(Ijnntpll Ham §»rl)0nl Hibrary KFN606o!c89" ""'""'*">' Library ^WfmJSP:. practice ,]" .special proceedi 3 1924 022 883 866 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022883866 THE LAW AND PRACTICE IN SPECIAL PROCEEDmGS, AND IX SPECIAL CASES, WITHIN THE COURTS, ETC. OF THE STATE OF NEW YORK; WITH AN APPENDIX OF FORMS. CHARLES GEARY, COUNBELLOE AT LAW. NEW YORK : JOHN S. VOOKHIES, LAW BOOKSELLER AND PUBLISHER, No. 20 Nassau Street. 1858. B^^A7y the Appellate Court.] The appellate court is required to proceed to the hearing and determination of the appeal, and to review all the proceedings upon the application, and to do therein what shall be just. 2 R. S. 491, sec. 22. But only the regularity and fairness of the proceedings will be examined into. 4 Wend. 630. And the court will look only to the papers which have been returned ; and will not permit affidavits to be read on either side which were not received on the argument below. See 2 Hill, 543. In case the order of confirmation is reversed, the court is required to cause the same to be certified to the suiTogate or 11 ADMEASUREMENT OF DOWER. [CH. I. court making such order, to the end that new commissioners may be appointed, or a new admeasurement may be had, as the Supreme Court shall direct ; or the court may proceed to appoint commissioners to make admeasurement, in the same manner as upon an original application to such court, and the like proceedings shall be had thereon. 2 M. S. 492, sec. 23. For forms of order, see Ajp])endix, Nos. 14 and 15. In case of the afiBrmance of the order of confirmation, the appellate court is authorized, in its discretion, to award costs to be paid by the appellant, and to be taxed as the court shall direct ; and the original order of confirmation, and the ad- measurement confirmed thereby, will be binding and conclu- sive, and authorize an action to recover the possession of the lands 30 admeasured. Ih. sec. 24. Costs of the Prooeedings.] The statute provides, that all costs and expenses arising on any proceedings on the applica- tion for the admeasurement of dower, shall be taxed by the surrogate, or a judge of the court in which the proceeding is had ; and when the application is made in the Supreme Court, and also when made to a Surrogate or County Court, or the Court of Common Pleas of the city of New York, and no ap- peal shall be made from the Order of confirmation, the costs and expenses shall be paid equally, the one half thereof by the widow, and the other half by the adverse party, 2 H. /S. 492, seo. 25 ; and see sec. 24 swpra. The costs, if the proceedings are in the County Court, or the Surrogate's Court, are to be taxed at the rate allowed for such services in those courts prior to the adoption of the Code, Code, § 471 ; 1 Brad. JR. 37 ; but if the proceeding is in the Supreme Court or Court of Common Pleas of the city and county of ISTew Yoi-k, the costs are allowed in the discretion of the court, and when allowed are to be taxed at the rate allowed for similar services in civil actions. Zaws of 1854, p. 592, post, note at end of this chapter. If an appeal is taken, then the costs must be paid by the party applying for the admeasurement. And if, on such ap- OH, I.] ADMEASUREMENT OF DOWER. 15 peal, the admeasurement be affirmed, the Supreme Court, in awarding costs, will require the party appealing, to ]3ay the one half of such costs and expenses, if he have not before paid the same. Ih. sec. 26. And in such case, the Supreme Court may also, iu its discretion, award costs of the appeal, to be paid by the appellant, and to be taxed as the court shall direct. Ih. sec. 2i. And such costs will be allowed, if there has been no fault on the part of the respondent. 2 Mill., 514:. It is also provided by § 318 of the Code of Procedure, which is believed to be applicable to these proceedings, that where the decision of a court of inferior jurisdiction in a special proceeding, shall be brought before the Supreme Court for review, such proceeding shall, for all purposes of costs, be deemed an action at issue on a question of law, from the time the same shall be brought into the Supreme Court, and costs thereon shall be awarded and collected in such manner as the court shall direct, according to the nature of the case, {a) Code of Pro. § 471 ; 6 How. Pr. ^. 319 ; 14 Id. 527 ; 7 Jd 15 7 ; 9 Id. 304 ;s. c.Z Puer, 616 ; 1 Kernan, 55 ; Ih. 277 ; and note at the end of this chapter. And by chap. 270 of Laws of 1854 {p. 592, sec. 3), it is further provided that in special proceedings, and on appeals therefrom, costs may be allowed in the discretion of the court ; and when allowed, are to be at the rate allowed for similar services in civil actions. "Whether this provision is applica- ble to a proceeding for the admeasurement of dower, and if so, to what extent, has not been determined ; though that pro- ceeding is no doubt a special proceeding within the meaning (a) By § 47 1 of the Code of Procedure, it is provided, that the second part of the Code shall not affect " appeals from surrogates' courts ;" and it has been held, therefore, that appeals to the Supreme Court, from the decrees and orders of surrogates, are to be governed by the law in force previous to the Code, as ■well in respect to costs and fees as in other particiilars ; and that the second part of the Code has no application to them. 16 Barb. 592 ; 6 How. Pr. R. 318. But the " appeals from surrogates' courts," alluded to, are appeals to the late Court of Chancery, provided for by the Revised Statutes (2 R. S. 608, 609), and which were transferred by the judiciary act to the Supreme Court, and not ap- peals in cases of admeasurement of dower. See post, note at the end of this chapter. 16 ADMEASUREMENT OF DOWER. [CH. I. of the statute, (a) See Code of Pro., §§ 1, 2, 3 ; 1 Kern. 55 ; Ih. 277 ; 2 Id. 406 ; 12 Eow. Fr. E. 99 ; «. c. 2 All. Pr. R. 368 ; 14: How. Pr. R. 529. (a) As frequent reference will be made to the act of 1854, in the subsequent chapters of this -work, it is inserted entire at the end of this note ; also the several sections of the Code therein referred to. The practice upon the several subjects of appeals, and of costs, in special proceedings, and of costs on appeals, in special proceedings, will be found to be somewhat complicated, if not involved in considerable doubt and uncertainty. Thus, the act of 1854 seems to be confined to special proceedings within the courts therein mentioned, viz., the Supreme Court, and the Superior Court, and Court of Common Pleas of the city of New York; and if so, the practice in the particulars mentioned, in special proceedings in the county courts, and the recorders' and mayors' courts of cities, and other local courts, in cases where those courts have jurisdiction, as well as in similar proceedings before justices of the Supreme Court, and other judges and officers at chambers, is left unpro- vided for, or to be determined by other or pre-existing statutes. The act of 1854, also, fails to indicate the subjects included in the terms " special proceedings." Does it include proceedings for the admeasurement of dower ? or proceedings upon the entry of judgment on the award of arbitrators ? or proceedings as for contempts to enforce civil remedies, and the like ! The courts have not yet determined these questions. They have decided, however, that under that act, an appeal lies to the general term from an order directing a mandamus to issue, 19 Barb. 657 ; and from an order confirming the report of commissioners of appraisal for lands taken for a railroad, 10 How. Pr. R. 168 ; or for a public street, 2 Kernan, 406 ; but see 12 How. Pr. R. 97, s. c. 2 Abb. Pr. R. 368 ; and from an order made upon the coming in of the report of referees under a reference of the plaintiff's claim against executors, or administrators, without action pursuant to 2 R. S. 88, ofi(, Chap. IX. CH. I.] ADMEASUREMENT OF DOWER. 19 other subordinate court, in a special proceeding, the review of which is not provided for by the act of 1854, or by the Code of Procedure, and in like cases before a judge or magistrate at chambers, the review is now by certiorari or by appeal to the Supreme Court, in the same cases where a certiorari or an appeal to the Court of Chancery, or to the Supreme Court, was proper under the former system; and is regulated by the same practice. See Zaws of 1847, p. 324 sec. 17 ; JEguity Rules, 1847, No. 81 ; 4 ffow. Pr. R. 432; 2 R. 8. 491, sec. 19 ; Id. S16, sec. 47 ; Id. 573, sec. 69 ; Id. 610, sec. 19. On the subject of costs, the same difficulty exists, though it is believed that the Code of Procedure, in cases not provided for by the act of 1854, is to apply, where the proceeding partakes of the character of an action, and also in all cases of appeals in special proceedings where the Code is to apply to the pro- ceedings upon the appeal. Code of Pro. §§ 8, 11, 333, 323; 9 How. Pr. R. 304, per Duer, J,; s. c. 3 Duer, 616 ; 2 Band. S. G. R. 740, and other cases supra. In all other cases the costs are in the discretion of the court; and when allowed, the rate prescribed by the revised and other statutes, in existence when the Code took effect, will regulate the amount to be recovered. Id. ibid. ; 2 Monell's Pr. 60. In respect, however, to costs on the review of a decision of an inferior court, in a special proceeding, it is provided by § 318 of the Code of Procedure, that when such a decision " shall be brought before the Supreme Court for review, such proceedings shall, for all purposes of costs, be deemed an action at issue on a question of law, from the time the same shall be brought into the Supreme Court, and costs thereon shall be awarded and collected in such manner as the court shall direct, according to the nature of the case." This section has been held to apply to a common-law certiorari, removing into the Supreme Court for review, » proceeding on an application under the statute in relation to the relief and support of indigent persons, 7 How. Pr. R. 154 ; and also, to a certi- orari removing into the Supreme Court the decision of referees appointed to hear and determine an appeal from an order made by commissioners of high- waj's. 14 Id. 527. It is believed to apply, also, to proceedings by certiorari to review the decisions of subordinate courts, and to appeals from subordinate courts to the Supreme Court, generally, in oases wherea certiorari or an appeal is authorized, and no provision is otherwise made for the costs of the review. See 9 How. Pr. R. 304, per Puer, J.; s. c. 3 Duer, 616 ; 6 How. Pr. i2. 179 ; Id. 31 9. But it does not apply to appeals from a surrogate's court, 16 Barb. 690; 6 How. Pr. R. 318 ; except, however, as we have seen, to appeals from that court in proceedings for the admeasurement of dower. See, ante, p.\5, and note. Act of 1854, Chap. 270, P. 692. " An Act in relation to special proceedings. " § 1. An appeal may be taken to the general term of the Supreme Court pr the Superior Court, or Court of Common Pleas of the city of New York, from any judgment, order, or final determination made at a special term of either of said Courts in any special proceeding therein ; such an appeal, how- ever, shall not stay the proceedings unless the Court, or a Judge thereof, so order, which order may be upon such terms, as to security or otherwise, as may 20' ADMEASUREMENT OF DOWER. [CH. I. be just; suoh security not to exceed the amount required on an appeal to the Court of Appeals. (10 How. Pr. iJ. 168; 12 U. 97 ; s. c. 2 Ahh. Pr. R. 368; 14 How. Pr. B. 511 ; 2 Eernan, 406 ; 19 Barb. 657.) " § 2. Sections three hundred and twenty-seven, three hundred and twenty- nine, three hundred and thirty, and three hundred and thirty-two, of the Code of Procedure, shall apply to appeals in special proceedings. " § 3. In special proceedings, and on appeals therefrom, costs may be allowed in the discretion of the court, and when allowed shall be at the rate allowed for similar services in civil actions; and all appeals heretofore had or taken, and undetermined in special proceedings, shall be as valid and effectual as though had or taken under the provisions of this act. " § 4. This act shall take effect immediately." The following are the sections of the Code of Procedure alluded to in the above statute: "§ 32Y. An appeal must be made by the service of a notice in writing on the adverse party, and on the clerk with whom the judgment or order appealed from is entered, stating the appeal from the same or some specified part there- of. When a party shall give, in good faith, notice of appeal from a judgment or order, and shall omit through mistake, to do any other act necessary to per- fect the appeal or to stay proceedings, the court may permit an amendment on such terms as may be just. " § 329. Upon an appeal from a judgment, the court may review any inter- mediate order involving the merits and necessarily affecting the judgment. " § 330. Upon an appeal from a judgment or order, the appellate court may reverse, aiBrm, or modify the judgment or order appealed from, in the respect mentioned in the notice of appeal, and as to any or all of the parties, and may, if necessary or proper, order a new trial. When the judgment is reversed or modiiied, the appellate court may make complete restitution of all property and rights lost by the erroneous judgment. "§ 332. The appeal allowed by the fourth chapter of this title must be taken within thirty days after written notice of the judgment or order shall have been given to the party appealing." CHAPTER II AEBITRATIONS. Arbitration is the hearing and determination of a cause between parties in controversy, by a person or persons chosen by the parties. The act by which such parties refer the matters in controversy, is called a submission y the per- son to whom the reference is made, an arbitrator ; and his decision, an award. An umpire is a third person selected by the parties, or by the arbitrators, to decide the matters in controversy, when the arbitrators have failed to agree. His decision is termed an umpirage, or award. An essential characteristic of an arbitration is, that the matters in controversy shall be submitted to the arbitrators for the purpose of final determination. The reference of a collateral fact, or the submission of a particular question, forming only a link in the chain of evidence, is not calculated to put an end to controversy ; it barely substitutes the judg- ment of the arbitrators in the place of evidence on the collat- eral or particular matter submitted, leaving the controversy open. A reference, therefore, of such a matter, is not treated by the courts as a proper submission to arbitration. 5 Wend. 522, and note ; 9 Id. 661 ; and see 2E. S. 541, sec. 1, post. The first legislative provision ad opted in this State on the subject of arbitrations, was passed Eeb. 28, 1791. That act was substantially the same as the act of 9 and 10 Will. III. from which it was taken. 17 Wend. 413. It ^vas continued in tlie subsequent revisions of the statutes, and may be found 22 AEBITRATIONS. [CH. II. in the Eevised Laws of 1802 and 1813, in the same form in which it was originally passed. 1 B. L. 1802,^. 156 ; 1 B. L. 1813,^. 125 ; and see amendments to same in Laws of 1816, f. 242, and Laws of 1824,^. 285. The Eevised Statutes of 1830, which are herein considered, essentially varied and improved the previous statutes, and introduced a system of law and practice on the subject in many respects new, and which was intended to be complete of itself. They specify the matters which may be submitted to arbitration, the manner in which the submission shall be made, and the proceedings on the arbitration. They also authorize judgment to be entered on the award, with costs, and execution or process of contempt to issue for the enforce- ment of the same. By which means " the parties will be saved the necessity of an expensive and perplexing action, on the bond or the award ; and the object of the statute ' to contri- bute much to the ease of parties, in determining their differences,' as expressed in its preamble, will be more effect- ually obtained." Bev. Notes, 3 B. S. '2,d ed. 771. Provision is also made by which the award, in the cases specified in the statute, may be vacated, modified, and corrected ; and where judgment is entered upon it, the parties may have the same reviewed by appeal, the same as in actions. Ih. ; and see post. The right of parties to submit their matters to arbitration, at the common law, still exists notwithstanding the statute. 15 Wend. 99; 2 Hill. 273, note. How far the provisions of the statute apply in such cases, is not fully settled by the authorities. The better opinion, however, is, that in all cases where the submission is in writing, the provisions of the stat- ute, except those relating to the powers of the court to vacate and to modify the award, and to the entry of judgment thereon, apply to the arbitration, notwithstanding that the submission does not authorize a judgment to be entered upon the award. 4 Denio, 347 ; 5 Paige, 575 ; 4 Corns. 159 ; 15 Wend. 103. And all the provisions of the statute apply to those cases, only, where the submission is in writing, and au- thorizes a judgment to be entered upon the award made pur- CH. II.] ARBITRATIONS. 23 suant to it. 20 Barb. 482. But where the submission is by parol, the statute has no application. In such case, it is an arbitration at the. common law. It being settled that a parol submission is valid, the doctrine is to be carried out in all its legitimate consequences. When the parties do not begin under the statute, the subsequent proceedings can neither be aided nor injured by the statute, i Denio, 348, per Bronson, J. ; and see 5 How. Pr. E. 315 ; 15 Wend. 99 ; 2 Barl. Ch. E. 437 ; 2 EiU, 271. What Matters may ie Svimitted.] The statute provides that all persons, except infants and married women, and pei-- sons of unsound mind, may submit to the decision of one or more arbitrators, any controversy existing between them, which might be the subject of an action at law or of a suit in equity, except in the cases therein otherwise provided. 2 E. S. 541, seo. 1. The submission of all matters in diiference, or of certain matters, only, within the meaning of this sec- tion, must be rmderstood as limited to existing controversies, and cannot be construed to authorize an award upon any matter arising subsequently to the submission. 4 Eenio, 252, per Beardsley, J. But no such submission shall be made respecting the claim of any person to any estate in fee, or for life, to real estate ; any claim, however, to an interest for a term of years, or for one year or less, in real estate, and controversies respecting the partition of lands between joint tenants, or tenants in common, or concerning the boundaries of lands, or concerning the admeasurement of dower, may be submitted to arbitration. 2 E. S. 541, sec. 2. The Kevisers, in introducing the section last mentioned, remark : " The old law certainly was, that freehold or inher- itance of lands could not be determined by arbitrament. 1 Eoll. 242, L. 10 ; Comyn's Arbitrament, D. 3. And although it has been qualified in modern times (3 East, 11 ; 15 Johns. E. 197), by sa)ing that the award cannot operate to transfer the title, but merely to estop the parties, yet it is con- ceived, that this is only calculated to mislead those who may 24: ARBITRATIONS. [CH. 11. wish to resort to an arbitration to determine their titles. Be- sides, on principles of public policy, it is believed that such controversies, which always involve intricate legal questions, ought not to be thus determined. The excej)tions stated, embrace the cases which seem to require it, and which have been most usually presented to the courts." Rev. Notes, 3 R. S., Med. 774 See also 15 Barb. 645 ; 20 Id. 488, Cow. and HilVs Notes to Phil. Ev. 1037 ; Cold, on Arb. 1, 2. The prohibition of the statute against the submission to arbitration of claims to an estate in lands, applies only where the controversy relates to the legal title, and not where the equitable title only is in dispute. A party who seeks the specific performance of an agreement to convey lands, or damages in lieu thereof, does not make a claim to an estate in fee, within the meaning of the statute ; he is merely seeking the performance of an agreement, or a compensation if such agreement cannot be performed. And, therefore, where a suit was pending, and the relief sought was a specific performance in respect to lands of which the title was admitted to be in the defendant, or damages, it was held that the matters in issue in such suit were properly submitted to an arbitrator, and that his award was binding. 15 Barb. 644, aff. 4 Ker- nan, 32. "The claim to an estate of any particular descrip- tion in lands," says T. A. Johnson, J., " is a claim that such estate is in the claimant, and the decision upon it would ne- cessarily determine whether the estate was in the claimant or not. The terms, estate in fee, or for life, import legal estates only. They have a precise and definite legal signification, to which they are to be confined in giving construction to this statute. This was the kind of claim, the submission of which was intended to be forbidden." 4 Keman, 39, supra. A religious corporation, not having the power to sell its real estate without the consent of the court, cannot submit to an arbitrator the question whether such real estate shall be sold ; and where, in such case, an arbitrator was chosen and decided that the property should be sold, it was held that his award was not binding upon any one, and that it con- ferred no authority to make the sale. 23 Barb. 327 ; s. c. 4 CH. IL] ARBITR,ATIONS. 25 Ahl. Pr. B. 182. Nor will corporators be bound by the submission to an arbitrator, of the question who are the legally elected trustees of the corporation ; and an award un- der such a submission, cannot legally determine that question. Id. ibid. A single item of a long account may be submitted to arbi- tration, and the award, if regular, will be valid as to the sub- ject submitted. 1 Wend. 326. But the reference of a col- lateral fact, or of a particular question, forming only a link in the chain of evidence, is not a proper subject of submis- sion to arbitration. 5 Id. 522, note; 9 Id. 661. And an agreement by which the members of an associa- tion {e. g. — a Lodge of the Independent Order of Odd Fel- lows), undertake to confer judicial powers, in respect to the property in which they have a common interest, upo4 a body of men or oificers, to be from time to time selected out of the association at large, as a tribunal having general authority to adjudicate upon alleged violations of the rules of the associa- tion, and to decree a forfeiture of the rights to such property, of the parties adjudged to have been guilty of such violation, is void. And the courts will not aid in enforcing the judg- ment of a tribunal sought to be created by private compact, except in cases of a submission to arbitration of specific mat- ters of controversy. 16 New York H. 112. Who may Submit to Arbitration.] All persons, except in- fants and married women, and persons of unsound mind, may enter into an agreement to submit to arbitration. 2 R. S. 541, sec. 1 ; 5 Wend. 20. And see as to who are the proper parties to a submission at the common law, Cold, on Arb. 7 to 15. Generally, where there is a capacity to contract, with a liability to pay, there is a power to arbitrate. 1 Barb. S. G. B. 584. A corporation, therefore, may legally submit a question to arbitration, lb. 590. And so, the guardian of an infant may submit a claim to arbitrators on behalf of his ward ; and a performance of the 26 ARBITEATIONS. [CH. IL award will be a bar to a suit by tbe infant when of age for tbe same matter. 3 Cai. R. 253. Where a claim was sub- mitted to arbitration by an infant, and an award afterwards made in his favor, and the money awarded to him, paid to his guardian, his settlement with the guardian in relation to the claim, on his attaining his majority, was held to be an afSrm- ance of the award, and a bar of the claim. 4 Selden, 231. And the omission, in that case, to enforce the original claim for two years after the infant's arrival at full age, was held to be an acquiescence in the submission and award, lb. An attorney, it seems, has authority, as such, to'submit a matter to arbitration, for his client. 8ee Cow. c& Sill's notes to Phil. Ev. 1034. And if this were not so, yet the objection would be waived by the client's personally participating in the proceedings upon the hearing before the arbitrators. 2 mil, 271. Where the submission is entered into by an agent or at- torney, it should be in the name of the principal ; otherwise the agent or attorney would be personally liable, 5 Hill, 419. And so, also, a person would be liable if he enter into a sub- mission on behalf of himself and others, but without their authority, lb. One of several partners has no authority, without the assent of his co-partnei-s, to refer to arbitration any partner- ship interest or controversy, 13 Barb. 660 ; and this, too, whether the submission is by simple agreement, or by speci- ality, lb. And where, in such case, a submission was entered into by one of the partners, in the firm name, with- out the consent of the co-partners, the submission was held to be valid as to him, but void as to the co-partners. lb. ; and see 1 Wend. 326 ; 3 Kenfs Com. 49 ; 15 Barb. 524. The Arbitrators and Umpire.] The parties to the contro- versy may select such persons as arbitrators, as they may think proper. They, alone, are to judge of the fitness and competency of those to whom are delegated the authority to determine the matters in dispute. And, therefore, the sub- mission would be valid, even though the arbitrators selected CH. II.] ARBITRATIONS. 27 are persons whose want of capacity or defect of character is notorious {Cold, on Arh. 37 ; Boll. ArUt. A) ; and though they sbould he interested in the result of the controversy, or closely connected with one of the parties. li. Though if these ohjections to the arbitrators were unknown to the parties at the time of their appointment, or such interest or relation- ship, or other incompetency, arose, or was discovered, subse- quently, it wonld be different, and relief would no doubt be afforded to the party injured. H. • and see 1 Barb. S. C. H. 336; 2 Vern. 251. Where arbitrators have made an award which is void, a party has the right to consider the power conferred upon them as virtually annulled, and to call for the selection of new ar- bitrators. He is not bound to renew the investigation before arbitrators who have already formed and expressed an opinion. 1 Barb. S. C. E. 326, 336. The arbitrators will not be permitted to contradict their award (3 Paige, 12-i; 12 Wend. 212); nor to give evidence tending to impeach it. 1 Barb. S. C. E. 326 ; 20 Id. 482 ; though their testimony may be received, when fraud is not al- leged, to show that they did not take a particular subject mat- ter into consideration (1 Barb, supra), and that matters were included in the awai-d which were not embraced in the submis- sion. 20 Id. 410. But the rule that arbitrators are not permitted to give evidence to impeach or contradict their award, does not apply to arbitrators whose powers have been terminated by the appointment of an umpire, by whom the award is made. 1 Barb., supra. Where matters in difference are referred to more than one ai'bitrator, it is usual to provide in the submission that some other person shall ultimately decide upon them, in case the arbitrators should be unable to agree. Cald. on Arb. 38. Such person is called an umpire ; and he may be appointed immediately by the arbitrators, without waiting until a dis- agreement has arisen between them. 1 Hill, 489 ; 1 Bai b. S. a E., 325 ; 2 Johns. 57 ; 17 Id. 405. The appointment of the umpire should be in wi'iting, especially if the submission is under the statute ; 23 Wend. 28 ARBITRATIONS. [Ca II, 628 ; the most usual way is by an endorsement made by tbe arbitrators upon the instrument of submission. Cald. on Arb. 42. But if the arbitrators and umpire sit together and hear the parties and their witnesses, and all unite in making the award, the award is sufficient evidence of the appointment, unless the submission requires the appointment to be made previous to entering upon the hearing. 23 Wend. 631, per Walworth, Ch. Where the submission is at the common law, and by parol, the appointment of the umpire may also be by parol. Ih. 628. The authority of the arbitrators ceases on the making and delivery of the award ; 4 Corns. 