation or term) appointing the persons so selected referees, to determine the controversy, (/ft., § 31.) 692 THE LAW OF REFEREES. SECTION VIII. EULE ON SUCH CERTIFICATE. In the Matter of the Vessel, &c. (as ( before). C The certificate of Justice , being filed : ordered that the claim of E. F. be referred to I. J., of S^c, to examine and report thereon, they being referees hereto- fore selected and hereby appointed for that purpose. Dated at the City Hall in the City of New York the — day of , 18 — . Clerk of the Court of 5^c. The referees will have the same powers and be subject to the like duties and obligations and are to receive the same compensation as referees appointed by the Supreme Court in personal actions. {lb., § 32.) Such powers, duties and obligations are as follows : They are to proceed, with diligence, to hear and determine the matters in controversy. (2 R. S., 384, § 43.) They must appoint a time and place for the hearing, and can adjourn the same, from time to time, as may be necessary. {lb., § 44.) Before proceeding to hear any testimony in the cause, the referees are to be severally ^woyyl, faithfully and fairly to hear and examine the cause and to make a just and true report according to the best of their understanding ; which oath may be administered by any person authorized to take affidavits to be read in the court in which the suit is pending, or by any justice of the PROCEEDINGS AGAINST SHIPS, ETC. 693 peace. (/&., 45.) This oath had better be reduced to writing and annexed to their report. Witnesses may be compelled to appear before such referees, by subpoenas issuing out of the court in which the mat- ter is pending, in the same manner and with the like effect as in cases of trials in such court. {lb., 46.) Any one of the referees may administer the neces- sary oath to the witnesses produced before them for examination. All the referees must meet together and hear all the proofs and allegations of the parties, but a report by any two of them will be valid. (Jb., 47.) The referees may be compelled, by the order of the court in which the matter is pending, to pro- ceed to the hearing and to make a report ; and the court may require them to report their decision in admitting or rejecting any witness or the answer thereto, and all other proceedings by them, to- gether with the testimony before them and their reasons for allowing or disallowing a claim. (Jb., 48.) SECTION IX. FORM OF EEPORT. In the Matter of fas atove). \ We, the referees appointed under the certificate of his Honor K. L., judge, 8^c., and a rule of the Court, to examine and report on a claim of, S^c, do certify and report that we have examined the same ; and that there is (here set forth what they report due, or, that no- thing is due, S^c). Dated, Sfc. (Signed by" the Referees.) 694 THE LAW OP EEFEEEES. The report is to be filed in the same office where the rule for the appointment of the referees is entered; and will be conclusive on the parties, if not vacated by the court to which it was made. (2 R. S., 498, § 33.) Either party has the same right to except to the report as in cases of reference during the pendency of a suit ; and the court is to proceed thereon in like manner, and may, in its discretion, appoint new trus- tees and direct a new hearing. (§ 34.)] And judgment for costs is to be rendered against the failing party and execution is to be awarded thereon " as in other cases." {lb.) On the final report of the referees being confirmed, a distribution is made by the officer before whom the proceedings were pending. (lb., §§ 35, 36.) This distribution will be in equal proportions, where the avails will not satisfy all the claimants. {lb., § 37.) CHAPTER XXL SPECIFIC PERFORMANCE BY AN INFANT HEIR OF THE CONTRACT OF HIS ANCESTOR OR BY ANY OTHER PERSON WHO MAY BE A PARTY TO SUCH AN INSTRUMENT, Section I. Obseiivations, II. Petition by a purchaser. Ill Order of rbperenob and appointment of gdardian ad litem. IV. Report of referee. V. Order for conveyance. VI. Petition by an executor of a purchaser. VII. Deed by infant heir, with a widow joining. SECTION I. OBSERVATIONS. The Supreme Court or a County Court has tlie power to decree and compel a specific performance by any infant heir or other person of any bargain, contract or agreement made by any party who may die before the performance thereof, on petition of the executors or administrators of the estate of the deceased or of any person or persons interested in it and on hearing all parties concerned and being satisfied that the specific performance of the same ought to be decreed or compelled. (2 R. S., 194, §175.) It will be seen that the application is to be made " on petition ; " and this will still be the way, for, although the Code seems to have reduced most pro- ceedings into the form of an action (§ 2), yet a 696 THE LAW OF EEFEEEES. saving section (471) declares that its second part shall not affect any special statutory remedy not theretofore obtained by action. Still, the decretal order to be made is so far a special proceeding as to be appealable. {Tlyatt v. Seeley, 1 Kern., 62.) It will also be observed that where the applica- tion is worked on behalf of the infant heir, the same is to be made by the executors or administrators of the estate of the ancestor. Looking simply at this, the law would seem to consider the purchase money as assets, otherwise, why require executors and ad- ministrators to be principal actors \ Still, the statutes which describe what shall be considered as assets (2 E. S., 82) do not appear to embrace any considera- tion moneys which would be coming to the proper representative of a seller on a contract not specifically performed. In some cases an infant heir, by guardian, and also a residuary legatee have been joined in the petition. Still, the statute recognizes executors and administrators only. The important point would be as to who should eventually receive or to whose ac- count the purchase moneys should be put, whether they should pass to the heir as avails of real estate, be paid to a residuary legatee or go into the hands of executor or administrator to be administered upon with personal assets ? In the English case of Smith v. Hibbard (2 Dick., 730), a vendor of real estate had died before a contract (entered into by him for its sale) was completed. The plaintiff was his residuary devisee and also executor. The Chancellor would not direct the purchase money to be paid to the plaintiff as residuary devisee of the deceased seller, PEEFOEMANCE OP CONTEACTS BY INFANT HEIE. 697 but to liim as the acting executor of his testator liable to his debts and legacies. But by the reasoning of Justice Geidley, in Griffith v. Beecher (10 Barb. S. C. R., 432), the purchase money would seem to be- long to the heir. That case had reference however to the rights of the heir of a purchaser ; and, in the same direction are the remarks of Chancellor Kent in Livingston v. Newkirk (3 J. C. R., 316). Vice-Chancellor McCoun, however, In the Matter of Everit (2 Edw. V. C. R, 597), has met the point. There, a petition had been presented on behalf of the administrator of Thomas Everit, Junior, setting forth that the latter made contracts for the sale of lands at Brooklyn, received deposit moneys and died without leaving a will or performing these contracts. His widow and infant children survived him. Per- formance was prayed pursuant to the statute. (2 R. S., 194, § 169.) This petition was referred to a master; and he based his report and the calculation attached to it, by way of schedule, upon the idea that the purchase moneys would be due to the chil- dren as heirs and to their mother as dower tenant. The Vice-Chancellor (without, however, referring to any authorities) considered that the character of the consideration was changed by the contracts for sale made by the deceased and it became personalty and assets which the administrator ought to take and that none of it could be paid into court for the infant heirs. In Townley v. Bedwell (14 Ves., 591), A. had agreed that if B. should, within six years, elect to purchase certain real estate, he would sell it to him ; and, before the expiration of the six years E. 88 698 THE LAW OP EEFEEEES. and an election to purchase on the part of B., A. had died. And, afterwards, within the six years, B. had elected to purchase and the heir of A. had applied to the Court of Chancery for. the payment of the rent of the estate accrued subsequently to the time of B.'s election : it was refused. Meggison, in his wort on Assets, observes : " Real " estate agreed or directed to be sold or otherwise "converted into personal (Flanagany. Flanagan, cited " in Fletcher v. Askburner, 1 Bro. C. C, 500 ; Slead v. " Newdigate, 2 Meriv., 521 ; Kirhnan v. Miles, 13 Ves., "338 ; Pearson v. Lane, 17 Ves., 102 ; Lord Gwydir <' V. Campbell, cited in Pearson v. Lane ; Ripley v. <' WateriDorth, 7 Ves., 425), and personal estate " agreed or directed to be converted into real, are, in " equity, to be considered, until conversion, to be " that into which they have been agreed or directed " to be converted and to be claimable accordingly." (P. 200.) It may be fairly considered that while the avails of a contract of an ancestor are not statutable assets, yet they are equitable assets and would take the same course as those expressly embraced by act of Legislature. We do not well see how specific performance can be compelled or completed, where the dead-seller has left a widow and she refuses to join and release her dower. Still, the purchaser may claim performance so far as the heir's estate goes, with deduction of the value of the widow's right of dower. {Hill v. Eessegieu, 17 Barb. S. C. R, 162.) Justice Hond, who gave an PERFORMANCE OF CONTRACTS BY INFANT HEIR. 699 able, well labored and useful decision in this case, observes : " And the heirs of a vendor are bound to fulfil his contract to convey, to the extent of the estate that descends to them. (1 Sugd. V. and P., 275, 320 ; Sutphen v. Fowler, 9 Paige, 280 ; 2 Stor. Eq. Jur., 788 ; Eaton v Sanxter, 6 Sim., 516 ; Cham- pion V. Broion, 6 John. Ch., 410.) And an infant heir is also bound to convey. {Sutphen v. Fowler, supra, 2 R. S., 164, § 169, 1 Sugd. V. and P., 329.) The widow cannot be compelled to convey; certainly not, unless she executed and acknowledged the agreement. (Knowles v. McCamly, 10 Paige, 342 ; E7nery v. Hase, 5 Ves., 846 ; 1 Sugd. V. and P., 330.) But where a title to a part fails, or the vendor's in- terest is less than is provided for in the agreement, the vendee may generally claim a specific perform- ance to the extent of the ability of the vendor, with an abatement or compensation for the deficiency. {Morse v. Elmendorf, 11 Paige, 277; 2 Stor. Eq. Jur., § 779 ; Hanhury v. Litchfield, 2 My. and K., 629.) " It is familiar to come to this court for a specific performance of an agreement, the whole benefit of which the party cannot have ; and if he waives that part, it is not competent to the other party to refuse to perform the rest, as the whole cannot be executed." (Lord Eldon in Mestaer v. Oillespie, 11 Ves., 640; Hill V. Buckley, 17 Id., 401 ; Milligan v. Cooh^, 16 Id., 1 ; Waters v. Travis, 9 John., 465 ; King v. Bardeau, 6 John. Ch., 38, 1 Sugd. V. and P., 485 ; Bennett v. Fowler, 2 Beav., 302.) The converse of this rule, it is true, does not prevail. The vendee cannot be made to take a doubtful title, though 700 THE LAW OF EEFEEEES. courts of equity do not warrant title, and it is im- possible that there should be a mathematical certainty of a good title. (2 Sugd. V. and P., 165 ; Heath v. Heath, 1 Brown's C. C, 148 ; Tomlin v. Steene, 3 Meriv., 223 ; Hillanj v. Waller, 12 Ves., 252 ; Lyd- dall Y. Weston, 2 Mk., 1% .) Nor does the agreement to pay a certain sum, in case of failure to perform, prevent a specific performance. (2 Stor. Eq. Jur., 715 ; 1 Sugd. V. and P., 353.) " I find no good reason, then, why the heirs of the vendor should not convey. It is not pretended that the contract is not a fair one and fairly made. The life estate of the widow is no excuse to the heirs, if the purchaser will, notwithstanding, take the estate." " The infant defendant must, therefore, convey, but without covenants, and the other defendants must also convey, but with covenants against their own acts, on payment of the sum which is already due by the terms of the contract ; deducting out of each payment, now due and to become due, a proportion- ate share of the amount that shall be found to be the value of the widow's right of dower and on the plaintiff's giving a bond and mortgage on the pre- mises for the balance of the purchase monej^, pursu- ant to the contract. If the plaintiff has been in possession, he should pay interest ; and if not, that should be deducted for the time he should have had title." PERFOEMANCE OF CONTRACTS BY INFANT HEIR. 701 SECTION II. PETITION BY A PURCHASER THAT THE INFANT HEIR CONVEY.l To the Supreme Court of the State of New York : The petition of A. B., of S^v., respectfully showeth : That on or about the — day of , 18 — , your petitioner entered into a contract in writing with one C. D., of &;c., and now deceased, for the purchase, hy your petitioner, of a certain lot of land and premises situated in the — ward of the city of New York ; a true copy of which contract is hereto annexed and marked A. That such contract was duly signed hy your petitioner and the said C. D. That the full and true boundaries of such lot of ground and premises are as follows, namely : All that, Sj'C. That at the time of making such contract, your peti- tioner paid unto the said C. D. the sum of % men- tioned in the said contract, by way of deposit thereon. That before the period fixed therein for the completion of the purchase embraced thereby, and on or about the — day of , 18 — , he, the said C. D., departed this life, leaving such contract unperformed hut binding upon him and upon his heirs. That the said C. D., as your petitioner is informed and believes, died intestate, and leaving {his widow M. D., and) E. D., his only child and heir-at-law, upon whom the legal estate in such premises has descended, subject to the rights of your ' HofF. Prac, 3 vol. p. codxix. 702 THE LAW OF EEFEEEES. petitioner. That your petitioner was and hath been (ever since the day fixed in such contract for its comple- tion) ready and ivilling to •perform the same ; and is now willing and desirous to have the same executed. Your petitioner, therefore, pi-ays that the said E. D. the infant heir {and the said M. D., loidow of the said C. D., deceased), may be decreed to convey such lot of ground and premises to your petitioner, upon, his paying or securing to be paid, as this court shall direct, the balance required to be paid in and by the contract aforesaid. And that your petitioner may liave such further or other relief as the case may require. A. B. M. M., Attorney. (Jurat.) On moving upon this petition, the attention of the court should be called to the propriety of naming a guardian ad litem for the infant heir, so that he may be nominated in the order of reference. Although an order on the above petition might be moved for ex parte, yet, if it embraced the right of a dower tenant, service of notice of motion upon it had better be made upon her. PERFOEMAlfCE OF CONTEACTS BY INFANT HEIE. 703 SECTION III. OEDEE OF EEFEEENCE AND APPOINTMENT OF GUAEDIAN AD LITEM. At a Special Term of the Sup-erne Court held at the City Hall, in the city of New York, on the — day of , 18 — Present, 8^c. In the Matter of the petition of A, B., of, &e. On reading and filing the petition of the above named A. B., duly verified (and on proof of sej'vice of copy thereof, with notice of motion on M. D., widow, 8^c.), and on motion of Mr. M. M., of counsel for the said petitioner, it is ordered that it be referred to O. H., as referee, to examine and report as to the truth of the statements set forth therein ; and especially whether such contract, as is therein stated, was duly and legalh/ entered into by C. D., of, S^c, in his lifetime, with the petitioner ; and whether any part of the purchase money expressed therein has been paid ; and to certify whether it is proper that a specific performance of such agreement, if he shall find the same duly entered into, ought to be decreed, with liberty to state any special circumstances (also ascertain and certify the age of the said M. D., and whether she is tvilling to aid in such specific perform- ance by releasing her dower in the premises ; as also the amount and value of her doiver in the purchase amount embraced by the said contract^ ; and that he annex to his report all proofs he shall take in this matter. And 704 THE LAW OF EEFEEEES. F. B., one of the attorneijs of this court, is hereby ap- pointed guardian of E. D., the infant heir of the said C. D., to appear for him on such reference and in all future proceedings herein and to lohom (as well as to the said M. D., widoio of the said C. D.), notice of all future proceedings is to he given. And the referee is to report loith all convenient speed. SECTION IV. eeport of referee. 'Supreme Court. lu the Matter of the petition of A. B., of, &o. To the Supreme Court of the State of New York : In pursuance and hy virtue of an order of this court made in the above matter and hearing date the — day of , 18 — , by which it was referred to me, the undersigned, us sole referee to examine, &^c. (here recite order), /, the subscriber, do respectfully certify and report that I have been attended by the counsel for the petitioner A. B^ and also by F. B. guardian appointed in the said order for the said infant heir E. D. {and by counsel for the saidM. D.) ; and that I have examinedinto the truth of the statements set forth in the said petition. Also, I find and certify that the contract referred to in •the said petition, and of which a copy is annexed thereto, has been produced; and the signature and execution thereof by C. D. in his lifetime and also payment of S , part of purchase money referred to therein to the said C D. by the said A. B., were respectively proved before PEEFOEMANCE OF CONTRACTS BY INFANT HEIE. 705 me ; also, it was proved before me that (the said M. D., the ividow of the said C. D., was years of age on the — day of , last 18 — , and that she consents to join in a release of her dower in the said premises as appears by such her consent, under hand and seal, hereto annexed, marked Schedule A and to take a gross sum therefor based on the amount of purchase mentioned in the said contract^ ; the said E. D. was — years of age on the — day of , last ; and that the said C. D., the father of the said E. D., died on the — day of , 18 — , intestate, and the said E. D. was his only heir- at-laiv. Also, I do report it to be proper that there should be specific performance of such agreement; and that the same ought to be decreed accordingly. {And I also certify and report that the value of the dower of the said M. D. in the said premises, based on the amount of purchase moneys embraced by the said contract, is % .) And I do also report, that all proofs in the matter taken before me are hereto annexed, marked B, and form part of this my report. All which is respectfully submitted. Dated New York, , 18 —. Sole Referee. K. 89 706 THE LAW OP REFEREES. SECTION V. OEDER FOE CONVEYANCE. Ai a Special Term of the Supreme Court held at the City Hall in the City of New York the — day of , 18—. In the Matter of the Petition of, &c. of A. B.,) In pursuance of an order heretofore granted in this matter, whereby it was ordered, 8;c. (recite order shortly) ; on reading and filing the report of the said referee, wherein and ivherehy he did certify and report, 3^c. (set forth the facts found therein) ; and on motion of Mr. , of counsel for the petitioner A. B., it is ordered that the said report he and the same is hereby confirmed. And it is also ordered, adjudged and decreed that the said (M. D., as dower tenant, release her dower, and that the said) E. D., the infant heir of the said C. D., do execute a conveyance in fee of the said lot of land and premises in the said petition set forth unto the said A. B., the petitioner, his heirs and assigns, on payment of the balance of the purchase money. Such convey- ance to be approved of by and executed before the said referee by the said F. B., as guardian of such infant, in the name of the said infant E. D.' Also it is further ordered and decreed that the said A. B., at the same time, pay such balance of purchase money into the hands of the said referee, who shall pay " In the Matter of Windle, 2 Edw. V. C, 591 ; Hofifman's Master, 146. PEEFORMANCE OP CONTRACTS BY rNFANT HEIR. 707 thereout to the said M. D. the sum of% , in full for her dower right in the -premises ; also to the attorney for the petitioner his costs and charges, adjusted at the sum of % ; to the said F. B., guardian aforesaid, his costs and charges, adjusted at the sum of % ; and retain his, the said referee's fees to the amount of $ ; and that the said referee, within five days from the time he receives the said purchase money, pay or deposit all and every balance into the hands of the chamberlain of the city of New York, in the name of the said infant E. D., to accumulate for his benefit until he arrives at the age of twenty-one years or until the further order of this court. And that the said referee, within ten days thereafter, file his report in this court, with the clerk, at the City Hall, of amount received and of such payments made, with receipts as well for all dower right and all costs, fees and charges paid and retained, as also the said chamber- lain's receipt fm- what shall be so paid and deposited with him. And all proceedings, orders, decree and reports are to be collected and dttached together with the clerk. And it is also adjudged and decreed that the said deed, when executed, acknowledged and delivered, shall be valid and effectual to convey the interest of the said E. D. in the said premises to the said A. B. and to his heirs and assigns for ever, as if he the said infant were of full age and had personally executed the same. Although the statute recognizes an executor ol* administrator of a seller as the party who should petition, yet, there might also be a widow entitled to dower, and residuary devisee the petition had 708 THE LAW OF EEFEEEES. better embrace such residuary devisee and widow ; this has been the course heretofore pursued. (3 Moulton's Pr., 568, 573.) SECTION VI. PETITION BY AN EXECUTOE OF A PUECHASEE. To the Supreme Court of the State of New York : The petition of G. H., sole acting executor of the last will of C. D., late of, 8fc., deceased (or, E. E., guardian of the estate of E. D., sole devisee and heir-at-laiD of the said C D., deceased and M. D., the widoio of the said C D.), respectfully showeth : That the above named C. D., in his lifetime duly made his last will dated the — day of , 18 — , and therein appointed your petitioner, G. H., sole executor thereof; that the said C. D. died on the — day of , 1 8 — , without having altered or revolted the same, and such will was duly proved before the surrogate of the city and county of New York ; and your petitioner there- upon qualified and obtained letters testamentary as such executor thereunder; and such letters have never been recalled, but are in full force. That the said C D. in his lifetime and on or about the — day of , 18 — , entered into a contract in writing with A. B., of, S^c, for the sale to him, the said C. D., of a certain lot of land and premises situated in the — ward of the city of New York, a true copy of which contract is hereto annexed and marked A. ; that PERFORMANCE OF CONTRACTS BY INFANT HEIR. 709 such contract was duly signed hy the said A. B. and C. D. ; that the full and true boundaries of such lot of land and premises are as follows, namely : All that, Sfc. That at the time of making such contract, the said C. D. received fi-om the said A. B. the sum of % mentioned in the said contract hy way of deposit thereon and no more. That before the period fixed therein for the completion of the purchase embraced thereby, the said C. D. died, leaving the same binding as well upon the said A. B. as upon the said E. D., sole heir and devisee of the said C. D., deceased ; but which said E. D. is an infant of about the age of — years ; and leaving also the said M. D., his tvidoiv, him surviving. That the legal estate in the said lot and premises has descended upon the said infant E. D., subject to the said contract and the rights of the said A. B. therein, and the right of dower . of the said M. D. therein. That specific performance of the said contract would be beneficial to the estate of the said C. D. That your petitioner M. D. is ivilling to aid in such specific performance, by executing a release of her right oj dower and taking the value of her doiver in the pre- mises based on the purchase sum mentioned in the said contract. Your petitioner, therefore, prays that the said contract may he specifically performed, by the said A. B., being decreed to perform the said contract on his part by paying or securing all balance of purchase money on a sufficient deed of the premises being executed and delivered by the said infant heir E. D., under the hand of a guardian to be appointed for that purpose ; that an order of reference be had to aid in carrying out 710 THE LAW OF EEFEEEES. such specific performance ; and that your petitioner may have such further or other relief as the case may require. And, 8^Ci G. H., Executor. M. M., Attorney. (Jurat.) It is deemed unnecessary to give a precedent of form of order on the last petition as one may be easily drafted from the order in section iii, " Order of Reference, &c.," p. 703, ante. SECTION VII. DEED. Although the ancestor may have agreed to give a deed with full covenants, it is doubtful whether his infant heir should be required to give a conveyance with any covenants. Assuming that the court had power, in an application under the statute to compel the specific performance by heirs of the contract of their ancestor, to decree that infant heirs should execute a conveyance containing personal covenants (a question we do not intend to pass upon here), still, there could be neither equity nor propriety in requir- ing them to assume obligations beyond such as would have legally devolved upon them in case the contract had been carried into execution by the ancestor himself If they are to be bound by cove- nants at al l,it should obviously be to the same extent only as they would have been bound by the PERFOEMANCE OF CONTEACTS BY INFANT HEIE. 711 covenants of the ancestor, had the deed been exe- cuted by him ; a liability which would, of course, be limited by the amount of their inheritance from the ancestor and should be so expressed in the deed executed by the heirs. {Hyatt v. Seeley, 1 Kern., 56.) And where the decretal order has no provision for covenants on the part of an infant heir, their inser- tion will not cause them to be of any force. The deed will be read against the infants as if there were no such covenants. (Tb., 57 ; 1 K. S., 731, § 141.) The fact that an infant heir would be looked upon as a trustee, strengthens the idea of making a con- veyance without covenants ; and while an adult trus- tee is never required to enter into covenants, save against his mere act, an infant trustee may be con- sidered as giving no force to a similar covenant, he could have done no act to affect or incumber. And see Hill Y. Resseglau (17 Barb. S. C. R., 162), where the infant heir was directed to convey without cove- nants ; while adult parties who joined in the deed were decreed to give covenants against their own acts. The general inability of infants to execute deeds of real estate (1 E. S., 715, § 11) would seem to make it useless for the infant heir, however far advanced he may be towards mature age, personally to sign the deed. But see Hoffman's Master (146). Although we consider it should be made ont in his name (by the guardian). When the guardian, who may be ordered (in the decree) to execute, does so, he should sign the infant's name, adding his own official signa- ture, as thus : E. D by F. B., his guardian (or, if the order so terms him, although the simplicity of 712 THE LAW OF EEFEEEES. the Code seems to ignore it, his guardian ad litem). {Jn the. Matter of Windle, 2 Edw. V. C.,R, 585.) A deed (executed under an order for the specific per- formance of an ancestor's contract) containing the names of the infants "by Josiah S. Mitchell, their guardian," as parties of the first part, but executed by him, by subscribing Josiah 8. Mitchell, guardian, 8^c. [l. s.], was adjudged to be defective. {Hyatt v. Seeley, 1 Kern., 52.) SECTION VII. DEED BY THE INFANT HEIE, WITH THE WIDOW JOINING. This indenture, viade the — day of , 18 — , between E. D., of, 8^c., an infant under the age of twenty-one years and being the only son and heir-at- law of C. D., late of, &;c., deceased, hy F. B., his guar- dian, appointed for the purposes of this conveyance, of the first part, M. D., the ividow of the said C. D., deceased of the second part and A. B., of, Sfc, of the third part. Whereas hy an order of the Supreme Court of the State of New York, made on the — day of , 18 — , upon the petition of, &ic., it was referred to , as a referee, to examine and report (here recite order). And wlureas the said referee did, on the — '^y of 1 '>nake his report, and did thereby certify and report, among other things (here recite report). And whereas, by a decretal order made on the said report, dated the — day of , 18 — , it tvas ordered, adjudged and decreed (recite decretal order). Noio this inden- ture witnesseth that in pursuance of and in obedience to PERFORMANCE OF CONTRACTS BY INFANT HEIR. 713 the hereinbefore in part recited decretal order and in consideration of the payment of the aforesaid balance of % in the hands of the said referee (as is in the said decretal order directed^ and of %\ paid to the said E. D. by the said A. B., and also of a like sum paid by him to the said M. D., the receipts whereof are hereby respectively acknowledged, he, the said E. D., hath bargained, sold, remised and released, and by these presents doth bargain, sell, remise, release and confirm: And the said M. D. also hath granted, remised, released and quit-claimed, and by these presents doth grant, remise, release and quit-claim unto the said A. B. his heirs and assigns, all that, 8^c. (description and gene- ral words) ; and all dower and right and title of dower, claim and demand; in laio and in equity, of the said M. D., of in and to the said premises. To have and to hold the said premises, tvith their rights, members and appur- tenances, unto the said A. B., his heirs and assigns, to and for the use and behoof of the said A. B., his heirs and assigns for ever. And the said M. D., for herself, her heijs, executors and administrators, doth covenant and agree to and tvith the said A. B., party of the third part, his heirs and assigns ; that she hath not done any act lohereby or by means whereof the said above des- cribed premises now are or at any time have been charged, incumbered or affected in any manner what- ever. In witness, S^c. Signed, sealed and delivered in ? the presence of J R. 90 CHAPTER XXIL REFERENCE, AS TO TWO SUITS OR PROCEEDINGS PEND- ING FOR THE SAME MATTER ; AND, WHERE ONE OR MORE SUITS ARE INSTITUTED FOR AN INFANT. Section I. Observations. II. Answer of former action pending. III. Notice of motion for an order of refebenck to ascertain whbthhb THERE IS ANOTHKR ACTION PENDING. IV. Order of reference. V. Principles governing the point of referenob. VI. Report. VII. Order on referee's report. VIII. Suits instituted on behalf of infants. IX. Affidavit to ground order of reference whceb there are two suits fending. X. Order of reference tbbrboh. SECTION I. OBSERVATIONS. Where the fact of another suit pending between the same parties, for the same cause, does not appear upon the face of a complaint, the fact that there is, may be taken by answer. (Bu7tows v. Miller, 6 How. Pr. R., 51 ; Code, § 147.) It has, of course, the effect of a plea in abatement of another action. {Gage V. Lord Stafford, 1 Ves., Senr., 544.) It seems irregular to " reply " to it. The true practice being to obtain a reference to ascertain whether or not both actions are for the same matter. If the referee should report that both actions are for the same matter, that ends the second action ; but if he should report that they are not, the answer is ?^wo facto overruled and the action proceeds upon the other issues. Such was REFERENCE AS TO TWO SUITS, ETC. 715 the former practice and is altogether the most con- venient one to adopt in actions under the Code. The answer of another action pending is to he determined by the record, and it is altogether more convenient that the defense should be disposed of before the parties' go to trial on the merits. {Groshons v. Lyons, 1 Code R., N. S., 348; S. C, 16 Barb. S. C. R, 461.) The former practice was to take the objection that another suit was depending for the same matter by a plea ; and where it is believed that this can be substantiated, a very short answer, pleading the fact, might be all that would be necessary in the first instance. In Hornfager v. Hornfager (1 Code R., N. S., 412) it is said that where it does not appear on the face of the complaint that such other action is pend- ing, then, if another suit is in force, the proper mode for the defendant to avail himself of that fact is by answer setting forth the pendency of such action. (Code, § 147.) This rule. Justice Parker says, in the above case of Hornfager v. Hornfager, applies to all actions. The court, even if the fact were found against the pleader, would, no doubt, give time to answer on the particular issues. An answer which sets up a former suit pending should contain a distinct averment that the second action is for the same matter as the first. (Devie v. Ld. Broionlow, 2 Dick., 611.) It should also aver that there have been proceedings in the suit, as appear- ance, or process requiring appearance at least ; and that it is still pending, and the time when the suit was instituted. {Foster v. Vassall, 3 Atk, 587.) 716 THE LAW OF EEFEREES. SECTION II. ANSWER TO FOEMEK ACTION PENDING. [Title.] The ans2ver of the defendant in the above action to the complaint of the above plaintiff: That on the — day of , 18 — , the said present plaintiff commenced his action in this court (or, in the court of Common Pleas, S^c.), against this defendant for, Sfc. ; and claiming, S^c. ; and by his complaint therein and thereby demanded judgment against this defendant in the same manner and for the same matters and to the same effect as the said plaintiff now demands by his present summons and complaint in the present action. And this defendant appeared and put in his answer {and the said action now stands at issue). And the said former complaint and the several proceedings in the said former action, as this defendant avers, now remain de- pending and as of record in this court (or, in the said court of Common Fleas, (^c), the said action being yet undetermined and undismissed. And this defendant de- mands judgment of this court, whether he shall be put to make any further or other ansioer thereto; and claims to be hence dismissed tvith his costs and disbursements. There appears to be no objection for either party, when an answer of another suit being pending is interposed, to move for a reference on tlie point. It should be on notice. {Gage v. Lord Stafford, 1 Ves., Senr., 544, note [1].) EEFERENCE AS TO TWO SUITS, ETC. 717 SECTION III. NOTICE OF MOTION FOE AN OEDER OF EEFERENCE TO AS- CERTAIN WHETHEE THEEE IS ANOTHER ACTION PEND- ING. ITiile.'} Take notice that on the answer and complaint her-ein, a motion will he made at chambers as of Special Term, at, S^c, on the — day of , instant, on the opening of the court or as soon thereafter as counsel can he heard, for a reference to ascertain whether there is another action already pending for the same matter as is em- braced in the present, above entitled action. New York, this — day of , 18 — . Yours, Attorney for the above (^ Plaintiff^. To , Attorney for the above (Defendant^. Where it sufficiently appears to the court that the actions are not for one and the same purpose, no reference will be granted. {Anonymous, 2 Mad. C R, 395.) The Chancery rules required that a defendant on pleading another suit pending for the same cause of action, and on obtaining an order of reference, should procure a report thereon within twenty days. (Rule 48.) And although we have now no rule in the premi- ses, yet, it would be right towards both parties that the defendant should be required to procure such re- 718 THE LAW OF EEFEEEES. port within a specified time or that the point taken should be considered as overruled ; and also that such point should likewise be considered as overruled if the referee found against it, and the plaintiff be at liberty to proceed as if no such ground (of two suits) had been taken. SECTION IV. ORDER OF REFERENCE. At a Sjjecial Term of the Supreme Court, held at the City Hall in the city of New York the — day of , 18—. ITitle.] Present, Sfc. On reading and filing notice of motion for a refer- ence to ascertain whether there are tivo actions pending for the matter embraced by the present action, as is alleged by the answer herein ; and after hearing Mr. , of counsel for the plaintiff and Mr. , of counsel for the defendant, it is ordered that it be referred to Mr. , as a referee of this court, to examine and look into both actions and report wliether they are or are not for the same cause or matter. And it is fur- ther ordered that the said defendant procure the report of the referee herein within (twenty) days from the date of this order ; and in default thereof, then the point taken under the present order shall be deemed overruled ; also, it shall be considered as overruled if the referee find against it. And on any such overruling the plaintiff" may move for costs in the pre7nises. KEFEEENCE AS TO TWO SUITS, ETC. 719 The referee will have before him the pleadings or proceedings in both matters or actions; and, no doubt, he can also examine the parties and their attorneys, although such additional action is not contemplated by English practice, for Bennet, in his " Practice in the Master's Office," states : " The master, upon a perusal of the office copies of the bills, decides if they are for one and the same pur- pose, and grants his report accordingly." This would be but reasonable; because an ingenious pleader might, by the use of new phrases and terms and a clever mode of dressing up the last complaint, leave it really necessary to have exposition by explana- tory testimony and by the production of documents or securities, so as to arrive at the one point in refer- ence, namely, whether both were for the same mat- ter — whether the plaintiff should or should not be allowed to proceed in the suit in which the plea or objection has been taken l SECTION V. PRINCIPLES GOVERNING THE POINT OF REFERENCE. The character of the two proceedings are not so much to be looked at, as the fact whether the effec- tual rights are similar and embraced by both. Thus, there may be a petition by a trustee to account and be discharged, while the cestui que trust may com- mence an action for an account and the removal of the trustee. Such was the case of Groshon v. Lyon (16 Barb. S. C. R., 461). There, the referee reported 720 THE LAW OF EEFEREES. that all the objects sought to be obtained by the complaint in the action brought by the cestui que trust might be secured by the proceedings under the trustee's petition and that such proceedings were a bar to the action. In fact, the court now holds, in order to carry out the spirit of the Code, that an " action pending be- tween the parties" (§ 144) may embrace, not only strictly an action, but also an attachment, or a cita- tion before a surrogate, or a proceeding in court founded on a petition, (/i.) Or, a proceeding under the lien law. {Ogden v. Bodle, 2 Duer, 611 ; and see Fanners' Loan and Trust Co. v. Hunt, 1 Code R., N. S., 1.) The great principle is, that if full relief can be had in the one suit, no other shall be allowed. {Groslion v. Lyon, 16 Barb. S. C. R., 461.) When our Court of Chancery was in operation, and equity proceedings were distinct from actions at law, if a plaintiff sued a defendant at the same time, for the same cause, at common law and in equity, the defendant, after answer put in, might apply to the court that the plaintiff should make his election where he would proceed, but could not plead the pendency of the action at common law in bar of the suit in equity. (Jones v. Earl of Strafford, 3 P. Wms., 90.) And if, after such an order, the plaintiff elected to proceed in equity, the court would restrain his proceedings at law by inju.nction ; while, if he elected to proceed at law, the bill would have been dis- missed. {Ih.; Mousley v. Basnett, 1 V. and B., 382, n.; Fitzgerald v. Suconib, 2 Atk., 85.) The new system now in force in the State of New York, would hardly EBFEEENCE AS TO TWO SUITS, ETC. 721 allow of the chance of a distinct equity suit and a distinct law action, so as to make the former prin- ciple available ; for, since the Code, there is no longer any distinction between suits at law and in equity as arising from the form of the pleadings or the jurisdiction of the court. (^General Mutual Insu- rance Co. V. Benson, 5 Duer's Sup. C. R., 168.) The two suits or proceedings must be within the courts of our own State. The principle will not apply where one of the actions may be in a court of the United States or in a sister State. The Code has not changed this rule. (^Cook v. Litchfield, 6 Sandf Sup. C. R., 330 ; and see Foster v. Vassall, 3 Atk., 587 ; Bayley v. Edwards, 3 Swanst., 703.) Although it is necessary that the first suit should be for the same matter as the second, it is not requi- site that the second suit should be the whole matter embraced by the first. (Beames on Pleas, 134 ; Coop. Eq. PI., 272.) It is, however, requisite that the whole effect of the second suit should be attainable in the .first. (^Law v. Rigby, 4 Bro. Ch. C, 60 ; Pickford v. Hunter, 5 Sim., 122.) On the point of another suit pending, the court looks to see whether the complaints are substantially for the same cause and for the like object. {American Bible Society v. Hague, 4 Edw. V. C. R., 117.) It is not necessary that the former suit should be precisely between the same parties as the latter ; thus, if a man institutes a suit and afterwards sells part of the property to another, who files an original complaint touching the part so purchased by him, an averment or pleading of the former suit pending, E. 91 722 THE LAW OF EEFEEEES. touching the whole property, will hold, although filed by a different plaintiff. (Lord Red., 202 ; Moor v. Wekh Copper Co., 1 Eq. Ca. Ab., 39.) So, where one part owner of a ship filed a com- plaint against the ship's husband for an account ; and, afterwards, the same part owner and the rest of the owners filed another complaint for the same purpose, the pendency of the first suit was held a good plea to the last (JDurand v. Hutchinson, cited Lord Redes., 202), for although the first was insufficient for want of parties, yet, by the second, the defendant was doubly vexed for the same cause. If a plaintiff files a new complaint for the same cause of action, before he has dismissed the former and paid the costs, the pendency of the first action may be pleaded as a bar to the commencement of the second. {Simpson v. Brewster, 9 Paige's C. R., 245.) Where it appears by a referee's report that the second suit embraces more objects than the first, an order will be made dismissing the first action • with costs, and directing the defendant to answer the second upon being paid his costs of setting up the point of " two suits" and of the reference, which puts the case upon the second complaint in the same situation that it would have been in if the first had been dismissed before the filing of the second. {Crofts V. Wortley, 1 Ca. in Ch., 241.) A suit regularly dismissed on the merits, where the matter has been passed upon and the dismissal is not without prejudice, may be insisted on in bar of a new action for the same matter {Ferine v. Dunn, KEFERENCE AS TO TWO SUITS, ETC. 723 4 J. C. R., 142.) A suit regularly dismissed on the merits, may be pleaded in bar of a new action for the same matter ; but, a decree or judgment so dis- missing the complaint must be an absolute decision of the same point or matter; and the new com- plaint must be brought by the same plaintiff or his representatives against the same defendant or his representatives. {Neqfie v. Nectfie, 7 lb., 1.) If the defendant in the original suit, having since acquired a legal estate or legal advantage, files his complaint against the former plaintiff, the cause is opened on its merits. (Ih.) A cross-suit, although between the same parties as the original action, cannot be met by the objec- tion or plea of another suit pending. {Lord Newburgh v. Wren, 1 Vern., 220.) Nor will the point lie in any case where a judg- ment or decree, dismissing the original suit, would not be a bar to a new proceeding; thus, where a plaintiff mistook his right and, being an executor of an administrator, conceived himself to be the per- sonal representative of a deceased person and brought a suit in that capacity, but afterwards obtained letters of administration de bonis non, and filed a new complaint, an objection of the former suit depending was overruled. (Hug gins v. York Buildings Co., 2 Atk., 45.) Aiid it has been held, that a suit by a husband and wife against the trustees of the wife's separate property cannot be pleaded in bar to a subsequent suit by her and her next friend against the trustees and her husband, although the relief prayed in both 724 THE LAW OP EEFEEEES. suits is the same ; because tlie first suit is considered as the guit of the husband alone and a decree of dismission in it would be no bar to the wife. {Reeve V. Dalhy, 2 Sim. & S., 464; Wake v. Parkes, 2 Keen, 49.) Where a second suit is brought by the same per- son, but in a different right, a plea of another action pending will not hold. (Huggins v. York Buildings Co., 2 Atk., 44 ; S. C, 2 Eq. Abr., 3, pi. 14 ; Law v. Righy, 4 Bro. C. E., 60 ; Gage v. Lord Stafford, 1 Ves., 544 ; 8. C, Ambler, 103.) The insufficiency of a first complaint, for want of parties, may not be an objection to a plea of another action pending, if the defendant is doubly vexed for the same cause. {Crofts v. Wortley, 1 Ca. in Cli., 241.) A judgment or decree on a complaint by one in behalf of himself and other creditors may be pleaded to a new suit by a creditor who comes in and proves his debt, for a man coming in under a decree is quasi a party. {Neve v. Weston, 3 Atk., 557 ; Burney v. Morgan, 1 Sim. & S., 361.) In such a case, if the plaintiff in the original suit is dilatory, the creditor may apply to the court for liberty to conduct the cause. {Powells. Wallworth, 2 Mad. C K., 183 ; Louis V. Ridge, 3 Mer., 458 ; Edmunds v. Adand, 5 Madd., 31 ; Fleming v. Prim, lb., 423 ; Handford v. Storie, 2 S. & S., 196 ; Houlditch v. Donegall, 1 lb., 361 ; Groshon v. Lijon, 16 Barb. S. C. E,., 461.) REFERENCE AS TO TWO SUITS, ETC. 725 SECTION VI. REPORT. To the Supreme Court of the State of New York : \Title.\ I, the undersigned E. ¥., referee in this action, ap- pointed under an order dated the — day of , 18 — , whereby it was referred to me {as such referee) to examine, 8fc., do respectfully certify and report that I have been attended by the attorneys and counsel of the parties herein and have had the pleadings in both the said actions (or, proceedings) laid before me; and that I have examined and looked into such pleadings in both the said actions (or proceedings) and have taken testimony in explanation thereof sufficiently to enable me to report. And I fur- ther report that both the said actions (or, proceedings) are pending undetermined ; and that they are for the same matter (or, that the whole effect of the second action is attainable in the first ; or, that the second action, although covering the same matter as the first, also embraces in addition a demand not inconsistent, for, Sfc. ; or, that they are not for the same matter.) By parity with old principles and practice, if the defendant obtains the referee's report in favor of the truth of the averment of another suit pending, he cannot have an order, upon motion, to dismiss the complaint, although the more ancient practice con- sidered that the bill stood instantly dismissed, on the master reporting the fact of another suit depending. 726 THE LAW OF EEFEEEES. (1 Ch, Ca., 241 ; 2 Mad. Ch. R, 406.) He must bring the cause on to be heard at special term (on answer and referee's report), in order to enable the court to decide upon the validity of the point raised by the answer. {Hart v. Phillips, 9 Paige's C. R., 293.) And, also, with a view to get a judgment of dismissal or permanent stay of the last suit. It is supposed, however, that under the present 32d rule, the report will have to be filed and notice given, so that the opposite party may have the oppor- tunity to file and serve exceptions. In that event, the hearing, at special term, will be upon the report and the exceptions. If no exceptions, then upon the former (the report) and an affidavit of its having been filed and notice of filing served and of no exceptions taken within the time prescribed by the rule. SECTION VII. ORDEE ON EEFEREE'S EEPORT. At a Special Term of the Supreme Court held at, SfC, the — day of , 18 — . [Title.'\ Present, A reference having heen had to ascertain whether an action mentioned in the answer herein as having heen commenced on the — day of , 18 — , in, Sfc, and the present action (or proceeding') are or are not for the same cause or matter ; and on reading the report of , Esquire, the referee, which report stands conjirrhed (or EKFERENCE AS TO TWO SUITS, ETC, '727 which report has been excepted to), and on proof of due notice of hearing on the opposite party ; and after hear- ing Mr. , Sfc, it is adjudged that the said action, commenced on the — day of , 18 — , and the pre- sent action (or proceeding) are for the same matter (or, that the whole effect of the second action is attainable in the first). And it also ordered and adjudged that the present action be for ever stayed ; and the plaintiff herein is hereby perpetually enjoined from any and all future and further proceedings herein, with costs to the defendant herein, to the amount of % , as ad- justed, and for which execution may issue according to the Code and rules (or, and after hearing Mr. , (^•c), it is adjudged that the present action {or proceed- ing) although covering the same matter as the aforesaid first action, yet it likewise embraces consistent additional matter. Therefore, it is also ordered and adjudged that the said first action be dismissed with costs; and that the defendant in the present action answer the same within twenty days from the service of a copy of this order, on being in the meantime paid his costs of setting up the point of two suits 2Knding and also of the motion and reference and present hearing and order hereon ; all which costs are here adjusted at % , and exe- cutien may go therefor. And the case is to be con- sidered as put {in this present action and upon the com- plaint herein), in the same situation that it would have been if the first action had been dismissed before the filing of the present action (or proceeding). (If the court should be against the finding in the report; and after hearing, Sfc, it is adjudged, that the ex- ception taken to the said report is well taken ; and the report is overruled. And it is adjudged that the said 728 THE LAW OP REFEREES. two actions are not for the same matter ; and proceedings are to he no longer stayed in either ; and the defendant is to answer in the present action within twenty days after service of a copy of this order. And costs of the motion and reference, and present hearing and order hereon, are adjudged to the plaintiff, and the same are adjusted at % , imth execution therefor according to the Code and rules.) SECTION VIII. SUITS INSTITUTED ON BEHALF OF INFANTS. There are cases in which the court will interfere to restrain a second suit brought against the defend- ant for the same matter upon motion, without requir- ing him to plead the pendency of the former suit ; as in the case of two or more suits instituted on behalf of an infant for the same matter. In such case, the court will, upon representation of the fact, immediately direct an inquiry as to which suit is most for the infant's benefit, without requiring the defend- ant to plead the pendency of another suit. And if the referee reports that the suit is not for the benefit of the infant, the court will order a stay of the proceed- ings. (Dacosta V. Dacosta, 3 P. Wms., 140 ; Fulton v Rosevelt, 1 Paige's C. R., 178.) It is to be observed, however, that in the case of suits instituted on behalf of infants, the reference is not to inquire into the facts of two or more suits having been instituted, but which of them is most for the benefit of the infant. (2 Dan. Ch. P., 146 ) And it is said that even such EEFEEENCE AS TO TWO SUITS, ETC. 729 inquiry will not be directed unless there is a strong case of no benefit or an improper motive. (Stevens V. Fulton, Mad. and Geld., 97 ; and see Lyons v. Blenkin, 1 Jacob, 260.) And no such reference, as the one last mentioned, will be ordered at the instance of the next friend himself; because the court considers that, in com- mencing a suit, the next friend undertakes on his own part" that the proceeding he has so commenced is for the benefit of the infant. {Jones v. Powell, 2 Mer., 141.) Where there are two suits, the application may- be made by the plaintiff in one of them or by the infant or some one on his behalf. {Sullivan v. Sulli- van, 2 Mer., 40 ; Owen v. Oicen, lb., 44, note a.) But after a judgment or decree in one of two suits com- menced in the name of an infant, it is not usual to allow a reference to inquire which suit is most bene- ficial. {Taylor v. Oldham, Jac, 527.) The court, also, where a single suit has been in- stituted on behalf of an infant, will grant a reference to ascertain whether it is for the benefit of such infant. And where there are two suits for the same pur- pose commenced by different persons, as next friends of the infant, the court, on that allegation, will refer it, to see which is most for the infant's profit. {Gage V. Lord Stafford, 1 Ves., 545.) In references of this nature, the referee is at liberty to suggest any improvement in the frame of a suit and to report any special circumstances that, in his opinion, may be for the infant's benefit. {Sullivan v. Sullivan, 2 Mer., 40.) E. 92 730 THE LAW OF KEFEEEES. Bennet says that in the Court of Chancery a refer- ence to report which of two suits were for the ben- efit of an infant, was a matter of course, on the allegation of counsel that, in his opinion, they were not for the infant's benefit. (Practice in the Master's Office, 45.) But Stevens v. Fulton (Mad. and Geld., 97), would seem to show that a strong case of improper motive or of no benefit must be shown in order to obtain a reference. However, we have no doubt that there is a different rule in a case where one suit only against an infant is concerned than where there are two. If there be but one action, then it may very well be that strong grounds should appear for allowing areference which might have the effect of restraining and ending it before an issue is tried. " It is essential," said the Vice-Chancellor, in Stevens v. Stevens (6 Mad. Ch. R., 97), " for the protection of infants that suits in their behalf should not be discouraged ; and such an in- quiry ought never to be directed unless there be a strong case of no benefit or improper motive ; while, the very fact of two actions for seemingly the same matter, should allow an order of reference almost as a thing of course. So that it may be considered that, where there is but one action, strong grounds or im- proper conduct must appear ; but, that, where there are two suits, no special conduct or acts need be shown to obtain a reference. These rules, however, or rather the one having reference to two suits must have this subjoined, namely : that even there it will be difficult to get a reference in late stages of pro- EEFEKENCE AS TO TWO SmTS, ETC. 731 ceedings and particularly after a decree has been made in one of the suits. (Bennet, 45 ; Taylor v. Oldham, 1 Jacob, 527.) It will be proper to serve notice of motion, as well in the case where there is but one suit, as (on all the attorneys) where there are two, because the latter may have so far progressed as to cause the court not to restrain either of them or there may be some other reason why they should not be checked. Particular circumstances attend particular cases where a reference is to have relation to a case in- volving but one suit ; and, therefore, it is not deemed necessary to attempt to give precedent of supposed facts which might justify a motion, although we would premise that the notice should be : " whether it is for the benefit of such infant ; " but, where the point arises from the circumstance that two suits are commenced for the seemingly same cause of action, it is presumed that an afiidavit by the counsel in the second suit, or by the infant himself, or any one on his behalf (other than a next friend who is a party, in either) — supposing also, that neither action has gone to a decree — will be sufiicient to ground a motion for a reference. 