567 ; and also on their failure to agree, and the appointment of an umpire. 1 Barb. S. G. It. 325 ; Cald. on Ati. 3S, 43. And if, after the appointment of an umpire, the arbitrators join with him in making the award, this will not vitiate it. The award, in such case, is to be regarded as the sole award of the umpire, and the arbi- trators' signatures may be treated as surplusage. 1 JUII, 489 ; 1 Barb. S. C. R. 325 ; 4 Duer, 325. And so, authority may be given to the arbitrators, in case of their disagreement, to call in a third person as arbitrator to sit with them, and hear and determine the matters in con- troversy. In such case, the person so called in is not an umpire, but only an arbitrator, and the proceedings thence- forth are to be conducted the same, in all respects, as if he had been appointed in the first instance, with the other arbi- trators. 4 Duer, 318. The Subnvission.'] The submission is the authority given to the arbitrators, by the parties, empowering them to inquire into the matters in controversy, and to determine the same. Where the submission is in writing, it is embodied in the form of a mutual agreement between the parties, or in the condition of a bond to be executed by one to the other. For forms of each, see Appendix, Wos. 16 to 20. The statute requires the submission to be in writing. 2 a .S., 541, sec. 1. But this is not required, at the common law, except where the controversy is in relation to real estate, CH. II.] ARBITRATIONS. 29 or to some matter as to wMcli it is incompetent for the parties to make a valid and binding agreement by parol. 2 Bar!}, Ch. E. 430; 2 Hill, 272, note; Billing's Lam of Awards, 9 ; Eyd on Awards, 7 ; Cowen and HilVs notes to Phil. Ev. 1026. Tbe statute has not changed the law in relation to submitting matters in controversy to arbitration, except in those cases where the parties enter into a submission in pur- suance of the provisions of the statute. /5. ; 15 Wend. 104 ; 4 Denio, 347. And, therefore, a parol submission is valid ; and it need not be in writing, except for the purpose of enforcing the award in the manner prescribed by the statute. 2 EiU, 271, a/nd cases supra ; 5 How. Pr. R. 316. Where the submission to arbitration is by a corporation, it may be made by a resolution, or ordinance, adopted at a meeting thereof; and it need not be under its corporate seal. 1 Barl. 8. G. E. 584. The form of the submission is a matter of indifference. It is sufficient, if it appears from the acts of the parties, that an arbitration was intended, and that the decision of the arbitra- tors should have the effect of an award. lb. Care must be taken, however, in drawing the submission, as it is from that that the arbitrators acquire their jurisdiction or power of deciding. The authority conferred by it must be strictly fol- lowed. 6 Johns. 14 ; 1 Wend. 326 ; 4 Corns. 167 ; 7 Hill 329. Where the submission is of all demands, it includes all questions relating both to real and personal estate. 5 Wend., 268 ; 15 Johns. 197 ; 2 Cai. E., 320. And where it is general, of all causes of action, an allegation of fraud in a sale is in- cluded. 9 Johns. 38, 42. And see also upon the construction of submissions, 20 Barb. 481 ; 23 Id. 187 ; Cow. & HilVs Notes to Phil. Ev. 840 ; Cold, on Arl. 25. It is not necessary that there should be an express agree- ment in the submission to abide by the award when made ; for the law implies this from the fact of submission. 2 Barb. Ch. E. 430. The submission is valid, notwithstanding that it does not coi^Jain an agreement that a judgment of a court of record 30 ARBITRATIONS. [CH. II. may be entered on the award. 4 Ooms. 167. And where a submission purported to be made pursuant to the statute, but omitted to authorize a judgment to be entered on the award to be made ; it was held that this was not a submission under the provisions of the statute. 20 Barb. 486, per C. L. Allen, J. ; and see 5 Paige, 678 ; 4 Denio, 347. Where the submission is under the statute, if the parties intend to authorize the arbitrators to award the costs and expenses of the arbitration, the submission should contain such authority in express terms. 4 Denw, 249 ; and see 13 Barb. 90. But if the subject of controversy is an action then pend- ing in court, the arbitrators may award as to the costs of such action without any express authority for that purpose. 4 Denio, 251. And so, they may award as to the fees and expenses of the arbitrators, without such authority. lb. 253. Where the submission was by two parties on one side, and one on the other, it was held that it included not only the j oint demands of the two, but their individual demands against the other party. 19 Wend. 285. And so, where the submis- sion was by D. and M. on one side, and W. and his partner on the other, this authorizes the arbitrators to award against W., alone. 1 Hill, 319. The signatures of the parties to the submission should be witnessed, especially if the submission is under the provisions of the statute. 2 B. S. 542, sec. 9. The submission is revocable by either party at any time before the matters in controversy are finally submitted to the arbitrators for decision ; subject, however, to liability to costs, expenses, and damages, which the opposite party may have incurred in preparing for the arbitration, and which he may recover by action of the party revoking. 20 Barb. 262 ; 5 Paige, 578 ; 2 P. S. 544, sec. 23 ; and see posi, " Eevocation of submission." Effect of Submission.] The mere agreement to submit a cause pending in court to arbitration, operates as a discon- tinuance of the suit, although the arbitrators have not taken, or consented to take, upon themselves, the burden of the sub- CH. II.] ARBITRATIONS. 31 mission. 2 Wend. 505 ; 12 Id. 503 ; 15 Id. 293 ; 2 Mil, 387 ; 3 Barh. S. O. R. 275 ; 4 /d 541 ; 11 How. Pr. B. 355. But a party may afterwards waive such discontinuance by appear- ing at the trial of the cause, and going on with the same. 1 Wend. 314. And tlie submission will be a discontinuance of the suit, even though it is by parol ; and this, too, notwith- standing the existence of a rule of the court avoiding all agreements between parties in respect to the proceedings in a cause, unless the same are in writing ; and notwithstanding, also, the provisions of the statute requiring submissions to be in writing. 15 Wend. 99. But a valid submission may be made, leaving the suit still pending, provided it appears from the agreement itself that such was the intention cff the parties. And, it seems, the general agreement to submit to arbitration operates as a dis- continuance, merely from the implied understanding of the parties that the suit is to be no further prosecuted. 75. 103, per "Walworth, Ch. ; and see 20 Barh. 268. But it is not a discontinuance wliere the parties agree that a judgment may be entered on the award. 6 Cotoen, 399. And where, in such a case, the submission was revoked, it was held that the court might proceed with the cause to trial, notwithstanding the submission. Ih. Although the agreement to submit has the effect to dis- continue the suit, yet where the submission authorizes a judg- ment to be entered in the suit, in conformity to the award, a judgment may be entered accordingly ; and such judgment will be binding on the parties as a judgment by consent. 11 Paige, 529 ; 17 Johns. 461 ; 18 Id. 23; 13 Wend. 293. Where a party attempts to proceed with a cause after it has been submitted to arbitration, the remedy is by motion to the court to stay the proceedings, and not by plea. 2 Hill, 390, and note. The submission of a claim to arbitration constitutes no defence or legal obstacle to an action for the same matter, if the action is commenced before the case is finally submitted to the arbitrators for decision. 20 Barb. 262 ; 4 Sand. 198, aff. 1 Selden, 422. 32 ARBITRATIONS. [CH. II. Proceedings on the Arbitration, c&g.] The arbitrators selected are to appoint a time and place for the hearing, and may adjourn the same from time to time as maybe necessary ; and on the application of either party, and for good cause, they may postpone such hearing to a time not extending beyond the day, fixed in the submission, for rendering their award. 2 B. S. 541, sec. 3. Before proceeding to hear any testimony, the arbitrators should be sworn, faithfully and fairly to hear and examine the matters in controversy, and to make a just award, according to the best of their understanding. lb. sec. 4. For form of oath, see Appendix, No. 21. Such oath may be administered by any judge of any court of record, or by any justice of the peace, or by any commissioner of deeds. Zaws of 1843, p. 246. But the omission of the arbitrators to take the oath prescribed by the statute, will not invalidate the proceedings ; and this, whether the proceedings are under the statute, or at the common law. 4 Corns. 15Y; s.c. 1 Denio, 440 ; 24 Wend. 258 ; 1 Barb. Oh. B. 173. Though if objection is made, previousto the making of the award, that the arbitrators should be sworn, the omission, in such case, would no doubt render their pro- ceedings irregular. 4 Corns. 159 ; 1 Barb. Ch. B. 173. The arbitrators are also to give the parties an opportunity of being heard in relation to the matters submitted. And an award made without reasonable notice of the time and place of hearing, to the losing party, and without his being present, is void. 23 Wend. 628, reversing 5 Wend. 516 ; 3 Barb. S. C. B. 275. For form of notice, see Appendix, No. 22. What is a reasonable notice is for the arbitrators, themselves, to determine ; and where they act in good faith in reference to that question, their award will be sustained, although they may err as to what constitutes a reasonable notice. Jb. Due notice, however, will be presumed to have been given ; and the party seeking to impeach the award for the want of such notice must prove that it was not given. 1 Hill, 489 ; 1 Barb. S. C. B. 326. All the arbitrators must meet together, and hear all the proofs and allegations of the parties. But an award by a CH. II.] ARBITRATIONS. 33 majority of them will be valid, unless the concurrence of all the arbitrators is expressly required in the submission. 2 R. S. 642, see. 7. In a case, however, which arose prior to the Revised Statutes, where three arbitrators were named in the submission, with power to any two of them to make an award, it was held, that two of the arbitrators had power to hear, where the third had been notified of his appointment and fused to attend, 2 Wend. 494 ; though it would have been other- wise, it seems, if the arbitrator, who had been notified to attend, had not been willfully absent. 75. 496 ; Sev. JVotes, 3 H. S. 2d ed. 775 ; 11 Johns. 402 ; eid.i2; 4 Duer, 325. But where all the arbitrators have heard the proofs, &c., and the matter has been finally submitted to them, and they have adjourned to a fixed time to make their award, if one of them is absent at that time, the other two may proceed, and make a valid award. 3 Sand. S. O. H. 405. And where two of three arbitrators made the award in writing within the time, and it did not appear on the face of the award that all of them heard the proofs and allegations of the parties, it was held, that this might be shown by evidence aliunde. 7 Cov:en, 290 ; 3 Sand. S. C. R. 405. Although all the arbitrators must meet together and hear the proofs and allegations of the parties, yet it is not necessary that all should concur in the decision of every question which arises as to the admission or rejection of evidence ; but it is sufficient if all actually hear the cause. 3 Paige, 124. In the examination of witnesses, and in the character of the evidence received, the arbitrators have a wider latitude than courts in the trials of issues. Caldwell on Arh., 52. And, in general, where the submission makes no provision on the subject, the arbitrators may receive such evidence on the hearing before them, whether material and relevant to the matters in issue or not, as they may think proper. They may, also, hear the statements of the parties themselves. And it is no ground for setting aside the decision of the arbitrators, that they have received impertinent and incompetent evidence, 21 Ban"!). 382 ; though, it seems, it would be otherwise if they should refase to receive evidence which was pertinent and 3 34: ARBITRATIONS. [CH. II- material to tlie matters in controversy. 2 R. S. 542, sec. 10 ; 17 Johns. 406; 15 TTmi. 519. Wiinesses^ Witnesses may be compelled to appear before the arbitrators, by subpoenas, to be issued by any justice of the peace, in the same manner, and with the like eflfect, and subject to the same penalties for disobedience (2 E. S. 240) as in cases of trials before justices of the peace. 2 H. S. 541, sec. 6. For form of oath, &c., on application for subpoena, see Appendise, Nos. 23 and 24. The oaths to the witnesses and other persons examined before the arbitrators, may be admim'stered by the arbitra- tors, or any of them. Zaws of 1843, jp. 246. But the arbitra- tors do not possess the power to administer the oath, except where the submission is in pursuance of the statute. 5 How. Pr. R. 315. For form of oath, see Appendix, No. 25. The award will not be vacated because the witnesses are not sworn on the hearing before the arbitrators, where no regular objection is taken thereto at the time. Lai. Supp. to Hill & Denio R. 110. The Award-I The award, to be enforced according to the provisions of the statute, must be in writing, subscribed by the arbitrators making the same, and attested by a subscribing witness, 2 R. S. 542, sec. 8. For form, see Appendix, E"o. 28. It need not be under seal unless the submission requires it to be so ; and the fact that the submission is under seal, does not make it necessary to aiBx seals to the award. 23 Barb. 187. It is sufficient if the signatures of a majority of the arbitrators are attested, where a majority have the power to decide the matters submitted. 1 Selden, 482 ; 4: Barb. 250. But the award, at the common law, need not be in writing, where the submission is verbal, without any provision therein that the award shall be in writing. 2 Barb. Ch. R. 430 ; Cald. on Arb. 131. And even where the submission, by writing, and under seal, requires the award to be in Avriting, subscribed by the arbitrators, this may be waived by the parties, by parol ; and a verbal award, afterwards made, will be binding on both. The agreement for the parol award, in CH. II.] ARBITRATIONS. 36 such case, operates as a new submission, and the parties are estopped from saying that the parol award, made in pursuance of their directions, is void. 20 Barb. 48 1 ; and see 1 Hill, 321. It is sufficient if the award is made by a majority of the arbitrators, unless the concurrence of all of them is expressly required in the submission. 2 R. S. 542, sec. 7. But the rule is the reverse where the submission is by parol, at the com- mon law, in which case the award must be made by all the arbitrators, unless the submission otherwise provides. 6 Johns. 39 ; Cowen <& HilVs Notes to Phil. Ev. 1030. And the statute has not changed the rule in this respect. 4 Denio, 347. Any form of words which amounts to a decision of the questions submitted, is good as an award. Technical expres- sions are not necessary, nor technical precision and certainty, nor any introductory recitals. JRuss. Arb. 244 ; 1 Hill, 439 ; 1 Selden, ^?>'2, ; ^Barb. 250. If the award is expressed in such language that men of ordinary intelligence, acquainted with the subject-matter, can understand it, that is sufficient, no matter how short and elliptical the phraseology may be. Id. iMd. And so, the form of the award is a matter of indifference ; the court will look at the proceedings in order to collect the intent. 23 TTewd 363; and see 12 Id. IZQ ; llJohns.lQZ; 14 Id. 368. And where the award is ambiguous, the subject- matter to which it relates may be identified by parol. 1 Hill, 489, supra. And so, where it is indefinite as to the subjects investigated and determined, parol evidence will be received to show whether the arbitrators have exceeded their authority. 1 Barb. S. C. B. 326; 20 Id. 410; 7 Hill, 329. But where, by the terms of the submission, the award i s to be made by the arbitrators in a particular form, the award is not made and ready for delivery until that form is complied with ; as, where it is to be attested by a subscribing witness, and this is not done (5 Paige, 675) ; or, where it is to be in writing, under the hands and seals of the arbitrators, and the award is in writing, but not under seal (6 Johns. 133) ; or, where the award is to be in writing, under the hands of the arbitrators, and it is in writing, but not signed. 10 Id. 147, note. 36 ARBITRATIONS. [CH. II. Where the concluding part of the condition in the bond of submission is thus : " so as the said award, &c., be made in writing, &c., and ready to be delivered to the parties on or before," &c., — these import a limitation upon the power conferred upon the arbitrators, the observance of which is essential to their jurisdiction, (a) 1 Hill, 321 ; 3 Barb. S. C. H. 57. And, therefore, where the award was required to be in writing ready for delivery to the parties on or before a given day, and the award was made and delivered to the prevailing party, but not to the other party ; it was held that the award was a nullity. 1 Hill., 321, swpra ; Q Johns. 14:. The arbi- trators, in such case, should execute and deliver two parts, unless the party shall, in some form, expressly discharge them of that necessity {lh.\ 10 Johns. 144 ; 15 Id. 197) ; as by tell- ing them that they need make no counterpart, for he will not receive it ; or, by the acceptance of a sworn copy of the award in lieu of the original. Id. / 1 Hill, 322, supra ; and see 20 Barb. 481. "Where the parties submit all their demands to arbitration, it is no objection to the award that a particular matter, thus submitted, was not laid before the arbitrators. 23 Barb. 188 ; 1 Selden, 486. The parties are bound to claim before the arbitrators all demands coming within the scope of the sub- mission, li. In ascertaining the amount to be awarded, the arbitrators are not limited to the penalty of the arbitration bond. The penalty is only regarded where the submission is revoked, and an action is brought upon the bond for damages. 7 Cowen, 522. As we have seen, the arbitrators, where the submission is under the statute, are not authorized to award against a party the costs and expenses of the arbitration, unless the submis- sion, in express terms, authorizes it (4 Denio 249) ; though (a) As to the effect upon the award of an omission to comply ■with the ita quod clause, or other condition in the submission, so far as it relates to the form of the award, the subject-matter submitted, the time within which the award is to be made, &e., see Oowen d; Hill's Motes to Phil. Ev. 1027 to 1030. And see as to when the award operates as a bar to a suit for the same matter. lb. 840, 1026, 1040. CH. II.] ARBITRATIONS. 37 this would be otherwise, it seems, if the submission was at the common law. 14 Johns. 161 ; 2 Cowen, 651 ; 22 Wend. 128 ; but see contra, per Beardsley, J., 4 Denio, 251, and cases cited ; and see 13 Barb. 90, per Harris, J. But if the sub- ject of the controversy is an action then pending in court, the arbitrators may award as to the costs of such action, without any express authority for that purpose. 4 Denio, 251. And so they may award as to the fees and expenses of the arbitra- tors, without such authority. Ih. 253. It must he made within the time, cBc.J The award must be made within the time required by the submission. Kyd on Awards, 96. It cannot be made afterwards, unless the time is extended. Ih. And where the time is extended, an award made within the extended time is as valid and decisive of the rights of the parties, as if made within the time originally specified. 5 Paige, 575. The agreement extending the time should be in writing ; though it need not be under seal, even though the submission is under seal. Ih. If no time is specified in the submission within which the award is to be made, it may be made at any time, 22 Wend. 126 ; but in such case, it is the duty of the arbitrators, at the request of either party, to proceed within a reasonable time. 6 Term. R. 666 ; Cow. & RilVs Notes to Phil. Ev. 1029. Where the award bore date on the day after the time within which it was to be made, according to the submission, and it was not delivered until the day of its date, and there was no other evidence as to when the award was actually made, it was presumed, in such case, that the arbitrators per- formed their duty and had the award ready within the time fixed ; and the mere date at the end of the paper is not enough to establish the contrary. 23 Barh. 187. But arbitrators are not bound to deliver the award until their fees are paid. And when an award is ready to be delivered on payment of the fees of the arbitrators, it is ready to be delivered to the parties within the legal meaning of a . provision in the submission requiring it to be made and ready to be delivered within a certain time. 3 Barh. S. C. B. 57. 38 ARBITRATIONS. [CH. II. It must he, certain and final.'] The award ought to be cer- tain, and to be expressed in such language that no reasonable doubt can arise upon the face of it, as to the meaning and in- tention of the arbitrators, or as to the nature and extent of the duties imposed by it on the parties. Thus, where an award directed one of the parties to give security, without epecify- ing what that security should be ; it was held void for uncer- tainty. 8 Cowen, 235 ; 9 Johns. 43. And so, of an award which requires a party to finish " the house," or to pay for " the stove," without specifying the house or the stove that is meant. 2 Gai. R. 235. And so, where the award directs the costs of the arbitration to be paid, without stating the amount there- of. 1 i. And so, of an award directing a farm to be deliver- ed- to one of the parties, where it does not appear what farm is intended. 3 Cowen, 72 ; see, also, 12 Wend. 377. But certainty to a common intent, consistent with fair and probable presumption, is all that is required. 14 Johns. 96. Where the subject-matter of a suit was submitted to arbitra- tion, and an award was made that " the said suit shall be no further prosecuted," this was held suSicient. 3 Cai. 304. And so where it was submitted to arbitrators to determine the value of land to be taken for a railroad across the farm of one of the parties, and the damages which the owner would sus- tain by reason of the road crossing it, an award is suflScient if it state the whole amount to be paid for the land and the damages ; and it need not state the value of the land and the amount of damages, separately. 4 Selden, 160. And so, also, an award that a party has sustained damages to an amount which is therein specified, is sufficient, without directing the payment of the damages so assessed. 16 Barb. 576. And so an award directing a specific sum to be paid by one pai-ty to the other, is sufiicient without requiring a release to be exe- cuted. 6 Wend. 268. And where, in such case, the award directed that if any errors were found in the calculation, on proof thereof, the party to whom the money was paid, was to refund the amount thereof, this was held final and sufficient. 2 Johns. 67 ; 13 Id. 27. Where the award refers to certain extrinsic cii'cumstances, CH. II.] ARBITRATION'S. 39 it is sufficiently certain, 14 Johns. 96; 2 Hill, 75 ; 23 Barb. 187. Thus, where the siibinission is between partners, an award that one of the partners shall have and own in his own right, all the interest which the partners jointly had in a certain brewery, near the village of P., cannot be objected to for uncertainty. 5 Wend. 268. And if there is nothing on the face of the award showing that it may not be rendered certain by matter extrinsic, the intendment will be that it is certain, until the contrary is shown. 2 Hill, 75. Where a suit is submitted to arbitration, it is not suffi- cient that the arbitrators determine the amount of damages to be paid ; with the costs, but they should direct the suit to be discontinued ; otherwise, it seems, their award is not final. 14: Johns. S02 ; hut see 1 Hill, 69. And where the award directs money to be paid, as the price or value of certain stock, it seems it should also provide for a transfer of such stock. 4: Denio, 195, per Bronson, J. ; and see 2 Cowen, 649. But where the award finds due to a party a sum of money, it is not indispensable that it should state in words or figures the precise amount thereof. It is sufficient, if nothing remains to be done in order to render the award certain and final, but a mere ministerial act, or an arithmetical calculation. 23 Barb. 187 ; 12 Wend. 380. When the submission merely authorizes the arbitrators to determine the amount due to one of the parties, they are only authorized to ascertain and fix that amount ; and have no right to impose any condition upon the payment of it. 1 Barb. S. a E. 326. When the Award is void, in whole or in part.] It is from the agreement of submission that the arbitrators derive their power to decide upon the matters in controversy. It is that which gives them jurisdiction; and the authority conferred by it must be observed. 6 Johns. 14 ; 7 Hill, 329. If the submission is made conditional by the ita quod clause, and recites several distinct matters which are specifically submitted, and the arbitrators omit to decide one of the mat- ters, and there are no general words in the award which can 40 ARBITRATIONS. [CH. II. be construed to embrace a decision on sucb matter, the whole award will be void. 1 Selden, 485, per Paige J., and cases cited ; 5 Cowen, 199 ; 14 Johns. 96. "Where the submission containing the ita quod clause, is general, but the decision of the arbitrators applies in terms only to a particular matter, the award, if it purports to be made concerning the matters submitted, will be good, unless it is shown that there were other matters brought before the arbitrators which they ne- glected or refused to decide. Id. ibid. But if the arbitrators award in relation to one or more things, and say that they will not meddle with the rest, or omit to do so after notice of the same, the whole is void ; because they have not pursued their authority ; and in such case it is immaterial whether the sub- mission was general or special. 5 Cowen, 199 ; 4 Duer, 133 ; Kyd on Awards, 174 / Wat. on Arb. 121, and cases cited. If the arbitrators pass upon the matters submitted, and also include in their decision another matter not submitted, the latter may be rejected, and the award will still be good as to the residue. 4 Comstock, 567 ; 15 Barb. 525 ; 1 Sill, 490 ; 1 Wend. 326 ; 1 Cowen, 117 ; 2 Id. 628 ; 13 Jolms. 264; 10/Barh. 90, per Harris, J. The statute further provides that if the court, on the appli- cation to vacate the award, shall vacate and set the same aside, costs shall be awarded to the prevailing party ; and the payment thereof may be enforced by execution, as in other cases. 2 B. S. 514, sec. 19 ; Laws of 1847, j?. 491. Judgment Hecord.'] A record of the judgment is required to be made, commencing with a memorandum reciting the submission; then stating the hearing before the arbitrators; their award ; the proceedings of the court thereupon, in modifying or confirming such award ; and the judgment of the court for the recovery of the debt or damages awarded, and that the parties perform the acts ordered by the award, and for the recovery of the costs allowed. 2 S. S. 643, sec. 15. Such record shall be filed and docketed, as records of judgments in other cases; shall have the same force and effect in all respects; and be subject to all the provisions of law in relation to judgments in actions ; and may in like manner be removed and reversed, on appeal. Ih. sec. 16 ; Laws of 1854, p. 592; Code of Fro. §§ 8, 11, 333 ; and see 9 How. Pr. R. 304, per Duer, J.; s. c. 3 Duer, 616 ; 24 Bari. 149. On the subject of judgments in actions, to which reference is made for the practice in these proceedings, see the books treating of practice in actions ; and for form of judgment record, see Aj/pendix, No. 37. How Judgment to he Enforced.'] After the filing and docketing of the judgment, execution may issue thereupon against the property or person of any party against whom a recovery shall be had, in all respects as upon other judg- ments. 