732 THE LAW OF EEFEEEES. AFFIDAVIT TO GROUND OEDEE OF EEFEEENCE WHEEE THEEE AEE TWO SUITS PENDING. COUET. A. B., by next friend, &c., J against \ First action. C. D. ^ Same i against \ 8econd actiou. Same. \ , ss : G. H., attorney and of counsel for the defendant in both the ahove actions, being sworn, maketh oath and saith that the defendant has appeared and answered in the first above action and such action is at issue and in force ; that the said defendant has been served with summons and complaint in the second above action ; and this deponent, having examined the complaints in both, says that they are for the same mat- ter, as he verily believes. Sworn, 8^c. If the affidavit is made by the infant, or by any one on his behalf, it might state (with the fact of the pendency of the two actions), that the matters of both are the same ; and that no profit would arise to the infant plaintiff by both being pursued. Notice of motion will be given as before at section III, ante. EEFEEENCE AS TO TWO SUITS, ETC. 733 ORDER OF EEFEEENCE. CoUET. (Title of both actions.) On reading and filing affidavit^, and after hearing Mr. , of counsel for the defendant in hath the ahove actions and Mr. , of counsel for the next friend in such actions : it is ordered that it be referred to , Esgui?'e, as referee to inquire and state to the court which of the ahove two actions it will he most proper and for the profit of the infant to he prosecuted. And in making such inquiry, he is at liberty to state all or any special circumstances which, in his opinion, may he for the infant 's benefit. Also it is ordered that, in the meantime and until the coming in of the report of the said referee, all proceedings in the above actions he and they are hereby stayed. The precedent of a report on page 725 may suffice as outline for a proceeding now immediately under review. The report, however, should speci- fically certify which suit is most for the infant's benefit. (^Gage v. Lord Stafford, 1 Ves. Sen., 544.) The report will have to be filed ; and notice of filing served, with a right on the other side to except within eight days. (See Rule 32 of Supreme Court and practice, under section vi, at page 725, ante et seq.) The ultimate order, if the report be confirmed (either by no exceptions being filed or on argument of them), will be : that the first, or, second above mentioned action is most for the infant's profit ; and it 734 THE LAW OF EEFEEEES. is, therefore, also ordered that all proceedings in the said second, ox, first above mentioned order stop. The costs* will be given accordii;g to what the referee reports of the seeming motive of filing and conduct towards the infant's interests in commencing the second suit. In a note to Gage v. Lord Stafford, supra, it is observed : " After the master's report in favor of one suit, without an impeachment of the other, the costs of the latter will generally be directed to be paid," referring to Ford v. West (1 Wilson's Ch, Ca., 159). CHAPTER XXIII. REFERENCE TO SETTLE ISSUES. Section I. Observations. II. Affidavit and notice of motion fob a bkpbrbnob to shttlb the fokm OF ISSUES. III, ObDBR op REFBBENOE to SETTLE ISSUES. IV. Rbfbrbe's bbport. and issues embracbd by intebboqatories. SECTION I. OBSERVATIONS. The reference to settle issues has grown out of a practice in the Court of Chancery under the statute of May 2, 1839, ch. 317, and through the 69th rule of that court; and see Snell v. JLoucks (12 Barb. S. C. R., 386). By section 72 of the Code, feigned issues are abolished ; and instead thereof, in cases where the power now exists to order a feigned issue or when a question of fact, not put in issue by the pleadings, is to be tried by a jury, an order for the trial may be made, stating distinctly and plainly the question of fact to be tried ; and such order will be the only authority necessary for a trial. By Rule 33 of the Supreme Court, in cases where the trial of issues of fact is not provided for in sec- tion 253 of the Code, if either party shall desire a trial by jury, such party shall, within ten days after issue joined, give notice of a special motion to be made upon the pleadings that the whole issue or 736 THE LAW OF REFEREES. any specific questions of fact involved therein be tried by a jury. With the notice of motion shall be served a copy of the questions of fact proposed to be submitted to the jury for trial and in proper form to be incorporated in the order ; and the court or judge may settle the issues or may refer it to a refe- ree to settle the issues. Such issues must be settled in the form prescribed in section 72 of the Code of Procedure. In all actions for a divorce, when issues are joined by the pleadings upon a question of adultery, such issues shall not be tried by a jury until the issues to be tried shall be settled in like manner as in other actions where issues arising out of the pleadings are required to be settled. SECTION II. AFFIDAVIT AND NOTICE OF MOTION FOE A EEFEEENCE TO SETTLE THE FOEM OF ISSUES. AFFIDAVIT. [Title.] County of , ss: E. F., attorney/ for the plaintiff, being sioo^rn, maketh oath and saith, that this is an action (here describe the nature of the suit) ; and that it is now at issue {as to all the defendants^, hut ten days have not elapsed since such issue was joined. 8wo7-n, &^c. NOTICE OP MOTION. [Title.] Sir, Take notice that on an affidavit, of which a copy is now served and on the pleadings herein, a special EEFEEENCE TO SETTLE ISSUES. 737 motion will he made at (the City Hall, &c.), at a special term (in chambers) on the — day of instant, at the opening of court or as soon as counsel can he heard, for an order that the specific questions of fact involved therein be tried by a jury. You tvill further take notice that a copy of the ques- tions of fact proposed to be submitted to the jury who will try the above actions, is hereto annexed: so that the court may settle the issues herein or may refer it to a referee to settle the same. New York, the — day of , 18—. Yours, E.F., Attorney for the Plaintiff A. B. To O. H., Esquire, attorney for the defendant C. D. {Title.'] Questions of facts proposed to be submitted to the jury who will try the above action. First question. Was the plaintiff authorized, 8^c. Second question. Where was the settlement, 5^c. E.F., Attorney for the plaintiff . In Miller v. Wilson (1 Barb. S. C. E,., 222), Justice Edmunds approved of a form of order of reference to settle issues of fact, which we here adopt. K.93 738 THE LAW OF EEFEEEES. SECTION III. OEDEE OP EEFEEENCE TO SETTLE ISSUES. At a Special Term, 8^c. [Title.] On reading and filing the affidavit of , the attorney for the above named plaintiff (or, defendant)^ showing that this cause is at issue and is in readiness to take testimony therein, and proving service of notice of motion to settle the issues of fact joined therein ; and on hearing Mr. , of counsel for the plaintiff (or, defendant), and no person appearing to oppose, it is ordered that the issues of fact, joined hy the pleadings pending in this action hetiveen the respective parties thereto, be settled pursuant to Rule 33, to the end that testimony may be taken thereon. And it is further ordered that for the purpose of settling the said issues, the pleadings in this action be referred to , as referee, to ascertain and settle the said issues in the form of questions, to be answered by the judgnnent of the court thereon, wherein shall be stated the several ques- tions of fact to be passed upon, the names of the parties to each issue and which party is to be considered as holding the affirmative on each question to be tried. And it is further ordered that the said referee do sum- mon before him., on such reference, all the parties entitled to take testimony in the action ; and that, on the coming in and confirmation of his report, the testimony be taken in the action shall be directed and be confined to the issues thus settled. REFERENCE TO SETTLE ISSUES. 739 An appeal from any decision of the justice, either in awarding or refusing an issue, may not, probably, stay proceedings in the action pending the appeal. (2 Hoff. Ch. Pr., 273.) So that it might be well to secure such a stay by a justice. SECTION IV. referee's report and issues embraced BT INTERRO- GATORIES. V To the Supreme Court of the State of New York : [Title.] In pursuance of an order of this court, made in this action, dated the — day of , 18 — , hy which (among other things^ it was ordered that it he referred to me, the undersigned, as referee, to ascertain and settle the issues of fact pending in this action, in the form of interrogatories, to he answered hy the judgment of the court thereon : I, the suhscriher, the said refei'ee, do res- pectfully report that I have heen attended hy the counsel for the respective parties and have looked into the plead- ings in this action and have settled the following as the proper interrogatories or issues to he answered hy a jury, which answers will determine every material question of fact put in issue hy the said pleadings, namely : First interrogatory. Was the plaintiff, 8fc., S^c. Second interrogatory. When was the settlement, Sfc, S^c. Third interrogatory. On the said settlement did, $fc. Fourth interrogatory. At the time of such settlement, Sfc, Sfc. 740 THK LAW OF EEFEEEES. / do further report that the plaintiff" is to he con-r sidered as holding the affirmative of the first and second of the said questions or issues; and the defendant the affirmative of the third and fourth of the said questions or issues on the trial. All which is respectfully sub- mitted. Dated at the city of New York, the — day of , 18-. Referee. The report will have to be filed and notice of its being on file given to all who are interested or their attorneys (Eule 32 of Supreme Court), and it will become confirmed in eight days, unless exceptions are taken. It is believed that certified copies of the order of reference and of the report, with a short certificate of the clerk that no exceptions were taken and the report stands confirmed, with the pleadings (attach- ing the same to the latter), would be sufiicient to be used on the trial. And, no doubt, if the party holding the affirmative failed to appear or to give evidence in support of it, a verdict might be taken in favor of the adverse party. CHAPTEU XXIV. REFERENCE TO DISCOVER THE DEATH OF PERSONS UPON WHOSE LIVES ANY PARTICULAR ESTATE MAY DE- PEND. Section I. Observations. II. Form op PSTITION for the production of a person upon TTHOaB LIFB SOME PARTICULAR ESTATE DEPENDS. III. Form of notice op presenting petition. IV. Order oh petition. V. Refersb'3 return. VI. Entrt on minutes of the court that order was complied with by thb production of the person required. VII. Active part of refbreb's return where the person was hot pro- duced. VIII. Entry on the minutes of the court that thb person required was not produced. SECTION I. OBSEEVATIONS. Courts of equity have long used the power of making references to its officers, in order to ascer- tain the fact of a person's existence who may have an interest in property. In the State of New York it is made a matter of statute, as to how persons, upon whose lives estates may depend, shall be produced or be deemed dead.-, (2 R. S., 343.) A petition is to be presented to the Supreme Court (Judiciary Act, May 12, 1847, ch., 280), showing the interest of the petitioner in par- ticular lands or tenements and, his belief in the death of the party on whom a life or lives may depend, and, its concealment. 742 THE LAW OF EEFEEEES. On sufficient cause, an order will be made to pro- duce the party at such time and place and " to such referee, or commissioner, or commissioners, not ex- ceeding two, as shall be named in such order." (7 b., § 4; and Judiciary Act, May 12, 1847, ch. 280, § 77.) A certified copy of the order is to be served on the party against whom the application is made, at least fourteen days before the day specified therein at which the party is required to be produced. The referee (or commissioners), must attend at the time and place specified in the order for the purposes of its execution. They have full power to take proofs as to the identity of the person on whose life the estate de- pends (§ 5) ; and subpoenas to compel the attendance of witnesses may be issued and served. SECTION II. FORM OP PETITION FOE THE PEODUCTION OF A PERSON UPON WHOSE LIFE SOME PARTICULAR ESTATE DEPENDS.^ To the Supreme Court of the State of Neiv York : The petition of C. D., of, 8^c., respectfully shoiceth : That E. F., late of , deceased, did, by his last will, made, as your petitioner believes, in due form of law to pass real estate, devise and bequeath unto your peti- tioner, 5^c., subject, &;c. (Here set out the remainder in fee or whatever the estate may be which is to be enjoyed after the termination of the particular life ' 3 Moulton's Ch. Pr., 874. TO DISCOVER THE DEATH OF PERSONS, ETC. 743 estate of A. B., and a brief description of the pro- perty.) That he, said D. F., died on or about, 8^c., leaving the said A. B. him surviving. Tliat letters testamentary were duly taken out on or about the — day of , 18 — , by Q. H., executor, trustee and testamentary guardian named in the said will before the surrogate of ; and that the said G. H. has, as such trustee and testamentary guardian so nominated in and by the said will, been, ever since the — day of , 1 8 — , in posses- sion and custody of the lands and premises hereinbefore described; and also, is entitled, as such testamentary guardian, to the custody of the person of the said A. B., the minor, on the termination of whose life your peti- tioner'' s estate in the said premises depends. Your petitioner further shoios that until on or about the — day of , 1 8 — , the said minor, A. B., resided in the family of the said G. H. ; but that since that period your petitioner has caused diligent inquiry to be made, not only of the said G. H., and of his family at the house of the said G. H., but of his neighbors in the neighboj-hood thereof, and that all the information which your petitioner could obtain in reply to the inquirtj which your petitioner caused to be made of the said G. H. and at his house was, that the said A. B., the minor aforesaid, was traveling abroad for the benefit of his health. But your petitioner further showeth that on the inquiry made, as aforesaid, in the neighborhood of the said G. H., your petitioner was informed by the neighbors that prior to the day and year aforesaid and for several months previously the said A. B., the minor aforesaid, had been unwell and confined to his bed, that 744 THE LAW OF REFEREES. his health was so greatly impaired that, in the opinion of your petitioner's informants, as they represented to your petitioner, the said A. B. could not have sustained the fatigue of a journey and that the said A. B., on or about that period, suddenly disappeared and that the said neighbors have not, as they also informed your petitioner, seen or heard of the said A. B. since, except that they were also informed by the family of the said G. H. that the said A. B. had rapidly regained strength sufficient to enable him to take a journey and that he had gone under the care of one of the family (ivho, as your petitioner is informed, is actually absent), for the benefit of his health to the seashore, and would, perhaps, embark for Europe, and, in such event, not return under one or two years. Your petitioner further showeth, that for the reasons cforesaid, your petitioner has cause to believe and does believe that the said A. B. is dead, and that his death is concealed by the said G. H. Your petitioner, therefore, prays for an order of this court, requiring the said G. H. to produce and show the person of the said A. B., at such time and place to such referee or such commissioner or two com- missioners, as the court will be pleased to nominate, or for such other order as the court may deem meet to grant in the premises. C. D. I. J., Attorney for the said C. D., No. street, Neio York. The statute requires the petition to be sworn to. {Ih., § 3.) county, ss : The above petitioner C. D., being ■sworn, maketh oath and saith, that he has read the TO DISCOVER THE DEATH OP PERSONS, ETC. 745 above petition and knows the contents thereof and that the same is true of his own knowledge, except as to the matters therein stated on information and belief and as to those matters he believes it to be true. Sworn, Sfc. Notice of the time and place of presenting the petition must be served at least fourteen days before bringing it before the court {lb., § 3.) SECTION III. FOEM OF NOTICE OF PRESENTING PETITION. In the Matter of the annexed Petition of / C. D., for the personal production > of A. B. ^ To G. H., named and described in the said petition : Take notice, that on a verified petition, of which a copy is now served on you, a motion will be made at Special Term [as of chambers) at the City Hall in the city of New Ywk, on the — day of , 18 — , at the opening of the court on that day, or as soon thereafter as counsel can be heard that the prayer of the said petition he granted, unless sufficient cause he then and there shown to the contrary. New York, the — day of , 18 — . Yours, J. J., a D. Attorney for the said C. D. The statute says that the notice and copy of peti- tion is " to he served " upon the person against whom the application is intended to be made at least four- teen days before it is presented. {lb., § 3.) Whether K. 94 746 THE LAW OP EEFEREES. this is to be construed as personal service in all cases, is left for a question ; but the nature of the proceed- ing would seem to demand personal service. Cause, of course, can be shown by production of the person and of his sufficient identity ; and although no pro- vision is made by the statute for any entry, yet, it is presumed that the court would enter a declaratory order showing that the party had been produced. If no sufficient cause be shown to the contrary, the court, on due proof of the service of the petition and notice, is to make an order requiring the party against whom the application is made to produce and show the person claimed to be produced at such time and place and to such referee (commissioner, or two commissioners) as shall be named in the order. (/&., § 4.) SECTION IV. OEDER ON PETITION. At a Special Term of the Supreme Court of the State of New York, held at the City Hall in the city of New York, the — day of , 18 — . Present, , Esquire, Justice. In the Matter of the Petition of C. D., for ( the personal production of A. B. ( On reading and filing the petition of C. D., praying for an order which shall require G. H., of Sfc, to pro- duce and show the person, of A. B., a minor, loho has heretofore resided in the family of the said G. H. (pur- suant to the statute having reference to "proceedings TO DISCOVEE THE DEATH OF PERSONS, ETC. 747 to discover the death of persons upon whose lives any particular estate may depend''"' \, and on reading and filing due proof of personal service of a copy of such petition and of notice of motion thereon, at least fourteen days before the coming on of the said petition on the said G. H. personally {and after reading and filing affidavit of the sg,id G. H., and hearing Mr. of counsel on his behalf), and no sufficient cause being shown to the contrary ; and on motion of Mr. of counsel for the petitioner, it is ordered and hereby required that the said G. H. {loho is the party against whom this present application is made) produce and show the said A. B.to , of , counsellor at law, as referee, and who is hereby appointed referee for that purpose, at his office, No. street, in the city of , on the — day of , next (18 — ), at — o'clock in the noon. That the said referee make his return herein, and in such return {among other things) set forth whether or no the said A. B. ivas produced before him ; also whether he, the said referee, was person- ally acquainted ivith the said A. B. or whether {if he should be produced), his identity was proved by witnesses examined by him, ' and also, that he set forth such proof in his return. And it is further ordered that a certi- fied copy of this order be personally served upon the said G. H., at least fourteen days before the above day on which the said A. B. is to be produced. The referee will have to attend at the time and place specified in the order for the purpose of attend- ing to its execution. {lb., § 5.) Y48 THE LAW OF REFEREES. He will have power to take proof, by the exami- nation of sworn witnesses, as to the identity of the person required to be produced. {lb.) Subpoenas to compel the attendance of witnesses before the referee may be issued and served " in the like manner and with the like effect as before examiners in Chancery." {lb., 6.) Process of sub- poena to compel the attendance of witnesses before an examiner may issue of course. (1 Barb. Ch. Pr., 279.) On the hearing before the referee, if it appear satisfactorily to him, on due proof by affidavit, that the person required to be produced is in prison or is kept or detained by any other, he may allow a writ of habeas corpus to be issued out of the Supreme Court to bring the body of such person before him ; which writ is to be served and executed in the same manner as such writs to inquire into the cause or the detention of any person ; and all the provisions of law in relation to obedience to such writ shall apply to the writ so allowed by such referee. {lb., § 7.) If the person who is required to be produced before the referee should be produced, then the referee must state the same in his report, " return ;" as well as whether he, the referee, was personally acquainted with such person or whether his identity was proved by witnesses examined by him ; and such proof must be set forth in the return. {lb., § 8.) The referee will have to come to a conclusion and not merely state strong presumptive proofs. {Lee v. Willock, 6 Ves., 605 ; and see Sculthorpe v. Burgess, 1 Ves., Jr., 91 ; and Dixon v. Dixon, 3 Bro. C. C, 510.) TO DISCOVEE THE DEATH OF PERSONS, ETC. 749 SECTION V. eeferee's return. Supreme Court. In the Matter of the Petition of C. D., for the personal production of A. B. To the Supreme Court of the State of New York : In obedience to the requirements of the annexed certi- fied copy of order, marked Schedule A., I, , the referee therein named, do certify and return to the Supreme Court of the State of New York that due personal service oj a certified copy of such order upon G. H., in the said order mentioned, on the day of , 18 — , wcks proved, hy production before me of affidavit of service, and as such affidavit is also hereto annexed, marked Schedule B. ; that at the hour, day and place specified in the said order {and ivhich was, at least, fifteen days after such service of copy of order) I attended on the matter herein; and the said petitioner, C. D. and the said G. H. also then and there appeared before me, as well as their respective counsel; likewise then and there appeared in his own proper person, and was pro- duced and shown to me by the said G. H., the said A. B., the minor required to be produced and shown before before me under the said order ; and that he was iden- tified and proved to be the same person by and , witnesses produced, sworn and examined before me, which proof is hereto annexed and marked Schedule C. Also I return that I was not personally acquainted toith the 750 THE LAW OP REFEREES. said A. B. up to the time he was so as aforesaid pro- duced and shown before me. All which is respectfully suhmitted. Dated at , the — day of , 18 — . Referee. {Schedules.) "We presume that the referee might give the return to the party who might, in effect, be considered the prevailing one to file, on the general principle of giving a report to the successful side. {Richards, Receiver, v. Allen, 11 N. Y. Legal Observer, 159.) But as the proceeding is, in this case, called a return, perhaps strictly the referee himself had better hand it in to be filed. On the filing of a return like the above (which shows that the person was produced and that the order has been conplied with) the proceedings are to be discharged ; and the court will direct an entry of such return to be made in its minutes ; and also order the costs of the proceedings to be paid by the applicant. (2 R. S., 344, § 9.) TO DISCOVEB THE DEATH OF PERSONS, ETC. 751 SECTION VI. ENTEY ON MINUTES OF THE COURT THAT ORDER WAS COM- PLIED WITH. Supreme Court. In the Matter of the Petition the personal production of C. D., for I of A. B. C The referee having filed his return herein, whereby it appears that the order of reference in this matter has teen complied with hy the production before him of A. B., in the said order described ; now, on motion of counsel, it is ordered that the proceedings herein be and the same hereby are discharged. Also it is ordered that the costs of the said proceedings be paid by the applicant and petitioner, C. D. We presume that the costs thus g'iven would be taxed according to the fee-bill in force immediately previous to July, 1848. SECTION VIL ACTIVE PART OF EEFEREE'S RETURN WHERE THE PERSON WAS NOT PRODUCED. If, after the referee has waited a reasonable time on such reference, for the production of the person required, and he should not appear, then the referee, in his return (after following the last precedent down to the appearance of parties or counsel before him) 752 THE LAW OF REFEREES. will add : But the said A. B., the minor required to be produced and shown under the said order, loas not pro- duced before me then and there, although I, the said referee, kept the matter of the said reference open for (an hour). All which, 8^c. It may be that the person required to be produced is at some place certain beyond sea or elsewhere out of the State ; and, if this be shown to the court in any stage of the proceeding, by affidavit on the part of the person against whom the application is made, the proceedings are to cease ; unless the party prose- cuting the order shall, at his own costs and charges, obtain a commission, to be issued out of the Supreme Court, and to be directed to one or more commis- sioners, to be appointed by the court, residing at such place, to obtain a personal view of the person called for. {lb., § 11.) A reading of the statute shows, that the sending out of a commission stops, indeed ends, all proceed- ings before a referee ; and the final order will be entered according to the ultimate result of such com- mission, {lb., §§ 12, 13, 14, coupled with §§ 15, 16.) And if it shall so appear from the return of the referee that the person upon whose life the particular estate depends was not produced as required by the order and that due service of such order was made, such person is to be thereafter taken to be dead ; and the party entitled after his death may forthwith enter upon the premises in question, in the same manner as if such person were actually dead. {lb., 345, § 10.) TO DISCOVER THE DEATH OP PERSONS, ETC. 753 SECTION VIII. ENTRY ON THE MINUTES OF THE COURT THAT THE PERSON required was not produced. Supreme Court. In the Matter of the Petition of C, for the personal production A. B. n of > The referee having filed his return herein, whei'ehy it appears that the order of reference in this matter has not been complied with ; that A. B., in the said order men- tioned, was not produced before the said referee, as required^ the said order ; and it appearing by the said return that due service of such order was made : Now, on motion of counsel, it is adjudged that the said A. B. shall hereafter be taken to be dead ; and the party enti- tled after his death to the land and premises described. in the said petition may forthwith enter upon the said land and premises in the same manner as if the said A. B. loere knoion to be actually dead. A copy of any entry made in the minutes of the court, pursuant to the provisions of the statute now under exposition, duly certified, will be evidence, in all courts within the State, of the facts therein stated. (lb., 346, § 17.) Where no provision is made in the statute for the payment of costs of the proceedings, the same are to be paid by such party as the court shall direct. {lb., §18.) E. 95 CHAPTER XXY. REFEREES, IN RELATION TO ALTERING, BISCONTINTTING OR REFUSING TO LAY OUT A ROAD ; ALSO, REFER- ENCE IN REGARD TO THE LOCATION OF A TOLL GATE. SectioD I. Observations in relation to altering, disoontinuinq or REFttsiNG to LAY OUT A ROAD. II. Appeal. III. Form of appeal. IV. Appointment of referees. V. Form of appointment by a justice of sessions where the county judge is interested or otheravise disabled. VI. !N"otige by referees op their appointment. VII. Form of oath of referees. VIII. Notice by referees to the commissioners of highways. IX. Notice to the applicant. X. Witnesses. XI. Form op subp(ena. XII. Powers of the referees. XIIX. Decision of referees. XIV. Form of decision of referees on an order in relation to altering ok discontinuing a road. XV. Observations in regard to the location op a toll gate. XVI. Notice of appeal. XVII, Notice of motion for the appointment of referees. XVIII. Order of reference by the supreme court. XIX. Proceedings before the referees. XX. Fees, costs and expenses. SECTION I. OBSERVATIONS IN RELATION TO ALTERING, DISCONTINUING OR REFUSING TO LAY OUT A ROAD. Justice Birdseye, in The People ex rel. Disosivay v. Flake. (14 How. Pr. R., 527), has so very clearly and neatly given the true position, duties and powers of referees appointed to hear and determine an appeal from a decision of commissioners of highways, that RELATIVE TO EOADS AND TOLL GATES. 