2 B. S. 543, sec. 16 ; and see 1 Burr. Br. 293, and Ora. Pr.., title " Fieri Facias /" Voorhies'' Code, § 291, and notes. And where, by such judgment, any party shall be required to perform any act, other than the payment of money, the 4 50 ARBITRATION'S. [CH. II. court rendering such judgment shall enforce the same by rule ; and the party refusing or neglecting to perform and execute such act, or any part thereof, shall be subject to all the pen- alties of contemning an order of the court, and may be pro- ceeded against as for a contempt, in the manner prescribed in the thirteenth title (2 R. S. 534) of chapter eight of part third of the Eevised Statutes {a). 2 R. S. 543, sec. 18. Appeals, and Proceedings therein.] The Revised Statutes provide that the judgment entered on the award, may be removed and reversed by writ of error, in the same manner as judgments in actions. 2 R. S. 643, sec. 16. The proceed- ing by writ of error, however, being abolished, the remedy of the aggrieved party is now by appeal under the Code of Pro- cedure, the same as in actions. Code of Pro. §§ 8, 323, 333, to 348, 457, 471 ; Lams of 1854, j?. 592 (5) ; 24 Barh. 149 ; 9 How. Pr. R. 304, 311, per Duer, J.; s. c. 3 Duer, 616 ; 2 Sand. S. C. R. 740 ; 6 How. Pr. R. 179 ; lb. 319 ; 13 Id. 400, per Harris, J., and see ante, p. 16 note. When an appeal is brought on such judgment, certified copies of the original affidavits upon which any application in relation to such award was founded, and of all other affida- vits, and papers relating to such application, shall be annexed to, form a part of, and be returned with, the record of the judgment; and the appellate court shall reverse, modify, amend, or affirm such judgment, or any part thereof, accord- ing to justice. Id. ibid. ; 2 R. S. 543, sec. 17. Objections to the regularity of the proceedings, not affect- ing the merits, should be made in the court below, to entitle a party to avail himself of them on appeal, Thus, where the objection was raised for the first time on error, after confirma- tion and judgment, that the affidavit proving the submission did not show that the witness subscribed when the bond of submission was executed, — it was held too late for the party to avail himself of it. 6 Hill, ii03. The proper course is for the party to submit his objections in writing to the court (a) See post, Chapter X. (t) See the Act of 1854, ante, p. 19, note. CH. II.] ARBITRATIONS. 51 below, and on bringing error, tlie objections would then be certified and returned with the other papers relating to the application. lb. 307, per Bronson, J. An appeal will also lie upon an order vacating the award, the same as upon judgments in actions. And certified copies of such order, and of all affidavits and papers used on such application, are to be returned upon the appeal, the same as upon an appeal from an order confirming the award. 2 R. 8. 544, sec. 20 ; Code of Pro. §§ 8, 323, 471, and other authori- ties, swpra. If such order be reversed, on appeal, the proceedings will be remitted to the court from which they were removed, to proceed thereon ; or the appellate court may proceed thereon, after due notice to the party complaining of such award, to modify or confirm the same, in the same manner, and with the like effect, as if application for that purpose had been originally made to such court. 2 E. S. 544, see. 21 ; Lall. Supp. to Hill & Denio R. 110. And the court of review, in such case, may make an order requiring the party to show cause at a special term, why the award should hot be con- firmed. Ih. The appeal from the judgment of the county court, or from the mayors' or recorders' courts of cities, is to the general term of the Supreme Court. Code of Pro. §§344 to 347. And from the decision at the special term of the Supreme Court, or the Coin-t of Common Pleas, or the Superior Court of the city of New York, or the Superior Court of the city of Buff'alo, the appeal is to the general term of the same court, or court in which the j udgment is entered. Ih. § 348 ; and see Laws of 19>54^, p. 694, ante p. 19, note ; Laws 0/1857, vol. l,p. 753 ; Laws of 1854,^. 228, sec. 26. From the decision of the court at the general term, an appeal may be taken to the Court of Appeals, Code of Pro.- § 11 ; Lavjs of 1857, vol. 1, p. 753, sec. 3 ; and see 1 Kernan, 52 ; Id. 276 ; 2 Id. 409. The practice upon appeals is regulated by the Code of Procedure ; and is substantially the same as on appeals from 53 ARBITRATIONS. [CH. II. judgments in civil actions.* Code of Pro. §§ 8, 11, 333 ; 9 Row. Pr. R. 304, sujyra ; Laws of 1854, ante p. 19, note ; 24 Barh. 149. The costs upon the appeal are the same also as upon appeals in actions, and are regulated by the Code of Proce- dure. Id. ibid ; and see ante, p. 16, note. Revocation of Submission.] The agreement for the sub- mission of matters in difference to arbitrators, is a mere autho- rity, revocable by either party. At the common law, this might have been done at any time before the award was actually made and ready to be delivered to the parties. Kyd on Awards, 32, 3 ; 16 Johns. 205. But by the statute, neither party can revoke the submission, after the cause is finally submitted to the arbitrators, upon a hearing of the parties for decision. 2 R. 8. 544, seo. 23 ; 20 Barb. 262 ; 11 Paige, 529. This statutory provision was not reported by the Revisers, but " was inserted by the legislature in the pas- sage of this title through the two houses, for the purpose, undoubtedly, of guarding a person vpho bad submitted his cause to arbitration, against the manifest injustice of having the submission revoked by his adversary, after the probable result of the arbitration had been ascertained, but before the necessary forms could be complied with to render the award binding upon the parties." 5 Paige, 579, per Walworth, Ch. And this provision of the statute applies to all cases of sub- mission to arbitration, whether the submission authorizes a judgment on the award or not, 5 Paige, 575, swpi'a ; 11 Id. 534 ; though it would be otherwise, if the submission is by parol. 4 Denio, 348, per Bronson, J. ; and see 15 ]Vend., 99 ; tiO Barb. 486. The revocation must be in writing, and iinder seal or not according to the submission. If the submission is under the statute, the revocation should be in writing ; if not under the statute, and it is by parol, the revocation may be by parol. Cald. on Arb. 31 ; Kyd on Av:ards, 32 ; 8 Johns. 125. Where the submission is by one on the one side and two CH. II.] ARBITRATIONS. 53 on the other, one of the two cannot revoke without the assent of the other. 12 Wend., 578. ^Notice of the revocation should be given to tlie arbitra- tors. Cald. on Ari. 31; and seel6 Johns. 205. The death of a party is equivalent to a revocation ; but in this case of implied revocation, no notice to the arbitrators is necessary. Wat. on A'ii. 16. No particular form of words need be used to constitute a valid revocation. If the intention to revoke can be gathered from the instrument of revocation, although it does not dis- close in terms that the party revokes, it is sufficient. 1 Cowen, 335. For form of revocation, see Appendix, ITo. 26 ; and for form of notice, see Appendix, ISTo. 27. And see further on the subject of revocation, Cowen & HilVs Notes to Phil. Eo. 1032, 3, and cases there cited. Liability for SevoTcing y Actwn y Damages, c&c] When- ever any submission to arbitration shall be revoked by a party thereto, before the publication of an award, the party so revoking shall be liable to an action by the adverse party, to recover all the costs, expenses and damages, which he may have incurred in preparing for such arbitration. 2 i?. S. 544, sec. 23 ; 20 Barh. 267. If the submission so revoked was contained in the condi- tion of any bond, the obligee in such bond shall be entitled to prosecute the same, in the same maimer as other bonds with conditions other than for the payment of money, and to assign such revocation as a breach thereof; and for such breach, he shall recover as damages the costs and expense incurred, and the damages sustained by him in preparing for such arbitration. 2 i?. S. 544, sec. 24 ; 7 Coruen, 522. JSTo other sum, penalty, foi-feiture or damages shall be recovered for any revocation of a submission to arbitration, than such as are prescribed in the last two sections ; notwith- standing any stipulated damages, penalty, or forfeiture, con- tained in such submission, or in any other instrument, or Si ARBITRATIONS. [CH. II agreement collateral thereto. 2 B. S. 5i5, seo. 25 ; (a) 16 Johns. 209. Oonstruotion of ike Statute.} It is declared by the statute that nothing contained in the statutory provisions herein con- sidered shall be construed to impair, diminish, or in any way affect the power and authority of the Court of Chancery over arbitrators, awards, or the parties thereto ; nor to impair or affect any action upon any award, or upon any bond or other engagement to abide by an award. 2 R. 8. 544, sea. 22. It is intended by this section, " not to diminish the power of the court in peculiar and equitable cases ; nor to affect actions on bonds or awards." Bev. Notes, 3 B. 8. 775, '2ded. In what Oases a Court of Equity may Interfere.'] A court of equity will interfere where there is gross and palpable mistake, 1 Johns. Ch. B. 101 ; lb. 226 ; ■■2 Id. 276; or, where the award is obtained by the false and fraudulent statements of a party, 2 Day, 553 ; or, by the partiality and corruption of the arbitrators. 17 Johns. 406 ; and see 23 Bart. 188. But where there is no charge of corrujDtion, or misconduct, or i;ndue practice, in the arbitrators, an award will not be set aside, however unreasonable or unjust it may be. 2 Johns. Ch. B. 551. The award, however, must be -svithin the juris- diction of the arbitrators. If they have exceeded their powers, as, by including in the award matters not contained in the submission, the award will be void, and a court of equity may declare it so. 7 Hill, 329 ; and see 20 Barl. 410. Corruption or partiality in the arbitrators, should be plainly established to justify the court to interfere on that ground. 4 Selden, 168, per Johnson, J. And so, the court will not (a) The Revisers' note to this section, and the two preceding sections, is as follows ; "The three last sections are drawn in conformity to the decision of the Supreme Court in 16 Johns. It. 209 ; which it is deemed useful to declare, and to furnish the opportunity of settling finally the much agitated question respect- ing stipulated damages, which are frequently inserted in submissions, to avoid the general rule of law concerning peualtie*.'' 3 H. 8. id ed., 775. CH. II.] ARBITRATIONS. 65 interfere where there is a mistake of judgment in the arbitra- tors, 3 Paige, 124 ; nor where the objection is, that the arbitrators decided wrong either as to the law or the fact. 1 Barl. Ch. R. 173. See also as to the authority of a court of equity to inter- fere in these cases, Willard's Eemo, 464 ; and see 22 Wend. 163; 11 Id. 447 ; 5 Cowen, 150, note. If money is directed to be paid by the award, no demand is necessary before suit brought. 22 Wend. 128. But where one party is directed to pay money on or before a certain day, and the other to do some other act on the same day, e. g., to convey land — the acts, in such case, are concurrent, and neither can recover without performance or tender. 12 Id. 591. "Where the submission provided that judgment miglit be rendered in the county court upon the award made in pur- CH. ir.] ARBITRATIONS. ' 57 suance of the submission ; and after the arbitrators had made their award, the party in whose favor the award was made, without entering judgment upon such award, commenced an action upon the same ; it was held regulai-, and that such party had his election either to enforce the award, under the statute, or to treat it as a common-law award, and enforce it by action. 24 Barb. 631. CHAPTER III. (a) FORECLOSUEE OF MORTGAGES BY ADVERTISEMENT. The proceeding to foreclose a mortgage by advertisement, althougli a special statutory proceeding, is not a " special proceeding " within tlie meaning of § 3 of the Code of Proce- dure. It is not a remedy in a court of justice ; nor is it a proceeding in personam ; but it is strictly and solely a pro- ceeding in rem,, or against the property, and is instituted only for the foreclosure of a lien. The first legislative regulation, in this State, on the sub- ject of sales under mortgages, or special powers, was by the Colonial act of the 19th March, 1774. 7 Johns. Ch. B. 50 ; 1 Paige, 69. In the first revision, after the Revolution, the same provisions were re-enacted. Act of- 21st Feb., 1788. They were again adopted in the revisions of 1801 and 1813. 1 R. L. 373. In the Revised Statutes of 1830, the previous statutory provisions were materially altered and improved, 2 R. 8. 645 ; and the Eevised Statutes have since been amended and altered from time to time, as experience has demonstrated the necessity for the same. Laws o/"1838,_p. 261 ; Laws o/1840, ]}. 290 ; Laws of 18i2, p. 364 ; Laws of 1844, _/;. 529 ; Laws of 1867, chap. 308, vol. 1, p. 667. The (a) The design of this chapter is to treat OBly of the foreclosure of mortgages other than those to the people of this State. The provisions of the statute, there- fore, relating exclusively to mortgages to the State, are omitted. See those pro- visions, 1 R.S. 211. ^0 FORECLOSURE OF MORTGAGES [CH. III. existing statutes on the subject will be found fully stated in the following pages ; an examination of which, with the numer- ous decisions of our courts upon them, will show how impor- tant and extended is the practice and the litigation arising on the foreclosure of mortgages by advertisement. In conducting the proceeding, the statute must be care- fully followed ; and an omission to comply with any of its material requirements, will render the proceedings irregular and void. See 9 Barb. 278 ; 11 Id. 191 ; 13 Id. 137 ; 20 Id. 18. What Mortgages may he Foreclosed.'] The statute pro- ^ vides that every mortgage of real estate, heretofore executed by any person being at the time more than twenty-five years of age, or hereafter executed by any person over the age of twenty-one years, containing therein a power to the mort- gagee, or any other person, to sell the mortgaged premises, upon default being made in any condition of such mortgage, may be foreclosed by advertisement, in the cases and in the man- ner therein specified. 2 B. S. 545, sec. 1. The Revised Statutes took effect on the 1st January, 1830. If, therefore, the mortgage was executed prior to that time, the mortgagor must have been more than twenty-five years of age, at the time of the execution of the mortgage, to entitle it to be foreclosed under the statute. And if under that age, and the mortgage be foreclosed, the sale, it seems, would create no bar to the right of the mortgagor to redeem the premises. 5 Johns. Ch. R. 35. But the mortgage would be voidable only, not void ; and no one but the mortgagor, or one claiming under him, could avail himself of the defect. 12 Barh. 9, aff. 5 Selden, 45. A mortgage given to secure unliquidated damages, though it contain a power of sale, cannot be foreclosed under the sta- tute. 3 Barh. Ch. R. 619. But where the mortgage is con- ditioned for the delivery of certain specific articles, and the mortgagee, on default, is authorized to sell the mortgaged premises, at public auction, and to retain from the proceeds CH. IILl BY ADVERTISEMENT. 61 of the sale a specified sum, the mortgage may be foreclosed under the statute. 7 Wend. 458. The power of sale is extinguished by payment ; and if a foreclosure afterwards take place, even a bona-fide purchaser will acquire no title. 5 Hill, 272. And so, a tender to the mortgagee, or assignee, of the whole amount of the debt and interest, with the costs and charges, will render a subsequent sale on the mortgage irregular and void. 5 Johns. Ch. H. 35. Nor can a foreclosure take place, under the statute, on a mortgage which has once been foreclosed ; as, where the mortgaged premises are sold on foreclosure, subject to install- ments thereafter to become due, and the mortgage is subse- quently foreclosed for the unpaid installments. 7 Paige, 250. But the mortgage is not extinguished where the assignee takes a quit-claim deed of one half of the mortgaged prem- ises. At most, this can operate only as an extinguishment of one half or some other portion of the mortgaged debt, leaving the assignee at liberty to foreclose for the residue. 1 Hill, 107. Who may Foreclose.] The foreclosure must be had in the name of the real party in interest, that is, the mortgagee ; or, if the mortgage has been assigned, the assignee, or their legal representatives. 2 R. 8. 546, sec. 4, sub. 1 ; 13 Bari. 137 ; 3 Johns. Ch. H. 129. And if the mortgage has been assigned, in part, the mortgagee and assignee, both, should be made parties to the proceedings. See 2 Caw. 231, 239. It is not necessary, however, that every person, having a mere equitable interest, should be made a party. Id. Ibid. The authority to sell, and the exercise of it, is a matter of private contract between the parties, and not of jurisdiction ; and, therefore, the administrators of a mortgagee appointed by the court of another State, where the mortgagee died, may come into this State, and foreclose a mortgage, pursuant to the power contained in it. 7 Johns. Ch. R. 45. Requisites to Foreolosii,rei\ To entitle any party to give 62 FORECLOSURE OF MORTGAGES [CH. III., the notice prescribed by the statute, and to make such fore- closure, it is requisite, — 1. That some default in a condition of such mortgage shall have occurred, by which the power to sell became operative ; 2. That no suit or proceeding shall have been instituted at law, to recover the debt then remaining secured by such mort- gage, or any part thereof; or if any suit or proceeding has been instituted, that the same has been discontinued, or that an execution upon the judgment rendered thereon has been returned unsatisfied in whole or in part ; and 3. That such power of sale has been duly registered, or the mortgage containing the same has been duly recorded. 2 E. S. 545, sec. 2. It was formerly held that an omission to record the power of sale would not affect the proceedings as between the mortgagor and mortgagee ; and that the recording was for the protection of purchasers, only. 2 Cowen, 195 ; 4 Id. 266. But in the absence of any adjudication since the Revised Statutes, it would be safer in all cases, that the mortgage should be recorded. See 4 Kenfs Com. liJl, note a, 6th ed. ; Rev. Notes, 3 R. S. 776, 2d ed. Notice of Foreclosure, and what to contain.] Every such notice shall specify : — 1. The names of the mortgagor and of the mortgagee, and the assignee of the mortgage, if any ; 2. The date of the mortgage and where recorded, or where the power of sale is registered ; 3. The amount claimed to be due thereon, at the time of the first publication of such notice ; and 4. A description of the mortgaged premises, conforming substantially with that contained in the mortgage. 2 R. S. 646, sec. 4. For form, see Appendix, No. 38. The notice must also contain the time when, and the place where, the sale will be had. These may be fixed by the party foreclosing, without reference to the interests of other parties ; CH. III.] BY ADVERTISEMENT. 63 except, as we shall see (post), the sale must be in the day- time, and in the county where the mortgaged premises, or some part of them, are situated. 2 JR. S. 546, sec. 6, post; 11 Bow. Fr. a. 175. "Where the day of sale was stated in the notice to he on Sunday y it was held competent for the mortgagee, after the advertisement of the notice, and before the day of sale, to postpone the sale to a subsequent day, without aifecting the regularity of the proceedings. 12 Wend. 57 ; see also 7 How. Pr. E. 372. Th.Q place of sale should be definitely stated in the notice ; and where the notice stated that the sale would take place at the City Hall, New York, without stating the particular place, — all the buildings used for holding courts within the Park being, by law, deemed parts of the City Hall, — it was held that the notice would be too indefinite, were it not, that, by common usage, there is one established place for such sales, and that is the rotunda of the City Hall proper. 12 Sow. Pr. P. 490. If no place of sale is designated, the proceedings will be irregular. 5 Johns. Ch. R. 35. The statute, it will be seen, reqiiires the notice to specify the amount claimed to be diie upon the mortgage at the time of the first publication of the notice ; but it would seem that the true construction of that provision is, that the notice shall state the whole amount claimed to be unpaid thereon at the time of the first publication of the notice, and not merely the amount which has then actually become due and payable. 11 Paige, 626, per "Walworth, Ch. The better practice would undoubtedly be, to state in the notice both the amount claimed to be due, and the amount claimed to be unpaid, at the time of the first publication of the notice. This would enable sub- sequent incumbrancers to determine the extent of the mort- gage lien by the printed notice; and might, also, be beneficial to the mortgagee, in case he should be compelled to sell the whole premises, and thus satisfy the whole mortgage, when only a part of it was due. 7 Paige., 211 ; Ih. 248 ; 11 Id. 626 ; 16 Barb. 350. "Where the notice of sale makes a false assertion, as, that 64 FOEECLOSUEE OF MORTGAGES [OH. III. the premises are to be sold for default of three mortgages, when there were only two, the third being on other land, by which the public might be misled, or purchasers deterred from bidding, the sale will be irregular and void. 5' Johns. Ch. a. 35. But a mere mistake in computing the amount due upon a mortgage at the time of the first publication of the notice, is not, of itself, sufficient to vitiate the sale. 11 Paige, 620; 1 Hill, 108; 16 £arl. 347. Where the mortgagee designs giving a credit, on the sale of the premises, as to the whole, or any part, of the moneys which he is entitled to retain, he may, it seems, insert a notice in the advertisement of sale, of such determination, and of the security which he will require. See 7 Paige, 251, per Denio, Y. C. Hoio Notice to ie Given.'] As no effect will be given to a foreclosure unless conducted as prescribed by the statute, it is material that great care should be taken, not only in prepar- ing the notice of sale, but in the publication, and posting, and service of the same. An omission to comply witli any one of those requirements, will render the proceedings irregular. 9 Pari. 278 ; 11 Id. 191 ; 13 Id. 137 ; 20 Id. 18. The proceedings are to be conducted in conformity to the law in force at the time the foreclosure is commenced. 9 Pari). 482, aff. in G. of A., Dec. 1852. The statute provides (2 E. S. 543, sec. 3) that the notice that the mortgage will be foreclosed by a sale of the mort- gaged premises, or some part of them, shall be given as fol- lows : 1. By publishing the same for twelve weeks, successively, at least once in each week, in a newspaper printed in the county where the premises intended to be sold shall be situ- ated ; or if such premises be situated in two or more coiinties, in a newspaper printed in either of them ; 2 By affixing a copy of such notice, at least twelve weeks prior to the time therein specified for the sale, on the out- ward door of the building where the county courts are directed to be held, in the county where the premises are CH. HI.] BY ADVERTISEMENT. 65 situated ; or, if there be two or more such buildings, then on the outward, door of that which shall be nearest to the premises. And by delivering a copy of such notice at least twelve weeks prior to the time therein specified for the sale, to the clerk of the county in which the mortgaged premises are situated, who shall immediately afBx the same in a book prepared, and. kept by him for that purpose ; and who shall also enter in said book, at the bottom of such notice, the time of receiving and affixing the same, duly subscribed by said clerk, and shall index such notice to the name of the mort- gagor. 2 a. S. 543, sec. 3, as amended by Laws of 1842, j?. 364, sec. 5 ; and ly Laws o/'1857, vol. l,p. 667. 3. By serving a copy of such notice at least fourteen days prior to the time therein specified for the sale, upon the mortgagor or his personal representatives, and upon the sub- sequent grantees and mortgagees of the premises whose con- veyance and mortgage shall ^e upon record at the time of the first publication of the notice, and. upon all persons having a lien by or under a judgment or decree upon the mortgaged premises, subsequent to such moi'tgage, personally, or by leaving the same at their dwelling-house in charge of some person of suitable age ; or by serving a copy of such notice upon said persons, at least twenty-eight days prior to the time therein specified, for the sale, by depositing the same in the post-office, properly folded and directed to the said persons at their respective places of residence, {a) Laws of 1844, p. 529 \'2,R.S. 546. (a) It is provided by statute, in cases where the notice of sale shall be pub- lished in the State paper by reason of all the printers and proprietors of news- papers in the county where the mortgaged premises are situated, refusing to publish the notice of sale for the price allowed by law, that a copy of said notice shall be served at least six weeks before the time of such sale, on the person in possession of the mortgaged premises, in all cases where the same are occupied ; and where they are not occupied, and the mortgagor, his heirs or personal representatives, shall reside in the county where such premises lie, then upon siich mortgagor, his heirs, or personal representatives, as the case may be. And proof of the service of such notice may be made, certified and recorde'd, in the same manner and with the like effect, as proof of the publica- tion of a notice of sale under a mortgage. 2 R. S. 649, sees. 46 and 60. 5 66 FORECLOSURE OF MORTGAGES . [CH. in. In computing the time for the publication and posting and service of notices, under the above section, the first day is to be excluded and the last included ; thus, personal service of notice on the 1st for the 15th of any month would be suffi- cient. 7 How. Pr. R. 372. And so, where the service is made by depositing the notice in the post-office, the service is good if the deposit is made on the 5th April for the 3d of May. 12 Id. 493. And so, of affixing the notice twelve weeks prior to the time specified for the sale, and of the publication of the notice, the first day is excluded and the last included. 16 Barb. 347. Where the service of notice of sa'e is by mail, the twenty- eight days are to be counted from the time of the deposit of the letter in the post-office, and not from the postmark, or time of forwarding it. 12 How. Pr. R. 490, supra. The 'B.rst publication of the notice of sale must be at least eighty-four days, or twelve full weeks before the sale ; and publication must be made in every intervening week, or until the expiration of the time required by statute. 16 Barb. 374, supra. It is usual, and would be safer, in all cases, in the absence of any adjudication on the subject, to give the notice thirteen insertions ; thus making eighty-four days from the first publication to the last, exclusive of the day of the first publica- tion. See per Hand, J., lb. 351 ; 20 Barb. 150 ; 1 WeTid. 90. The foreclosure will be regular although the paper, in which the notice was published, was not well calculated to give that general information which, in such cases, should be afforded. 12 How. Pr. R. 444 ; 11 Paige, 624. If there is no newspaper published in the county where the premises are situated, the notice may be published in a newspaper of an adjoining county. 2 R. S. 652, sec. 10. And so, if all the printers and proprietors of the newspapers in the county where the mortgaged premises are situated, refuse to publish the notice of sale for the price allowed by law, the mortgagee may publish the same in the State paper, instead of a paper printed in such county, lb. 648, sec. 46. The affixing of the notice on the outward door of the building whe^e the county courts are directed to be held, is OH. in.] BT ADVERTISEMENT. 67 all the statute requires. It is not necessary, therefore, that the party who affixed it, should afterwards see it there. 