755 we are inclined to introduce the subject by an extract from his honor's decision : "By 1 R. S., 518, § 100, 84, any person who conceived himself aggrieved by any determination of the commissioners of high- ways, either in laying out, altering or discontinuing any road, might, at any time within sixty days thereafter, appeal to any three of the judges of the Court of Common Pleas of the county in which such road was situated. By other provisions of the same statute, the judges, to whom the first appeal from such a determination should be made, were to have exclusive jurisdiction of all appeals from the same determination, to the end that their decision, when made, might embrace the whole subject. Notice of their proceedings, on the appeal, was to be given to the parties in interest. The judges were to convene at the time appointed ; and to hear the proofs and allegations of the parties. They had power to issue process to compel the attendance of witnesses ; and could adjourn from time to time as might be neces- sary. Their decision or that of two of them was to be conclusive ; was to be in writing and signed by the judges making it ; and to be filed and recorded in the office of the town clerk of the town. " In all these proceedings, there can be no doubt these judges were discharging a judicial function. They acted as judges. They rendered a judicial determination one whicli had the force and effect of a judgment, and was, as such, capable of review in this court, by the proper proceedings for that pur- pose. They composed, in short, a statutory court of inferior jurisdiction ; and were required to take cog- nizance of certain special proceedings. 756 THE LAW OF EEFEEEES. " The power which the Revised Statutes had thus conferred on any three of the five judges of the Court of Common Pleas was, by chapter 180 of the Laws of 1845, to be exercised thereafter only by the first judge or, in case of his interest or disability or of a vacancy in his ofiice, then by any other disinte- rested county judge of the county, with a right of appeal to two other judges of the same county. " When the Constitution of 1846 abolished the office of judge of the Common Pleas, together with the court itself, a new system was required for the hear- ing of those appeals. It was provided by chapter 455 of the Laws of 1847. By section 10 of this act, the appeal was to be taken to the county judge. There- upon the county judge or, in case of his residence in the town or of his being disqualified from acting by interest or relationship, then, one of the justices of the sessions was to appoint, in writing, three dis- interested freeholders as referees, to hear and deter- mine that and all other appeals which should be taken. These referees were to possess all the powers and discharge all the duties theretofore possessed by the three judges of the Court of Common Pleas under the provisions of the Revised Statutes above referred to ; and, before proceeding to hear the ap- peals, were to be duly sworn faithfully to hear and determine the matters referred to them. " It has been held by the Court of Appeals (4 Seld., 476), that the referees, thus appointed, have all the powers and are charged with all the duties formerly possessed by the three judges of the Court of Com- mon Pleas under the provisions of the Revised RELATIVE TO ROADS AND TOLL GATES. 757 Statutes. On revising tlie determination of tte commissioners appealed from, which refused to lay out the highway, they are bound to make such an order in relation to laying out the highway as, in tlieir judgment, the commissioners should have made. " Clearly they take the place of the judges whose functions they exercise and in whose stead they are substituted. They become a court of inferior juris- diction within the meaning of section 318 of the Code. The proceeding before them is also a special proceeding under section 3 of the Code. {See Havi- land V. White, 7 How. Pr. R, 157." See also People V. Barher (12 Barb. S. C. R, 193), and The People v. Commissioners of Hightoays (4 Seld. R., 476). If an appeal operate as a stay of proceedings, it operates only from the time it is taken and cannot undo or render legal what has been lawfully done under the order appealed from. {Drake v. Rogers, 3 Hill, 604.) The fact that one of twelve freeholders who meet and view the site of a proposed road and certify whether it is necessary and whether it will be proper to lay it out is the brother-in-law of a trustee of a church which holds the title to a part of the land to be taken for such highway, does not render him incompetent to act. He is not "of kin to the owner" of the property within the intent and meaning of the statute. A trustee of a religious society is not lite- rally an owner of its land. It is, in fact, owned by the society ; and hence the relative of a trustee is not of kin to an owner. {People, ex rel Flint, v. Cline, 23 Barb.S. C. R, 197.) 758 THE LAW or REFEREES. When referees have made a decision which lays out, alters or discontinues any road in whole or in part, it is a duty of the commissioners of highways of the town to carry it out in the same manner as is required in cases of final determinations of appeals, namely : as if the decision of the commissioner or commissioners had been in favor and there had been no appeal. (Session Laws of 1857, ch. 445, § 9 ; and of 1845, ch. 180, § 13.) The decision is to remain unaltered for the term of four years from the time the same shall have been filed in the office of the town clerk. (Session Laws of 1857, supra.) When the referees have made their final order and adjourned without day, their powers are spent. In the case of Rogers v. Hunyan and others (9 How. Pr. E,., 248), it appeared that, upon a refusal, by commissioners, to lay out a road, and an appeal and reference, the referees (defendants) on the 3 1 st of July, 1849, reversed the order and directed the commis- sioners to proceed to lay out the road. They, then, adjourned without day. On the 15th of January, 1854, the referees again assumed to act, without any new appointment, and proposed to proceed and lay out the road. Waco's, Justice: "The question raised by the de- murrer in this case is, whether the jurisdiction of the defendants, in the matter of laying out the road in question, terminated with what purported to be the final action taken by them in July, 1849, or whether, after the lapse of some four and a half years from such action and determination, they can reassemble. RELATIVE TO EOADS AND TOLL GATES. 759 under their original appointment, assume their juris- diction over the subject matter and complete what is alleged to have been left ' re infecta.' The de- murrer admits all of the facts alleged and this brings up the question, whether the power of the defend- ants, under their original appointment, was not termi- nated with the order of the 31st of July, 1849. The defendants undoubtedly mistook the powers possessed by them and referred to the commissioners to go on and complete the laying out the road, a duty which by statute was confided to them. But having volun- tarily abdicated their powers and, in effect, termi- nated their existence, by making what purported to be their final order, and adjourning without day, I am of the opinion that they cannot now resume their abandoned jurisdiction and proceed to adjudicate upon a state of facts, which may be materially different from those which existed when the appeal was originally taken and upon the rights of the parties, which may be far more seriously affected than they would have been had the action of the referees now contemplated been taken four years and a half ago. New interests and new improvements may have since grown up and been developed which may make that quite inexpedient and perchance deeply prejudicial, which originally might have encountered no such obstacles and been attended with no such results. There appears to be an entire absence of any direct authority on this question and I am left to decide it upon such considerations as seem to me pertinent to the case. 760 THE LAW OF EEFEEEES. " In the ease of Woolsey v. Tompkins (23 "Wend., 324), cited by defendants' counsel, it is indeed held that, where judges have filed their final order laying out a highway, they have power afterward, to correct any error in the description of the road ; but it is put upon the ground that the making up of the certificate is a mere ministerial act and that, in the administration of justice, it is a matter of course to amend clerical errors; but in the same case it is said that the reversal of the order of the commis- sioners is a quasi judicial act and, therefore, could not be reviewed or altered by the judges. The power of the referees in this case was a special and limited one. They were to hear and determine the appeal. This they assumed to do when they met and reversed the order of the commissioners. " This exhausted their powers ; and the act being * quasi judicial,' could not afterwards be reviewed or altered by the same body, which, by its action, professed to decide the matter committed to their adjudication, and, by adjourning without day, termi- nated their existence. "In Jones v. Crawford (1 John. Cases, 20), the court say, it is a clear and salutary principle that inferior jurisdictions, not proceeding according to the course of the common law, are confined strictly to the authority given them and can take nothing by implication. " It is safer to hold that the authority given to the defendants was exhausted by the action taken by them under and in pursuance of the authority thus imparted, than to assume that, at any distance EELATIVE TO ROADS AND TOLL GATES. 761 of time and ixnder any change of interests, they could revive their abrogated power and review what was on all sides deemed to be a final adjudication. There is nothing to prevent the institution of new proceedings, when the rights and interests of all parties can be duly represented and legally passed upon." Although referees, in reviewing the order of com- missioners, act quasi judicially and their review may have the effect of ending their judicial duties, still, in making up the record of their decision, they act ministerially and may amend it after it is filed. ( Woolsey v. Tompkins, 23 Wend., 324 ; Hallock v. Woolseij, lb., 328.) It is a question, what should be done if any of the referees die or otherwise become incapable to act before they have ended their labors \ No provi- sion appears to have been made for such a circum- stance in the Laws of 1847. When three judges performed the duty under the Revised Statutes, a vacancy among them could have been filled up. In such a case, the remaining judges were to associate with themselves another of the judges of the same court, who was to act with them in all subsequent proceedings in the same manner as if he had been originally named in the appeal. (1 R. S., 519, § 92.) Although the referees have all the powers and are charged with all the duties formerly possessed by the three judges of the Court of Common Pleas {People V. Commissioners of Highways, 4 Seld., 476), and those judges, or rather such as should remain after a vacancy among them, had power to associate K. 96 762 THE LAW OF EEFEEEES. another judge with them, yet, as to referees, thej cannot, on a vacancy, fall back upon any other per- son, in other words, another referee. So that, clearly, remaining referees cannot fill up their statute num- ber. It may be that, under the 8th section of Laws of 1847 (ch. 455), a substituted referee might be appointed by judge or justice where the board of referees had not taken any active proceedings ; but the question remains, where the referees are in the midst of their duties and, then, a vacancy occurs? It is probable that the appointment of a substituted referee, by the judge or justice, and his acting in all subsequent proceedings as if he had been originally named in the appeal, would be upheld under the spirit and former practice pointed out by the above section 29 of 1 Revised Statutes, 519. It seems that costs cannot be awarded against refe- rees, although they may have exhibited extreme impropriety, inasmuch as they act as a court. Their error is an error of judgment, at least in the view of a higher tribunal, and no obliquity of motive is to be imputed to them. {People, ex rel. Visosway v. Flake, 14 How. Pr. R, 527.) SECTION II. APPEAL. An appeal is to be in writing, addressed to the judge and signed by the party appealing ; and must briefly state the ground upon which it is made and whether it is brought to reverse entirely the determi- EELATIVE TO ROADS AND TOLL GATES. 763 nation of the commissioners or only to reverse a part thereof ; and in the latter case, it must specify what part. (Session Laws of 1847, ch. 455, § 8.) SECTION III. FORM OF APPEAL. To A. B., Esq., County Judge of County . I, C. D., of the town of , in the county of ■ conceiving myself aggrieved hy the determination of E. F., commissioner of highways of the said town of , made on the — day of , in laying out (or altering, or discontinuing, or in refusing to lay out) a highway in the said town, on the application of G. H., do hereby appeal to you from such determination. The said high- way (or alteration of the said highway) is described in the order of said commissioner, filed and recorded in the office of the town clerk of the said town of , on the — day of , 18 — , as follows : (insert descrip- tion.) The grounds upon which this appeal is made are (state the same particularly). And the said appeal is brought to reverse entirely the determination of the said commissioner (or, to reverse the determination, Sfc, specifying- the part sought to be reversed). Dated this — day of , 18 — . CD. The judge to whom a first appeal is made will have exclusive jurisdiction of all appeals, to the end that his decision, when made, may embrace the whole subject; and, for this purpose he must suspend all 764 THE LAW OF EEFEKEES. proceedings on the appeal first made and on all other appeals received, until the time limited for such appeals shall have expired. (Session Laws of 1847, ch. 465, § 8 ; 1 R. S, 518, § 85.) And if commis- sioners attempted to open a road through the land of any one appellant while such appellant's appeal was pending, the commissioners would be trespassers. {Clark V. Phelps, 4 Cow., 190.) When any appeal is brought, the judge — or, in case of his residence in the town or of his interest in the lands through which the road shall be laid out, or in case he is of kin to &nj of the persons interested in the lands, or in case of his disability for any cause — then one of the justices of the sessions is, after the expiration of the sixty days, to appoint, in writing, three disinterested freeholders, who shall not have been named by the parties interested in the appeal and who shall be residents of the county, but not of the town wherein the road shall be located, as referees, to hear and determine all the appeals that may have been brought within the said sixty days. (lb.) A corporation owning land on which a highway is laid out, is a " person" within the meaning of the statutes giving a right of appeal. ( The People, ex rel. Dayton v. Maij, 27 Barb. S. C. R, 238.) In that case, Justice Marvin observed : " The counsel for the plaintiff in error insists that a corporation has no right to appeal. He refers to the act of 1853 (Laws of 1853, p. 84), and also to the highway act (1 R. S., 518, § 84), the statutes of 1845, chap. 180, and Laws of 1847, chap. 455. I have looked into the statutes RELATIVE TO ROADS AND TOLL GATES. 765 referred to, and have no doubt a corporation may appeal. By the Eevised Statutes referred to, every person who shall consider himself aggrieved, &c., may appeal, &c. The act of 1845, section 10, speaks of any party or person conceiving himself aggrieved, &c. The act of 1847 uses the words any person. The act of 1853 is entitled, 'An act to regulate the construction of roads and streets across railroad tracts,' and is silent as to appeals. A corporation owning land on which a highway is laid is, in my opinion, a ' person ' within the meaning of the Re- vised Statutes giving the right of appeal. The design of the statute was to give the right to all parties or persons, whether natural or artificial, who should conceive themselves aggrieved. (See 15 John., 381, and cases there cited.) The referees reversed that part of the order which the appellant, in his appeal, specified as the portion to reverse which the appeal was brought. They had jurisdiction, in my opinion, to do this." Referees will be guilty of extreme impropriety in sitting to hear cases of their own near kinsmen. They have no jurisdiction so to do ; and their pro- ceedings, in such cases, would be void. {People, ex rel. Disosioaij v. Flake, 14 How. S. C. R., 527.) It would, therefore, be wrong to nominate, as referees, persons so connected. 766 THE LAW OP KEFEEEES. SECTION IV. APPOINTMENT OP EEFEREES. State of New York, County, ss: Whereas, on the — day of , 18 — , C. D., of the town of , in the said county of , appealed to me, tlie undersigned, county judge, from the order and determination of E. F., commissioner of highways oj the said town, contained in his order filed, &^c. (here follow the above appeal; but if the referees are to hear several appeals, all should be mentioned in the appointment). Now, therefore, in accordance with the statute in such case made and provided, I do hereby ap- point I. J., K. L., and M. N, all residents of the said county of , hut not one of them resident of the said toicn of , referees to hear and determine the said appeal (or appeals). Given under my hand this — day of , 18 — . A. B., County Judge. SECTION V. FOEM OP APPOINTMENT, BY A JUSTICE OF SESSIONS, WHERE THE COUNTY JUDGE IS INTERESTED OR OTHERWISE DISABLED. State of New York, County, ss : Whereas, on the — day of , 18 — , C. D., oj the town of , in the said county of , appealed to the honorable A. B., county judge of the said county, from the order and determination of E. F., com- EELATIVE TO ROADS AND TOLL GATES. 767 missioner of highimys of the said town, contained in his order filed, 8^c. (as in last precedent). And whereas the said county judge is a resident of the said town of (or, is interested in the lands through which the said road is laid out, or, is of kin to X. W., one of the persons interested in the lands through which the said road is laid out ; or, if the judge he disabled from any other cause, state the fact). Now, therefore, in accord- ance with the statute in such case made and provided, I, the undersigned, one of the justices of the sessions of the said county of , do hereby appoint I. J., K. L., and M. N., all residents of the said county of , but not one of them resident of the said town of — , refe- rees to liear and determine the said appeal (or appeals). Given under my hand this — day of — , 18 — . O.P., Justice of the Sessions. The county judge or justice of sessions, as the case may be, is to notify the referees of their appoiutment and, also, deliver to them all papers pertaining to the matters referred to them. (Session Laws of 1847, ch. 455.) SECTION VI. NOTICE TO THE REFEEEES OF THEIE APPOINTMENT. To I. J., of S^c, K. L., of, &;c., and M. N., of, &;c. : Take notice that you have been duly appointed by me, as referees, to Itear and determine an appeal made from the order and determination of E. F., co^nmissioner 768 THE LAW OP EEFEKEES of highways of the town of , in the county of , contained in his order filed, 5fc. (as in the prior forms). And also that the papers herewith delivered are all the papers pertaining to the matter (or matters) referred to you as aforesaid. Dated the — day of , 18 — . A. B., County Judge. (Or, O. P., Justice of the Sessions of County.) It is the duty of the referees to proceed in the matter entrusted to them " as soon as may be con- venient." {lb.) The referees are to be sworn before they act. (/&., §8.) SECTION VII. FORM OP OATH OF EEFEREES. County, ss : We, the undersigned I. J., K. L. and M. N., referees appointed to determine the appeal of G. H. (or, appeals of G. H., 8^c.), from the order of the commissioners of highivays for altering (or, dis- continuing, or, in refusing to lay out) a highway in the toion of , do, severally, solemnly swear, make oath and say, that we will faithfully hear and determine the said appeal (or, appeals) referred to us. Sworn at , in the county of^ , the — day of , > 18 — , hefoix me, ) (To be sworn before some officer authorized to take affidavits to be read in courts of record.) RELATIVE TO ROADS AND TOLL GATES. 769 This affidavit had better be annexed to the deci- sion of the commissioners, as it will, then, appear of record that the statutory provision requiring the referees to be sworn had been complied with. Where the appeal is from a determination in favor of an application for laying out, altering or discon- tinuing a road, the referees must give notice to the commissioners by whom such determination was made ; and where it is from a determination in favor of an application for laying out, altering or discon- tinuing a road, the notice must, not only, be given to the commissioners, but also to one or more of the applicants for such road. In all cases, the notice will have to specify the time and place at which the referees will convene to hear the appeal. {lb. ; and see The People v. Judges of Herkimer C. P.,20 Wend., 186.) SECTION vin. NOTICE BY REFEREES TO THE COMMISSIONER OF HIGHWAYS. To E. F., Commissioner of Highways of the town of , in the county of ^ . Take notice that we have been duly appointed referees to hear and determine an appeal made to A. B., county judge of the county of , by C. D., of the town of , in the said county, from your determination con- tained in your order made on the — day of , 18 — , and filed and recorded in the office of the town clerk of the said town on the — day of , 18 — , refusing to R. 97 770 THE LAW OP REFEREES. lay out, 8^c. (as in the appeal) ; and that we shall attend at the house of Q. R., in the said town, on the — day of next, at — o'clock in the noon of that day, to hear and deter7nine such appeal. Dated the — day of , 18—. I. J., K.L., M.N., Referees. SECTION IX. NOTICE TO THE APPLICANT. To a D. : Take notice that we shall attend at the house of Q. R., in the town of in the county of , on the — day of next, at — d clock in the noon of that day, to hear and determine the appeal hy you made to A. B., county judge of the said county, from the order and determination of E. F., coinmissioner of high- ways of tlie said town of , contained in his order made on the — day of , 18 — , and filed and re- corded in the office of the town clerk of the said town on the — day of , 18 — , refusing to lay out, Sfc. (as in the appeal). Dated the — day of , 18 — . I. J., K.L., M.N., Referees. RELATIVE TO ROADS AND TOLL GATES. 771 The notices have to be served at least eight days before the time mentioned therein, by delivering the same to one of the commissioners whose determina- tion is appealed from or by leaving the same at his dwelling house. If the notice be also directed to an applicant, it must be served in the same manner. (Session Laws of 1847, ch. 455, § 8, and of 1851, ch. 487 ; 1 R. S., 519, § 106.) SECTION X. WITNESSES. The referees have power to issue process to compel the attendance of witnesses. SECTION XI. FORM OF SUBPCENA. State of New Yorh, County of , to wit: To R. 8., T. U. and V. W., greeting. You and each of you are hereby commanded, in the name of the People of the State of New York, to appear hefore us, at the house of Q. R., in the town of in the county of , on the — day of next, at — d clock in the noon of that day, to testfy in the matter of an appeal made hy C. D., from a determination of E. F., 8^c., com- missioners of highioays of the said town of . On the part of the said C. D., appellant (or, the said E. F., 772 THE LAW OP REFEREES. commissioner). Given under our hands this — day of , 18-. I. J., K.L., M.N., Referees. The commissioners, being parties to the record, are not competent witnesses on an appeal. {Commis- sioners of Bushwick V. Meserole, 10 "Wend. E., 122.) It is the duty of the referees to convene at the time and place mentioned in their notice and to hear the proofs and allegations of the parties. (1 R. S., 107, as modified by Session Laws of 1847.) OATH TO WITNESSES. The witnesses will be sworn by any one of the referees in the following form : The evidence you shall give upon this hearing of the appeal of C. D. shall be the truth, the whole truth and nothing hut the truth, so help you God. SECTION XII. POWERS OF THE REFEREES. The referees have all the powers of a court which hears and adjudges ; indeed, as was said in The People V. Flake (14 How. Pr. R, 527), they become a court of inferior jurisdiction within the meaning of section 318 of the Code. They are to hear the EELATIVE TO ROADS AND TOLL GATES. 773 proofs and allegations of the parties, have power to issue process to compel the attendance of witnesses, may adjourn from time to time as may be necessary, and their decision, or the decision of two of them, will be conclusive in the premises. (1 R. S., 519, § 89 ; Laws of 1847, ch. 455, § 8.) And see The People V. Commissioners of Highways (4 Seld., 476), where it is decided that the referees have all the powers and are charged with all the duties formerly possessed by the three judges of the Court of Common Pleas under the provisions of the Revised Statutes. (1 R. S., 518, § 85 ; lb., 519, § 89.) An appeal of the character now referred to, is not heard and decided on the facts existing at the time of the original application for the road, but on the facts existing at the time of the hearing before the referees. In this respect it is in the nature of a new proceeding. {The People v. Goodwin, 1 Seld., 568.) Referees are not concluded by a statement in the determination or order of commissioners that twelve freeholders had met and decided that a proposed new road and alterations were necessary and proper. It is not conclusive and can be re-examined by the referees when the matter comes before them. {The People V. Cline, 23 Barb. S. C. R., 197.) In connection with the statutory power given to referees appointed to hear and determine an appeal from a decision of commissioners of highways in refusing to lay out a road, it has been decided that where such referees reverse the decision, it is their duty to proceed and lay out the road as directed by the 91st section of the Revised Statutes. (1 R. S., 774 THE LAW OF REFEREES. 519 ; People, ex rel. Zimmer v. Barber, 12 Barb. S. C. R., 193 ; 8. P. People v. Commissioners of Cherry Valley, July, 1 853, Clinton's Digest, Supplement.) On revising the determination of commissioners, the referees should make such order in relation to the laying out the highway as, in their judgment, the commissioners should have made. {The People V. Commissioners of Highivays, 4 Seld., 476.) If they simply reverse an order refusing to lay out a highway without giving further directions, the commissioners are not bound to lay it out. {lb.) "The adoption of the Constitution of 1846," observed Justice WiLLAED, in the case referred to, " abolish- ing the Court of Common Pleas, rendered a revision of so much of the highway laws, as relate to appeals, expedient. This was done by the act of December 14, 1847. (Laws of 1847, p. 580.) The 8th section of this act is apparently framed from the 84th sec- tion of the 1 Revised Statutes, 518, and merely sub- stitutes the county judge for the three judges of the Court of Common Pleas of the county, as the person to whom the appeal shall be addressed. It requires the county judge, on receiving the appeal, to appoint three disinterested freeholders of the county, but belonging to another town, to hear and determine such appeal. Upon receiving notice of their appoint- ment, the referees possess all the powers and are required to discharge all the duties heretofore pos- sessed and discharged by the three judges. The reference here is undoubtedly to the power of the three judges under the Revised Statutes. The 9th section enacts, that whenever the referees shall make RELATIVE TO EOADS AND TOLL GATES. 775 any decision laying out, altering or discontinuing any road in whole or in part, it shall be the duty of the commissioners of highways of the town to carry out such decision in the same manner as required in cases of final determinations of appeals, as provided by the 13th section of the act of 1845, and such decision shall remain unaltered for the term of four years from the time the same shall have been filed in the office of the town clerk. This section applies to every case whether the referees differ wholly or only in part from the commissioners. Formerly the judges in appeal could only affirm or reverse in toto, {Com. of Highways v. The Judges of Chenango, 25 Wend., 453.) " The 9th section was intended to extend the power of the referees on appeal to a partial reversal or modi- fication of the order of the commissioners. In the present case, there was a total reversal of the order of the commissioners. But the determination of the referees was incomplete, if they intended the road should be laid out according to the prayer of the petitioners. Whether their duty is to be measured by that of the judges of the Common Pleas under the Revised Statutes, or under the 13th section of the act of 1845, they were required, on reversing the decision of the commissioners in refusing to lay out the road, to layout the road as prayed for in the petition or if they reversed only in part, to describe by courses and distances the road which they direct the commis- sioners to lay out and open. Their decision is to be made in writing and filed in the town clerk's office, whether they lay out the road in whole or in 776 THE LAW OF KEFEEEES. part as prayed for. (Laws of 1847, p. 584, § 9.) It was probably the duty of the referees, in reversing in whole the determination of the commissioners in refusing to lay out the road, to make such order as the commissioners should, in their judgment, have made : that is, in this case, an order to lay out the road according to the prayer of the petitioner. In omitting to make such order, and merely reversing the order of refusal, their determination was incom- plete. The commissioners of highways were not bound to lay out the road upon the mere reversal of their order of refusal." The referees have power to reverse the decision of commissioners in part and to affirm it as to the resi- due. This point came up in The People v. Baker (19 Barb. S. C. R., 240). A highway was laid through inclosed lands, and twelve freeholders had certified to its necessity. An appeal was brought for the purpose of reversing the order of the commissioners of highways in toto ; but the referees appointed by the county judge affirmed the order in part and reversed it in part. It was insisted that the referees had no right to do this ; but that they must either reverse or affirm the order as a whole. By the, court, Green, J. " This case presents the question, whether referees appointed by the county judge, under sec- tion 8 of chapter 455 of the Laws of 1847 (vol. 2, p. 586), to hear and determine an appeal brought under that section from the determination of commissioners of highways in a proceeding to lay out a highway, can, on the hearing of such appeal, reverse the deci- sion of the commissioners in part and affirm it as to RELATIVE TO ROADS AND TOLL GATES. 777 the residue ? The relator relies upon the case of The Co7nmissioners of Highways of 8herhurne v. The Judges of Chenango (25 Wend., 453), in which it was held, that, while the freeholders had certified to the necessity of a road and the commissioners had re- fused to lay it out, the judges, on appeal, could not reverse the decision of the commissioners as to a part of the road and lay it out and affirm the decision as to the other part and refuse to lay out such part. It will be seen, by a reference to the provisions of the Revised Statutes, respecting the appeal from the determination of the commissioners, that the provision is general and applies, in terms, to all cases in which an appeal may be taken. (§§ 84 and 86, 1 R. S., p. 518.) Section 84 provides, ' that any person who shall conceive himself aggrieved by any determina- tion of the commissioners, either in laying out, alter- ing or discontinuing any road, may appeal to any three judges of the Court of Common Pleas,' &c. Section 9 of chapter 180 of the Laws of 1845 (Laws, p. 185), provides that this appeal shall be taken to the first judge ; and section 8 of chapter 455 of the Laws of 1847 provides that the appeal shall be taken to the county judge, and he shall, thereupon, appoint referees to hear and determine the same. This sec- tion also provides that the appeal shall be taken in the same manner as appeals were theretofore allowed to be brought, under the above cited provisions of the Revised Statutes. Section 86 of the. Revised Statutes, above cited, provided that every such ap- peal should be in writing, addressed, &c., and signed by the party appealing ; and that it should state the R. 98 778 THE LAW OF REFEREES. grounds upon which it was made, and whether it was brought to reverse entirely the determination of the commissioners or only to reverse a part thereof. Section 91 of the Revised Statutes provided that, when an appeal should have been made from a determination of commissioners refusing to lay out or alter a road and the judges should reverse such determination, such judges should lay out or alter the road applied for and, in doing so, should proceed in the same manner as commissioners. Section 91 was abrogated by section 13 of chapter 180 of the Laws of 1845 (Laws, p. 186), which provides, that ' where there shall have been any final determination on such appeal, making it necessary that any road shall be laid out, altered,' &c., it shall be the duty of the commissioners to carry out such determination the same as if the decision of the commissioners had been in favor of the road and there had been no appeal. Section 9 of chapter 455 of the Laws of 1847 (vol. 2, p. 584), provides that, when said refe- rees shall make any decision laying out, altering, &c., any road, in whole or in part, it shall be the duty of the commissioners of highways of the town to carry out such decision in the same manner as is required in cases of final determinations of appeals, as provided by the 13th section of the act hereby amended (ch. 180, Laws of 1845). The difference between this provision and the provisions of section 91 of the Revised Statutes and those of section 13 of chapter 180 of the Laws of 1845 is very material. Indeed, I am unable to understand the object of the provision last quoted (§ 9, ch. 455, Laws of 1847), RELATIVE TO EOADS AND TOLL GATES. 779 unless it was to authorize, expressly, the precise dis- position of the questions arising on the appeal that was made by the referees in this case of the matter pending before them. It will be seen that section 13, above cited, is not repealed ; and that ample provision is there made for carrying out the determi- nation of the referees in cases where they affirm or reverse the decision of the commissioners in toto, and that the provisions of section 9, above quoted, apply, in terms, to any road ; and I am unable to see why they are not applicable alike to cases where the commissioners have acted without a jury and to cases where a jury has certified to the necessity of the road. I am of opinion, therefore, that whatever doubt there may have been as to the true construc- tion of section 91 of the Revised Statutes, has been removed by this provision ; and that the decision of the referees was right." As a judge, before whom proceedings supplemen tary to execution are pending, has no power to order a commission to be issued for the examination of witnesses residing out of the State to take testimony to be used on such proceedings (^Graham v. Colhurn, 14 How. Pr. R, 52), a referee certainly could not listen to an application for a commission or give a certificate touching it. If commissioners exceed their jurisdiction, their order will not be helped by the affirmance of the referees. {Ex parte Clapper, 3 Hill, 458.) 780 THE LAW OF REFEREES. SECTION xin. DECISION OF EEFEEEES. Every decision of the referees is to be reduced to writing, signed by them and filed by them in the office of the town clerk of the town, who is to record the same. (1 R. S., 319, § 108 ; and Session Laws of 1847, ch. 455, and of 1851, ch. 487.) The decision of all or any two will be conclusive. (lb.) SECTION XIV. FOEM OF DECISION OF EEFEEEES ON AN ORDEE IN RELA- TION TO ALTERING OR DISCONTINUING A ROAD. 8iaie of New York, county, ss : Whereas, on the — day of , 18 — , C. D., of the town of , in the county of , appealed to the Honorable A. B., county judge of the said county, from the order and determination of E. F., S^c, commissioners of highways of the said town contained in his order filed, 8fc. (as in the former precedents), copies of which appeal and order are hereto annexed. And whereas, we, the undersigned, having been duly appointed hy the said county judge (or hy O. P., Justice of the sessions of county, the said A. B., county judge, being dis- abled from acting in the premises), referees to hear and determine the said appeal, attended at the house of Q. R., in the said town of , on this — day of , RELATIVE TO EOADS AND TOLL GATES. 781 18 — , at — d' clock in the noon, in pursuance c) notice duly given to the said commissioners and to the said C. D., the appellant above named, according to the statute in such case made and provided, to hear the proofs and allegations of the parties. And whereas such hearing having been had in the premises, we do hereby adjudge, decide and determine that the order and deter- mination of the said commissioners he and the same is, in all things, affirmed (or reversed, or reversed in part as follows, namely: setting fortli the decision in full). Given under our hands this — day of , 18 — . K.L., M.N., Refirees. If the decision have reference to an order refusing to lay out a road, then adopt the above precedent down to the word " commissioners," in the last paragraph and add: be and the same is, in all things, reversed; and that a highway be and the same is hereby laid out, pursuant to the application of the said O. H., and pursu- ant to a survey thereof which we have caused to be made, as follows, namely : beginning, Sfc. (insert the survey). And we do further order and declare that the line above mentioned shall be the centre of the said highway, which is to be of the width of — rods. Given, S^c. 782 THE LAW OF EEFEEEES. SECTION XV. OBSERVATIONS IN EEGAKD TO THE LOCATION OP A TOLL GATE. Whenever commissioners of highways of any town in which a toll gate may be upon a plank or turn- pike road or a majority of such commissioners shall be of opinion that the location of such gate is unjust to the public interest by reason of the proximity of diverging roads, or for other reasons, may, on at least fifteen days' written notice to the president or secretary of the road company, apply to the county court of the county in which such gate is located, for an order to alter or change its location. And the court, on such application and on hearing the respec- tive parties and on viewing the premises (if the court shall deem such view necessary) shall make such order as may be just and proper. (Acts of May 7, 1847, ch. 210, § 37, and July 10, 1851, ch. 487.) Either party may, within fifteen days thereafter, appeal from such order to the Supreme Court, on giving such security as said county judge shall require. (/^.) The order, unless appealed from, is to be observed; and may be enforced by attachment or otherwise. And if appealed from, the decision of the Supreme Court is final. {lb.) The County and Supreme Courts may direct the payment of costs in the pre- mises as shall be deemed just and equitable. (Jh.) EELATIVE TO ROADS AND TOLL GATES. 783 SECTION XVI. notice of appeal. County Couet of the County of . In the Matter of the Toll gate upon the plank road from, &c. The undersigned, a majority of commissioners of high- ways of the town of (or, the president, directors and company of the plank road known as the ), do hereby appeal to the Supreme Court from the order of the court in the above matter dated the — day of , 18 — , and claim that referees be appointed to hear, try and deter- mine such appeal, pursuant to the statute in such case made. (Signed.) To the President, Directors and Company of the plank road known as the (or, the Commissioners of the toion of ), and to the Supreme Court and the Clerk thereof at the Capitol in the city of : /, the undersigned county judge, before whom the order referred to in the above notice of appeal was made, do certify that the party making such appeal has given security on the appeal as required by me and in pursu- ance of statute, and which I have directed to be filed with the clerk of the Supreme Court, Sfc. "Whenever an appeal is had, the Supreme Court, on motion of either party on due notice, is to appoint three disinterested persons, who are to be in no wise interested in the road, company or in the question of the location of the toll gate itself and who are not 784 THE LAW OF EEFEEEES. residents of any town through or into which such road shall run or to or from which such road shall be a principal thoroughfare, referees to hear, try and determine such appeal. (Act of 1851, ch. 487, § 1.) It is presumed that the motion would be had at special term and be founded on an affidavit that an appeal was had and filed within the fifteen days required by the statute (annexing a copy) and that the security also required and approved was filed. SECTION xvn. NOTICE OF MOTION FOE THE APPOINTMENT OF EEPEREES. Supreme Court, on appeal from the County Court for tJie county of . In the Matter, &c. Take notice thxit on the appeal, of which a copy is hereto annexed, and on an affidavit, of which a copy is also annexed, a motion will be made at special term, to be held at, 8^c., on, 8^c., at the opening of court or as soon as counsel can be heard that referees be appointed to hear, try and determine such appeal. Dated, (^c. A majority of the Commissioners of Highways of the town of . (Or, The President, Di- rectors and Company of the Plank road known as the .) To the President, Directors, Sfc, Sfc. (or, the Co7nmis- sioners of Highways of the town of ). RELATIVE TO ROADS AND TOLL GATES. 785 SECTION XVIII. OEDER OF REFERENCE BY THE SUPREME COURT. At a Special Term of the Supreme Court, held at, 8^c., Sfc. Present, Sfc. In the Matter, &o. This being an appeal from an order of the County Court of , dated the — day of , 18 — , wherein and whereby it is ordered, 8^c., S^c. ; now, on reading and Jiling, 8^c., and after hearing, 8^c., it is ordered that A. B., of, 8^c., C. D., of, 8^c., and E. F., of, Sfc, three disinterested persons who are in no wise interested in the road or in the question of loca- tion of the above toll gate itself, nor residents of any town through or into lohich such road runs, or to or from which the said road is a principal thoroughfare, referees to hear, try and determine such appeal. SECTION XIX. PROCEEDINGS BEFORE THE REFEREES. The referees are to proceed to view the premises and the location of the gate affected by the order appealed from; and will proceed to a hearing of the respective parties in the same manner as is provided by law and the rules and practice of the Supreme Court on references of civil actions. They must report their decision to the said Supreme Court E. 99 786 THE LAW OP KEFEEEES. as referees are required to report, together with the evidence taken by them and the grounds of such decision. And their report may be reviewed by the said court, and judgment given thereon as justice and equity may require, in view of the law and the facts so presented. Such judgment will be final and conclusive. (Act of 1851, ch. 487, § 2.) It is deemed unnecessary to elaborate the pro- ceedings before the referees or to give more forms or precedents, as the prior part of this chapter, relative to proceedings of referees in relation to altering, &c., roads, will give sufficient information how to act further. SECTION XX. FEES, COSTS AND EXPENSES. The referees will be entitled to the compensation now provided by law to referees in civil actions, to be paid, in the first instance, by the party in whose favor their report and decision shall happen to be. The Supreme Court, on motion, can award judgment for the same, together with such amount of costs and expenses as shall be deemed reasonable to the party succeeding. This judgment will be entered with the order and judgment affirming or reversing the order of the County Court; and, thereupon, the party succeeding may issue execution and collect and enforce the same as upon judgments in civil actions. (/&., Act of 1851, ch. 487, § 3.) RELATIVE TO EOADS AND TOLL GATES. 787 Where a County Court, upon the application of commissioners of highways, makes an order for the removal of a toll gate on a plank road and the plank road company appeals to the Supreme Court, and referees are appointed, who make a report in favor of removing the gate, but to a different place from that designated by the County Court, the case is not within the provision of the act of 1851, amending the general plank road act, so far as relates to the allowance of costs to the party succeeding on the appeal. The court may, therefore, make such order as it would make if acting under the 37th section of the general plank road act of 1837. {^Matter of Com- missioners, &;c., of Lewiston, 15 Barb. S. C. E., 137.) In that case, the court, through Justice Taggart, observed : " The question then arises, in whose favor did the referees report and decide 1 The decision is not wholly in favor of the respondents, because it does not sustain the order of the County Court. Neither is it in favor of the appellants, because it directs the removal of the gate. Again, neither party has entirely succeeded on the appeal ; but, if either party can be said to have succeeded it is the appellant, who, although it has not reversed, yet it has modified the order of the County Court. The Supreme Court is to award judgment for costs to the party succeeding on the appeal, which judgment is to be entered with the order and judgment of said court, affirming or reversing the order of the County Court. Now, there is no judgment or order either reversing or affirming the order of the County Court ; the judgment for 788 THE LAW OP EEFEEEES. costs, cannot, therefore, be entered with such order. If, however, it should be imperative on us to award costs, it seems to be most in accordance with the requirement of the statute to give costs to the appel- lant. " I think, however, in this case that such a disposi- tion of the costs is not required. That the case is not within the provision of the act of 1851, so far as relates to the allowance of costs ; and that we may, therefore, make such order as we should have made if acting under the 37th section of the act of 1847. That section authorized the Supreme Court to direct the payment of costs as should be just and equitable. In this case, the respondents succeeded before the County Court in obtaining an order for the removal of the gate and were equitably entitled to the costs of their proceedings in obtaining the order. The appellants have succeeded in modifying such order ; and are equitably entitled to the costs of appeal. "We are authorized to give judgment as justice and equity require. I think, in view of all the facts, that we should so modify the order of the County Court as to require the removal of the gate in accordance with the report of the referees and that no costs be allowed to either party in the County Court or in this court." CHAPTER XXVI. REFERENCE IN A CONTROVERSY BETWEEN TRUSTEES OF AN INSOLVENT DEBTOR AND ANY OTHER PERSON. Section I. Observations. II. Form op debt. III. Agreement to refkb. IV. Rule. V. Notice of intention to apply for the appointment op refkbebs. VI. Certificate op officer op selection of referees. VII. Rule entered by the clerk on the above certipioatb. VIII. Form op report. SECTION I. OBSERVATIONS. If any controversy happens to arise between trus- tees of an insolvent debtor and any other person, in the settlement of any demands against such debtor or. of debts due to his estate, the same may be refer- red to three indifferent persons, who may be agreed upon by the trustees and the party with whom such controversy shall exist, by a writing to that effect, signed by them. (2 R. S., 45, § 19.) If such referees be not so selected by agreement, then the trustees may serve a notice on the other party to such controversy, of their intention to apply to the officer who appointed them or to any other officer of like authority residing in the same county, for the appointment of referees. (Ih., § 20.) Prior to the above provisions of the Revised Sta- tutes, similar matter was embraced by the Revised Laws of 1813 (p. 171) ; but, there, the rights of the 790 THE LAW OF EEFEEEES. trustees embraced also " demands " as well as debts due to the insolvent's estate. An exposition of tbe present statute occurs in Denny and the President and Directors of the Manhattan Company (2 Hill's E., 220). In that case, trustees claimed a right of transfer of certain shares of stock. Nelson, Ch. J. : " By sec- tion 19 of the act respecting the powers, obligations, &c., of trustees, it is provided, that if any controversy shall arise between the trustees and any other per- son, in the settlement of any demands against such debtor (non-resident debtor, &c.), or of dehts due to his estate, the same may be referred to three indiffer- ent persons by the mutual agreement of the parties. By section 20, if such referees be not selected by agreement, the trustees may give ten days' notice of an application to the officer who appointed them, &c., for an appointment, specifying the time and place; and by the subsequent sections (§§ 21, 22, 23, 24), a compulsory appointment may be made and a rule entered on certificate by the clerk of the Supreme Court, and the referees so appointed shall have the same powers and be subject to the like duties and obligations and shall receive the same compensation as referees appointed by the Supreme Court in personal actions. " The question here is, whether the subject in con- troversy is a debt due to the estate of the non-resi- dent debtor, within the meaning of section 19 of the above statute I " The language of the old act, from which this was taken, is broader than that used here. The 16th section of the old act (1 R. L,, 1813, p. 161), INSOLVENT DEBTOR. 791 provided, that in case of any controversy arising respecting any claim of a creditor or concerning any ckbt or demand claimed by the trustees, &c., referees might be appointed in the mode pointed out by the section. " It would seem, from this change of phraseology in the new provision, that the Legislature intended to confine the power of a compulsory appointment to narrower limits than formerly existed under the old law ; for it is clear that the term ' demand ' is of much broader import than ' debt' and would embrace rights of action belonging to the debtor beyond those which could appropriately be called debts. In this respect, the term demand is one of very extensive import, among the most so, indeed, of any that are known to the law. " The ordinary and legal acceptation of the term 'debt' imports a sum of money arising upon a con- tract express or implied (3 Bl, Comm., 154); and from the connection in which it is found in the statute under consideration, I think was so intended to be used by the law makers. "The whole article of the statute relates to the powers, duties, &c., of the trustees in managing, collecting and converting all the assets of the estate into money for the purpose of distribution among the creditors. By section 3, ' the debts and property of the estate may be collected,' &c. By section 7, ' the trustees may sue and recover, &c., all the estate, debts and things in action belonging or due to the debtor, &c., and no set-off shall be allowed, &c., for any debt, unless it was owing to such creditor before 792 THE LAW OP EEFEEEES. publication.' By section 8, all persons indebted to the estate stall, by a day specified, ' render an ac- count of all debts and sums of money owing by tliem,| &c., and all persons ' having in their possession any property or effects of such debtor, shall deliver the same,' &c. By section 10, the trustees may 'sue for and recover any property or effects of the debtor or any debts due to him, at any time before the day ap- pointed for the delivery or payment thereof By section 11, 'every person indebted,' &c., or having the possession or custody of any property or thing in action, &c., who shall conceal the same, &c., shall forfeit double the amount of such debt or double the value of such property." "Then comes the provision in question. (§ 19.) 