12 How. Pt. R. 490 ; 7 Cowen, 13. The notice of sale must also .be affixed in the book prepared and kept by the county clerk for that purpose, twelve weeks prior to the time speci- fied for the sale. And proof of the mere delivery to the clerk, for that purpose, would not be sufficient. See Laws of 1857, ^osi. "When the premises to be sold are situated in more than one county, notices should be affixed in each. Rev. JVotes, 3 R. S. 2d ed. 776. We have seen by the statute (siipra), tliat the notice must be servedM'pon the mortgagor or his personal representatives, and the subsequent grantees and mortgagees whose convey- ance and mortgage are on record at the time of the first pub- lication of the notice, and upon all persons having a lien under a subsequent judgment or decree. And if a subse- quent mortgagee has assigned his mortgage, and the assign- ment is on record, notice should also be served upon the assignee. 10 How. Pr. R. 51. An omission to serve the notice upon any of those parties would render the sale irregular as to the party not served, and those claiming under him. 11 Barb. 193 ; 17 Id. 100 ; 10 How. Pr. R. 51, supra. And, it seems, if the omission is to sei-vo upon the mortgagor, the sale will be void, 9 Barb. 284; \\ Id. 191; 16 Id. 9; and this, too, notwithstanding that the mortgagor is not the owner of the equity of redemption at the time of the fore- closure. See 20 Barl. 18. If the mortgage was executed by husband and wife, and the wife survives her husband, she is entitled to notice, of sale. 11 Barb. 191. She is a mortgagor within the meaning of the statute ; and, therefore, the notice should be served upon her, even though the foreclosure should take place dm-- ing the lifetime of her husband, lb. 193 ; 6 Paige, 474 ; 8 Barl. 619. In case of the death of the mortgagor, the notice, it seems, need not be served upon his heirs, but it is sufficient if served upon his personal representatives. The personal 68 FORECLOSURE OF MORTGAGES [CH. III. representatives were substituted by the legislature for the heirs, {a) 11 Jiarh. 193, per Harris, J. As to the manner of service, the mortgagee or party fore- closing, has three ways in which he may serve the notice of, sale, service by any one of which will be sufficient. Thus, he may serve the notice personally, fourteen days prior to the time specified for the sale ; or he may serve it fourteen days prior to the time of sale, by leaving it at the party's dwelling- house in charge of some person of suitable age ; or, be may serve it by depositing it in the post-office twenty-eight days prior to the time of sale, properly folded and directed to the party at his place of residence. And the service may be made by mail, even though the notice is deposited in the post- office in the place where the party to be served resides, and though the party foreclosing resides in the same place. 1 Kernan, 196, reversmg 16 Sarb. 9. And where the service is by mail, it need not be deposited in any particular post- office, if it is mailed in this State, and there is no fraud or trick attempted. 16 Barb. 349, per Hand, J. "Where the service is made by mail the postage should be prepaid, if the post-office department requires prepayment on letters before forwarding them. The statute does not, in terms, require this ; but the notice cannot be said to be properly folded and directed, within the reasonable construc- tion of the statute, unless everything is done necessary to entitle the notice to be forwarded from the office where it is deposited. (a) The statute, ho-wever, is not very clear upon this point. The 3d sub- division, above, requires the notice to be served upon the mortgagor or his personal representatives. No allusion is made to heirs ; but, aa we shall see, the sale of the premises, conducted as prescribed by the statute, is a bar of all claim or equity of redemption of the mortgagor, his heirs and representatives, and of all persons claiming under hmi or them, by virtue of any title subse- quent to such mortgage, and also of any person having a lien by any judg- ment or decree upon the land or any part thereof contained in such mortgage subsequent to such mortgage, and of every person having any lien or claim by or under such subsequent judgment or decree, who shall have been served with notice of said sale as required by law. 2 K. S. 546, § 8, as amended by Laws CH. III.] BY ADVERTISEMENT. 69 Postponement of Sale.l The sale may be postponed from time to time, by inserting a notice of such postponement, as soon as practicable, in the newspaper in which the original advertisement was published, and continuing such publi^^a- tion until the time to which the sale shall be postponed. 2 B. S. 546, seo. 5. Publication in the newspaper is sufficient, without sei-vice of notice of the postponement. 7 IToto. Pr. R. 372. "Where the day appointed for the sale was Sunday, it was held competent for the mortgagee to postpone the sale to a of 1844, p. 530, sec. 4, post. This statutory provision would seem to malie it doubtful, at least, -whether the bar applies to any except those who have been served with notice of sale as required by the statute. See 9 Sarh. 286. Besides, the terms "personal representatives," though ordinarily meaning executors or administrators, yet are sometimes construed to mean "the next of kin." Burr. Law Die. 795, 886, and cases there cited; 2 Will, on Ex. 1027, and note; 3 Brad. 45. Aside from the statute, service upon the heirs would seem to be necessary ; and much more so, even, than upon the personal representatives. The personal representatives are interested to prevent a deficiency on the sale for which the estate might be liable. They are interested in the equity of redemption where the mortgaged premises consist of a term for years; and also where there is a probability of the personal estate of the mortgagor being insufficient to pay his debts. Those are the only cases in which the personal representatives are interested. And because they are thus interested, to require service of the notice upon them for the heirs, would afford no safety or possible advantage to the latter, for the reason that it would be only where there was a probability of the mortgaged premises proving worthless, or of no value to the heirs, that the personal representatives would have any interest whatever, in the sale. The interest of the heirs, however, is different. The title to the premises, except when it consists of a term for years, vests in them with all the rights and incidents of absolute ownership. The title vests, too, charged with the payment of the very mortgage which is being foreclosed, and which the heirs must pay out of their own property, without resorting to the estate of tlie mortgagor. 1 72. S. 749, sec. 4. And they are thus, in respect to the mort- gaged premises, more nearly the "personal representatives" of the mortgagor than his executor or administrator is in respect to the same property. In suits in equity for the foreclosure of mortgages, the heirs are indispensable parties. 2 Barb. Ch. Pr. 176 ; 10 Paige, 410. And as a foreclosure under the statute is " equivalent to a foreclosure and sale under the decree of a court of equity," so far as to be an entire bar to the rights of the heirs in the equity of redemption, there can be no substantial reason why the notice should beseiwed upon tbem in the one case and not in the other. TO FORECLOSURE OF MORTGAGES [CH. IH. subsequent day without affecting the regularity of the pro- ceedings. Ih. ; see also 12 Wend. 57. If the postponement is made before the day appointed for the sale, it is sufficient that notice of such postponement be published in the newspaper in which the original advertise- ment is published. But if the postponement is not made until the day of sale, the mortgagee, or j)arty foreclosing, should attend at the time and place of sale, and there state to the persons present the time and place to which the ad- journment is made. In such case, the notice of postpone- ment to be subsequently published and continued in the newspaper, must conform to the adjournment as previously announced. And where the notice, as published, stated a different and more distant day, on which day the sale was actually made, the proceedings were held to be void. 4 Denio, 107. And so, after publicly postponing the sale, the mortgagee is bound by it, and cannot so far disregard it as to proceed on the original notice. 7 Johns. 219. The Sale.'] The sale is required to be at public auction^ in the day time, and in the county where the mortgaged premises, or some part of them, are situated. 2 R. 8. 546, sec. 6. The time and place designated in the notice of sale are to determine the time and place when and where the sale is to be had; as to which, see ante, " Notice and what to contain." How the Premises to ie Sold.'] If the premises consist of distinct farms, tracts, or lots, they shall be sold separately ; and no more farms, tracts, or lots shall be sold, than shall be necessary to satisfy the amount due on such mortgage, at the time of the first publication of notice of sale, with interest, and the costs and expenses allowed by law. 2 i?. S. 546, sec. 6 ; 8 Barh. 9 ; 10 Id. 564. When lands are mortgaged as one undivided tract or lot, and are subsequently subdivided by the mortgagor, for the purposes of sale or otherwise, the mortgagee, upon a fore- closure, is not bound to sell the lots separately, but naay, it CH, III.] BY ADVERTISEMENT. 71 seems, follow tlie description in the mortgage and sell them all together as one tract or lot. 8 Barb. 9, supra. And this is so, it seems, even though the mortgagor has sold some of the lots, so subdivided, to diiferent persons. Ih. 12 ; and see 24 Id. 135. But it is doubtful whether the statute authorizes this construction ; at any rate, to the extent there stated. On the contrary, there is room for saying that the statute speaks of the premises as they are situated at the time when the sale takes place. And where the premises since the mortgage was given, have been subdivided by the owner into two or more lots, and some of the lots so subdivided have been sold to different parties, there is no reason why the mortgagee should not be compelled to sell, first, the lots which are still owned by the mortgagor, and afterwards, if those lots will not pay the debt secured by the mortgage, then the remainder of the lots, separately, in the inverse order of their alienation ; espe- cially, if the owners of the premises require it, and the mort- gagee's interest will not thereby be prejudiced. As to the rule which prevails, in such cases, in actions for the fore- closure of mortgages, see the following authorities: 6 Paige, 35 ; 8 Id. 277 ; 11 Id. 60, 71 ; 1 Barl. Ch. E. 353; 2 Id. 151 ; 2 Comst. 2S9 ; 4 Sand. S. G. B. 565, aff. 4 Selden, 271 ; 24 Barl. 135 ; 13 How. Pr. E. 485. In all cases where the premises do not consist of distinct farms, tracts, or lots, the whole may be sold together ; and the mortgagee, in such case, may apply tlie avails to the satis- faction of his mortgage, whether then due, or thereafter to become due. 7 Paige, 211 ; lb. 248 ; 16 Barb. 350. A sale of the premises, subject to the payment of install- ments thereafter to become due, is not authorized by the staf ute. It seems, however, where the notice of sale specifies the amount of such installments, and the sale is in fact made subject to them, an equitable lien would be created in favor of the mortgagee against the purchaser, for the future install- ments, which the purchaser would be deemed to have as- sumed. But the mortgage, as a mortgage, would be spent, and would no longer be a lien upon the premises for any part of the mortgage debt. 7 Paige, 250 ; 11 Id. 626. 72 FORECLOSURE OF MORTGAGES [OH. III. "Whether the mortgagee would have the right to allow the purchaser a credit upon a sale of the premises, for any part of the purchase money, has not been dete^^mined ; although there is no doubt such credit could be given as to the whole, or any part of the money, which the mortgagee would be en- titled to retain. See 7 Paige, 251, per Denio, V. C. The Surplus Moneys.'] The surplus moneys, after the mortgagee's claim has been fully satisfied, with the costs and expenses allowed by law, are to be paid to the mortgagor, or to his representatives. 7 Paige, 250 ; Ih. 168 ; 11 Id. 624. If there are persons having subsequent incumbrances on the premises by mortgage, or otherwise, the mortgagee should retain the surplus, in trust for the parties interested, until their rights are ascertained and adjusted. But where the mortgagee owns another mortgage, subse- quent to the one foreclosed, or a judgment, and there is a surplus in his hands, he may apply such surplus to the pay- ment of such subsequent mortgage or judgment. 11 Barb. 549 ; 13 Wend. 488. And so, where the mortgage foreclosed is payable in installments, he may apply the surplus, after satisfying the amount then due, with the costs, towai-ds the payment of the installments thereafter to become due. 7 Paige, 248 ; li. 211. But if the premises are sold subject to installmei^s thereafter to become due, the mortgagor, it seems, is entitled to the surplus moneys, after paying the amount due with the costs. Id. ibid. The Mortgagee may Purchase.} The mortgagee, his as- signs, and his or their legal representatives, may, fairly and in good faith, purchase the premises so advertised, or any part thereof, at such sale. 2 R. S. 546, sec. 7 ; 4 Denio, 41 ; 20 Ba/rb. 559. See a\so ;post, "Evidence of Purchase." Affidavits of Foreclosure.] In preparing the affidavits of the foreclosure proceedings, care must be taken to show that all the requirements of the statute have been complied with. 1 Wend. 90; 20 Barb. 559. For forms of affidavits, see Ap- pendix, Nos. 39 to 43. CH. in.] BY ADVERTISEMENT. 73 "When the affidayits are filed and recorded, they are a substitute for a deed. But until that is done, or until a deed is given, in pursuance of the sale, no title passes to the pur- chaser. 4 Denio, 41 ; 13 Barb. 138 ; 20 Id. 559, supra. Though, it seems, if an affidavit is defective, an amended affidavit maybe filed according to the truth of the case ; and as to the mortgagor, at least, it may be filed at any time. 16 Barb. 352. The statute provides that an affidavit of the fact of any sale pursuant to the notice of foreclosure, may be made by the person who officiated as auctioneer at such sale, stating the time and place at which the same took place, the sum bid, and the name of the purchaser, and shall be annexed to a printed copy of the notice of sale. 2 B. 8. 546, sec. 9. An affidavit of the publication of such notice of sale, and of any notice of postponement, may be made by the printer of the newspaper in which the same was inserted, or by his foreman or principal clerk ; and an affidavit of the affixing of a copy of such notice on the outward door of the court house, may be made by the person who affixed the same, or by any other person who saw such notice so posted during the time required ; and an affidavit of the affixing a copy of such notice in the books to be provided and kept by the clerk, may be made by the county clerk, or by any other person who saw such notice so affixed during the time requir- ed ; and an affidavit of the serving of a copy of such notice on the persons entitled to service thereof, may be made by the persons who served the same, {a) 2 B. S. 547, sec. 10, as (ffl) The statute further requires, where the notice of sale has been pub- lished in the State paper,on account of the printers and proprietors of the news" papers in the county where the mortgaged premises are situated having refused to publish the notice for the price allowed by law, that there must also be an affidavit of an application having been made to such printers or proprietors, stating that the price allowed bylaw for publishing the notice of sale, has been tendered to them and refused ; which affidavit, together with proof of publi- cation in the State paper, shall be deemed evidence of a compliance with the jaw requiring notice of sale to be published in the county where the mortgaged premises are situated. 2 R, S. 649, sec. 49. 74: FORECLOSURE OF MORTGAGES [CH. Ill, amended hy Laws of 1857, vol. 1, p. 667. For previous amendment, see Laws of 184:4:, p. 530. Notwithstanding tliat the statute requires the affidavit of publication to be made by the printer of the newspaper, or his foreman or cleric, yet it is sufficient if made by the pub- lisher. 16 £arh. 347. A person who has seen the notice posted twelve weeks prior to the time of sale, has seen it during the time required within the meaning of the statute. It is not necessary that he should ha-ve seen it posted every minute, hour, or day, or even week, of the twelve weeks ; though, it seems, it is safer and more prudent to see the posting weekly. 12 Sow. Pr. R. 491. If the affidavit shows that the notice was affixed, it is sufficient, without showing that the party who affixed it afterwards saw it there. Ih. And, it seems, it need not show that it was affixed on the door of the court house nearest the mortgaged premises. 10 Barb. 565. See further as to what the affidavits should contain, ante, p. 64, " How notice to be given." For forms of affidavits of circumstances of sale, publica- tion of notice, affixing notices, service of notices and mort- gagee's deed, see Appendix, No. 39 to 43. Affidavits, before whom taTcen, and wliere filed?^ The affi- davits specified (supra) may be taken and certified by any judge of a court of record, any supreme-court commissioners, or any commissioner of deeds, and may be filed in the office of the clerk of the county where such sale took place. 2 B-. S. 547, sec. 11. But since the constitution of 1846, we have had no supreme-court commissioners, that office having been abol- ished by it. Art. i4, sec. 8. The affidavit may also be taken before any justice of the peace. Laws of 1840, p. 187. But, it seems, it cannot be taken by a deputy county clerk in the absence of the clerk. 4 Kernan, 456. Recording Affidavits, and their Effect?\ Such affidavits CI-I. III.] BY ADVERTISEMENT. 75 shall be recorded at lengtli by such clerk, in a book kept for the record of mortgages ; and such original affidavits, the record thereof, and certified copies of such record, shall be presumptive evidence of the facts therein contained. 2 R. S. 547, seo. 12. A note referring to the page and book where the evidence of any sale having been made under a mortgage, is recorded, shall be made by the clerk recording such evidence, in the margin of the record of such mortgage, if such record be in his office, li. sec. 13. Evidence of Purchase.^ When the mortgaged premises, or any part of them, shall have been purchased at such sale by the mortgagee, his legal representatives, or his or their assigns, or by any other person or persons whatsoever, as pro- vided by the statute, the affidavits of the publication and affixing notice of sale, and of the circumstances of such sale, shall be evidence of the sale, and of the foreclosure of the equity of redemption, as herein specified, without any con- veyance being executed, in the same manner, and with the like effect, as a conveyance executed by a mortgagee upon such sale, to a third person, has heretofore been. 2 R. S. 547, sec. 14, as amended hy Laws ofl%2>^,p. 261, sec. 8. Although the above section does not specify the affidavit of the service of notices of sale, yet that affidavit is also necessary. All the affidavits showing a compliance with the provisions of the statute, are essential, iu the absence of a deed, to perfect the purchaser's title. 20 Barh. 51-5. And the affidavits should show that the procetdings were con- ducted according to the law in force when the foreclosure was commenced. See 9 Barb. 482, af. in G. of A., Dec. 1852. Where the premises are purchased by the mortgagee, the foreclosure is not complete without the affidavits; as they stand in the place of a deed, and operate as a statute conveyance. And if a party, other than the mortgagee, purcliases, and re- ceives a conveyance from the mortgagee, and no affidavits are made, the publication of the notice and the other pro- T6 FORECLOSURE OF MORTGAGES [OH. III. ceedings may be proved by common-law evidence. 4 Denio, 41 ; 20 Barb. 559 ; 10 Paige, 563. For form of mortgagor's deed, see Appendix, No. 47. The mortgagee's deed is not sufficient to give the purcbaser title to the premises, unless the sale is at public auction, and after notice as prescribed by the statute, 20 JBarh. 564 ; and this, too, notwithstanding that the power of sale expressly authorizes the mortgngee on default to sell the premises at private sale to satisfy the debt. 3 Kernan, 200. Effect of the Foreclosure.'] Every sale pursuant to a power as aforesaid, and conducted as prescribed by the statute, made to a purchaser in good faith, shall be equiva- lent to a foreclosure and sale under the decree of a court of equity, so far only as to be an entire bar of all claim or equity of redemption of the mortgagor, his heirs, and represen- tatives, and of all persons claiming under him or them by vir- tue of any title subsequent to such mortgage, and also of any person having a lien by any judgment or decree upon the land, or any part thereof, contained in such mortgage, subse- quent to such mortgage, and of any person having any lien or claim by or under such subsequent judgment or decree, who shall have been served with notice of said sale as required by law. 2 S. S. 546, see. 8, as amended ly Laws of 1844, p. 630, sec. 4 («). The interest of a tenant under a demise from the mort- gagor, made subsequent to the execution of the mortgage, is extinguished by the sale. 3 Denio, 214. And the mortgagee, in such a case, who has acquired the actual possession of tlie premises, is entitled to the crops sown by the lessee, and growing on the land at the time of the sale. 8 Wend, 584 ; see also 1 Barh. Ch. B. 613; 2 Denio, 176, and note; 6 Barb. 370. And so, where a moi'tgagor, subsequent to the execution of the mortgage, puts machinery and other fixtures upon the premises, they become a part of the real estate, and (a) As to the previous amendments to this section, see Laws of 1840, p. 290, sec. 12; Laws of 1842,^. 365, sec. 6. CH. III.] BY ADVERTISEMENT. 77 the purchaser at the sale acquu'es a title to them. 19 Barl. 317. It is the policy, as well as the lacguage of the statute, that these foreclosures and sales under a power, should, in cases free from fraud and gross irregularity, be held final and con- clusive. 7 Johns. Ch. R. 60 ; 10 Johns. 195 ; 2 Cow. 195 ; 1 Paige, 70 ; 4 Id. 531. But all the provisions of the statute must be complied with, to render the foreclosure effectual. And, therefore, an omission to serve the notice of sale upon any of the parties entitled to such service, would render the sale irregular as to the party not served, and those claiming under him, 11 Barb. 193 ; 17 Id. 100 ; 10 Row. Pr. E. 51 ; and, it seems, if the omission is to serve upon the mortgagor, the sale would be void. 9 Bai'h. 284 ; 11 Id. 191 ; 16 Id. 9 ; 20 Id. 18. The sale must also be made to a purchaser in good faith. A purchaser, without notice, is not affected by usury in the original debt for which the mortgage was given ; although it would be otherwise with tiie mortgagee, or other party having notice. 10 Johns. 195; 14 Id. 435; 10 Barb. 658. Nor would a bonorfide purchaser, it seems, from a party who pur- chased at the foreclosure sale, with notice, be protected, in such case, where such party was not in the actual possession of the premises at the time of the second sale. Ih. And so, where the mortgage was paid and afterwards foreclosed, the purchaser at the sale, though purchasing in good faith, will acquire no title. 5 Hill, 272. The Costs and the Taxation thereof.'] The statute pro- vides that in the taxation of the costs and expenses, the fol- lowing allowances only shall be made : 1. For drawing and copies of the advertisement of fore- closure and sale, affidavits of the publication, posting and serving thereof, and of the circumstances of the sale and the deed thereof, the same allowance as is made by law to attor- neys in the Supreme Court, for the drawing and copies of pleadings ; and one dollar forserving each copy of the notice 78 FORECLOSUEK OF MORTGAGES. [CH. III. of sale, required by law to be served. {2.B. S. 652, sub. 1, as amended hy Lams of 1844,^. 630, seo. 3.) 2. A fee of ten dollars for superintending the sale thereon, and attending to the execution of the necessary papers. 3. The expense of publishing the advertisement, "according to the rates allowed by law, for a period not exceeding twenty- four weeks ; the expense of posting such advertisement and inspecting the same, not exceeding one dollar ; the expense of recording the necessary affidavits, and of the proving or acknowledgment of the deed, and of its being recorded, and of necessary postage and searches. 2 R. S. 652, seo. 4. By the act of 1867 {chap. 308, vol. 1, p. 667, sec. 1), the clerk of the county is entitled to a fee of twenty-five cents for affixing the notice of sale in the book kept by him for that purpose, and for making the entry and index thereof. The party foreclosing is to be allowed for the draft and copies of the necessary papers, the same fees, and at the same rates of compensation, as attorneys were allowed for the draft and copies of pleadings imder the fee bill of 1830. Those rates, so far as relate to these proceedings, have not been abolished by any of the subsequent changes in the fee bill. 6 How. Pr. R. 493. The allowance is, for the draft twenty- five cents, and for each copy twelve and a half cents. 2 R. S. 633, sec. 18. The printer's fees for publishing the notice of sale in the newspaper are fifty cents per folio (one hundred words), for the first insertion, and twenty cents per folio for each subse- quent insertion after the first. Id. 648, sec. 45. Where the mortgagor obtained an injunction i-estraining the assignee of the mortgage from selling, but allowing the continuance of the notice, and the notice was published for twenty-six weeks, it was held proper to allow the expense of the publication for the whole period, notwithstanding that the statute limited the expense to a period not exceeding twenty- four weeks. 6 JIow. Pr. R. 493, supra. The allowance of one dollar for serving each copy of the notice of sale, is in addition to the charge for making the copy of the notice to be served. But the allowance for copy of no- CH. ni.] BY ADVERTISEMEKT. 79 tice, and service of same, is not proper, except where they are rendered necessary in order to eifect a complete foreclo- sure. 11). As to what parties are necessary to be sei-ved, see ante, " How notice to be giren." And see the case in 6 How. Pt. R. supra, where the practice on the taxation and allow- ance of costs in these proceedings, is stated at large, by Harris, J. For a sketch of bill of costs, see Appendix, 'Eo. 44. The statute provides, also, that the costs and expenses of foreclosing any mortgage by advertisement, shall be taxed'bj some officer authorized to tax costs in the Supreme Court, upon the requisition of any party liable to pay the same, and upon such party paying the expense thereof. 2 R. S. 652, sec. 3. The party liable to pay costs, and who requires the costs to be taxed, is entitled to notice of such taxation. 6 How. Pr. R. 263. For form of Notice, see Appendix, ISTo. 45. The requisition may be made by a person entitled to the sur- plus out of which the costs are to be paid. 6 How. supra. The officers authorized to tax the costs in these cases are, justices of the Supreme Court, and county judges of the de- gree of counselors of the Supreme,Court. 3 How. Pr. R. 32 ; Ih. 40 ; lb. 172 ; lut see Ih. 92. The clerk may also adjust costs, in certain cases, in the Supreme Court, Code, § 311 ; but it is doubtful whether he is a taxing officer in the Supreme Court within the meaning of the statute. See Laws of 1847, p. 645, sec. 38 ; 4 How. Pr. R. 305 ; 6 Id. 268 ; Id. 414. The expense of the taxation is, the fees of the officer for that service. These are fixed by the statute at fifty cents. 2 R. S. 631, seo. 19. But as county judges and justices of the Supreme Court are not now allowed to charge fees, none can be charged by them for that service. On the taxation of the costs it is the duty of the taxing officer to examine the bill presented to him, whether the tax- ation is opposed or not ; and he is required to be satisfied that the items charged in such bill are correct and legal ; and also to strike out all charges which, in his judgment, were not necessary to be performed, and for all folios in any of the affidavits and notices which were unnecessarily inserted. 