'If any controversy shall arise, &c., in the settle- ment of any demands against such debtor or of debts due to his estate, the same may be referred,' &c., which, in connection with the previous sections, and the destinction there kept up throughout, between debts due the estate and other assets consisting of pro- perty and rights resting in action, I think, fairly indicate that the Legislature had regard to the same distinction, when using the like form of expression in respect to this summary mode of adjustment of the controversy. " This -view, also, harmonizes somewhat with the statute authorizing the reference of causes by the courts in which they are pending — a statute which has been long in use and to which section 24 of the statute in question refers for the mode of con- INSOLVENT DEBTOR. 793 ducting the proceedings after the entry of the rule appointing the referees. " We may add, that the act is in derogation of the common law and should not be enlarged by indulg- ing in a liberal construction. " If we are correct in our conclusion, the contro- versy in question is certainly not a debt, within the meaning of the act; nor in the ordinary legal acceptation of that term as understood in the books. The claim is but a right or title to a certain species of property — stock in an incorporated company. It is no more a pecuniary demand against the defend- ants, resting in contract express or implied, than a valuable picture or heir-loom to which title had been shown. It is true, from the intangible nature of the thing, neither trespass nor trover can be brought, the appropriate remedy for a refusal to transfer being a special action on the case, and even assumpsit may be sustained founded upon the duty arising out of the obligation to make the transfer and the peculiar character of this species of property. " No judgment can, therefore, be rendered in favor of the trustees ; and the motion to set aside the report must be granted." Supposing a reference is to be had by agreement (under section 19), it will be well to attach the par- ticulars of the debt to such agreement, the latter stating the claim on one side and a denial of its jus- tice on the other, and in that way show substantially the issue, making it, thus, a substitute for declara- tion and plea. The statute makes no provision for pleadings in such a case. The claim and denial will E. 100 794 THE LAW OF EEFEKEES. be considered a part of the record, as mucli as though they took the form of pure pleading; and there ought, in the referee's report, to be a sufficient record of the proceedings on which an execution might issue. SECTION II. FOEM OF DEBT OK DEMAND. Debt due (or, debt alleged to he due) from G. H. to the estate of A. B., insolvent debtor, demanded by his trustees, the undersigned C. D., and E. F. (Or, Demand of G. H. against A. B., insolvent debtor, of whose estate the undersigned C. D. and E. F. are trustees.) 18—, May — . For the folloiving goods sold and delivered, and at the prices following, t^c. Interest tJiereon from, S^c. A promissory note, 8^c., S^c. Interest thereon from, 8^c., 8^c. SECTION III. AGREEMENT TO EEFEE. Whereas the undersigned C. D. and E. F., trustees aforesaid, have claimed and demanded the above described debt of the above named G. H. ; and tvherea^^ the latter denies that he owes the same, alleging that, S^c. (so as to INSOLVENT DEBTOE. 795 form, an issue). (Or, Whereas the undersigned, Q. H., has or claims to have the above described demands against A. B., the above named insolvent debtor. And whereas the above named C. D. and E. H., trustees of his estate, deny that he owes the same, alleging that, S^c). It is, therefore, agreed, in pursuance of the statute in such case made and provided by and between the said C. D. and E. F., trustees aforesaid, and G. H., that the said claim in controversy be referred to I. J., of, S^c, K. L., of, 8^c., and M. N., of, 8^c., three disinterested persons, as referees to hear and determine upon the same with all convenient speed. Dated this — day of , 18 — . CD., E.F., G.H., Trustees. The rule upon this will be entered by the clerk. (2 R S., 45, § 23.) SECTION IV. RULE. COUET. lu the Matter of the debt due or\ debt alleged to be due from G. / H. to the estate of A. B., anl insolvent debtor (or, demand off G. H. against A. B., an insolvent \ debtor.) / The — day of , 18 — . On reading and filing an agreement, signed by the above G. H. and by C. D. and E. F., trustees of the estate of the above A. B., insolvent debtor ; and on motion of Mr. , of coun- 796 THE LAW OF REFEREES. sel on behalf of the said , ordered that the above debt or alleged debt (or, demand), be and the same hereby is referred to I. J., of, 8^c., K. L., of, 8fc. and M. N., of 8^c., pursuant to the said agreement and by force of the statute. 7 Clerk of the Court of, 8^c. On filing the above, liave a duplicate or certified copy, as well of the debt or demand and agreement as of the order for the referees ; and serve a copy- on the alleged debtor or claimant or his attorney. In case there is no selection of referees by agree- ■ ment, then will come the notice under section 20. It will be well to accompany such notice with a copy of the debt or demand. SECTION V. NOTICE OF INTENTION TO APPLY FOR THE APPOINTMENT OF REFEREES. In the Matter of, &o. (as before.) \ To G. H., a debtor to the estate of A. B., insolvent debtor (or having a demand, or alleged demand against A. B., insolvent debtor') : Take notice that toe, the undersigned, C. D. and E. F., trv^tees of the estate of the above insolvent A. B., intend to apply to his honor, judge, 8^c., at, S^c, on the — day of , 18 — , or as soon thereafter as counsel can be heard, for the appointment of referees to determine INSOLVENT DEBTOR. 797 the annexed debt or demand, which is in controversy be- tween us. Dated the — day of , 18 — . Yours, a D., E. F., Trustees of A. B., insolvent debtor. No provision appears to be made for the allowing an alleged debtor or one having a demand against the insolvent to move for a reference; the trustees alone are to be actors as to it. The notice is to be served at least ten days before the time specified in it for making the motion. (2 R. S., 45, § 20.) At the time specified for the motion, the trustees may nominate two persons, not being creditors of such debtor or otherwise interested ; and the other party to such controversy or, in case of his absence or refusal, the said officer, on due proof of the service of such notice, in his place, will nominate two in- different persons. (/&., § 21.) The names of the persons thus nominated are to be written on four pieces of paper, as similar in all respects as may be, which must be rolled up sepa- rately and put into a box, and from thence the said officer is to draw out three of them ; and the persons, whose names are so drawn, shall be the referees to determine the controversy. {lb., § 22.) The officer before whom they are to be selected will have to certify such selection in writing. Such certificate, or the written agreement of the parties, must be filed by the trustees in the office of a clerk of the Supreme Court, when the trustees were ap- 79 8 THE LAW OF EEFEEEES. pointed tinder the first article of this title ; and in the said oflfice or in that of the clerk of the Court of Common Pleas of the county, when the trustees were appointed under any other article of this title ; and a rule will thereupon be entered by such clerk, in vacation or in term, appointing the persons so selected to determine the controversy. {lb., 23.) SECTION VI. CERTIFICATE OF OFFICER OF SELECTION OP REFEREES. In the Matter of, &o. ! Due proof of service being hereto annexed of notice, also hereto attached, for the appointment of referees in the above matter of the debt (or demand) fastened to the said notice, and the trustees of the above insolvent having nominated I. J., of S^c. and K. L., of, Sfc, and the said G. H. having nominated M. N., of, S^x., and O. P. of, 8^c. (or, the said O. H. making default and being absent or refusing, I, the undersigned, judge of, 8^c., having nominated M. N., of, 8^c., and O. P., of S^c, all indiffer- ent and disinterested 'persons and not creditors of the said insolvent and all tlieir names having been written and put in a box, I, the (said) undersigned Judge of S^c, before whom the said notice and motion came, do hereby certify that I did draw thence (from such box) the following three out of the said four names, namely : K. L., M. N. and O. P. ; and I further certify that the said K. L., M. N. and O. P., are referees to deter- mine the controversy of such debt (or demand). INSOLVENT DEBTOR. 799 SECTION VII. EULE ENTERED BY THE CLERK ON THE ABOVE CERTIFICATE. Court. In the Matter of, &c. The — day of , 1 8 — . On reading and filing the notice of C. D. and E. F., trustees, and its accom- panying debt (or, demand) and tlie certificate of his honor, judge, 8^c. ; and on motion of Mr. of coun- sel for the said trustees, ordered, by this rule, that the said debt (or, demand) be and the same hereby is refer- red to I. J., 8^c., Sfc, pursuant to the statute in such case made and provided. Clerk of the court of S^c. Obtain from the clerk a certified copy of the debt or demand, notice, certificate and order for the refe- rees ; and also serve a copy of all the same on the alleged debtor or claimant or his attorney. Referees, in proceedings now under consideration, will have the same powers and be subject to the like duties and obligations and are to receive the same compensation as referees appointed by the Supreme Court in personal actions pending therein. (2 R. S., 45, §24) They should proceed with diligence to hear and determine the matters in controversy {lb., 384, § 42); appoint time and place of meeting, and adjourn from time to time as may be necessary ; but before proceeding to hear any testimony, the referees should 800 THE LAW OF EEFEEEES. be severally sworn faithfully and fairly to hear and examine the matter in issue and to make a just and true report according to the best of their understand- ing ; which oath may be administered by any person authorized to take affidavits to be read in the court in which the suit is pending or by any. justice of the peace. (Tb., §§ 43, 44.) And witnesses can be compelled to appear before the referees, by subpoenas. (/&., § 45.) Any one of these may administer the necessary oath to witnesses. All the referees must meet and hear all the proofs and allegations ; but a report by any two of them will be valid. (/&., § 46.) The court, by order, can compel them to proceed and report ; and may require them to report their decision in admitting or rejecting any witness, in allowing or overruling any question to a witness or the answer thereto and all other proceedings by them, together with the testimony before them and their reasons for allowing or disallowing any claim of either party. (lb., § 47.) The referees having heard and examined the case, proceed to make up their report. SECTION VIII. FOEM OF EEPOET. Supreme Couet. In the Matter of, &o. 5 The — day of , 18 — . In pursuance of a rule of court in the above matter, made on the — day of — ■■ — , 18 — , we, referees therein and thereby appointed, INSOLVENT DEBTOR. 801 having heard and examined the matters in controversy herein, and having examined, on oath, the several witnesses produced to us therein, do find that the above G. H. is indebted to the estate of A. B., insolvent debtor, and to his trustees, the above C. D. and E. F. as such, in the sum of $ . All which we do hereby respectfully report to this honorable court, as we are by the above mentioned rule commanded. I. J., K.L., . M.N., Referees. A report is in the nature of a general verdict and must find the simple fact of indebtedness or non- indebtedness. It cannot, like a special verdict, find the facts and refer the conclusion whether any balance be due or not, to the court, because that would be calling on the court to determine on mat- ters of fact. So, if evidence be offered, the referees should not return the facts proved, for a mere return of facts is not a report. {Hawkins v. Bradford, 1 Caines, 160.) They should make their report, admit- ting the evidence (Jb.), and if it be improperly received, as the report is in lieu of a trial, the party objecting to its reception may apply for relief in the same manner as against a verdict founded on testi- mony not legally admissible. If a mere statement of facts be returned, the court will order the referees to make their report by a certaiu day. E. 101 802 THE LAW OF EEFEREES. The report being made, is delivered to tte attorney of that side which prevails. And it is presumed he should file and give notice thereof, under Rule 32 of the Supreme Court, and that it will become con- firmed and complete thereunder — unless excepted to. The report of the referees is to be filed in the same office where the rule for their appointment was en- tered ; and will be conclusive on the rights of the parties, if not set aside by the court. (2 R. S., 45, §25.) CHAPTER XXVIL MISCELLANEOUS; AND ADDENDA. Section I. Referenob in suits against heiks to ascertain the value of lands DESCENDED. II. Reference where testimony is conflicting on a motion to discharge FROM arrest, III. Reference by creditor of a decedent on a claim to a fund in COURT BELONGING TO HIS INFANT HEIR AND WHICH AROSE PROM THB estate op THE ANCESTOR, IV. Reference in actions op account. V. Collateral matters of fact, VI. Demurrer referable. VII. Attorney's .action for professional services. VIII. Cross-actions. IX. Date of referee's report. 2. Decisions of a referee conclusive as res adjudicata. XL Death of a party while the issues in an action are with a referee. SECTION I. REFERENCE IN SUITS AGAINST HEIRS TO ASCERTAIN THE VALUE OF LANDS DESCENDED. The Revised Statutes prescribed a new mode of pro- ceeding, by a suit against heirs and devisees, to obtain satisfaction of debts due from a decedent. (Morris v. Mowatt, 2 Paige's C. R, 592 ; 2 R. S., 454.) The heirs of any person who may be liable to any creditor of such person in consequence of lands having descended to them, are to be prosecuted jointly (in a court of law or equity) and not sepa- rately for any such liability. (Laws of 1837, ch. 460, § 73 ; Cassidy v. Cassidy, 1 Barb. Ch. R., 467 ; Wamhaugh v. Gates, 11 Paige's C. R., 505.) 804 THE LAW OP EEFEEEES. Heirs and devisees, however, are not to be made liable for tlie debt of their ancestor, unless it appears that the personal assets were not sufficient to pay the same or that, after due proceedings before the surro- gate and at law, the creditor has been unable to col- lect such debt from the executor or from the next of kin or legatees. Thus, a suit at law against the prior parties is an essential preliminary to a right to sue the heirs. It makes no diff'erence that the same per- sons are entitled to the whole estate, real and personal. The statute makes no exception ; but requires the creditor, in all cases, to seek satisfaction from the personal property before he resorts to the real estate in the hands of the heir. In a suit of this kind, whether at law or in equity, all the heirs must be joined ; while the heirs and personal representatives cannot be joined in a suit. The lands or tenements and hereditaments de- scended are to be specified, with convenient cer- tainty, in the complaint. (2 E. S., 454, § 44.) If it should appear, in any such suit, that any lands or tenements have descended to an heir, the court is to inquire and ascertain the value thereof, either by reference or by awarding an issue for that purpose. {lb., § 46.) No doubt, in any order for such a refer- ence, where there was more than one heir or devisee, a direction would be inserted, requiring the referee to apportion the amount which a plaintiff might be entitled to recover, among all the heirs or devisees, in proportion to the value of the real estate descended or devised respectively : because, by section 52, such proportion only can be recovered of each heir or of MISCELLANEOUS; AND ADDENDA. 805 each devisee. And it may be that the referee might be required to apportion th6 costs, under section 53 (p. 455). A reference of this character is so uncommon that it is deemed unnecessary to set forth the precedent of an order, especially also because such an order can easily be framed when a case arises. Nor does there seem to be any thing special about a reference under the order. All the heirs and devisees or their attor- neys would have to be summoned to appear before the referee. The report would have to be filed; and notice of filing given, under the provisions of the 32d rule of the Supreme Court. A decree or judgment based upon the proceedings in the suit, the fact that lands or tenements have descended and the report, with its apportionment of amounts to be recovered with apportionments of costs, will be embraced in a decree or judgment, with direction that an execution issue. And the execu- tion thereon is to conform to such decree. {lb., 455, § 53.) A final decree in a suit, like the one under notice, has a preference, as a lien on the estate descended or devised, over any judgment or decree obtained against the heir or devisee for his personal debt. And a sale under an execution issued upon such a decree will overreach, not only all judgments and decrees which have been recovered against such heir or devisee, but also all mortgages and alienations of the estate subsequent to the commencement of the suit. {Morris v. Mowatt, 2 Paige's C. R., 586 ; and see Pierce v. Alsop,.b Edwards' V. C. R, 184.) 806 THE LAW OP REFEREES. SECTION II. EEFEEENCE WHEEE TESTIMONY IS CONFLICTING ON A MOTION TO DISCHARGE FEOM AEEEST. In matters of arrest growing out of alleged frand, a motion to discharge a defendant not unfrequently produces a complete clashing of affidavits ; a plaintiff" positively affirming fraudulent representations or conduct and the defendant denying the same with equal positiveness. Justice E. Darwin Smith is not satisfied that the court should, in such cases of conflicting documents, dispose of the matter, and considers it best to send the depositions to a referee. " While the liberty of the citizen should not be invaded," sajs the Justice, " or bail required, except in clear cases under the statute, yet this right of arrest is so important in many cases and the tempta- tions are so strong to make false affidavits to escape it, as well as to procure the order of arrest, that I think the court ought not to dispose of this class of motions upon a simple denial of the grounds upon which the arrest is ordered and where there is a distinct conflict in the affidavits, in the summary manner in which ordinary special motions are dis- posed of. " "Where there is such conflict in the affidavits, some one must, of course, have stated the facts in dispute untruly ; and I cannot think it is safe or best to let a defendant escape because, if the case be so, he has sworn falsely in the moving affidavits. If the plain- MISCELLANEOUS ; AND ADDENDA. 807 tiff has sworn falsely, he ought, of course, to lose his bail and be made to pay the costs of an investiga- tion. In such case, I think it will be safest and best and subserve the rights of suitors and public justice, to refer the affidavits to a referee, and require the parties to submit to an oral cross-examination in re- spect to the facts stated in the affidavits, with leave to either party to call and examine other witnesses on the question, that the court may ascertain the truth. " I shall (in this case) so order, and the I'eferee will report the evidence, and his finding thereon, whether the debt for which this action was or was not fraudu- lently contracted ; and the final decision of this mo- tion may stand over till the coming in of such re- port." {Barron v. Sanford, 14 Barb. S. C. R, 443.) ORDER OF REFERENCE. At a Special Term, S^-c. ITiile.'] Present, Sfc. The defendant having heen arrested and moving to he discharged ; and there being a conflict of testimony ; and after hearing counsel, and the court, from such con- flict, not being able to come to a satisfactory and definite conclusion, it is ordered that the matter and affidavits embraced by such motion be referred to , Esquire, as referee, who is to require the parties to submit to an oral cross-examination in respect to the facts stated in the affidavits ; with leave to either party to call and examine other witnesses on the question at issue on the motion, so that the court may ascertain the truth ; and the said referee is required to report the evidence, and his finding 808 THE LAW OP EEFEEEES. thereon as to whether the debt for which this action is brought was or was not fraudulently contracted. And a final decision of the motion is to stand over until the coming in of such report. . Although a reference may thus be ordered, to as- certain the facts involved upon a motion to vacate an order of arrest, yet the case ought to be very special, such as where the judge himself cannot come to a satisfactory and definite conclusion upon the facts as made out. Sections 204 and 205 of the Code enable a plaintiff to meet the defendant's case by counter affidavits, and the question is settled upon such par- tial trial, by determining the probable truth as the matter is thus presented. By such a trial the parties must abide, except, as before observed, upon a strong and peculiar case. {8telle v. Palmer, 7 Abbott's Pr. R, 181.) SECTION m. REFERENCE BT CREDITOR OP A DECEDENT ON A CLAIM TO A FUND IN COURT BELONGING TO mS INFANT HEIR AND WHICH AROSE FROM THE ESTATE OF THE ANCESTOR. Where there is a fund in court belonging to in- fants, the Supreme Court, as the guardian and pro- tector of their rights, may, in its discretion, on a summary application, order it to be applied for the payment of any just claim against the infants, to save the expense of useless litigation. Or if the claim is contested or is doubtful, the court may require the claimant to establish his right by suit miscellaneous; and addenda. 809 against tte infants in the usual way or on a refer- ence, as may be deemed most beneficial to the interest of the infants, with reference to the proba- ble expense of the litigation or otherwise. And where infants are alone liable for the debts of a peti- tioning creditor, it might be proper and would pro- bably save expense to direct a referee to inquire and report whether they were liable for the claim of the creditor; and how much, if anything, they are liable to contribute towards the payment of such claim ; allowing their guardian ad litem to insist on any defense which he might deem advisable to set up before the referee. {Cassidy v. Cassidy, 1 Barb. C. R, 467.) Where adult heirs may have received their amounts out of court and yet should have prima facie to con- tribute, a creditor will be reduced to suit at law or in equity against all the heirs jointly and cannot get the benefit of payment through a reference. SECTION IV. EEFEEENCE IN ACTIONS OP ACCOUNT. Although the action of account is almost obsolete (see Judge Bkonson's observations upon it in Mc Murray v. Rawson, 3 Hill's R., 69), yet it is recog- nized upon the face of the Revised Statutes (2 R. S., 385). As an equity suit has superseded such an action, it is deemed only necessary to give extracts from the statutes and not elaborate them by forms and practical points. When any action of account E. 102 810 THE LAW OF EEFEEEES. shall be brought by one or more partners against another partner or by any joint tenant or tenant in common or against any guardian, bailiff, receiver or otherwise and judgment shall be rendered that the parties account or that the defendant account to the plaintiff, the cause shall be referred to referees in the same manner and subject to the same provisions as herein prescribed in the case of a long account. (§ 48.) Such referees shall proceed in the manner required by law in other cases of reference, with the like powers and subject to the same provisions in all res- pects. And they shall have power to examine the parties on oath, to be administered by the I'eferees or either of them ; and to require the production of all books of account, papers and documents in the custody or under the control of either party. {Ih., § 49.) The referees shall notify the party or parties re- quired to account before them, of the time and place at which they will take such account; and shall take, audit and settle such account, and report thereon to the court. {Ih., § 50.) If any party shall neglect or refuse to account according to the judgment of the court, pursuant to such notification, or to produce any books, papers or documents required by the referees, the referees shall report the same to the court, who shall proceed thereon against such party for his disobedience in the manner prescribed in the thirteenth title of the eighth chapter of this act, and shall imprison such party until he submit to account, or produce such, miscellaneous; and addenda. 811 books, papers or documents ; or until he satisfy the plaintiff his demands, with costs. {lb., § 51.) If the referees report a balance in favor of either party and such report be confirmed, judgment shall be rendered thereon as in other cases of reference ; and if they report that no balance is due either party, judgment shall be rendered against the plaintiff, with like effect as upon a verdict. (Jb., § 52.) The practice in an action of account would be governed by section 272 of the Code. SECTION V. COLLATERAL MATTERS OF PACT. Besides the legitimate cases, embraced by the present treatise, in which referees are employed, there are many questions of fact which casually arise in legal proceedings at times and under circumstances when a court cannot wait to settle conclusions. In all such cases, a reference can be ordered compul- sorily. (Code, § 271, subd. 3.) By this subdivision, it is undoubtedly intended to provide for references in cases where questions of fact ai'ise in collateral matters in an action, in any stage * of it, aside from references of direct questions and issues of fact made by pleadings ; as, for instance, whether an injunction has been violated or the party is in contempt ; also, on the numerous questions which arise on motions ; likewise, matters touching the execution of orders, decrees and process — embracing, also, petitions pre- 812 THE LAW OF KEFEREES. sented during the progress of an action. In such cases and many others — many of which are fre- quently sharply litigated — references can be had, under the above subdivision. They are, in fact, those cases where the late Court of Chancery ordered references to a master or directed issues to be tried by a jury. (Flagg v. Hunger, 3 Barb. S. C. R., 9 ; S. a, 2 Code R., 17.) And, in connection with the above subdivision, on a question of fact arising after judgment, it is obvious the court may appoint a referee and invest him with all the powers necessary for its investigation. {Meyer V. Lent, 16 Barb. S. C. R., 539.) SECTION VI. DEMUREER REFERABLE. Before the Code, if a demurrer were pending, which went to the whole cause of action, a motion for a reference was premature. {Jansen v. Tappen, 3 Cow., 339.) It is fully believed that a demurrer may be referred under the Code: for section 270 declares, that " all or any issues in the action, whether of fact or of law. or both, may be referred, upon the written consent of the parties." miscellaneous; and addenda. 