80 FORECLOSURE OF MORTGAGES. [CH. III. 2 R. S. 653, sec. 5 ; 6 Row. Pr. R. 493. Charges for copies of papers should not be taxed without an affidavit that such copies were actually and necessarily used, or were necessarily obtained for use ; nor should any disbursements be allowed without an affidavit specifying the items thereof particularly, nor unless they appear to have been necessary, and reasonable in amount. 2 R. 8. 653, see. 7. For forms of Bill of costs, and Notice of Taxation, and Affidavit, see A^endix, Nos. 44 to 46. CHAPTER IV. rOECIBLE ENTRIES AND DETAINEES. A FOECiBLE entry or detainer is committed by violently taking or Ice&ping possession of lands and tenements, witli menaces, force, and arms, and without the authority of law. It seems, at the common law, a man disseized of lands or tenements, if he could not prevail by fair means might law- fully regain the possession thereof 'bj force, unless he were put to the necessity of bringing his action, by having neglected to re-enter m due time. But this ind^^lgence having been foimd by experience to be prejudicial to the public peace, by giving an opportunity to powerful men, under the pretense of feigned 'titles, forcibly to eject their weaker neighbors, and, also, by force, to retain their wrongful possessions, it was thought necessary by many severe laws to restrain all persons from the use of such violent methods of doing themselves justice. 1 Maw. 140; Bac. Air. Farcible Entry and Detainer '^ lyut see 1 Russ. on Crimes, 303, 304, and notes. Hence, the statute 5 Rioh. 11. St. 1, c. 8, and other statutes, from tirne to time were passed in England, by which forcible entries and detain- ers were punished by imprisonment, and provision made giv- ing the party aggrieved restitution of possession to the premi- ses from which he had been forcibly ejected or detained. Id. ibid. ; 3 Jac. Law Di(^ 86. And previous to the passage of the present law on the subject in this State, those acts had been almost literally copied into our statute. See 1 R. L. 96. 6 82 FORCIBLE ENTRIES AND DETAINERS. [CH. IV. They were found, however, not to answer the purpose for which they had been passed, owing mainly to the intricacy and obscurity of their provisions ; and the present law on the sub- ject, which went into effect on the 1st day of January, 1830' was intended to present as clearly and distinctly as possible, the substance and effect of the several acts above mentioned, as they had previously been understood in England and in this State. Bev. Notes, 3 B. S. M ed. 763. What Constitutes a Forcible Entry or Detainer.] The statute provides that no entry shall be made into any lands or other possessions, but in cases where entry is given by law ; and in such case only in a peaceable manner, not with strong hand, nor with a multitude of people. 2 B. S. 507, sec. 1 ; 1 Buss, on Cr., 304 to 316. To constitute a forcible entry there must be something of personal violence, or a tendency to or threat of personal vio- lence, unless the entry or detainer be riotous. In all cases there must be something beyond a mere trespass upon the property. 17 Wend. 262 ; 24 Barb. 16. Breaking the door of a house, especially of a dwelling house, is the least evi- dence that has been held sufficient to constitute a forcible entry. Breaking the door of an outhouse, in the actual pos- session of the complainant, by forcing the lock, is not suffi- cient. Id. ibid. * The same circumstances of violence which will make an entry forcible, will make a detainer forcible, also ; and who- ever keeps in the house an unusual number of people, or unusual weapons, or threatens to do some bodily hurt to the former possessor if he dare return, shall be adjudged guilty of a forcible detainer, though no attempt be made to re-enter. 8 Gowen, 226 ; 3 Bog. Abr. 253, Who may Institute the Proceedings.] The person forcibly put out, or forcibly held out of possession, and the guardian of any person being a minor, are l|ae proper persons to insti- tute the proceedings. 2 B. S. 50* § 2. The proceedings must be prosecuted by and in the name OH. IV.] FORCIBLE ENTRIES AND DETAINERS. 83 of the party whose legal right of possession has been invaded, and not by the individuals who may have been charged with authorities or duties respecting it ; and, therefore, proceed- ings for the forcible entry and detainer of a church owned by a religious society, incorporated under tbe general statute, should be in the name of the corporation, and not in the indi- vidual names of the trustees. 1 Kernan, 94. The person authorized to institute the pi-oceeding must have an estate of freehold, or for a term of years in the premises then subsisting, or some other right to the posses- sion thereof. 2 B. 8. 508, sec, 3. A mere intruder or trespasser cannot institute proceedings under the statute, and be restored to the possession which he unlawfully holds ; but every person lawfully in possession, and forcibly excluded therefrom, is entitled to the benefit of the statute. The object of the legislature was to extend this remedy not only to those who were seized in fee, or who had a term for years, but to all who had any right to the j)osses- sion. A tenant at will, therefore, is entitled to institute pro- ceedings under the statute. 11 TFejit?. 157j 159. And proof of actual possession is sufiicient to support the allegation in the inquisition that the complainant was possessed in fee simple. 9 Id. 50. Officers authorized to entertain Proceedings.] The oiBcers authorized to entertain a complaint under the statute, are the justices of the Supreme Court ; also, the county judges, the mayor, recorder, or alderman of any city, in their respective counties and cities ; and also the judges of the Court of Com- mon Pleas, the City Judge, and any justice of the Marine Court, or of the District Court of the city of JSTew York. 2 H. S. 507, sec. 2 ; Ih. 510, sec. 1% ; Const. o/1846, art. 14, sec. 8 ; Laws of 1848, p. 250, sec. 4 ; Ih. 404, sec. 1 ; Laws of 1852, p. 471 ; Laws of 1850, p. 388-; 6 Abh. Pr. B. 146. Also the justices of the Superior Court of the city of Buifalo, within that city, Laws of 1S57, vol. 1, p. 754, sec. 25 ; and the City Judge of Brooklyn, within the county of Kings. Laws of 1849,j?. 174, sec. 26. Sit FORCIBLE ENTRIES AND DETAINERS. [CH. IV. The Complaint^ Where any forcible entry shall be made, or where the entry shall be made in a peaceable manner and the possession shall be held by force, the person so forcibly put out, or 80 forcibly holden out of possession, and the guar- dian of any such person being a minor, may be restored to such possession by making a complaint, to any one of the officars authorized to entertain the proceedings, and by pro- ceeding according to the provisions of the statute. 2 R. S. 50S, seo8. 2 and, 3. For form of complaint and affidavit', see Appendix, No. 48. The complaint must be in writing, and be accompanied by an affidavit of the forcible entry or forcible holding out, and that the complainant has an estate of freehold or for a term of years in the premises then subsisting, or some other right to the possession thereof, stating the same. 2 It. S. 508, seo. 3. Where the complaint fully sets out the estate and right of possession of the complainant, and the forcible entry or the forcible holding out, and is verified by affidavit, no other affi- davit is necessary. In such case, the complaint will be regarded both as a. complaint and an affidavit. 7 JIbw. Pr. R. 44:1. And where the affidavit, supporting the complaint, states a lawful possession, though it may not be technically sufficient, yet the objection will be waived, unless it is taken before the officer previous to the taking of the inquisition. llWend. 157. Precept for Jury.] The officer, upon receiving the com- plaint, is required to issue a precept to the sheriff or any constable of the county, commanding him to cause twenty- four inhabitants of the same county, duly qualified to serve as jurors, to come before such officer, at some time not less than two days thereafter, to inquire of such forcible entry, or such forcible holding. 2 R. S. 508, sec. 3. For form, see Appendix, No. 49. Notice to the Defendant, and how Served.] The officer is immediately to cause a notice in writing, of the issuing of the precept, and of the time and place of the return thereof, CH. IV.] FORCIBLE ENTRIES AND DETAINERS. S5 to be served upon the party against whom sncli complaint is made, by delivering the same to such person ; or, if he can- not be found, by delivering such notice to some person of proper age on the premises ; or, if there be no such person, by affixing the same on the front door of the house, if there be one ; or, if there be none, on some other public and suita- ble place on the premises. 2 R. S. 508, sec. i. For form of notice, and affidavit of service, see Appendix, Nos. 50, 61. Proceedings iefore the Jury of Inquiry. ] At the day and place appointed for the return of the precept, the officer is required to administer an oath to the persons returned sum- moned, who shall appear, not being less than thirteen, and not more than twenty-three, well and truly to inquire into the matters complained of, and a true inquisition thereof to make. For form, see Appendix, No. 52. And the jury so sworn are then to proceed to make inquiry into the forcible entry, or the forcible holding, complained of, and may ex- amine witnesses on oath to be administered by such judge; and shall make and sign their inquisition before the said judge and deliver the same to him. li. sec. 5. For form of inquisition, see Appendix, No. 5i. If twenty-four persons be sworn on the jury of inquiiy, the conviction will be void. 2 Cai. R. 98. The defendant is entitled to produce witnesses before the jury, to cross-examine the plaintiff's witnesses, and to sum up the evidence. 11 Wend. 167. Both parties have the same remedy to compel the atten- dance of witnesses, as parties in suits before justices' courts. 2 E. S. 510, sec. 17. Proof of a sufficient estate or right of possession is to be made to the officer when the complaint is preferred, and before any process can be issued. The statute does not con- fer upon the jury the power to investigate the title or right of possession of either party. The appropriate subject of investigation before the jury of inquiry is the forcible entry or the forcible holding complained of; and the examination Ob FORCIBLE ENTRIES AND DETAINERS. [CH. IV. is limited to that subject. 7 How. Pr. B. 169 ; and see 13 Id. 446. Restitution Ordered., if there is no Traverse.] If the jury find that the defendant is guilty of the forcible entry or detainer, and the defendant does not traverse the inquisi- tion in the manner specified by the statute, and within twenty-four hours after it is found, the officer shall award restitution of the premises, and assess the costs and expenses of the proceedings, and issue his precept to cause restitution, and for the collection of the costs, in the same manner as on judgment of verdict of guilty on the trial of such traverse. 2 H. S. 510, sec. 14. For form of award and of precept, see Appendix, Nos. 55 and 56. The costs and expenses here allowed, are only the fees of the officers who are required to perform services in these pro- ceedings. 6 How. Pr. E. 178 ; 5 J^. 22 ; 4 Bill, 541. Traverse of Inquisition, Mer, 713 ; Eurd on Hob. Corpus, 287. The following is the Kevisers' preliminary note to the article of the Eevised Statutes relating to this writ : " "We have two statutes relating to the celebrated writ of habeas corpus ad su'tjiciendum, the revised act of 1813, and the amendatory act of 1818 {swpra). These statutes, so far as they define the cases in which the writ is to be issued, relate only to the powers and duties of judges in vacation j leaving that branch of the subject which relates to the powers and duties of the superior courts during term time, to depend upon the common law. " As this writ is justly esteemed a great bulwark of per- sonal liberty, it is conceived that the law in relation to it should be brought into one g(Jneral institution, and be made accessible to all. With this view it has been deemed expe- dient, in revising the two statutes above cited, to enlarge the provisions so as to embrace not only cases in vacation, but in term time. Various alterations have also been made, for the purpose of carrying out more fully the principles of the statutes, and remedying those defects which have been dis- covered in the course of our judicial experience, in the com- mon law as well as in thd statutes. Among other new pro- visions introduced in this article, the following are the most important : " 1. The cases in which the writ may be issued, are expli- note; 12 Wend. 311 ; s. c. onerror, 14 Id. 501 ; 16 Peters, 608; 1 Band. 15, 22, 23 ; and see Hurd on Habeas GorpuK, 634. (a) For the origin and history of the writ of habeas corpus, see S Black. Com. 129; Bac.Abr. Habeas Corpus {B.) pi. 13; 2 Kent's Oom.i5; S Steph. Oom. 696, &c. And see the elaborate note in 3 Hill's Reports, 647 to 676, by Nicholas Hill, Esq., where the practice upon habeas corpus is considered at length, in connection with the Revised Statutes on the same subject, and with full refer- ence to the authorities. And see also the work, recently published, entitled, " A Treatise on the Right of Personal Liberty, and the Writ of Habeas Cor- pus," (fee, by RoLLiN C. Hoan, Esq., where the principles of law and the rules of practice governing the writ of habeas corpus, generally, are fully treated and considered. CH. v.] HABEAS CORPUS AND CERTIORARI. 97 citly defined ; the mode of proceeding prescribed ; and many guards provided, to prevent its being eluded or disobeyed. " 2. The penalties prescribed for a refusal of the writ, have been extended to members of the courts, as well as to judges in vacation. " 3. Provision has been distinctly made for controverting the return. " 4. The course of proceeding, where the party is detained under civil process, is explicitly declared so as to remove the doubts which now exist, as to the propriety of resorting to the habeas corpus for relief in such cases. " 5. The writ of certiorari has been introduced, to save the needless expense and needless hazard which are often inciirred under the present law. " 6. The cases, in which a party who has been once dis- charged, may be again imprisoned for the same cause, have been defined. "7. Sheriffs and other ofiicers are protected from any civil action for discharging a party pursuant to any order made upon habeas corpus or certiorari." Rev. Motes, Z B. S. 784, M ed. In what Gases the writ Issues.] The writ of habeas corpus issues to inquire into the grounds upon which any person is restrained of his liberty, and when it is found that the re- straint is illegal, to deliver him from such restraint. This end is ordinarily attained by allowing the party improperly restrained, the free exercise of his volition. "Where, how- ever, the writ is issued for the purpose of determining the custody or disposition of an infant child, and such child is too young to be capable of determining for itself, the court or ofiicer determines for it. See 3 Jlill, 647, note; Hurd on Hal. Corp. 209. The writ also issues to bring a prisoner into court for the purpose of examining him as a witness in any action or pro- ceeding. This form of the writ will be hereafter considered. It frequently issues, also, for purposes connected with the administration of justice ; as, where an indictment is pending 7 9& HABEAS COKPUS AND CERTIORARI. [CH. V.. against an individual imprisoned on conviction of a crime in any county jail or state prison, for an offense committed during such imprisonment, for the purpose of bringing the individual, so indicted, before the court, for arraignment or trial. Laws of 1S4:7, p. 628, seo. 157. And so the court, in which any indictment is pending for a felony against any person imprisoned on conviction of a crime, in any county jail or state prison, may issue a habeas corpus for the purpose of bringing the person so indicted before such court for arraignment or trial on such indictment. lb. sec. 158. The writ issues, also, in behalf of a prisoner found guilty of a criminal offense, for the purpose of obtaining his discharge on bail, after he has removed the proceedings by writ of error, to an appellate court. 2 H. S. 740, sec. 19. And so, also, to bring up the body of a person on whose life a prior estate depends, when such person is in prison, or is otherwise detained. li. 344, sec. 7. And the general statutory provis- ions relating to the writ of habeas corpus, here considered, are to apply to these cases, so far as those provisions are applicable, except where otherwise provided. Zh. 675, sec. 86. The writ in like manner issues at the common law, to bring a prisoner before the court, on the application of his bail in a civil action, for the purpose of exonerating the bail from liability. 7 Wend. 132. And so, when property is stolen in one county, and the prisoner is committed for the offense to the jail of another county, if he is indicted in the county where the property was stolen, the district attorney of that county may apply to the court for a habeas corpus to bring up the prisoner, so that ' he may be delivered to the sheriff of that county for trial.. 9 Wetid. 505 ; 2 ^. ^. 674, sec. 77. And so, the writ issues to obtain the discharge of a minor who has enlisted into the army of the United S'tates, without the consent of his parent or guardian. 7 Cowen, 471 ; and see, post, p. 126. But the writ of habeas corpus does not lie to review the judgment or decision of a court or officer having competent jurisdiction, 5 HUl, 164 ; 22 Bari. 178 ; nor to try the right CH. v.] HABEAS CORPUS AND CERTIORARI. 99 to the guardianship of an infant, 8 Paige, 47 ; nor to correct formal defects in the process on which the prisoner is detained, 3 Barb. 8. C. E.2,7;l Id. 340 ; 1 Hill, 164 ; 3 Id. 661, 663, note ; nor to determine whether the aflSdayits upon which an attachment for a contempt is issued, are sufficient, 2 Sand. 8. C. R. 724 ; s. c. 4 How. Pr. E. 369 ; nor to compel a wife to return to the bed and board of her husband, and to the performance of her conjugal duties, where she voluntarily absents herself from her husband. 8 Paige, 47. Nor will it be converted into a quo warranto, for the purpo?e of deter- mining a question of usurpation of office. 3 Ba/rb. 8. C. P. 163. And the writ of habeas corpus to inquire into the cause of detention, in all cases, whether under the statute, or at the common law, except when issued by the Supreme Court, or one of the justices thereof, can only be allowed for the pur- pose of delivering the person for whose relief it is asked, from illegal imprisonment or restraint. If on the return to the writ, the alleged illegal imprisonment is disproved, the juris- diction of ilie officer ceases and the proceedings will be dismissed. If the illegal imprisonment is admitted or proved, the only order that will be made will be that the person imprisoned be discharged. And the only exception to this, it seems, is in the case of an infant of such tender years as to be incapable of making a choice for itself. 8ee 1 Duer, 709, 715, 720, 725 ; 22 Barb. 179, 188, off. 4 Kernan, 575 ; and seejpost, " Custody and Disposition of Infants." Who may have the Writ.'] Every person committed, detained, confined, or restrained of his liberty, within this State, for any criminal or supposed criminal matter, or under any pretense whatsoever, except in the cases specified under the next head, may prosecute a writ of habeas corpus, {a) or (a) The writ of habeas corpus is a prerogative writ, not ministerially issua- ble, i. e., not issuable of course ; and yet it is a writ of right on a proper foun- dation being made out by proof. 3 Hill, 649, note, pi. 2; and see 16 Barb. 362. 100 HABEAS CORPUS AND CERTIOKAEI. [CH. V. of certiorari, {a) according to the provisions of the statute, to inguire into the cause of such imprisonment or restraint. 2 B. S. 563, sec. 21. Imprisonment, within the sense of the law on this subject, may be either by some private person acting without process, and under pretense of private right ; or by one claiming to act under due process of law. 3 Hill, 650, note j and see Hurd on Hob. Corptos, 209. Where the contest is between a father, and a master to whom children have' been indented, the latter may have the writ to bring up the children, when in their father's custody. 1 Sand. S. C. B. 672. " In these cases," says Sandford, J., in the case cited, " the court acts for and in be- half of the children, to see that they are under no improper restraint. The master may set its powers in motion, and the court will interfere so far as to permit the children to go where they please when they are old enough to understand their, own wishes, and those wishes lead to no improper custody." Ih. p. 679 ; and see 8 Johns. 328 ; Hurd on Hah. Corpus, 545 to 548. The writ will issue, also, at the instance of a parent or a guardian, for the custody and disposition and deliverance of a child, or a ward. 8 Paige, 47 ; 25 Wend. 64 ; 3 Hill, 399 ; 22 Barb. 178 ; 4 Kernan, 575 ; Hurd on Hah. Corpus, 213, 454, 548. And so, by a husband for the deliverance of a (a) Tie remedj' by certiorari, is not usually resorted to, though it is nearly concurrent with that by habeas corpus. Where the personal attendance of the prisoner is not required, or not necessary to the determination of the question whether there is a legal cause of confineiuent or restraint, this writ can properly be employed, and is as effectual, in such case, as the writ of habeas corpus. Rev. Notes, 3 R. 8. 784, Id ed. ; 8 Hill, 676, note ; and see 3 Park. Or. R. 531, rev'g. Id. 520. And the writ of certiorari is the only proper writ where it ap- pears that the offense for which the person is confined or detained is not baila- ble, according to the provisions of law. 2 R. 8., 569, sec. 50. The writ of certiorari is also occasionally used, it seems, to obtain a more definite and full return of the cause of the imprisonment or detention of a party. 3 Park Or. R. 600, 605. In the case cited, it was issued for that pur- pose, simultaneously with the writ of habeas corpus, and was directed to other parties than those having tlie custody of the prisoner. CH. v.] HABEAS CORPUS AND CERTIORARI. lOlr wife. 11). 451 ; 1 Duer, 714, 715. Iji such ca^ issues at the common law, and not under the s| in the cases provided for by the statutory proV\^ immediately hereafter (2 B. S. 149, sees. 1,4); also, in the case of an infant, too young to be judging for itself. In the last-mentioned case, the officer, under the statute, is authorized to determine for the infant, and if such infant is restrained, to remove such restraint, by delivering it to its legal custodian. 1 Dvsr, 725 ; {a) 22 Barb. 179 ; 4 Kernan, 575 ; 8 Row. Pr. R. 288. In respect to the statutory provisions alluded to, it is. pro- vided, that where a husband and wife live in a state of sepa- ration, without being divorced, and have a minor child of the marriage, the wife, if she is an inhabitant of this State, may apply to the Supreme Court for a habeas corpus to have such child brought before it. 2 R. 8. 148, sec. 1 ; 18 Wend. 637 ; 19 Id. 16 ; 2 Eow, Pr. R. 61. And where the husband or wife has attached himself or herself to the society of Shakers, and detains a child of the marriage between them, the hus- band or wife, on application to a justice of the Supreme Court, may have the writ to bring such child before the officer issuing it. 2 R. S. 149, sec. 4, jpost. See further in respect to the persons who may have the writ, cmte., p. 97, " In what cases the writ issues." Who is not entitled to the Writ.'] The statute provides that the following persons shall not be entitled to prosecute the writ : 1. Persons committed or detained by virtue of any pro- cess issued by any court of the United States, or any judge thereof, in cases where such courts or judges have exclusive jurisdiction under the laws of the United States, or shall have acquired exclusive jurisdiction by the commencement of suits in such courts. (o) See this case, in ■which the distinctions between the common-law and the statutory habeas corpus, are stated and explained by Duer, J. And see the same case in the Supreme Court, before Barculo, J., 8 How. Pr. R. 288. 102 HABEAS CORPUS AND CERTIORARI. [CH. T. 2. Persons committed or detained by virtue of the final judgment or decree of any competent tribunal of civil or criminal jurisdiction, or by virtue of any execution issued upon such judgment or decree. But no order of commitment for any alleged contempt, or upon. proceedings as for contempt, to enforce the rights or remedies of any party, shall be deemed a judgment or decree within the meaning of this section ; nor shall any attachment or other process issued upon any such order, be deemed an execution within the meaning of this section. 2 R. S. 563, seo. 22 ; 16 Barb. 363. Nor will a party who is duly committed upon a regular indictment for murder, or other criminal offense, be dis- charged by habeas corpus, by proving his innocence merely, however clear the proof may be, but he must abide a trial by jury, 1 mil, 377 ; 3 M. 670, note; 25 Wend. 567 ; though otherwise on a commitment before indictment. 1 Park. Cr. -S. 187; hut see post. Where and How the Writ to he ajypliedfor.] The statute provides that the application for the writ of habeas corpus, shall be made by petition, signed either by the party for whose relief it is intended, or by some person in his behalf. 2 a. 8. 563, sec. 23. It further provides that the application shall be made, either 1. To the Supreme Court, during its sitting ; or 2. During any term or vacation thereof, to the chancellor, or any one of the justices of the Supreme Court, or to any officer who may be authorized to perform the duties of a jus- tice of the Supreme Court at chambers, being or residing within the county where the prisoner is detained ; or, if there be no such officer within such county, or if he be absent, or for any cause be incapable of acting, or have refused to grant such writ, then to some officer having such authority, residing in any adjoining county. Ih. The like authority is also given to the Superior Court of the city of Buffalo, and to each of ""tlie justices thereof, to issue the writ within that city, Laios of 1857, vol. 1,^. 752, 754 ; and also to the City Judge of the ■CH. v.] HABEAS CORPUS AND CERTIORARI. 103 <3ity of Brooklyn, within the county of Kings, Laws of 1849, _p. 174, sec. 26 ; and to the City Judge of New York, within •that city. Laws of 1850, p. 388 ; 6 Abh. Pr. E. 146 ; Id. 139. The officers authorized to perform the duties of a justice of the Supreme Court at chambers, under the Revised Statutes, were siipreme-court commissioners, 2 B,. S. 280 ; th« judges ■of the Superior Court in the city of New York, /c?. 281, sec. 33 ; 1 Duer, 709 ; the judges of the Court of Common Pleas for the city and county of New York, Laws of 184:7, p. 281, ■sec. 7 ; 1 Park. Cr. P. 138 ; the recorders of cities and judges of the county courts being of the degree of counselor at law. 2 P. S. 281, sec. 32 ; 3 Row. Pr. P. 32 ; Id. 40 ; Id. 172 ; iut see Id. 92. But there are now no supreme-court commis- sioners, that office having been abolished by the constitution of 1846. Art. 14, sec. 8. The authority of the cbancellor to award a habeas corpus was transferred by the judiciary act, and the constitution of 1846, to the justices of the Supreme Court. 1 Duer, 709 ; 8 Sow. Pr. P. 288 ; 22 Pari. 178 ; 4 Kernan, 576. That au- tliority does not depend solely upon the statute, but is inherent in a court of equity, and derived from the common law ; though it is to be exercised in conformity to the statutory pro- jvisions here considered. Id. ibid ; 8 Paige, 47 ; 2 i?. S. 573, ■sec. 73, post Where the future disposition and custody of infants is to be determined, on the return to the writ, the application can only be made to the Supreme Court, or to one of the justices thereof. The application, in such case, is at the common law, and not under the statute, except in the cases authorized by j>art 2, chap. 8, title 2, of the Eevised Statutes, supi'a. A judge of the Superior Court in the city of New York, can only exercise the powers which were conferred by statute upon a supreme-court commissioner; and he is not, therefore, clothed with the discretionary powers of a judge in equity in relation to the disposition and custody of infants. 1 Duer, 709 ; 8 How. Pr. P. 288. The same remark applies to a recorder of a city, ;a county judge, and a judge of the Court of Common Pleas of 104 HABEAS CORPUS AND CERTIOEARI. [CH. V. the city of New York. And bo, also, to a justice of the Supreme Court, even, in respect to the statutory writ of habeas^ corpus returnable before him at chambers. 22 Barb. 179. ^ But upon a petition addressed to the Supreme Court in equity, I and presented to a justice of that court, at chambers, out of ' term, such justice has power to entertain proceedings in rela- tion to infants, and to make an order for their future dispo- sition and custody. Ih.; aff. i Kernan, 575. And in case of an infant too young to be capable of judging for itself, when the only question to be determined is whether such infant is improperly restrained, any of the offi- ( ( cers above mentioned may entertain the proceedings, and if \ such infant is restrained, remove the restraint, by delivering such infant to its legal custodian. 1 Duer, 725 ; 22 Barb. 179, siupra / Murd on Hah. Corpus, 456 to 462. Whenever application for the writ of habeas corpus or certiorari, shall be made to any officer not residing within the county where the prisoner shall be detained, he shall re- quire proof by the oath of the party applying, or by other sufficient evidence, that there is no officer in such county authorized to grant the writ, or if there be one, that he is absent, or has refused to grant such writ, or for some cause to be specially set forth, is incapable of acting ; and if such proof be not produced, the application shall be denied. 2 R. S. 563, sec. 24. The application for the writ may be made by the person imprisoned, or by his agent or attorney ; and so, also, by any friend of the prisoner, — and this, too, without any express or other authority for that purpose. 3 Hill, 654, note, pi. 7. In cases of infants, the court will generally allow any one to appear and litigate for them, in good faith, as a next friend. II. And where an infant child is illegally detained from its father, the father may properly apply for a habeas corpus in his \ own right, and without the privity of the child. 3 Hill, 399. In cases where the writ is required in any action or mat- ter, civil or criminal, to which the people of this State shall be parties, the application therefor may be made by the- CH. v.] HABEAS CORPUS AND CERTIOEAEI. 105 attorney general, or district attorney, having charge of the same. 2 H. S. 574, sec. 77. Where the application for the writ is made to the Supreme Court, it may be made either at the special or general term, 12 Wend. 229 ; 8 How. Pr. R. 288 ; and also to one of the justices thereof at chambers. lb. And in either case the writ may run into any part of the State. Id. ibid.; 3 How. Pr. E. 39 ; see also, 3 Hill, 652, note. Petition, and what to contain.] The writ must be founded upon petition, which must be addressed to the court or officer to whom the application is to be made ; and should be signed by the party for whose relief it is intended, or by some person in his behalf. 2 B. S. 563, sec. 23, sv{pra. It is in the name of the prisoner, alone, that all the proceedings must regularly be conducted. 1 Duer, 714 ; but see 1 Park. Cr. B. 132, 137. Though if the writ is prosecuted at the common law, by a parent or guardian, to obtain the custody and control of a child, or a ward ; or by a husband for the deliverance of a wife, the proceedings may be conducted in the name of such parent, or guardian, or husband. 1 Duer, 714 ; 3 Hill, 399. And so, also, the proceedings may be in the name of the hus- band or wife under part 2, chap. 8, title 2, of the Revised Statutes. 2 B. S. 149, supra. The statute provides that the petition shall state in sub- stance, — 1. That the person in whose behalf the writ is applied for, is imprisoned or restrained in his liberty ; the officer or person by whom he is so confined or restrained, and the place where ; naming both parties, if their names are known, or describing them, if they are not : 2. That such person is not committed or detained by virtue of any process, judgment, decree, or execution, specified in the preceding twenty-second section : 3. The cause or pretense of such confinement or restraint, according to the best of the knowledge and belief of the party : 4. If the confinement or restraint is by virtue of any war- 106 HABEAS CORPUS AND CERTIORARI. [CH. V. rant, order, or process, a copy thereof must be annexed ; or it must be averred, that 'by reason of such prisoner's being removed or concealed before the application, a demand of such copy could not be made ; or that such demand was made, and the legal fees therefor tendered to the officer or person having such prisoner in his custody, and that such «opy was refused : 5. If the imprisonment be alleged to be illegal, the petition must also state in what the alleged illegality con- sists : 6. It must specify whether the party applies for the writ of habeas corpus, or for the writ of certiorari : 7. It must be verified by the oath of the party making the application. 2 R. 8. 564, sec. 25. For forms of petition, see Appendix^ No. TO. Where the party imprisoned or restrained is an infant, and the custody and disposition of such infant is to be deter- mined by the proceedings, the petition, where the application is made to a justice of the Supreme Court, at chambers, should be addressed to the Supreme Court in equity, and should set forth the facts showing that the equitable powers of that court are invoked. In such case, also, the writ should be returnable before the court. 22 Barb. 191 ; aff. 4 Ker- nan, 575. And where the mother, who was living in a state of sepa- ration from her husband, without being divorced, applied for the writ of habeas corpus to obtain a child of the mar- riage, which was in the husband's possession (2 S. S. 148, sec. 1), — it was held that a full disclosure of all the facts and <;ircumstances in relation to the ability of both parents, would be required before allowing the writ. 2 How. Pr. B. 61. For difi"erent forms of petition, see Appendix, Wos. 70, 71, 72. The Writ to he Granted, and Penalty for Refusal.'] Any court or officer empowered to grant any writ applied for un- der the statute, to whom such petition shall be presented, is required to grant such writ without delay ; unless it shall ap- pear from the petition itself, or from the documents annexed, CH. v.] HABEAS CORPUS AND CERTIORARI. 107 that the party applying therefor, is, by the provisions of the statute, prohibited from prosecuting such writ. 2 R. S. 564, sec. 26. And if anj'^ court or officer, authorized by the pro- visions of the statute to grant writs of habeas corpus or cer- tiorari, shall refuse to grant such writ when legally applied for, every member of such court, who shall have assented to such refusal, and every such officer, shall severally forfeit to the party aggrieved, one thousand dollars. Jd. sec. 31 ; 3 Mil, 655, note ; 2 Kent's Com. 29. Writ may sometimes Issue without Petition.] The stat- ute provides, that whenever the Supreme Court, or any jus- tice thereof, shall have evidence from any judicial proceed- ing had before them, that any person within the county in which such court or officer shall be, is illegally confined and restrained in his liberty, it shall be the duty of such court or officer, to issue a writ of habeas corpus or certiorari for his relief, although no petition be presented or application made for such writ. 2 Ji. S. 565, sec. 30. Form of Writ, and how Issued.] The court or officer having allowed the writ, it issues immediately. The form of the writ of habeas corpus, as well as the writ of certiorari, is prescribed by the statute. 2 H. S. 564, sees. 27 and 28. Por forms, see Appendix, Nos. 73 and 74. The writ may be directed to any one who has the prisoner in custody, or to one charged with participating in the illegal detention, though he be not the immediate actor in the wrong. 3 Bill, 406 ; Id. 655, note, pi. 14; 2 B. S. 565, sec. 29 ; Burd on Habeas Corpus, 234. It may be tested, if issued in term, o;i any day in that term, or if issued in vacation, on any day in the preceding term, 2 Burr. Pr. 202, note; 2 B. S. 197, sec. 5 ; and may be made returnable at a day certain, or forth- with, as the case may require. lb. 574, sec. 75. The place of the return must also be stated, as well as the court or offi- cer, before whom it is returnable. lb. 565, sec. 27. And when the application for the writ is made to the Supreme Court, or to one of the justices thereof, in cases where the 108 HABEAS CORPUS AND CERTIORARI. [CH. Y, prisoner is confined in a connty other than that where such court shall then be held, or ofiicer reside, such court may, in its discretion, and such officer may, in his discretion, make such writ returnable before some other ofiicer, authorized to issue such writ, in the county where the prisoner may be con- fined. Laws of 1837, jp. 230 ; 3 Hill, 656, note, pi- 15. But during the session of a court of Oyer and Terminer in any county, no prisoner detained in the common jail of such county, upon any criminal charge, shall be removed therefrom by any writ of habeas corpus, unless such writ shall have been issued by such court of Oyer and Terminer, or shall be made returnable before it. 2 It. S. 758, sec. 27 j same section in La/ws of 1847,^. 599, sec. 27. Seal to Writs.] All writs of habeas corpus, certiorari, or discharge, issued pursuant to the provisions of the statute, are required to be under the seal of the court by which they are awarded. And if the same are awarded by any ofiicer out of court, they shall be under the seal of the court before which the writ is made returnable, or if it be made returna- ble before some body other than a court of record, or before an oflScer out of court, it shall be under the seal of the Supreme Court. 2 jR. S. 573, sec. 74. Writ to ie indorsed.] Every such writ shall be endorsed with a certificate that the same has been allowed, and with the date of such allowance. If the writ be awarded by a court, the endorsement shall be signed by the chief justice, or other presiding officer of such court. If it be awarded by any officer out of court, the endorsement shall be signed by such officer. 2 H. /S. 574, sec. 76. And whenever the writ of habeas corpus shall be required in any action or mat- ter to which the people of this State shall be parties, on the application of the Attorney General, or District Attorney, having charge of the same, the court or officer allowing it shall also state in their endorsement of allowance, that it was issued upon such application. li. sec. 77. And so, when the writ is directed to any. other than the sherifiT, coroner. OH. v.] HABEAS CORPUS AND CERTIOEARI. 109 constable, or marshal, and the officer allowing it shall require that the charges for bringing up such prisoner, shall be paid by the petitioner, the endorsement of allowance should specify the amount of such charges so to be paid. Ih. sec. 84. As to the cases in which such charges will be directed to be paid, see post. For forms of endorsement, see Appen- dix, ISTo. 73. Writ good, though Defective in Form.] Such writs of habeas corpus or certiorari, shall not be disobeyed for any defect of form. But they shall be sufficient : 1. If the person having the custody of the prisoner, be designated either by his name of office, if he have any, or by his name ; or if both such names be unknown or uncertain, he may be described by an assumed appellation ; and any one who may be served with the writ shall be deemed the person to whom it is directed, although it may be directed to him by a wrong name or description, or to another person. 2. If the person who is directed to be produced, be desig- nated by name ; or if his name be uncertain or unknown, he may be described in any other way, so as to designate the person intended. 2 H. S. 565, sec. 29. Amendment of Writ.'] The writ may be amended on motion, like any other process. 8 Hill, 657, note, pi. 23. (a). When the Officer mm/ require the Charges for bringing up the Prisoner to he Paid.] Every officer allowing a writ of habeas corpus, directed to any other than a sheriff, coroner, constable or marshal, may, in his discretion, require as a duty (a) At common law the writ of habeas corpus stood on the same footing •with other prerogative writs, such as mandamus, quo warranto, certiorari, pro- hibition, (fee, and was issued and dealt with upon the like general grounds and principles. 3 Black. Com, 132, 3 ; 2 Burr. 855. 6 ; 3 Fet. 202. Thus, as to the affidavit and motion for allowance, the form of the writ, the return, the right to question the truth of the return, the right to amend, &c., the common-law doc- trine respecting other prerogative writs applied to the writ of habeas corpus, and may still be resorted to for the purpose of throwing light on the rules relating to it. 3 Hill, 649, note, pi. 2; 2 E. S. 573, sec. 73, post. 110 HABEAS CORPUS AND CERTIORARI. [CH. V. to be performed, in order to render the service thereof effec- tual, that the charges of bringing up such prisoner shall be paid by the petitioner ; and in such case, he shall, in the allowance of the writ, specify the amount of such charges, so to be paid, which shall not exceed the fees allowed by law to sheriffs, for similar services ; as to which, see under the next head. 2 B. 8. 575, sec. 84. Service of Writ, and Tender of Fees, cmd Bond.] Writs of habeas corpus can only be served by an elector of some county within this State ; and the service thereof shall not be deemed complete, unless the party serving the same shall tender to the person in whose custody the prisoner may be, if such person be a sheriff, coroner, constable, or marshal, the fees allowed by law for bringing up such prisoner ; nor unless he shall also give bond to such sheriff, coroner, con- stable or marshal, as the case may be, in a penalty double the amount of the siim for which such prisoner may be detained, if he be detained for any specific sum of money, and if not, then in the penalty of one thousand dollars, condi- tioned that such person will pay the charges of carrying back such prisoner, if he shall be remanded, and that such prisoner will not escape by the way, either in going to, or returning from, the place to which he is to be taken. Ih. 574, sec. 78. But this section is not made applicable to any case where the writ is sued out by the attorney-general, or by any district attorney. li. sec. 79. For form of bond, see Appendix, No. 75. The fees of the officer for bringing up a prisoner upon habeas corpus, with the cause of his arrest and detention, are one dollar and fifty cents ; and for traveling, twelve and a half cents for each mile from the jail. 2 H. S. 646, and see 7 Cowen, 424 ; Cowen <& EilVs Notes to Phil. Ev. 19, note 25. Every writ of habeas coi"pus or certiorari issued pursuant to the statute, may be served by delivering the same to the person to whom it is directed. If he cannot be found, it may be served by being left at the jail or other place in wliichthe prisoner maybe confined, with any under officer, or other CH. v.] HABEAS CORPUS AND CERTIORARI. Ill person of proper age, having charge, for the time, of such pri- soner. 2 B. S. 574, sec. 80. If the person upon whom the writ ought to be served, conceal himself, or refuse admittance to the party attempting to serve the same, it may be served by affixing the same in some conspicuous place, on the outside, either of his dwelling house, or of the place where the party is confined. Ih. sec. 81. Duty of Officer, or Person Served.'] It is the duty of every sheriff, coroner, constable, or marshal, upon whom a writ of habeas corpus shall be served, whether such writ be directed to him or not, upon payment or tender of the charges allowed by law, and the delivery or tender of the bond herein pre- scribed, to obey and return such writ according to the exi- gency thereof. And it is the duty of every other person upon whom such writ shall be served, having the custody of the individual for whose benefit the writ is issued, to obey and execute such writ, according to the command thereof, without requiring any bond or the payment of any charges, unless the payment of such charges shall have been required by the officer issuing such writ. 2 B. S. 575, sec. 82 ; 10 Paige, 606 ; 7 Wend. 132. And in like manner, it is the duty of the person upon whom any writ of certiorari, issued pursuant to the provisions of the statute, shall be served, upon payment or tender of the fees allowed by law, for making a return to such writ, and for copying the warrant or other process to be annexed thereto, to obey and return the same according to the exigency thereof. 2 B. S. 575, sec. 83. Warrant for Prisoner, and Proceedings thereon.] When- ever it shall appear by satisfactory proof, that any one is held in illegal confinement or custody, and that there is good rea- son to believe that he will be carried out of the State, or suffer some irreparable injury, before he can be relieved by the issuing of a habeas corpus or certiorari, any court or officer authorized to issue such writs, may issue a warrant 112 HABEAS COKPUS AND CERTIORARI. [CH. V. under his hand and seal, reciting the facts, and directed to any sheriff, constable, or other person, and commanding such officer or person to take such prisoner, and forthwith to bring him before such court or officer, to be dealt with according to law. 2 B. S. 512, sec. 65. For forms of petition, affidavit, warrant, &c., see Appendix, Wos. 76, 77. When the proof mentioned in the last section, shall also be sufficient to justify an arrest of the person having such prisoner in his custody, as for a criminal offense 6ommitted in the taking or detaining of such prisoner, the warrant shall also contain an order for the arrest of such person, for such offense. li. sec. 66. Any officer or person to whom such warrant shall be dii-ected, shall execute the same, by bringing the prisoner therein named, and the person who detains him, if so com- manded by the warrant, before the court or officer issuing the same ; and thereupon the person detaining such prisoner, shall make a return, in like manner, and the like proceedings shall be had, as if a writ of habeas corpus had been issued in the first instance. lb. sec. 67. If the person having such prisoner in his custody, shall be brought before such court or officer, as for a criminal offense, he shall be examined, com- mitted, bailed, or discharged, by such court or officer, in like manner as in other criminal cases of the like nature. Jb. sec. 68. When the Return to be tnade.] If the writ be- retm-nable at a certain day, such return shall be made, and such prisoner shall be produced, at the time and place specified therein. If it be returnable forthwith, and the place be within twenty miles of the place of service, such return shall be made, and such prisoner shall be produced, within twenty-four hours ; and the like time shall be allowed for every additional twenty miles. 2 B. S. 675, sec. 85. Proceedings on Disobedience of Writ.] If the person upon whom stich writ of habeas corpus or certiorari shall have been (duly served, shall refuse or neglect to obey the same, by producing the party named in such writ of habeas corpus. CH. v.] HABEAS CORPUS AND CERTIORARI. 113 and making a full and explicit return to every such writ of habeas corpus or certiorari, within the time herein required, and no sufficient excuse shall be shown for such refusal or neglect, it shall be the duty of the conrt or officer before whom such writ shall have been made returnable, upon due proof of the service thereof, forthwith to issue an attachment against such person, directed to the sheriff of any county within this State, and commanding him forthwith to appre- hend such person, and to bring him immediately before such court or officer ; and on such person being so brought, he shall be committed to close custody, in the jail of the county in which such court or officer shall be, without being allowed the liberties thereof, until he shall make return to such writ, and comply with any order that may be made by such court or officer in relation to the person for whose relief such writ shall have been issued. 2 R. S. 566, sec. 34. For form of attachment and commitment, see Ajypendix, Nos. 78, 79. If a sheriff of any county shall have neglected to return su(^h writ, the attachment may be directed to any coroner or other person, to be designated therein, who shall have full power to execute the same ; and such sheriff, upon being brought up, may be committed to the jail of any county other than his own. Ih. sec. 35. The court or officer by whom any such attachment may be issued, may also, at the same time or afterwards, issue a precept to the same sheriff, or other person to whom such attachment shall have been directed, commanding him to bring forthwith before such court or officer, the party for whose benefit such writ of habeas corpus or certiorari shall have been allowed, who shall thereafter remain in the custody of such sheriff or person, until he shall be discharged, bailed, or remanded, as such court or officer shall direct. Jh see. 36. For form of precept, see Ajypendix, No. 80. In the execution of such attachment or precept, or of either of them, the sheriff or other person to whom they shall be directed, may call to his aid the power of the county, as in other cases, li. sec. 37. 8 114 HABEAS CORPUS AND CERTIOEAEL [OH. V. The Return, and what to contain.] The person or officer on whom the writ is served must make a return thereto in writing, and must also bring the body of the person in his custody, except in the case of the sickness or infirmity of such person, in which case that fact must be stated in the return of the party in whose custody he is, and verified by his oath. 2 a. S. 566, sees. 33, 49. The return must state plainly and unequivocally, 1. Whether he have, or have not, the party in his ci^stody, or under his power or restraint ; 2. If he have the party in his custody or power, or under his restraint, the authority and true cause of such imprison- ment or restraint, setting forth the same at large ; 3. If the party be detained by virtue of any writ, war- rant, or other written authority, a copy thereof shall be an- nexed to the return ; and the original shall be produced and exhibited on the return of the writ, to the court or officer before whom the same is returnable ; 4. If the person upon whom such writ shall have been served shall have had the party in his power or custody, or under his restraint, at any time prior or subsequent to the date of the writ, but has transferred such custody or restraint to another, the return shall state particularly, to whom, at what time, for what cause, and by what authority, such trans- fer took place. The return must be signed by the person making the same ; and, except where such person shall be a sworn public officer, and shall make his return in his official capacity, it shall be verified by his oath. lb. sec. 32. For forms of re- turn, see Appendix, No. 81. To excuse the non-production of the body, the return must be, not only that the prisoner is not in the defendant's cus- tody, but also, that he is not in his possession or power. 10 Johns. 328, 331 ; see also 3 Bill, 657, note, pi. 24 ; 11 Mass., 83. But whenever, from the sickness or infirmity of the person directed to be produced by any writ of habeas corpus, such CH. v.] HABEAS CORPUS AND CERTIORARI. 115 person cannot, witliout danger, be brought before the court or officer before whom the writ is made returnable, the party in whose custody he is, may state that fact in his return to the writ, Terifying the same by his oath. 2 R. S. 569, sec. 49. "Where the return of commitment is made by a sheriff, it will be construed liberally. 1 Hill, 154. Notice to Parties Interested?^ "When it appears, from the return to the writ, that the party named therein is in custody on any process, under which any other person has an interest in continuing his imprisonment or restraint, no order shall be made for his discharge until it shall appear that the party so interested, or his attoi-ney, if he have one, shall have had the like notice of the time and place at which such writ shall have been made returnable, as is required to be given of special motions in the Supreme Court. 2 R. S. 569, sec. 46. For form, see Appendix, No. 82. The notice, therefore, must be served at least eight days before the time appointed for the hearing, where it is person- ally served ; and when served by mail, double that time is required. Code of Pro. §§ 412, 413 ; 1 Burr. Pr. 336, 352. Service by mail is authorized where the parties interested or their attorneys reside in different places, between which there is a regular communication by mail. The service, in such case, is made by inclosing the notice in a wrapper, and putting the same in the post-office, directed to the party or his attorney, at his place of residence, and paying the post- age on the letter. Ih. ; and see Code, % 410. The notice must be given notwithstanding the party inter- ested does not reside in the county where the party intended to be relieved resides, or where the proceeding is had for a habeas corpus. The party interested is entitled to notice, without regard to his residence. 14 Wend. 48. But it is not necessary to serve with the notice a copy of the petition or other paper upon which the writ is granted. 12 Id. 229. Notice to District Attorney. '\ "When it appears from the return that such party is detained upon any criminal accusa- 116 HABEAS CORPUS AND CERTIORARI. [CH. V. tion, such court or officer shall make no order for the dis- charge of such party, until sufficient notice of the time and place at which such writ shall have been returned, or shall be made returnable, shall be given to the district attorney of the county in which the person prosecuting the writ shall be detained ; and no notice to^any other district attorney shall be necessary. 2 R. S. 569, sec. 47, as amended iy Laws of 1837,^. 231 ; 5 Hill, 169. For form of notice, see Ajypendix, ^"0. 83. Notice is equally important in many cases other than those provided for by the statute, and should doubtless be required. See 3 Hill, 657, note, pi. 22 ; Hurd on Habeas Corpus, 230. Amendment of the Heturn.] The court may, in its dis. cretion, allow an amendment of the return at any time before the case is decided, where it appears to be necessary to the ends of justice. Hurd on Hah. Corpus, 262. The amend- ment may be either in form or substance, 10 Mod. 102 ; and if it be not true, the person who makes the return is in the same peril as if the fact had been originally returned. Ih. The amendment must be by the one who made the defective return. 3 Hill, 657, note, pi. 25, and see ante, p. 109, note. Staying the Proceedings.] The court will not stay the proceedings on a habeas corpus because the costs of a former proceeding in the same matter remain unpaid. 3 Hill, 399. And, it seems, the rule is the same, in this respect, whether the proceeding in which the objection is taken be regarded as at the common law, or under the statute. Ih. Proceedings on the Return of the Writ.] The sole basis of the statutory provisions relating to the writ of habeas corpus being an illegal imprisonment or restraint, the only authority of an officer acting under it is, to discharge, hail, or remand the person on whose behalf the writ is issued. 1 Puer, 709. It is provided by the statute, that the court or officer be- fore whom the party shall be brought, on such writ of habeas CH. v.] HABEAS CORPUS AND CERTIOEAEI. 117 corpus, shall, immediately after the return thereof, proceed to examine into the facts contained in such return, and into the cause of the confinement or restraint of such party, whether the same shall have been upon commitment for any criminal, or supposed criminal, matter or not. 2 R. S. 567. sec. 38. "Where the facts set forth in the retui-n are admitted, or are not denied, the law of the case, alone, is to be inquired into ; and the proceeding is the same as if the return were formally demurred to. 3 Hill, 658, note, pi. 28; 1 Park. Cr. R. 129 ; 4 Barh. 31. But if issue is taken upon the material facts in the return, or other facts are alleged to show that the imprisonment or detention is illegal, or that the party imprisoned is entitled to his discharge, the court or officer is to proceed in a summary way to hear the allegations and the proofs of the parties, and to dispose of such party as the justice of the case may require. 