813 SECTION VII. attorney's action for professional services. In an action broug'ht by an attorney for profes- sional services, a reference may be had to ascertain the amount he will be entitled to recover, if at all, and reserving the trial of his right to recover. {Bow- man V. 8heldon, 1 Duer, 607.) SECTION VIII. cross-actions. One reference may be ordered so as to embrace cross-suits. {Hart v. Trotter, 4 Wend. R., 198.) If, in cross-actions, one has been referred in which all may be obtained that can be gained by a refer- ence in the other, the court will not refer the other, especially if there be a possibility that, by so doing, the report may be so apportioned as to throw the costs of both on one party who, by a decision of the court, seems to have a right to a verdict in his favor in one of the suits. {Codvnse v. Hacker, 2 Cai., 251.) SECTION IX, DATE OP A referee's REPORT. A referee must not ante-date his report, with a view of thus letting interest run where the claim 814 THE LAW OF REPEEEES. involved would not draw interest, nor so as to have the effect of debarring a right to interest where it follows as an incident of the debt. His report should be dated of the legitimate time when he is really prepared to report and, in a proper case, the interest be made up to its date and be embraced therein. {Fuller V. 8quire, 8 How. Pr. R., 121.) SECTION X. DECISIONS OF A EEFEEEE CONCLUSIVE AS EES ADJUDICATA. There can be no doubt that judgments founded on a referee's report of issues are as conclusive as judg- ments emanating direct from the court. Formerly, it might have been a question how far decisions by judicial officers in collateral matters had the force of an estoppeL Now, however, any decision of a referee on a question within the power of the court to refer and which has been completed by an order will be deemed conclusive on parties. Thus, in Demarest v. Daig (11 Abb. Pr. R., 9), it was decided that the question of the settlement of the accounts of a receiver was a determination which, when made an order of the court, was conclusive on the parties, as res adjudicata. And judge Hilton there refers to the cases of the Supervisors of Onondaga v. Briggs (2 Den., 33), and While v. Coalsworlh (2 Seld., 143), quoting the following language of Edmonds, J. : " It is enough that the question has been submitted to a judicial officer to be determined in a judicial MISCELLANEOUS ; AND ADDENDA. 8 way, that the parties and their proofs have been heard and their rights settled by a judicial determina- tion. When this has been done, it is conclusive upon the parties until reversed, vacated or set aside in the forms prescribed by law." SECTION XI. DEATH OP A PAETT WHILE THE ISSUES IN AN ACTION AEE WITH A EEFEEEE. Death does not abate a suit, where it can be con- tinued or the cause of action survives. A referee, therefore, who is stayed on the death of a principal party can, no doubt, go on after the suit has been continued under section 121 of the Code. In such a case, the order which revives or continues it had better refer to the fact that the action is before a referee and expressly order that this action and the 'proceedings therein do stand revived against the said and , executors as aforesaid, as defendants herein ; and that the said referee continue the matters and testi- monij before him at the very point where it ivas broken off bij death, and with the same force and effect as though there had been no death, and as having reference simply to change of names of parties. INDEX Page. ACCOUNT, surcharging and falsifying an account 662 reference in action of account, 809 And see Long Account. ADJOURNMENTS, referee may grant or make, 55 may impose terms of adjourning, 58 lie may adjourn a sale, 58 on trial of issues, 105 ADMISSIONS, on a trial of issues, 113 ADULTERY, See Divorce. AFFIDAVIT, when affidavits on motion not definite, the matter of them can be referred, 4 on delivering books and papers in referee's office 63 on which, to move for a reference in an action involving a long account 88 to oppose motion for a reference on the ground that questions of law are involved, 96 to ground order for judgment debtor to discover property under 1st subd. of 5 292 of Code 168 to obtain order under the 2d subd. of the above section, 173 to ground order for examination of any person or corporation hav- ing property or being indebted to the judgment debtor, 196 like affidavit, where judgment was obtained in a judicial district court of the city of New York, 196 to ground order for a reference to ascertain damages sustained by an injunction order, ^ 212 to ground order to sue undertaking given by sureties on granting an injunction order, 229 in foreclosure where the whole amount is due, and there are no infant or absent defendants, 238 of filing pendency of action in foreclosure, 255 K. 103 818 INDEX. Page. AFFIDAVIT— continued. to ground order of reference as to surplus moneys, 286 (in divorce) of continiied lunacy of plaintiff, • 547 (in divorce) and where plaintiff is rational of non-cohabitation, . . . 548 of non-cohabitation, where a marriage is sought to be annulled for non-age, • • 552 of no voluntary cohabitation where force or fraud is the ground for a divorce, ■ 560 to ground order of reference where there are two suits instituted for an infant, ^^2 and notice of motion for a reference to settle the form of issues, . . 736 ALIMONY AND EXPENSES, reference to ascertain proper amount of temporary alimony and expenses to carry on a defense, 568 petition for alimony and expenses, 570 order of reference as to same 572 ALLOWANCE, See PcETHEK Allowance and Jpst Allowances. AMENDMENT, referee may allow amendments to pleadings, 30 but not by striking out a party, 30 nor allow a cause of action to be added, 33 may amend summons 108 in partition, 508 ANSWER, to former action pending, , 716 APPEAL, from and reviewing a judgment entered on the decision of referees, 142 from determination of commissioner of highway to lay out, alter or discontinue a road, 755 in relation to the locating of a toll gate, 782 notice of such appeal, 783 ARREST, reference where testimony is conflicting on a motion to discharge from arrest, 806 ASSIGNMENT, general assignment to a receiver of stock in trade, &o., 319 ATTACHMENT, to bring up witness for non-attendance, 44 BOND, of a receiver, 314 by guardian and his sureties, 369 by special guardian, where an application is made to sell infant's real or personal estate, 409 by committee of a lunatic and his sureties, 597 index/ 819 Page. BOOKS AND PAPERS, referee can require their production without an order, 61 affidavit when they are delivered into referee's office, 63 as to what books and papers shall he left with referee, discretion- ary with him, 64 mode of compelling production and contempt for not complying, &c., 64, et seq. partnership hooks and accounts 657 CASE, form of a case on appeal from referee's report and from the judg- ment thereon, 143 CAUSE OF ACTION, referee cannot allow it to he added by way of amendment, 33 CERTIFICATE, difference between it and a report, 11 on not depositing books and papers, •. . 65 of referee to aid a party to obtain extra allowance, 77 of clerk as to who have appeared in foreclosure or filed claims to surplus moneys, 289 of the filing of security of a general guardian, 363 CHARGE AND DISCHARGE 657, 665 form of charge, 658 form of discharge 659 CLAIM, notice of claim to surplus moneys in foreclosure, 284 certificate of clerk as to who have appeared or filed claims, 289 to surplus moneys, 290 against the estates of deceased persons, 629 against ships and other vessels, 686 And see Claims against the Estates op Deceased Peksons. CLAIMS AGAINST THE ESTATES OF DECEASED PERSONS, reference of claims against the estate of deceased persons which are considered of a doubtful character by executors and administra- tors, 629 observations, 629 fol-m of claim, 636 agreement to refer the claim, and surrogate's approval, 637 rule 638 form of oath to referees, 639 proceedings before the referees, 639 referees reporting and form of report, 641 rule or order for confirmation , 643 form of judgment, 645 CODE, referees nnder it, 5 through consent, 5 on compulsion, 6 820 INDEX. Page. COMMITTEE, of a lunatic, &o. ; as to reference to appoint a committee, see Luna- tic, Idiot, Habitual Deunkakd. COMPLAINT, referee cannot strike out a complaint, 29 CONDITIONS OF SALE, in partition, 478 CONFLICTING TESTIMONY, reference where testimony is conflicting on a motion to discharge from arrest, 806 order of reference in such a case, 807 CONSENT, to a reference of a trial of issues in a case of divorce, 535 CONSTITUTIONALITY OF REFERENCES, 1 CONTEMPT, referee's power to commit for, 40 for not depositing books and papers, 64, ei seq. COSTS, allowance of, by referee, 74, 112 on granting a new trial, 152 allowed to a discharged purchaser, 274 under claims for surplus moneys in foreclosure, 303 m suits and references on title, 340 in divorce cases, 567 on commission of lunacy and appointment of committee, 603 COUNTERMAND OF TRIAL, 104 CROSS-ACTIONS, one reference to embrace both, 813 DAMAGES, referee may inquire into damages on breach of special agreement, . 67 reference to ascertain damages on the dissolution of an injunction order, 201 general observations, and when to move, 201 affidavit to ground order for a reference to ascertain damages sus- tained by an injunction order 212 notice of motion thereon, 212 order of reference thereunder, 216 damages, ■. 217 report, 227 affidavit to ground order to sue on undertaking given by sureties, . 229 notice of moving on referee's report, 229 order for payment and, in default, to sue, 231 exceptions to report 231 DATE OF A REFEREE'S REPORT, 813 INDEX. 821 Paffe. DEATH, ^ of referee, court appoints a successor, « 15 of a party wtere the issues in an action are witli a referee 815 And see Death op Pebsons. DEATH OP PERSONS, reference to discover the death of persons upon whose lives any particular estate may depend, 741 observations, 741 form of petition for the production of a person upon whose life a particular estate depends, , 742 notice of presenting petition, 745 order on petition, 746 referee's return 749 entry of minutes by the court that order was complied with, 751 active part of referee's return where the person was not pro duced, . 751 entry on the minutes of the court that the person required was not produced 753 DE DIE IN DIEM, as to referees so proceeding, 54 DEED, of referee to purchaser under judgment in foreclosure, 275 by special guardian on sale of Infant's real estate and including release of dower, 422 of referee in partition, 495 — 6 by committee of a lunatic, 616 by infant heir, on application that he should perform his ancestor's contract (with the widow joining), 712 And see Mortgage and Partition. DEMURRER, referable, , 812 DISCHARGE, See Charge and Discharge. DEPOSITIONS, ready prepared, not to be received by a referee, 38 DIVORCE AND SEPARATION, references in actions for divorce and separation, 509 observations 510 reference in an action to dissolve a marriage because of adultery where there is a failure to answer or the charge is not denied in an answer 519 order of reference on default, 519 referee's report on complaint to dissolve marriage because of adul- tery (on defendant's default), 526 judgment (on report), dissolving marriage because of adultery (on default of defendant), 528 reference in matter of limited divorce, where there is a defanlt or the charge of cruelty is not denied, 529 order of reference, 530 report finding cruelty, on complaint for a limited divorce, 532 822 INDEX. Page. DIVORCE AND SEFAUATION— continued. judgment for a limited divorce on default 633 reference for trial of issues in a divorce case, 534 consent to refer the issues, 535 order referring the issues, 535 referee's report in favor of plaintiff (applicable to adultery or cruelty), 539 judgment dissolving marriage after a trial of issues before a referee, 541 report of a referee in favor of a defendant 643 judgment on the last report, 544 reference in an action for divorce, for that one of the parties was an idiot or lunatic, 545 affidavit of the continued lunacy of the plaintiff, 547 affidavit (where plaintiff is rational), of non-cohabitation, 548 order of reference thereon 548 report finding lunacy at the time of marriage, 549 judgment, on report, dissolving marriage because of lunacy, 550 reference in an action of divorce where one of the parties had not attained the age of legal consent, 651 affidavit of non-cohabitation where marriage is sought to be annulled for non-age 552 order of reference thereon, 553 reference in an action for divorce, because the former husband or wife of one of the parties is living, 654 order of reference where former husband or wife is living, 556 reference in an action for divorce on the ground that the consent of one of the parties was obtained by force or fraud, 557 affidavit of no voluntary cohabitation where force or fraud is the ground for a divorce, 560 reference in an action to annul marriage for physical incapacity, . . 561 notice of motion for order of reference in a case of alleged physical incapacity, 562 order of reference 563 costs in divorce cases, 567 reference to ascertain proper amount of temporary alimony and ex- penses to carry on a defense, 568 petition for alimony and expenses, 570 order of reference thereon 572 report on temporary alimony and expenses, 576 DOUBTFUL CLAIMS, against the estate of deceased persons, 629 And see more particularly Claims against the Estate op Deceased Persons. DOWER, value calculation of dower right, 501 EVIDENCE, general principles on a trial of issues, 113, et seq. EXCEPTIONS, connected with case on appeal from referee's report and from the judgment thereon, 146 to report of damages on dissolution of injunction order, 231 to report of referee as to surplus moneys in foreclosure, and form thereof - 301, 302 to report of referee as to title (in a reference thereon) 336 INDEX. 823 EXECUTORS AND ADMINISTRATORS, referee cannot allow costs to them, 75 reference of claims against the estate of deceased persons which are considered of a douMful character, by executors and administra- tors, 628 And see more particularly Claims against the Estate of Deceased Peesons. EXTRA ALLOWANCE, referee cannot grant, 75 certificate of referee to use in applying for it, 77 FEES OP REPEREES, 136 consent as to their rate, 137 allowed only for each day spent in the business of the reference, . . 137 FORCE, to compel a marriage. See Divoece and Sepaeation. FORECLOSURE, reference to compute and sell in cases of foreclosure, 233 observations, 233 reference to compute, 236 where all is due and no infant or absentee is interested, 237 forms of affidavit and order of reference where the whole amount is due and there are no infant or absent defendants, 238 where there is an infant defendant, 239 order of reference where an infant is a party, 239 where there is a non-resident defendant, 240 order of reference where there is a non-resident defendant, 240 instalment of interest only due, 244 order of reference where interest or instalment of principal only is due 245 referee's report where the whole amount is due, with clause where there is a non-resident or infant defendant, 249 referee's report where the whole amount is not due, with a clause to meet a case where there is an infant or non-resident defendant, 251 notice of pendency of action, 254 affidavit of filing notice of pendency of action, 254 usual judgment of sale in foreclosure where the whole amount is due, 256 judgment for sale where a part only of debt is due and premises cannot be sold in parcels, 259 judgment for sale where a part of the debt is not due and the pre- mises can be sold in parcels, 260 notice of sale by a referee and form of notice, 262, 263 conditions of sale ; and, selling, 263 purchaser, and as to hi* completing purchase ; as well as to his ■ being relieved from it ; also, resale, 265 costs and interest on discharging him, 274 purchaser acquires no intermediate rents, 277 referee should pay and distribute the piu'chase moneys without delay, 278 reference in relation to surplus moneys on sales of mortgaged premises, 282, et seq. FRAUD, in a marriage. See Divoece and Separation. 824 INDEX Page. FUND, IN COURT, reference ty creditor of a decedent on a claim to a fund in court, belonging to his infant heir and wMcli arose from the estate of the ancestor, 808 FURTHER ALLOWANCE, referee cannot grant, . 75 certificate of referee to use in applying for it, 11, 134 allowance hy the court, 132 FURTHER TESTIMONY, referee may open case for, ," 51 GUARDIAN AD LITEM, See GuAKDiAN, also Infant. GUARDIAN, reference to appoint a general guardian of an infant, 346 observations, 346 proceedings to appoint a guardian, 351 petition for the appointment of a general guardian where the infant is fourteen years of age or upwards, 352 petition for the appointment of a general guardian in behalf of infants under fourteen years, 353 order of reference to nominate a general guardian, 365 referee's report on petition for general guardian, where the infant is over the age of fourteen years, 359 order appointing a general guardian for an infant over the age of fourteen years, 361 clerk's certificate of the filing of security, 363 referee's report on petition for general guardian, where the infant is under the age of fourteen years, 363 order for the appointment of guardian for infants under the age of fourteen years, 367 security by guardian, 368 bond of guardian and his sureties, 369 powers of a guardian, 371 responsibility of guardian and surety, 378 removing a guardian, 385 order superseding a guardian for cause, 388 petition of guardian to be discharged from his trust, 390 order thereon, ■ 392 petition for special guardian and sale of real (or leasehold) pro- perty of an infant, 400 reference thereon 404 order of reference, 405 security by special guardian, 407 order, on the referee's report, authorizing guardian to contract, , . . 414 HABITUAL DRUNKARD, See Lunatic, Idiot, Habitual Dbunkakd. HEIR, reference in suits against heirs to ascertain the value of lands de- scended, 803 reference by creditor of a decedent on a claim to a fund in court, belonging to his infant heir and which arose from the estate of the ancestor 808 INDEX. 825 Page. HIGHWAY, See Road. HUSBAND AND WIFE, See DivoBOE and Sepaeation. k IDIOT, See Lunatic, Idiot, HABiTtfAL Deunkakd. INFANT, reference to appoint a general guardian of an infant, 346 observations tliereon, 346 petition for tlie appointment of a general guardian where tlie infant is fourteen years of age or upwards, 352 petition for the appointment of a general guardian in behalf of infants under fourteen, 353 order of reference to nominate a general guardian 355 referee's report on petition for general guardian, where the infant is over the age of fourteen years, 359 order appointing a general guardian for an infant over the age of fourteen, 361 clerk's certificate of the filing of security, 363 referee's report on petition for general guardian, where the infant is under fourteen, 363 order for the appointment of guardian for infants under the age of fourteen years, 367 security by guardian, 368 bond of guardian and his sureties, 369 powers of a guardian 371 responsibility of guardian and surety, 378 removing a guardian, 385 order superseding a guardian for cause 388 petition for guardian to he discharged from his trust, 390 order thereon, 392 reference to obtain a sale or other disposition of an infant's real or leasehold estate, 396 observations, 396 application for sale, , 398 petition for guardianship and sale, 400 reference, 404 order of reference, 405 security by special guardian, 407 bond 409 affidavit of sureties annexed thereto, 410 certificate of clerk of court that the security has been filed,. . . 410, 411 referee reporting, 411 referee's report, 412 order, on the referee's report, authorizing guardian to contract, . . . 414 report of guardian, of agreement to sell, 416 order confirming guardian's report and directing a conveyance, . . . 418 deed by special guardian and including release of dower, 422 his report on disposition of proceeds of sale, 425 reference in an action for divorce where one of the parties had not attained the age of legal consent 551 afiidavit of non-cohabitation where marriage is sought to he annul- led for non-age, 552 order of reference thereon, 553 E. 104 826 INDEX. Page. INFANT — continued. specific performance by an infant heir of the contract of Ms ances- tor or by any other person who may be « party to such an instrument, 695 observations, 695 petition by a purchaser that the infant heir convey, 701 order of reference and appointment of guardian ad litem, 702 report of referee, 704 order for conveyance, 706 petition by an executor of a purchaser, 708 deed, 710 form of deed of infant heir, with the widow joining 712 reference in cases where two suits have been instituted for an infant, 714 affidavit to ground order of reference in such case, 732 order of reference thereon 733 And see G0ABDIAN. INFANT HEIR, See Infant. INJUNCTION, See Damages. INSOLVENT DEBTOR, reference in a controversy between trustees of an insolvent debtor and any other person, 789 observations, 789 form of debt or demand, 794 agreement to refer, 794 rule, 795 notice of intention to apply for the appointment of referees, 796 certificate of oflicer of selection of referees, 798 rule thereon, 799 form of report, 800 INTEREST, allowed to a discharged purchaser, 274 in partnership matters, 670 INTERROGATORIES, referee can proceed viva voce or by interrogatories 40 to clear a contempt, 47, et seq. INTERPRETER, oath to, Ill ISSUES AND TRIAL OP ISSUES, observations on trial of issues, 99 meetings before referee, 101 appointment in writing of first meeting 102 notice of trial, 103 countermand, 104 adjournments, 105 oath of referee and form, 106, 107 amendments, 108 INDEX. 827 Page. ISSUES AND TRIAL OF ISSVES — continued. witnesses, and subpoena, 108 oath to witness, 110 to an interpreter Ill of a party to admit evidence of the contents of a paper not produced, Ill of a party to admit evidence preliminary to proving the hand- writing of a subscribing witness, Ill witness's rights 112 admissions and evidence, 113 costs, 122 compelling referee to report and order, 124, 125 report, 128 its general form, 130 further allowance, 132 referee's fees, 136 filing report and perfecting judgment 139 notice of judgment served with copy of r^ort, 140 when referee's duties are determined, 140 appeal from and reviewing a judgment entered on the decision of referees, 142 form of case on appeal from referee's report and from the judg- ment thereon, 143 exceptions connected therewith, 146 setting aside report and granting a new trial, 147 order setting aside a report of referees and directing a rehearing before new referees, 156 reference of trial of issues in a divorce case, 534 consent to such a reference, 535 order referring the issues, 535 referee's report in favor of plaintiff (applicable to adultery or cruelty), 539 judgment dissolving marriage after a trial of issues before a referee, 541 judgment of separation after trial of issues before a referee, 542 report of referee (in divorce case) in favor of defendant, 543 judgment on the last report, 544 reference to settle issues, .' . . . 735 observations, 735 affidavit and notice of motion for a reference to settle the form of issues, 736 order of reference to settle issues, 738 JUDGMENT, ' appeal from and reviewing a judgment entered on the decision of referees, 142 for sale in foreclosure where the whole amount is due, 256 for sale in foreclosure where a part only of debt is due and pre- mises cannot he sold in parcels, 259 for sale in foreclosure where a part of the debt is not due and the premises can be sold in parcels, 260 for partition, 439 for sale in partition and for distribution and partition of proceeds, 463 (on report) dissolving marriage because of adultery (on default of defendant), 528 dissolving marriage after a trial of issues before a referee, 541 of separation after a trial of issues before a referee, 542 for defendant in divorce on referee's report, 544 on report in divorce, dissolving marriage because of lunacy, 650 828 INDEX. Page. JUDGMENT — continued. form of Judgment made under referee's report on a reference of doubtful claims against a decedent's estate, 645 general form of the active part of a judgment order for an account in partnership 654 JUDGMENT DEBTOR, See Supplementary PKOCEEDiifGS. JUST ALLOWANCES, referee may grant, 67 what are just allowances, , 68 what will not be considered such, 70 LEASE, reference on an application to lease real estate of lunatic, &c. See Lunatic, Idiot, Habitual Deunkakd. LIENS AND INCUMBRANCES, ascertainment of, in partition, 450 LIMITED DIVORCE, See Divorce. LONG ACCOUNT, reference where the trial of an issue of fact will require the ex- amination of a long account on either side, 82 observations thereon, 82 moving for the reference, 86 aiiidavits on which to move 88 notice of motion, 88 as to what constitutes an account, 91 questions of law a bar to such a reference, 95 affidavit to oppose motion for a reference on the ground that ques- tions of law are involved, 96 order of reference, 97 LUNATIC, IDIOT, HABITUAL DRUNKARD, reference in an action for divorce for that one of the parties was an idiot or lunatic, 545 aildavit of the continued lunacy of the plaintiff, 647 affidavit (where plaintiff is rational) of non-cohabitation, and order of reference, 548 report, finding lunacy at the time of marriage, 549 judgment, on report, dissolving marriage because of lunacy, 550 .reference to appoint a committee of a lunatic, idiot or habitual drunkard, and observations thereon, 579 petition for a committee, 586, 587 form of order where the court confirms the finding of a jury and such court itself appoints a committee, but directs a referee to approve of bond and to fix amount of allowance, &c., 589 order confirming the finding of the jury and directing a referee to report a suitable person as committee and to fix amount of allow- ance, 591 report of referee 595 bond and security by committee and his sureties 597 order confirming referee's report and appointing committee 599 commission pf commitment of lunatic, &c., to committee 600 costs of commission and of subsequent proceedings, 603 INDEX. 829 Page. LUNATIC, IDIOT, HABITUAL DUVNKARD — cmtinued. reference, on the application by a committee of a lunatic, &c., to mortgage, lease or sell real estate and observations, 606 petition for sale or to lease or mortgage a lunatic's real estate, 607 order of reference thereon 610 report of referee recommending a sale of part of the real estate, . . . 611 order of sale ' 612 report of sale, 612 order for conveyance on report of sale, 614 conveyance by committee, 615, 616 reference for a committee of a lunatic, &c., to pass his accounts, . . 618 observations 618 petition by committee to pass his accounts, 621 order of reference to pass accounts, 622 allowances to and liabilities of committee, 623 report of a referee on a final accounting by the committee, 625 order confirming report, declaring balance and canceling bond, 626 \ MAREIAGE, » See Divorce and Sbpabatioit. MEETINGS, referee may verbally fix them, 54 before referee on trial of issues 101 MORTGAGE, See FoKECLOsuKE. Mso, LtrNATio, Idiot, Habitual Deunkaed. MULTIPLICITY OF SUITS, reference, as to two suits or proceedings pending for the same inatter ; and where one or more suits are instituted for an infant, 714 observations, 714 answer to former action pending, 716 notice of motion for an order of reference to ascertain whether there is another action pending for same cause, 717 report 725 order on report, 726 as to suits on behalf of an infant, 728 afiidavit to ground order of reference therein, , 732 NEW REFEREE, sending cause to, on granting new trial 153 order setting aside report and directing a rehearing before new referees, 156 NEW TRIAL, setting aside judgment on trial of issues and granting new trial,. . . 147 costs on granting, 152 sending action to new referee, 153 NOTICE, of motion for a reference in an action involving along account, ... 