2 R. S. 569, sec. 48, post, p. 121. Prisoner, when Discharged^ If no legal cause is shown for the imprisonment or restraint of the party, or for the con- tinuation thereof, the court or officer is required to discharge such party from the custody or restraint under which he is held. 2 R. S. 567, sec. 39. For form of discharge, see Appendix, No. 84. But if it appear on the return, that the prisoner is in custody by virtue of civil process from any court legally constituted, or issued by any officer in the course of judicial proceedings before him, authorized by law, such prisoner can only be discharged in one of the following cases : 1. "Where the jurisdiction of such court or officer has been exceeded, either as to matter, place, sum, or person; 2. "Where, though the original imprisonment was lawful, yet by some act, omission or event, which has taken place afterwards, the party has become entitled to be discharged ; 3. "Where the process is defective, in some matter of sub- stance required by law, rendering such process void ; 4. "Where the process, though in proper form, has been issued in a case not allowed by law ; 118 HABEAS CORPUS AND CERTIORARI. [CH. V. 5. "Where the person having the custody of the prisoner under such process, is not the person empowered by law to detain him ; or, 6. "Where the process is not authorized by any judgment, order or decree of any court, nor by any provision of law. 2 E. 8. 568, seo. 41 ; 3 RUl, 661, note^fl. 31 to 37. But if the party be illegally arrested or detained, even though the process be valid, this is ground for discharge. 3 IIill,QQQ,note,pl. 39, and cases. And so, where there are two causes of imprisonment, one valid and the other invalid, the court may, on habeas corpus, discharge as to the invalid cause, and remand the prisoner as to the other. 7 Gowen, 472. Where the imprisonment is itnder actual process, valid on its face, it will be deemed prima facie legal, and the prisoner must assume the burden of impeaching its validity by showing a want of jurisdiction in the magistrate or court whence it emanated. 3 IIiU,< 661, note, pi. 31 ; 1 Sand. S. 0. R. 702 ; 2 Parker's Cr. H. 650. And if he fail in thus impeaching it, his body will be remanded to custody. Error, irregularity, or want of form, is no objection ; nor is any defect which may be amended or remedied, by a further entry on motion. 3 Sill, 661, note, pi. 31 and 33, and cases there cited ; 1 Barh. S. G. R. 193 ; 3 Id. 37 ; Id. 162 ; 1 Hill, 154 ; 18 Johns. 305. And in general, the examination, where the imprisonment is on civil process, regular and valid on its face, will be con- fined to the j iirisdiction of the court which issued it, and to the inquiry whether some event has not since occurred to entitle the prisoner to his discharge. Id. ibid. ; 1 Parle. Gr. R. 196. And, it seems, in determining the question of jurisdiction, the court may look into the affidavits on which the pro jess is founded, so far as to see that the judge had colorable proof to authorize such process. 1 Barb. S. G. R. 349. "When the commitment is iri-egular, to enable the officer to remand a prisoner the testimony, showing that he is guilty of the offense charged, must be produced on the return of CH. v.] HABEAS CORPUS AND CERTIORARI. 119 the writ or at the hearing thereon. And it is too late to present such testimony on a subsequent day, when the judge announces his decision to discharge the prisoner. 1 Sand. S. C. R. 702. Prisoner, when Memanded.'] It is made the duty of the court or officer forthwith to remand such party, if it shall appear that he is detained in custody, either, 1. By virtue of process issued by any court or judge of the United States, in a case where such court or judge has exclusive jurisdiction; or, 2. By viitue of the final judgment or decree of any com- petent court of civil or criminal jurisdiction, or of any execu- tion issued upon such judgment or decree ; or, 3. For any contempt specially and plainly charged in the commitment, by some court, or officer, or body, having auth- ority to commit for the contempt so charged ; and, 4. That the time during which such party may be legally detained has not expired. 2 R. S. 567, sec. 40. For form of order, directing prisoner to be remanded, see Appendix, No. 85. And sn, if it appear that the party has been legally com- mitted for any criminal offense, or if he appear by the testi- mony ofi"ered with the return, or upon the hearing thereof, to be guilty of such an offense, although the commitment be irregular, the court or officer before whom such party shall be brought, if the case be not bailable, or if bailable and good bail be not offered, shall forthwith remand such party. Id. 568, sec. 43; 5 Cowen, 39 ; 3 Hill, 666, noUpl. 40 ; 1 Sand. S. a R. 708 ; 3 Park. Or. R. 562. And when a party, committed for refusing to be sworn, or to answer, in cases of insolvency, shall bring a writ of habeas coi"pus, he shall not be discharged by reason of any insuffi- ciency in the form of the warrant of commitment ; but the court or officer before whom such person shall be brought, shall re-commit such person, unless it shall be made to appear that he has answered all lawful questions put to him, or had suf- ficient reason for refusing to sign the examination, as the case 120 HABEAS CORPUS AND CERTIORARI. [CH. V. may be ; or unless such person shall then answer, on oath, the questions so put to him. 2 B. 8. 44, sec. 15. But no court or officer, on the returh of any habeas corpus or certiorari, shall have power to inquire into the legality or justice of any process, judgment, decree or execution, speci- fied in the preceding twenty-second section, {ante, p. 101) ; nor into the justice or propriety of any commitment for a con- tempt made by any court^ officer or body, according to law, and charged in such commitment, as herein provided {ante, sec. 40, svh. 3). 2 B. S. 568, sec. 42; 2 Park. Cr. B. 650, reversing 1 Id. 588 ; 16 Barh. 363 ; 1 Abh. Pr. B. 210 ; 8 How. Pr. B. 478 ; 1 Rill, 154 ; 5 Id. 164 ; 10 Paige, 284; 11 Eow. Pr. B. 425 ; 15 Barh. 162 ; 1 Buer, 696 ; 3 Bill, 651, 662, note, pi. 3 and 38. But on a commitment by final process upon a summary conviction, the court or officer may examine the record of conviction ; and if it be void, he may discharge the prisoner. 1 Parh. Cr. B. 196, and cases there cited. Indeed, final pro- cess may in all cases be impeached by showing either that there was no judgment, decree, or conviction on which it is founded ; or, that the judgment, &c., is absolutely void. Id. ibid ; or, that the judgment does not show a case authorizing the execution on which the defendant is arrested. 15 How. Pr. B. 210; s. c. 6 All. Pr. B. 37. And even where the imprisonment is under the asserted authority of the United States, when in fact there is no real authority, the court has jurisdiction, and may discharge the prisoner. 3 Hill, 651, note ; and see 6 Johns. 337. Whether the affidavits upon which an attachment for con- tempt is issued, are sufficient to warrant the officer in issuing it, is a matter that cannot be reviewed on habeas corpus. 2 Sand. 8. 0. B. 729 ; s. c. 4 How. Pr. B. 373 ; 1 Barl. 8. C. B. 340 ; and see 7 All. Pr. B. 96. If the officer in such case erred, it was an error of judgment as to the sufficiency of the evidence, to be corrected on motion or by appeal. Id. Hid. And where the return to a habeas corpus showed that the prisoner was detained under a commitment for contempt CH. v.] HABEAS CORPUS AND CERTIORARI. 121 as a witness in refusing to answer questions relating to a criminal complaint, it was held that the officer before whom the writ was returnable had no right to inquire into the truth of the facts adjudged by the committing magistrate ; nor whether the questions put to the witness were proper ; nor whether he was privileged from answering. 5 Hill, 164 ; see also, 11 How. Pr. R, 418. But the officer may inquire, whether in truth there is any process of commitment, and whether it is valid upon its face ; and he may also inquire whether any cause has arisen, since the commitment, for putting an end to the imprisonment. Id. ibid ; see also, 8 How. Pr. R. 478 ; 3 HUl, 666, note, pi. 39 ; 2 Parh. Cr. E. 650; 7 AU. Pr. P. 96. And, it seems, he may also inquire whether the magis- trate had jurisdiction ; and this, too, notwithstanding the com- mitment recites the necessary facts to give jm-isdiction. 5 Hill, 164, supra, "l^o court or officer can acquire jurisdic- tion by the mere assertion of it, or by falsely alleging the existence of facts on which jurisdiction depends." lb. 168, per Bronson, J.; and see 5 Abb. Pr. P. 281 ; 15 How. Pr. P. 210. See further on this subject, under the next head, post y and see, also, under the next preceding head. Proceedings if Return is denied or avoided.^ The statute provides that the party brought before the court or officer, on the return of any writ of habeas corpus, may deny any of the material facts set forth in the return, or allege any fact, to show either that his imprisonment or detention is unlawful or that he is entitled to his discharge ; which allegations or denials shall be o,n oath ; and thereupon such court or officer shall proceed in a summary way, to hear such allegations and proofs as may be produced in support of such imprisonment or deten- tion, or against the same, and to dispose of such party as the justicS of the case may require. 2 R. S. 569, sec. 48. The courts and judges have not concurred in the proper construction to be given to the above section ; especially, as to whether a court or officer, under it, may go behind the warrant on which the prisoner is detained, and inquire from 122 HABEAS CORPUS AND CERTIOEARI. [OH. V. facts aliunde the return, into the legality of the imprison- ment. It is stated in the Notes to 3 Rill, 658 {pi. 30), that "where the return shows that the party is detained on pro- cess, the existence and validity of the process are the only facts upon which issue can be taken. These alone are the ' material facts ' within this section — not whether the process was founded on suflBcient evidence, or any evidence at all." {a) And again, the statute was not intended "as an authority to inquire into the validity of writs, warrants or other process, further than to ascertain whether they will protect the party suing them out, or the officer serving or executing them." ""When the process is sufficient to protect the party and officer, the imprisonment is lawful, and must be relieved against by direct proceeding-^e. g., a writ of error, certiorari, motion, &c." Ih. 659. And so, in The People v. McLeod (1 Jlill, 337 ; see also 25 Wend. 483, 570), the court say that this section was not intended to give a prisoner the right of summary trial as to the question of guilt or innocence ; but only to enable bim, by evidence aliunde the return, to dispute the fact of his being detained on the process or proceeding set forth, or to impeach it for lack of jurisdiction, or to show that by some subsequent event {e. g. a pardon, reversal of judgment, &c.), it has ceased to be lawful cause of detention. And accordingly, it was held, in that case, that a party duly committed upon a regular indictment for murder, cannot be discharged upon habeas corpus, by proving his innocence, merely, however clear the proof may be. Ih. 377. And so, the question, whether a former trial and convic- tion are a bar to an indictment subsequently found for mur- der alleged to have been previously committed, cannot be (a) " If tliis is BO, then is the principle of Cable v. Coopa; 15 Johns. R, restored, the act of 1818, reversing that case, rendered nugatory, and section forty-eight of our habeas corpus law sliorn of very much of its benignant power. But it is not so." Per Edmonds, J., 1 Park. Cr. R. 194, post, p. 124. CH. v.] HABEAS CORPUS AND CERTIORARI. 123 raised and made a ground for discharge on habeas corpus. 3 ParTc. Cr. R. 126. And so, in a proceeding under the statute, before a county- judge at chambers, where a pardon was alleged in answer to a return on habeas corpus, and it was sought to avoid the effect of such pardon by showing that it had been fraudu- lently obtained ; it was held that the court or officer could not go behind the pardon to inquire into the regularity of the proceedings ; and this, too, notwithstanding that it was apparent in that case that the pardon had been obtained by gross fraud and misrepresentation. 8 How. Pr. P. 478. In proceeding under the writ, the officer is " confined to juris- dictional questions, and to what may be called the prima facie appearance of the proceedings, without raising any collateral issues, and without any impeachment of records, deeds, or papers fair on their face, and with the sole object of inquiring whether the party is legally detained." Ih. 483. And, per Bronson, J., in The People v. Cassels (5 Hill, 168), the forty-eighth section was mainly, if not solely inten- ded, for cases where the party is restrained of his liberty without the authority of legal process. " In such cases," he observes, " the return is usually made by a person having an interest in the question, and who has exercised the restraint upon his own responsibility, as the parent, husband, master, or guardian of the person imprisoned ; and it is very proper that the facts which they state in the return should be open to investigation. But it is otherwise when the return is made by an officer having legal process." Tb. And so, in the Matter of Prime (1 Barl. S. O. B. 340), where the relators were detained on civil process, it was held that the court could not look beyond the colorable authority of the judge who issued the warrant. And per Mason, J., in that case [p. 350), after considering the 48th section, supra : " The general provisions of this habeas corpus act show most clearly that it was never intended as a writ of review to correct the errors of inferior tribunals." See, also, substantially to the same effect with the 124 HABEAS CORPUS AKD CERTIORARI. [CH. V. authorities cited above, 1 Ba/rh. 8. C. B. 193, per Edwards, J. ; 4 Id. 33, per "Willard, J.; 3 Bark. Cr. B. 541, per Gierke, J. The above cases and authorities, or most of them, as well as the practice in England and in the United States Supreme Court, are reviewed and considered by Edmonds, J., in The Beople V. Martin, (1 Bark. Cr. B. 187.) The prisoners, in that case, were detained on a warrant of commitment for trial on a charge of grand larceny ; and on application for their discharge on the ground that they were innocent of the crime alleged, it. was held, contrary to the tenor of the cases and authorities cited supra, that the whole question of guilt or innocence, on a commitment before indictment, was open for examination on the return to the writ ; and that in such cases, under the statute, the proceedings on a habeas corpus are in the nature of an appeal from the decision of the com- mitting magistrate. But that in criminal cases where an indictment has been found, the rule is otherwise ; though, it seems, that rule does not deny the power of the court to look beyond the commitment after indictment, but only that the court will not exercise that power unless there are good reasons for doing so, — e. g., where the party is discharged or bailed, after delay in bringing an indictment to trial. Ih. 191 ; andseealso, lb. 440 ; 3 Hill, 651 and 670, notes. Murd on Hah. Corpus, 287. See also, the case of The Beople v. Tompkins (1 Bark. Cr. B. 224), where the same question is again considered by Justice Edmonds, and additional author- ities cited and reviewed. "I have always understood," he observes, " that it was the intention to give to a party committed for a crime by an examining magistrate, an appeal from his commitment to the higher judges, by virtue of the writ of habeas corpus, and such has uniformly been my practice ; and the practice is abundantly sanctioned by authority and statute." Id. 235, citing 3 Hill, 665, c&c, note, pi. 38, 39, 40, 43, 45 ; 1 Chitty's Cr. Law, 128 ; 4 Cranch, 125 ; 5 Cowen, 51 ; 1 Barb. S. G. B. 349, supra ; 3 Beters, 203 ; 2 Kent's Com. 28, 31. And see, also, 1 Barb. S. C. B. 267 ; 1 Bark. Cr. B. 436 ; 18 Wend. 640. Where a person had been arrested as a fugitive from CH. v.] HABEAS COKPUS AND CERTIORARI. 125 justice, and was afterwards brought before a justice of the Supreme Court on habeas corpus, for the purpose of inquiring into the cause of his detention, — it was held proper for the justice to look behind the warrant, for the pm-pose of ascer- taining whether the officer had jurisdiction to issue it. 1 Parle. Or. E. 429 ; 1 Barb. 8. C. i?. 249 ; 1 Sand. S. G. R. 702. But in such case the court will not inquire as to the probable guilt of the accused, but only whether he has been properly " charged" with guilt. The place of the inquiry in respect to the guilt, is where the offense. is charged to have been com- mitted. 9 Wend. 220 ; and see.U Id. 323, 325. The issue joined upon the return to the writ, must be tried by the court or officer before whom the proceeding is pend- ing ; and such court or officer has no power to order a reference for that purpose. Matter of Smith, per Davis, J., New York Sp. Term, Nov., 1857. The party brought up on the habeas corpus, is not a com- petent witness to support the appKcation for his discharge, 5 Hill, 17 ; and see Hwrd on Sab. Corpus, 306; and the Code of Procedure has not changed the rule in this respect. Code § 471 ; 1 Parh. Cr.R. 169 ; and see 2 Brad. R. 224 ; 16 Barb. 201 ; 10 Row. Pr. R. 83 ; 5 Abb. Pr. R. 212 ; 1 Selden, 383. The inquiry on the traverse to the return being summary, the court will in general, permit the parties to introduce affidavits in support of the imprisonment or detention, or against the same. In respect to this point, Mr. Hurd, in his treatise, after reviewing the authorities on the subject of proofs by affidavit, states the following conclusions, as war- ranted by tlie practice, in the absence of statutory provisions on the subject, viz : 1. Affidavits, if taken before competent authority and properly authenticated, though taken without notice to the adverse party, may be received. 2. The ques- tion of their reception is addressed to the sound discretion of the court, to be exercised upon the circumstances of each case. 3. In examinations relating to criminal charges, the per- sonal attendance of the witnesses will be required, unless it be shown that it could not be obtained by the exercise of reasonable diligence. 4. This species of evidence is of the 126 HABEAS CORPUS AND CERTIORARI. [CH. V. lowest admissible grade, and therefore is to be received cau- tiously and scrutinized closely. Hurd on Hah. Corpus, 823. The prisoner may prove the writings or documents on which his arrest is founded, and what they contain, by the best evidence at hand, or which he can procure with reasonable ■ diligence, without regard to the ordinary rules of evidence. 1 Sand. S. C. M. 702, supra ; Hurd on Hah. Corpus, 304. Where the material facts alleged in the return, are not denied by the party brought up, they will be taken to be true. 1 ParTc. Cr. E. 129 ; 3 Hill, 658, note, pi. 28 ; 25 Wend. 98. The process by which the prisoner is detained, being valid on its face, the burthen of proving the defects alleged in the traverse, or the facts therein stated, rests upon him. 1 Sand. S. C. B. 702 ; 2 Parh. Cr. E. 650. Custody and Disposition of Infants.] The writ of habeas corpus, as we have seen, issues at the instance of a parent and a guardian for the custody and disposition of a child or a ward. In such cases the writ issues at the common law, and not under the statute, except in the cases provided for by part 2, chap. 8, title 2, of the Eevised Statutes, the provisions of which are stated post; and except, also, in the case of an infant too young to be capable of determining for itself. 1 Puer, 725 ; 22 Pari. 179, aff. 4. Kern. 575 ; and see Hurd on Hob. Corpus, 454:, 562. The father, as a general rule, is. entitled to the custody of his infant child ; and where differences exist between the parents, the right of the father will be preferred to that of the mother. Willard's Eq. Jur. 618 ; 18 Wend. 637 ; 19 Id. 16 ; 24 Barh. 521. Accordingly, on habeas corpus by the husband against the wife and her father, to obtain the custody of his infant daughter, the court enforced the husband's claim as paramount, though the daughter was less than five years old, and of feeble constitution. 3 Hill, 400. But where the parties live apart, under a voluntary separation, the cus- tody of an infant of tender age will be given to the mother, wherever it appears that the interest of the infant demands it. So held in the case of an infant which was but twenty- CH. v.] HABEAS C0RPU3 AXD CERTIORAEI. 127 one months old. 25 Wend. 64 ; 8 Paige, 48. And so, the right of the husband may be lost by ill usage, or immoral principles or habits, on his part ; or by his inability to pro- vide for his child. Wtl. Eq. Jur. 618 ; 18 Wend." 637; 19 Id. 16 ; 24 Bari. 521. "Where the child is too young to be capable of determin- ing for itself, the court or officer determines for it ; and in doing so, though the natural rights of the pai-ents are not to be disregarded, yet the future welfare of the child is chiefly, if not exclusively, to be had in view. 6 £arh. 366 ; 22 Id. 178, of. 4 Kernan, 575 ; 8 Paige, 4S ; 13 Jolms. 418 ; Hurd on Hob. Corpus, 462. And where such child is old enough to understand its own wishes, and those wishes lead to no improper custody, the court will interfere so far as to permit it to go where it pleases. 1 Sand. S. C. E. 672 ; 8 Johns. 329 ; 8 How. Pr. R. 288. But the rule stated above, as to the right of the father to be preferred to the mother in the custody of an infant child, does not apply in cases ot bastardy. In such cases the puta- tive father has no legal right to the custody of the child. The mother, as its natural guardian, is bound to maintain it, and is entitled to the control of it. But whether in such case, the court on application of the mother, will deliver the child to her, rests in its discretion, to be exercised in all cases in view of the safety and welfare of the child. 6 Barb. 366 ; 15 Id. 247; Clarke Ch. E. 154; Ev/rd on Sab. Corpus, 4C2, 521. The detention of a child of tender years amounts to legal restraint, when the individual having it in custody, without coercion, interferes by influence over its affections, or stii- diously guards and keeps it beyond the reach of the father, or endeavors to maintain a determination in the child not to go to its father, or prevents the father from exercising his paren- tal authority of coercion over it. And where & child, nine years of age, was thus improperly restrained, it was held to be the duty of the court not only to remove the restraint, but to render a judgment which should dispoee of its custody. 8 How. Pr. E. 288. And see the same case in 1 Btier, 709. It is provided by statute, that when any husband and wife 128 HABEAS CORPUS AND CERTIORAEI. [CH. V. shall live in a state of separation, without being divorced, and shall have any minor child of the marriage, the wife, if she be an inhabitant of this State, may apply to the Supreme Court for a habeas corpus, to have such minor child brought before it. 2 R. '8. 148, seo. 1. On the return of such writ? the court, on due consideration, may award the charge and custody of the child, so brought before it, to the mother, for such time, under such regulations and restrictions, and with such provisions and directions, as the case may require. Ih. 149, seo. 2. At any time after the making of such order, the Supreme Court may annul, vary, or modify the same. lb. sec. 3. The application for the habeas corpus, under the above statutory provisions, must be made to the Supreme Court ; and a justice of that court, or a county judge, has no jurisdic- tion to grant the writ. 2i Barb.. 521. The application is addressed to the discretion of the court ; and, before granting it, the court will require a full disclosure of all the facts and circumstances in relation to the ability of both parents to pro- vide for the child. 2 How. Pr. B. Ql ; 18 We^id. 637 ; see, also, 8 Paige, 48 ; Hurd on Hab. Corpus, 500 to 520. For form of petition, see Appendix, No. 72. It seems the court will exercise the power here conferred, only in cases of separation of husband and wife by consent, or where the separation takes place in consequence of ill-usage on the part of the husband; and not where the wife with- draws from the protection of the husband and lives separate from him without any reasonable excuse. 19 Wend. 18, per Nelson, Ch. J. And it seems, too, that a separation, without consent, would not be approved, except under circumstances which would authorize a court of equity to decree a divorce a vinculo matrimonii, or a mensa et thoro. lb. 19. It is also further provided, by statute, that whenever ap- plication shall be made to one of the justices of the Supreme Court, by any husband or any wife, representing that his wife or her husband, has attached himself or herself to the society of Shakers, and detains a child of the marriage be- tween them, the officer shall inquire into the circumstances ; CH. v.] HABEAS CORPUS AND CERTIORARI. 129 and if satisfied by due proof of the facts represented, he shall allow a writ of habeas corpus to bring such child before him. 2 R. S. 149, sec. 4. When such child is brought before the officer he is authorized to award the charge and custody thereof to that parent who shall not have joined the society of Shakers, for such time, under such regulations, and with such provisions and directions, as be shall deem proper. Every such order may at any time, on sutHcient cause shown, be annulled, varied, or modified by the officer who made the same ; or in case of his being absent, or not exercising the duties of the office, then by any other officer who might ori- ginally have made such order. lb. sec. 6. (a) In proceeding under these statutory provisions relating to infants, it would be proper, on the return to the writ, to fol- low the practice prescribed by the forty-eighth section, supra. The court or officer will proceed in a summary way, and hear the allegations and proofs of the parties. The relator will be permitted to deny the material facts set forth in the return, and to allege other facts in support of the original application ; and the respondent will also be at liberty to give further evi- dence on his part. 18 Wend. 640. And in general the pro- ceedings are to be conducted in conformity to the several provisions of tbe statute herein considered, so far as the same are applicable. lb., and 2 M. S. 575, sec. 86. (a) The following sections of the statute hare reference to the same subject : If, upon the return of any writ of habeas corpus, so issued, it shall appear that any child therein mentioned can not be found, and satisfactory proof be made to the officer issuing such writ, that such child is secreted or concealed by or among any society of Shakers, in this State, he may issue his warrant, direc- ted to the sheriff of the county where the said child is suspected to be, com- manding such sheriff, in the day lime, to search the dwelling houses and other buildings of such society, or of any members thereof, or any other buUding or dwelling house specified in the warrant, for such chUd, and to bring him before such officer; and the sheriff shall forthwith execute such warrant. 2 iJ. S 149, sec. 5. If any member of the society of Shakers, or any other person, shall send or carry, or cause to be sent or carried, any such child out of this State, or shall secrete such child, or cause such child to be secreted, within this State, so that such wi'it can not be executed, the person so offending shall be deemed guilty of 9 130 HABEAS C0EPU3 AND CERTIORARI. [CH. T. "Whether on a proceeding by a husband against the wife, or the wife against the husband, to obtain the custody of an infant child of the marriage, the wife or husband may be re- ceived as a witness to testify for or against the application, has not been expressly determined. Though in a case where the writ was directed to the wife's father, requiring him to bring before the court the wife and infant child of the relator alleged to be detained from him by the respondent, it was held that the wife was a competent witness for the respond- ent, ti) prove acts of cruelty committed by her husband upon her, which justified her separation from him and her refusal to return to his house. 8 Paige, 47. She would not, how- ever, be permitted to testify as to his general character, or as to any misconduct of his in other respects. lb. / and see\^ Wend. 642, per Brouson, J. ; Rurd on Hah. Corpus., 307. When Prisoner to he Bailed, or Pemanded?