88 of trial of issues, 103 of judgment served with copy of report after trial of issues 140 of motion for a reference to ascertain damages sustained by an injunction order, 212 of moving (?n referee's teport, as to damages on dissolution of injunction order 229 830 INDEX. Page. NOTICE - of pendency of action in foreclosure ; and affidavit of filing, 254 of sale in foreclosure and form of notice, 262, 263 of report of referee, as to surplus moneys, being on file, 300 of motion for order of reference to appoint a receiver, 309 of motion for a reference in partition, ■ 435 by referee, in partition, to creditors having general liens or incum- brances, 456 of sale in partition, 478 of motion for order of reference, in » case of alleged physical incapacity, 562 of motion for an order of reference, to ascertain whether there is another action pending ' 1 ' of motion for a reference to settle the form of issues, 736 of presenting petition for the production of a person upon whose life some particular estate depends, 742 to referees of their appointment in an appeal from the determina- tion of commissioner to alter, &c., a road, 767 by referees (in such case) to the commissioner of highways 769 notice (in such case) to the applicant, 770 of appeal, in relation to the locating of a toll gate 783 of motion for the appointment of referees on such an appeal, 784 of intention to apply for the appointment of referees in relation to debts due to or from an insolvent debtor, 79 6 NUMBER, of referees in a case, 10 OATH, of referees and form, 106, 107 to witness, 110 to an interpreter, Ill to a party to admit evidence of the contents of a paper not pro- duced, Ill of a party preliminary to proving the handwriting of a subscribing witness, Ill to judgment debtor and to witness produced as to the property of the former, 180 of referees under a reference on a doubtful claim against a de- cedent's estate, 639 of referees appointed in an appeal from the determination of a commissioner of highways to alter, &o., a road 768 ORDER, for party to produce deeds and writings before referee 65 of reference (connected with long accounts), 97 to compel referee to report, 125 setting aside a report of referees and directing a rehearing before new referees 156 in supplementary proceedings (ex parte) for judgment debtor to appear before a referee, and proof of service, 169, 170, 174 order, in supplementary pleadings, to examine person or corpora- tion having property or being indebted to a judgment debtor, . . . 197 of reference to ascertain damages on dissolution of injunction, .... 216 for payment upon report finding damages on dissolution of injunc- tion order, 231 of reference in foreclosure where the whole amount is due and there are no infant or absent defendants, 238 INDEX. 831 Page. OEDER — continued. of reference in foreclosure where an infant is a party, .... 239 of reference in foreclosure where there is a non-resident defendant, 240 of reference on claim to surplus moneys, 287 to pay surplus moneys (in foreclosure) where there is hut one claimant, 298 final order on report of referee as to claims to surplus moneys 304 of reference to appoint a receiver, 310 for referee to report if a, plaintiff can make a good title to a pur- chaser 326 of reference to nominate a general guardian 355 appointing a general guardian for an infant over the age of four- teen years, 361 clerk's certificate of the filing of security, 363 for appointment of a general guardian of infants under the age of twenty-one years 365 supei seding a guardian for cause, 388 on petition of guardian to he discharged from his trust, 390 of reference on application for special guardian and sale of real estate, 405 on referee's report authorizing special guardian to contract for sale of real estate, 414 confirming a special guardian's report thereon and directing a con- veyance, 418 of reference in partition, 436 in partition, where a sale is necessary, 447 of confirmation of referee's report of sale in partition, 485 requiring a purchaser (in a partition suit) to complete his purchase, 490 for commitment of a purchaser under a sale in partition, 491 for resale in partition and that a present purchaser make good any deficiency on a resale 492 for resale and discharge of purchaser, 493 of reference on default in action to dissolve marriage where there is a failure to answer, &c., 519 order of reference in matter of limited divorce, where there is a default or the charge of cruelty is not denied, 529 referring the issues in a divorce case, 535 (in adultery) of reference in a case of alleged lunacy, 548 of reference where marriage is sought to he annulled for non-age, 553 of reference (in divorce) where former hushand or wife is living, . . 556 of reference on complaint to dissolve marriage because of physical incapacity, 563 of reference as to alimony and expenses, 672 form of order where the court confirming the finding of a jury in lunacy and such court itself appoints a committee, but directs a referee to approve of bond and to fix amount of allowance, &c., 689 confirming the finding of the jury and directing a referee to report a suitable person as committee and to fix amount of allowance, 591 confirming report and appointing committee, 599 of reference on petition for sale or to lease or mortgage a lunatic's real estate, 610 of sale thereunder, 612 for conveyance, by a, committee of a lunatic, of part of the real estate of the latter after report of sale, 614 of reference for a committee of a lunatic to pass his accounts, 622, 623 confirming the report of referee on passing accounts of a committee in lunacy, declaring balance and canceling bond, 626 of reference and appointment of guardian ad litem in a case of ap- plication for an infant heir to perform ancestor's contract, 703 832 INDEX. ORDER — continued. for conveyance in such a case, on referee's report, 706 on referee's report as to two actions pending for same cause, 727 on referee's report, when the actions have heen brought on the alleged behalf of an infant, 733 of reference to settle issues, 738 on petition for the production of a person upon whose life some particular estate depends, 742 of reference, on appeal relating to the locating of a toll gate, 785 of reference where testimony is conflicting on a motion to discharge from arrest, 806 PARTITION, 429 observations, 430 partition without sale, 433 affidavit of fact under Rule 78 434 notice of motion for a reference, 435 order of reference thereon, 436 report (under 78th Rule), 437 judgment order for partition, 439 partition where a sale is necessary, 443 affidavit where a sale is necessary, 445 order where a sale is necessary 447 ascertainment of liens and incumbrances, 451 notice by referee to creditors having general liens and incum- brances, .' 456 report that a sale is necessary, 457, 458 judgment order of sale and for distribution and partition of pro- ceeds 463 special clauses in such a judgment applicable to a doweress or tenant for life, 470, 471, 472 special clause in such a judgment in relation to paying wife's share to husband, 473, 474 sale in partition, 475 notice of sale, 478 conditions of sale ,■ 478 memorandum of sale, 480 report of sale, 483 confirmation of sale, 484 order of confirmation of report of sale 485 purchaser declining, and as to compelling him to take, 486, '7, '8, 489 order requiring a purchaser to complete his purchase, 490 enforcement thereof, 491 order against purchaser in default, for a commit, &c 491 resale, 492 order for resale and that a present purchaser make good any defi- ciency under a resale 492 resale and return of deposit, 493 order for resale and discharge of purchaser, 493 report on a resale, 494, 495 referee's deed, 495, 496 form of receipt for a distributive share, 500 final report of referee and form thereof, 504 confirming same and order of confirmation, 607 amendments in partition, 508 PARTNERS, reference to account between partners, 648 INDEX. 833 Page. PARTNERS — continued. observations 648 general form of the active part of a judgment order for an account in partnership, 654 mode of taking partnership accounts, 655 "books and accounts, 656 charge and discharge 657 examining partners, 660 settled accounts, 661 surcharging and falsifying an account, 662 profit and loss, 664 charges particularly against and allowances to partners, 665 sale of partnership property 669 interest, 670 settlement of report and objections, 674, 675 form of report, 678 form of exceptions to report, 678 costs, 681 PARTY, referee cannot allow the name of a party to be stricken out, 30 all interested parties entitled to appear on a reference, 34, fi seq. may take copies of proceedings before referee, 37 referee may refuse to mark a party's attendance if not an interested one, 37 PETITION, for the appointment of a general guardian where the infant is four- teen years of age or upwards, 352 for the appointment of general guardian, in behalf of infants under fourteen years of age, 353 of guardian to be discharged from his trust, 390 form of petition for guardianship and sale of infant's real estate, . . 400 for alimony and expenses, 570 for a committee of a lunatic, &o., 586, 587 for sale or to lease or mortgage a lunatic's real estate, 607 by committee to pass his accounts, 621 petition for the production of a person upon whose life some parti- cular estate depends 742 PHYSICAL INCAPACITY, Sie Divorce ahd SEPAKAxioif. PLEADINGS, referee may amend them, 30 PROFIT AND LOSS, in connection with taking partnership accounts 664 PROPOSAL, for a receiver, 313 PROXY, referee cannot act by 19 E. 105 834 INDEX. PURCHASER, at referee's sale, and as to his completing purchase as well as to his being relieved from it ; also resale, 265 as to his receiving costs and interest on being discharged, 274 as to his paying costs in suits on title, 340 in partition, declining to complete his purchase, and as to compel- ling him to take, 486^89 order against him to complete and for commitment, 490 order of commitment in default, 491 QUESTIONS OF LAW, a bar to a reference on an account 95 REAL ESTATE, transfer of, to a receiver, 321 sale, &c., of real estate of lunatic ; see Lunatic, Idiot, Habitual Dkunkakd. RECEIVER, reference to appoint, 307 observations, 307 notice of motion for order of reference to appoint a receiver, 309 order of reference to appoint a receiver, 310 proposal for a receiver, 313 of receiver, 314 report of referee of appointment of receiver 316 general assignment to a receiver of stock in trade, &o., 319 transfer of real estate to a receiver, 321 REFEREE, his o&ae a branch of the court, 3 used in matters aside from the Code, 3 under the Code, 5 number of referees in a case 10 from what time he should act 10 approaches the court through a report 11 should state facts, and not set forth evidence and opinion, 13 may state reasons for disallowance of a claim, 13 his report not conclusive, 13 his report may become as res adjudicate!, 814 not restricted to his own county, 14 no change of referees, unless on very special ground, 15 dying, court appoints a successor, 15 limited to statute powers, 16 cannot disregard decisions of court, 17 cannot act by jjroxy, 19 cannot act under undue influence 20 cannot strike out a complaint 29 may amend pleadings, 30 may disregard variances 33 must summon all interested parties, 34 may refuse to mark a party's attendance before him, where he has no interest, 37 not to receive depositions already prepared, 38 can compel attendance of witnesses, 38 on non-attendance can proceed ex parte, 39 as to his power to commit for contempt, 40 REFEREE — continued. INDEX. 835 Pago. may open case for further testimony, 51 can verbally fix time for meetings, 54 proceeding de die in diem 54 has power to grant or make adjournments, 55 must decide and cannot decline to pass on the matter before him,. . 58 he cannot be a witness, 59 may refuse or accept testimony of a witness's character, 61 can require jiroduction of books and papers without an order, .... 61 discretionary with him as to which of them shall be left with him, 64 can inquire into damages for breach of agreement on reference of long account, 67 may grant just allowance, 67 can adjourn a sale, 71 may hear further testimony until his report is delivered, 72 must not state out-doors his conclusions in advance of his report, 73 allowing costs, 75 cannot grant extra allowance, 75 should promptly pay over money 79 his power gone after trial and delivery of report, 80 is a judicial officer and cannot receive fees, 80 may amend summons 108 compelling him to report, , 124 his fees, 136 his duties end with delivery of report, 140 sending action to new referee on granting fresh trial, 152 taking testimony in supplementary proceedings 190 his deed in foreclosure, 275 his deed divests title as of the time of sale 277 it passes title presently, 277 should pay and distribute purchase moneys without delay, 278 report of sale, 278 his report of appointment of a receiver, , 316 report on petition for general guardian where the infant is over the age of fourteen years 359 his report on petition for general guardian where the infant is under the age of fourteen years, 363 report of, as to a sale of infant's estate being beneficial, 412 report of resale in partition, 495 deed in partition, 495 report of, on complaint to dissolve marriage because of adultery, on defendant's default 526 "report finding orueltv, on complaint for a limited divorce (on de- fault), ." 532 report, in favor of plaintifl: (applicable to adultery or cruelty) 639 report in favor of the defendant, 543 report of, under reference to appoint a lunatic of a committee, . . . 595 report recommending a sale of part of the real estate of a lunatic, 611 report of sale of portion of lunatic's real estate, 613 report on a final accounting by the committee, 625 report of referees under reference of doubtful claims against a de- cedent's estate, 641 settlement of referee's report in partnership matters and objec- tions, 674, 675 report of, in partnership, 676 report of, where application is made that an infant heir perform an- cestor's contract, 704 report as to two actions pending '725 836 INDEX. Pago. EEPEREE — continued. his return to order on petition for the production of a person upon wliose life some particular estate depends 742 active part of return (in such case) where the person was not pro- duced, 751 appointment of referees on appeal from the determination of com- missioner of highway to alter, lay out or discontinue a road, . . . 766 powers of, in such a case, 772 decision of, in such a case, 780 REFERENCE, its constitutionality, 1 its propriety, 2 when not touched hy statute or rules, proceedings on 4 where the trial of an issue of fact will req[uire the examination of a long account on either side, 82 questions of law a bar to such a reference, 95 general course and conduct of a trial of issues before referees, 99 in supplementary proceedings, 158 to ascertain damages on the dissolution of an injunction order,. . . . 201 to compute and to sell in cases of foreclosure, 233 in relation to surplus moneys on sales of mortgaged premises, 282 to appoint a receiver, 307 on title, 323 to appoint a general guardian for an infant, 346 to obtain a sale or other disposition of an infant's real or leasehold estate, 396 in partition 429 in actions for divorce and separation, 509 in an action to dissolve a marriage because of adultery, where there is a failure to answer or the cliarge is not denied in an answer, 519 in matter of limited divorce, where there is a default or the charge of cruelty is not denied, 529 for trial of issues in a divorce case, 534 consent to such a reference, 635 in an action for divorce, for that one of the parties was an idiot or lunatic 545 in an action for divorce where one of the parties had not attained the age of legal consent, 551 in an action for divorce, because the former husband or wife of one of tlie parties is living, 554 in an action for divorce on the ground that the consent of one of the parties was obtained by force or fraud, 557 in an action to annul marriage for physical incapacity 561 to ascertain proper amount of temporary alimony and expenses to carry on a defense, 568 petition for alimony and expenses, 570 order of reference as to alimony and expenses, 572 to appoint a committee of a lunatic, idiot or habitual drunkard, . . . 679 on an application by a committee of a lunatic, &o., to mortgage, lease or sell real estate, 606 for a committee of a lunatic, &c., to pass his accounts, 618 of claims against the estate of deceased persons which are consid- ered of a doubtful character by executors or administrators, 629 to account between partners, 648 in proceedings for the collection of demands against ships and ves- sels, 683 REFERENCE — continued. INDEX. 837 Page. speciflo performance by an infant heir of the contract of his ances- tor or by any other person who may be a party to such an instru- ment 695 as to two suits or proceedings pending for the same matter ; and wliere one or more suits are instituted for an infant, 714 to settle issues, 734 to discover tlie death of persons upon whose lives any particular estate may depend, 741 in relation to altering, discontinuing or refusing to lay out a road ; also reference in regard to the location of a toll-gate, 755 in a controversy between trustees of an insolvent debtor and any other person, 789 in suits against heirs to ascertain the value of lands descended,. . . 803 where testimony is conflicting on a motion to discharge from arrest, 806 by creditor of a decedent on a claim to a fund in court belonging to his infant heir and which arose from the estate of the ancestor, 808 in action of account, 809 in collateral matters of fact, 811 demurrer referable, 812 in cross-actions, one reference to embrace both, 813 And sea the respective heads : Claims, &c. ; Divorce ; Heir ; Infant ; Insolvent Debtor; Issues and Trial of Issues ; Lunatic, Idiot, Habitual Drunkard ; Partners ; Road ; Ships and other Ves- sels ; Supplemental Proceedings ; Surplus Moneys. REMOVING, a guardian, 385 RENTS, a purchaser under judgment in foreclosure acquires no right to rents accruing between paying balance and delivery of deed, . . . 277 REPORT, a referee approaches the court through it, 11 distinction between it and a certificate 11 of referee not conclusive, 13 as to the date of his report, 813 after its confirmation, a review not generally ordered, 813 not to be interfered with in question of fact, iinless clear error, 14 should contain such a statement as will enable court to see grounds of his action, 73 after report delivered, tlie referee's jurisdiction terminates, 80 compelling referee to report, 124 report on trial of issues, 128, 130 report of referee is in the nature of the verdict of a jury, 131 filing report and perfecting judgment after trial of issues, 139 setting aside, and granting a new trial, ]47 or certificate of non-attendance of judgment debtor or witness 178 report or certificate of a referee to ground order for an attachment on a judgment debtor's refusing to answer 189 of examination of judgment debtor under supplementary proceed- ings, 191 moving on referee's report under supplementary proceedings, 199 of amount of damages on dissolution of injunction, 227 in foreclosure, where the whole amount is due, with clause where there is a non-resident or infant defendant, 249 838 INDEX. Page. UEFOm — continued. in foreclosure where the whole amount is not due (with a clause to meet a case where there is an infant or non-resident defendant), 251 of sale in foreclosure, 278 of referee in regard to surplus in foreclosure where there is hut one claimant, 296 where there have been conflicting claims, 298 notice of its being on file, 300 exceptions to it, 301 of appointment of a receiver, 316 of referee (on a reference to title), that a good title can be made, . . . 333 his report against the title, 335 of referee on petition for general guardian where the infant is over the age of fourteen years, 359 of referee on petition for general guardian where the infant is un- der the age of fourteen years, 363 of special guardian of agreement to sell infant's real estate, 416 of special guardian of disposition of proceeds of sale 425 in partition, under the 78th rule 437 by a referee in partition, that a sale is necessary, 457, 458 general form of referee's report on a trial of issues, 130 setting aside report and granting a new trial, 147 or certificate of non-attendance of a judgment debtor or witness, . 178 or certificate of referee to ground order for an attachment on a judg- ment debtor's refusing to answer, 189 of examination of judgment debtor, 191 as to damages on dissolution of an injunction, 227 in foreclosure where the whole amount is due, with clause where there is non-resident or infant defendant, 249 in foreclosure where the whole amount is not due, with a clause to meet a case where there is an infant or non-resident defendant, . 251 of sale in foreclosure, 278 report, in relation to surplus moneys in mortgage cages, where there is but one claimant,. » . 296 report, where there have been conflicting claims 298 of appointment of a receiver 316 in favor of a title, 333 against a title, 335 on petition for general guardian where the infant is over the age of fourteen years, 359 on petition for general guardian where the infant is under the age of fourteen years, 363 of reference on sale of infant's estate, 412 of guardian, of agreement to sell, 416 of guardian, of disposition of proceeds of sale, 425 report of referee, in partition ( under the 78th rule) 437 report of referee, that a sale is necessary, 457 report of referee, under order of reference as to title, &o. , and that a sale is necessary, 458 of sale in partition 483 on a resale in partition, 495 on complaint to dissolve marriage because of adultery (on defend- ant's default), 526 finding cruelty on complaint for a limited divorce, 532 (in divorce) in favor of plaintilf, applicable to adultery or cruelty, 539 (in divorce) in favor of a defendant 543 (in divorce) finding lunacy at the time of marriage, 549 INDEX. 839 Pago. REPOET — continued. on temporary alimony and expenses 576 on appointment of committee of a lunatic, &o. , 595 of referee, recommending a sale of part of the real estate of a lu- natic, 611 of sale of portion of lunatic's real estate, 613 of a referee on a final accounting by the committee 625 of referees under reference of doubtful claims against a decedent's estate, 641 settlement of report in partnersliip matters and objections,. . . 674, 675 form of report in ditto 676 exceptions thereto, 678 on claims against ships and other vessels 693 of referees in a case of application that an infant heir perform the ancestor's contract, 704 of more than two actions pending for same cause, 725 on issues embraced by interrogatories, 739 of referees in cases relative to debts due or from an insolvent debtor, 800 of sale in partition, 483 report of a referee on a resale in partition, 495 final report in partition 504 confirmation of same, 507 of referee on complaint to dissolve marriage because of adultery (on defendant's default), 526 finding cruelty, on complaint for a limited divorce 532 in favor of plaintiff (applicable to adultery or cruelty), 539 (in divorce) , in favor of defendant 543 finding lunacy at the time of marriage, 549 on temporary alimony and expenses, 576 under a reference to appoint a committee of a lunatic, 595 EESALE, in foreclosure ; see FoEECLOStrEE. ROAD, reference in relation to altering, discontinuing or refnsing to lay out a road and reference in regard to the location of a toll gate, . 754 observations in relation to altering, discontinuing or refusing to lay out a road, 754 appeal 762 form of appeal, 763 appointment of referees, 766 same, where the county judge cannot appoint, 766 notice to referees of their appointment, 767 oath to referees, 768 notice by referees to the commissioners of highways, 769 notice to the applicant, 770 witnesses 771 powers of the referees ^ 772 decision of referees, 780 SALE, referee may adjourn a sale, 58 report of, under judgment in foreclosure 278 reference to obtain sale, &o., of an infant's real or leasehold estate, 396 application for such a sale 398 840 INDEX. Page. SALE — continued. report, by special guardian, of disposition vf proceeds of infant's sale of real estate, 425 partition where a sale is necessary, ; 443 report, by a referee in partition, that a sale is necessary, 457, 458 judgment order of sale in partition and for distribution and parti- tion of proceeds, '. 463 notice of sale in partition, 478 conditions of sale 478 memorandum of sale, 480 report of sale in partition 483 confirmation and order of confirmation of such sale, 484, 485 resale in partition 492 SAME MATTER, reference, as to two suits or proceedings pending for the same mat- ter, , 714 SEPARATION, See DivoKOE and Sepakatios. SETTLED ACCOUNTS, 661 SETTLING ISSUES, See Issues and Trial op Issues. SHIPS AND OTHER VESSELS, reference in proceedings for the collection of demands against ships and vessels , 683 obserTations, 683 form of a creditor's claim and affidavit, 686 statement of objection, 688 agreement to refer, 689 form of rule to refer under agreement, 690 certificate of judge of selection of referees, ." G91 rule on such certificate, 692 form of report, 693 SPECIAL GUARDIAN, See GuAEDiAif. SPECIFIC PERFORMANCE, See Infant. SUBPCENA, for witness before referee on trial of issues, 108 SUMMONS, referee may amend 108 for judgment debtor to attend before referee, 175, et seq. SUPPLEMENTARY PROCEEDINGS, reference in, 158 general observations, ^ 158 proceedings under the first subdivision of § 292 of Code, and which has no requirement of proof of property, 165 affidavit to ground order for judgment debtor to discover property under the above subdivision, 168 INDEX. 841 I'age. BUPPLEMENTARY PROCEEDINGS — MwttnHerf. order {ex parte) for judgment debtor to appear before referee ; and, proof of service, 169 proceedings undeir the second subdivision of { 292 of Code, having reference to an execution issued, and where defendant unjustly refuses to apply property, 171 affidavit to obtain order under the last above subdivision, 173 order {ex parte) based on the last above affidavit, 174 service of order and summons for judgment debtor to attend, 174, et aeq. default in attendance, 177 report or certificate of non-attendance of a judgment debtor or wit- ness, 173 extent of examination of debtor and witnesses, 180 eontempt for not answering, 189 report or certificate of referee to ground order for an attachment on a judgment debtor's refusing to answer 189 referee taking testimony, 190 form of referee's minutes of examination, 190 report of examination, , 191 affidavit to ground order for examination of any person or corpo- ration having property or being indebted to judgment debtor, .. 190 like affidavit, where judgment was obtained in a judicial district court of the city of New York 190 order (ex parte), , 197 moving on the referee's report, 199 SURCHARGING AND FALSIFYING, an account 662 SURETIES, in an undertaking on granting injunction order; tee Damaqes. SURPLUS MONEYS, veferenoe in relation to, on sales of mortgaged premises, 282 general and particular observations 282 notice of claim, 284 motion for reference, 28S affidavit to ground order of reference as to surplus moneys, 286 order of r6ference 287 proceedings on the reference 288 certificate of clerk as to who have appeared or filed claims 289 claim to surplus moneys 290 report where there is but one claimant, 296 order to pay surplus moneys where there is but one claimant, 298 report where there have been conflicting claims, 298 notice that the referee's report is on file, 300 exceptions to report, 301, 302 eosts, 303 final order on report 304 TITLE, reference on, 323 observations, 323 order to report if plaintiflT can make a good title to a purchaser, . . . 32C proceedings on reference and principles, , 327 referee's report in favor of title, 333 referee's report against the title, 333 E. 106 842 INDEX. Page. rVthE — emimiud. exceptions to rej^ort, ; 336 judgment order on report 338 costs, 340 TOLL GATE, reference in reg&rd to the loeatiou of a toll gate, 7S4 ol3servatiou, 782 notice of appeal 783 notice of motion for the appointment of refereeg, 784 order of reference, '. , 76S TBIAL OF ISSUES, See IsauEB a,»d Tbiai. o? Isavest. VARIANCES, . referee may disregard . , , . ....... ...... 83 VENDOR AND PURCHASER, See Title, REPBKBirog os, VESSELS, See Ships and othkr VBSSBts. VTVA VOCE, referee can thus proceed or through interrogatories 40 WITNESS, referee can compel attendance of, 38 attachment for not obeying a subpcena, 44 referee cannot be a witness, 59 referee may refuse or accept testimony of a witness's character, ... 61 subpoena for witness on trial of issues X08 his rights on a trial of issues, 112 report or certificate of non-attendance of a witness, 176 witnesses and subpoena on appeal from determination of commis* sioner of highways to alter, &o., a road, ., . . . 771 I .,m.