^ The statute provides, that if it appear that the party has been legally committed for any criminal offense, or if he appear by the testimony offered with the return, or upon the hearing there- of, to be guilty of such an offense, although the commitment be irregular, the court or officer before whom such party shall be brought, shall proceed to let such party to bail, if the case be bailable, and good bail be offered ; or if not, shall forthwith remand such party. 2 P. S. 568, sec. 43 ; 3 Hill, 666, note, pi. 40, and cases there cited. For form of bail bond, see Appendix, No. 87. "Whether the party will be admitted to bail, is in the dis- cretion of the court or officer before whom the prisoner is brought. That discretion, however is a judicial one, not dependent upon individual caprice, or upon public or private opinion, but upon the cases previously adjudged and deter- mined. And the court will exercise its discretionary powers, and admit to bail, in all cases, capital or otherwise, when from the testimony against the prisoner, it is doubtful whether a miaderaeanor, and on conviction, shall be fined not exceeding two hundred dollars, or be imprisoned not more than six months, or both. lb. sec. 1. CH. v.] HABEAS CORPUS AND CERTIORARI. 131 he is innocent or guilty,'— in other words, wlien, upon an examination of the testimony, the presumption of guilt is not strong. 10 Eow. Pr. R. 667 ; 5 Cowen, 39 ; 3 Pari. Cr. P. 316. But not, where, upon a full and impartial pre- liminary examination, there is good reason to believe the prisoner is guilty. 3 How. Pr. P. 251. Though, where the offense charged and the circumstances are such that a bail bond will afford a reasonable assurance that the prisoner will appear to stand trial, it seems it is his right that the bond should be accepted in lieu of his personal detention. And in determining whether adequate security by bond may be given for his appearance, the court or officer will consider the nature of the offense charged, the probabilities of con- viction, the penalty to follow it, and the position, sex, social and family relations, and pecuniary means of the accused. 3 Park. Cr. P. 520, per Peabody, J. And see the same case at the general term. First District, where the decision was reversed, but not in respect to the point above stated. Id. 531, post. And so, after the party has been convicted of the offense charged, if it appears that his conviction was unjust, or that there is serious doubt of his guilt, his application for bail will be granted. 2 Barh. S. 0. P. 450. And he may apply to be let to bail, in such case, it seems, even after his conviction has been adjudged by the SujDreme Court to be legal ; though, in that case, if the application is made to a judge at cham- bers, it will be very cautiously entertained, and only granted in cases of great question and difficulty. li. Though the action of the committing magistrate or court, on the application to admit to bail, may be reviewed b}' an appellate jurisdiction, yet it is final as to other magistrates or courts of co-ordinate or concurrent authority on the same question. 3 Park. Cr. P. 531, rev^g Id. 520. But where bail has been refused by reason of the insufficiency of the security, the decision does not preclude a new application for a discharge on offering other bail. Ih. See further on the subject of bail in criminal cases, 1 Hilly 376 ; 8 Barl. 158 ; 2 Park. Cr. P. 570 ; 3 Id. 316 ; and 132 HABEAS CORPUS AND CERTIORARI. [CH. V. see &\s,o,IIurdon Hob. Corpus, 430, and Z Eill, 667, Tiotes, pi. 41 to 48, and cases cited ; and see 2 E. 8. 704 ; Id. 728 ; and post, p. 137, " Bail on return to Certiorari." And see the- special provisions applicable to the city of New York, Laws of 184:4:, p. 475, post. If the party be not entitled to his discharge, and be not bailed, the court or officer shall remand him to the custody or place him under the restraint from which he was taken, if the person under whose custody or restraint he was, be legally entitled thereto ; if not,so entitled, he shall be committed by such court or officer to 'the custody of such officer or person as by law is entitled thereto. 2 B. S. 568, sec. 44 ; 3 Hill, 675, note, pi. 49. Custody of Prisoner.] Until judgment be given upon the return, the court or officer before whom such i^arty shall be brought, may either commit such party to the custody of the sheriff of the county in which such court or officer shall be, or place him in such care or under such custody as his age and other circumstances may require. 2 H. S. 568, sec. 45. The statute does not authorize the officer issuing the writ of habeas corpus to permit the prisoner to go at large until the decision of the case upon the retiirn. 10 Paige, 606. (a) Where a defendant imprisoned in execution, is brought up on habeas corpus, the sheriff is liable for an escape if he volun- tarily suffeis the prisoner to go at large without restraint. lb. 610. He is not bound, however, to keep the prisoner always in sight, or with the same strictness as before ; and if the prisoner, of his own will, should go about, for a short time, on his own business, and out of view of the sheriff, it is not an escape. The habeas corpus relieves the prisoner, temporarily, from the duress of imprisonment under the execution ; and he is not then enduring the restraint created (a) See this case as to the duty of the sheriff, or other officer, on the exe- cution of pi'ocesB on habeas corpus ; and see also 1 8 Johns. 48 ; and Cow. & Hill's Notes to Phil. Ev. 19, 20. CH. v.] HABEAS CORPUS AND CERTIORARI. 133 by the execution, witli a view of coercing payment. 1 8 Johis. 61 ; 7 Wend. 132 ; Eurd on Hob. Corpus, 324. Hoio far Parties are Concluded hy a Decision on Habeas Corpus.] An adjudication of a court or ofi&cer having autho- rity to issue and decide upon a writ of habeas corpus may be set up as res adjudicata, and is conclusive upon the same parties in all future controversies relating to the same mat- ter, and upon the same state of facts. 1 ParTc.er''s Cr. P. 129 ; 25 Wend. 61: ; and see 12 How. Pr. P. 550 ; 2 Abh. Pr. P. 3i6, note. In a case where a father obtained a habeas corpus for his infant child detained by its mother, on tlie return to the writ it appeared that a previous writ had been issued, upon which an order was made refusing to interfere ; it was held prima facie a bar to the subsequent writ. 25 Wend. 64, supra. Afterwards (about a year and six months), the father insti- tuted another proceeding of a like character ; and it was held that the former proceedings were not a bar after the circumstances had so far changed, by reason of the child's greater age, as to render it proper, beyond all reasonable doubt, that the father's paramount right should be enforced. 3 Hill^ 400, 415 ; and see lb. 675, note, pi. 51 ; Hurdon Hah. Corpus, 463. And so, the action of a committing magistrate or court, on the question of admitting to bail, is final as to other magistrates or courts of co-ordinate or concurrent jurisdiction on the same question. 3 Park. Cr. P. 531, rev'g Id. 520. Otherwise, however, where bail has been refused on account of insufficiency, and other bail is offered on the second appli- cation. Ih. Prisoner not to be Re-committed for Same Cause.] No person who has been discharged by the order of any court or officer, upon a habeas corpus or certiorari, issued pursuant to the provisions of the statute, shall be again imprisoned, restrained, or kept in custody, for the same cause ; but it shall not be deemed the same cause , — 134 HABEAS CORPUS AND CERTIORARI. [CH. V. 1. If he shall have been discharged from a committment on a criminal charge, and be afterwards committed for the same offense by the legal order or process of the court wherein he shall be bound by recognizance to appear, or in which he shall be indicted or convicted for the same offense ; or 2. If, after a discharge for defect of proof, or for any material defect in the commitment, in a criminal case, the prisoner be again arrested on sufficient proof, and committed by legal process for the same offense ; or, 3. If, in a civil suit, the party has been discharged for any illegality in the judgment or process herein before specified, and is afterwards imprisoned by legal process for the same cause of action ; or, 4. If, in any civil suit, lie shall have been discharged from commitment on mesne process, and shall be afterwards committed on execution in the same cause, or on mesne pro- cess in any other cause, after such first suit shall have been discontinued. 2 R. S. 5Y1, sec. 59 ; 1 Sand. S. C. B. 702 ; 3 Hill, 675, note, pi. 50 ; Hurd on Hob. Corpus, 567 to 561. And where a supreme-court commissioner, after a party had been imprisoned for the non-payment of a fine, granted a habeas corpus, and on the return thereto, released the pris- oner from custody on the ground of bis having been dis- charged under the bankrupt law, — it was held that the order was a nullity, and that the court which imposed the fine might direct a re-commitment. 10 Paige, 284, aff. 7 Sill, 301, aff. 7 How. JJ. 8. i?. 21 ; 4 Johns. 317 ; 5 Id. 282 ; s. c. 9 Id. 395 ; 15 Id. 152. And, it seems, that in all cases where the olficer discharges a party on habeas corpus, with- out having jurisdiction to do so, the discharge is void, and the party may be re-committed for the original cause. Id. Hid. ; 7 Hill, 304. Penalty for Pe-oommitting.] ■ If any person, either solely, or as a member of any court, or in the execution of any order, judgment or process, shall knowingly recommit, im- prison, or restrain of his liberty, or cause to be recommitted, imprisoned, or restrained of his liberty, for the same cause, any CH. v.] HABEAS CORPUS AND CERTIORARI. 135 person so discharged, except as provided in the last section {sec. 59), or shall knowingly aid or assist therein, he shall forfeit to the party aggrieved, one thousand two hundred and fifty dollars, and shall also be deemed guilty of a misde- meanor. 2 B. S. 511, see. 60 ; 3 Mil, 675, note, pi. 50. Every person convicted of any ofi'ense under the above section, shall be punished by fine or imprisonment, or both, in the discretion of the court in which he shall be convicted; but such fine shall not exceed one thousand dollars, nor such imprisonment six months. 2 i?. S. 572, sec. 64. Penalty for Concealing Prisoner.'] Any one having in his custody or under his power, any person, who, by the pro- visions of the statule, would be entitled to a writ of habeas corpus or certiorari to inquire into the cause of his detention, who shall, with intent to elude the service of any such writ, or to avoid the eifect thereof, transfer any such prisoner to the custody, or place him under the power or control of another, or conceal him, or change the place of his confine- ment, shall be deemed guilty of a misdemeanor. 2 B. 8. 571, sec. 61. And any one having in his custody or under his power, any person for whose relief a writ of habeas corpus or certiorari shall have been duly issued pursuant to the pro- visions herein, who, with intent to elude the service of such writ, or to avoid the effect thereof, shall transfer such prisoner to the custody, or place him under the power or control of another, or conceal him, or change the place of his confine- ment, shall also be deemed guilty of a misdemeanor. lb- sec. 62. Every person who shall knowingly aid or assist in the violation of either of the last two preceding sections, shall be deemed guilty of a misdemeanor, Ih. sec. 63 ; and on convic- tion thereof shall be punished by fine, or imprisonment, or both, in the discretion of the court in which the conviction is had — but the fine shall not exceed one thousand dollars, nor the imprisonment six months. lb. sec. 64. Penalty for Refusing Copy of Process.] Any officer or 136 HABEAS CORPUS AND CERTIORARI. [CH. V. other person refusing to deliver a copy of any order, warrant, process or other authority, by which he shall detain any per- son, to any one who shall demand snch copy, and tender the fees thereof, shall forfeit two hundred dollars to the person so detained. 2 B. S. 573, sec. 72. Proceedings in case of Sickness of the Prisoner.} "When- ever, from the sickness or infirmity of the person directed to be produced by any writ of habeas corpus, such person can- not, without danger, be brought before the court or of&cer before whom the writ is made returnable, the party in whose custody he is, may state that fact in his return to the writ, verifying the same by his oath ; and if such court or officer be satisfied of the truth of stich allegation, and the return be otherwise sufficient, they shall proceed to decide upon such return, and to dispose of the matter, in the same manner as if a writ of certiorari had been issued, instead of such writ of habeas corpus. 2 P. 8. 569, sec. 49. When the Writ must ie the Writ of Certiorari.'] It is pro- vided by the statute, that whenever an application shall be made for a writ of habeas corpus, according to the provisions of the statute, to any officer or court, if it appear to such court or officer, upon the facts set forth in the petition, that the cause, matter or offense, for which the person is confined or detained, is not bailable, according to the provisions of law, instead of awarding such writ of habeas corpus, a writ of certiorari may be granted, directed to the officer or person in whose custody, or under whose control, such pris- oner shall be alleged to be, in like manner as if such writ of certiorari had been applied for by the prisoner, li. sec. 50. Proceedings on the Return thereof ^^ Upon the return to such certiorari being made, the court or officer before whom such writ shall be returnable, shall proceed in the same man- ner as upon returns to writs of habeas corpus {ante), and shall hear the proofs of the parties in support of, and against, such return. lb. see. 61. CH. v.] HABEAS CORPUS AND CERTIORARI. 137 If it appear that the person detained is illegally impris- oned, confined or restrained of his liberty, the court or officer shall grant a writ of discharge, commanding those having such person in their custody, to discharge him forthwith ; and if it appear that such person is legally detained, impris- oned or confined, and is not entitled to he bailed, such court or officer shall cease from all further proceedings thereon. lb. 570, sec. 52. For form of writ of discharge, see Appen- dix, No. 84. Sail on Rehirn to Certiorari.'] If, upon the return to any writ of certiorari, it shall appear that the person detained is entitled to bail {ante, p. 130), the court or officer before whom the same was returnable, shall, by order certified by the clerk of the court, or by the officer granting the same, direct the sum in which such person shall be held to bail, and the court at which he shall be required to appear, and that on such bail being entered into, in conformity to such order and the provisions of law, such prisoner be discharged. 2 H. S. 570, sec. 54. For form of order, see Appendix, No. 88. Upon the production of such order to any judge of the county courts of any county, he shall be authorized to take the recognizance of the person so detained, and of two suffi- cient sureties, in the sum so directed — with a condition for the appearance of such person at the court designated in such order. But previous to taking such recognizance, such judge shall be satisfied, by the oath of the persons offering them- selves as sureties, that they are house-holders in the county, and are severally worth double the sum in which they shall be required to be bound, over and above all demands against them. lb. sec. 55. For form of recognizance, see Appendix, No. 89. Such judge shall file the recognizance taken by him, with the clerk of the court before which the prisoner shall be bound to appear, and shall certify on such order the compliance therewith. The production of such order, so certified, shall entitle such prisoner to be discharged fiom imprisonment for 138 HABEAS CORPUS AND CERTIOEAKI. [CH. V. the cause which shall have been returned to such certiorari. lt>. sec. 56. How order for Discharge of Prisoner Enforced.'] Obedi- ence to any writ of discharge, or to any order for the dis* charge of any prisoner, granted pursuant to the provisions herein, may be enforced by the court or officer issuing such writ or granting such order, by attachment, in the same manner as herein provided for a neglect to make a return to a writ of habeas corpus, and with the like effect, in all respects {see ante, p. 112) ; and the person guilty of such disobedience, shall forfeit to the party aggrieved one thousand two hundred and fifty dollars, in addition to any special damages such party may have sustained. 2 B. 8. 570, sec. 57. Officer to he Protected for oheying Order of Discharge.] No sheriff or other officer shall be liable to any civil action for obeying any such writ or order of discharge ; and if any action shall be brought against such officer, for suffering any person committed to custody to go at large, pursuant to any such writ or order, he may plead, or with his plea of the general issue may give notice of the same, in bar of such action. lb. sec. 58. And the officer will be protected, in such case, notwith- standing that the writ of discharge was erroneously granted. 3 Barb. 8. C. B. 37 ; and see 10 Paige, 612. Writ of Habeas Corpus may Issue after Certiorari.] !N"ot- withstanding any writ of certiorari may have been issued or returned, according to the provisions of law, the court or officer before whom the same was returnable, may issue a writ of habeas corpus, which shall in all respects, be subject to the provisions herein ; and if such court or officer refuse a writ of certiorari, or upon the return thereof, refuse to dis- charge the person detained, if such person claim the writ of habeas corpus, he shall be entitled to the same as hereinbefore provided. 2 B. 8. 570, sec. 53. CH. v.] HABEAS CORPUS AND CERTIOKARI. 139 Proceedings Removed into the Supreme Court.'] It is provided by the Revised Statutes tliat all proceedings com- menced under the statute before any ofHcer, may be removed by certiorari into the Supreme Court, to be there examined and corrected. But no such certiorari shall be issued, unless the same be allowed by a justice of the Supreme Court, nor until a final adjudication shall have been made by such officer, upon the claim to be discharged or bailed, lb. ?ilZ, see. 69 ; 16 Bari. 362 ; and see Hard on Huh. Corpus., 355. The allowance may also, it seems, be made by a judge of the Court of Appeals, or by a county judge, or officer elected to perform the duties of a county judge. Laws of 184:7, j). 32i, sec. 17 ; 10 How. Pr. R. 181. For form of affidavit, certiorari and allowance, see Appendix, Nos. 90, 91 ; and for return to certiorari, see Appendix, No. 92. The certiorari authorized by the above section, is not merely a common-law certiorari, limiting the court in its review to the single question of jurisdiction ;' but it contem- plates a review upon the merits, so far as the legal rights of the parties are involved. That review, however, is confined to matters of law ; and where there has been no error in law, the proceedings can not be " corrected," however improperly the tribunal below may have exercised its power. 6 Barh. 869, per Harris, J. ; 24 Id. 521 ; and see 25 Wend. 64. And where a county judge, in the exercise of his dis- cretion, refused to deliver an infant child to the custody of its mother, it was held, that the question whether he exercised that discretion wisely or not could not be reviewed upon certiorari. 6 Barb. 366, supra. Nor will the court review the evidence given on the hearing below, or any decision concerning its competency ; so held, where the objection was, that the relator was sworn and testified before the commissioner in his own behalf. 5 Hill, 17. In a case where the prisoner was detained under a com- mitment on final judgment, the county judge refused to allow a writ of habeas corpus, on the ground that he had no j uris- diction to issue it. Whether the prisoner was so committed 140 HABEAS CORPUS AND CERTIORARI. [CH. V. or detained, was a question which the county judge was required to decide in order to determine whether or not the writ should be allowed; and his determination that the prisoner was not entitled to it, was held to be a proper sub- ject of review upon certiorari. 16 Barb. 362. "Where the proceedings are removed into the Supreme Court on behalf of the people, the district attorney is the proper person to procure the certiorari to be issued, and to act as attorney for them in the prosecution of the same. 15 Barb. 153. The certiorari may be brought to a hearing by either party upon the usual notice of argument ; and is entitled to preference on the morning of any day during the first week of term. Swp. Court Bules, 1858, No. 47. Appeals to the Court of Appeals.] Formerly the remedy to review the decision of the Supreme Court was by wi-it of error. 2 R. S. 573, sec. 70 ; Surd on Hah. Corpus, 562 to 570. But the writ of error having been abolished by the Code of Procedure, the remedy is now by appeal. Code of Pro. §§ 8, 11, 323, 333, 457, 471 ; 2 li. 8. Uh ed. 805, sec. 86 ; 9 How. Pr. E. 304 ; s. c. 3 Duer, 616 ; 2 Sand. S. C. R. 740 ; Laws of 184:7, p. 321 ; and see ante, p. 16, note. And after the Supreme Court has made a final determina- tion upon the writ of habeas corpus or certiorari issued for the relief of any prisoner, such prisoner, if his discharge is refused, may prosecute an appeal thereupon to the Court of Appeals. Id. ibid. ; 2 R. 8. 573, sec. 70 ; Laws of 1847, p. 321, 322. If the prisoner is discharged by the Supreme Court, the attorney general, if the commitment was upon some criminal accusation, and the party aggrieved, if such prisoner was detained in any civil suit, may in like manner prosecute an appeal to the Court of Appeals. Id. ibid. The court will not stay the proceedings upon the appeal ; so held by the late Supreme Court, where the defendant was detained as a fugitive from justice from another State, and after his discharge was refused, applied for a writ of error to CH. v.] HABEAS CORPtTS AND CERTIORARI. 141 the Court for the Correction of Errors, with a stay of pro- ceedings until the bearing thereon. 9 Wend. 222. The Court of Appeals, upon the appeal, has power to make such orders, and to issue all such writs, as may be necessary, for the discharge or re-commitment of such pris- oner, according to the judgment which shall be given by such court ; and, generally, to carry such jiidgment into full effect. 2 H. jS. 573, sec. 71 ; Laws of 1847, 2>- 321, sec. 8 ; Code of Pro. % 11. The provisions of the Common Law.] The provisions of the common law, in regard to the writ of habeas corpus, treated of in this article, are abrogated, except so much and such parts thereof as may be necessary to carry into full effect the provisions herein contained ; and the authority of courts and officers to award such writ, or to proceed thereon, by the common law, shall be exercised in conformity to the provisions of this article, in all cases therein provided for. 2 R. S. 573, sec. 73 (a). To what other Cases the Statute applies.'] The several provisions contained in this title (herein considered), shall be construed to apply, so far as they may be applicable, and except where otherwise provided, to every writ of habeas corpus authorized to be issued by any statute of this State. 2 B. 8. 575, sec. 86. Special Provisions applicable to the City of New T'orJc.] In the city and county of New York, except by the judges (a) The Revisers' original note to this section is as follcws: "The authority of the courts is derived as well from the common law, as from the statute ; but the proceedings in the two cases may be essentially different. See the opinions of the twelve judges in the American edition of Bacon's Abridgment. {Hab. Om-pus, B. 13, p. 438.) Sometimes courts hold that common-law remedies are not abolished by the enactment of statutory provisions. The above section is proposed, with a view to cut off all pretext for resorting to the inadequate com- mon-law remedy, and to insure a compliance with the statute. In such a case, it is conceived, nothing should be left to implication." Rev, Notes, S R. 8. tSS, iied. 142 HABEAS CORPUS AND CERTIORARI. [CH. V. of the court of Common Pleas, there shall be no costs or fees charged or received upon any proceedings upon writs of habeas coi-pus, either by the judge granting them, or by the officer serving them, or the jailor obeying their orders; and the judge before whom the matter sliall be heard, shall, if the case be bailable, and the amount of bail shall have been fixed by the committing magistrate, only determine whether the party is lawfully committed, or is legally chargeable with the offense imputed, and shall not adjudi- cate upon the question of bail. The amount of bail ordered by the committing magistrate, shall, in such cases only, be altered by a court having jurisdiction of the offense for which tliB prisoner was committed ; and any officer violating the provisions of this section, shall be guilty of a misdemeanor, and shall be subject to the pains and penalties for such offense. The judges of the Court of Common Pleas in and for the city of New Tork, may charge the fees now allowed by law in such cases. Laws of 1844, ^. 475 ; 2 i?. S. 807, MK ed. CH. V.l HABEAS CORPUS TO TESTIFY. 143 SECTION II. WRIT OF HABEAS CORPUS TO BRING UP A PRISONER TO TESTIFY, (o) In what Cases.^ The statute provides that every court of record shall have power, upon the application of any party to any suit or proceeding, civil or criminal, pending in such court, to issue a writ of habeas corpus, for the purpose of bringing before the said court, any prisoner who may be de- tained in any jail or prison within this State, for any cause except a sentence for a felony, to be examined as a witness in such suit or proceeding, in behalf of the party making the application. 2 It. 8. 559, sec. 1. (5) This writ may also be issued by any of the officers herein named upon the application of a party to a suit before any justice of the peace, to bring any person confined in the jail of the same county, or the county next adjoining that where (a) For the conunon-la-w authority of the court or judge to issue the -writ, and for the practice in such eases, see 1 Cowen tfc Hill's Notes to Phil. Ev. 19, 22, 23. (6) It is also provided, that "whenever any convict confined in any county or State prison shall be considered an important witness in behalf of the people of this State, upon any criminal prosecution against any other convict, by the dis- trict attorney conducting the same, it shall be the duty of any officer author- ized by law, to allow writs of habeas corpus, upon the affidavit of such dis- trict attorney, to grant a habeas corpus for the purpose of bringing such pris- oner before the proper court to testify upon such prosecution. 2 R. 8. "774, sec. 1 ; Laws of 1847, p. 627, sec. 150. And whenever it shall appear to the court, in which an indictment is pending and to be tried, against any person for any ofi«nse committed by him while imprisoned in any county prison, or any one of the State prisons, on the person of any other individual confined in Buch jail or State prison, that any other person confined in any county prison, or in any of the State prisons, is an important witness in behalf of the person so indicted, such court is hereby authorized to grant a writ of habeas corpus for the purpose of bringing such prisoner before such court to testify upon the trial of such indictment, in behalf of the party making the application. lb. sec. 156 ; and see chap. 5, of Laws of 1846. 14:4: HABEAS CORPUS TO TESTIFY. [CH. V- such justice may reside, before such justice, to be examined as a witness. 2 B. S. 559, sec. 4. And so, the writ may issue to bring up a prisoner to testify in his own behalf; so held, where the prisoner was detained on a ca. sa., and desired to testify in relation to his own application for a discharge pursuant to an act of insol- vency. 5 Cowen, 176. But after the court of Oyer and Terminer shall commence its sitting in any county, no prisoner detained in the common jail of such county, upon any criminal charge, shall be removed therefrom by any writ of habeas corpus, unless such writ shall have been issued by such court of Oyer and Ter- miner, or shall be made returnable before it. 2 H. S. 758, see. 27. Certain Officers may also allow the Writ.} In addition to the power given to a court of record, to issue the writ, the statute authorizes the writ to be issued by any justice of the Supreme Court, or any officer authorized to perform the duties of such justice, upon the like application of a party to any suit or proceeding pending in a court of record, or pend- ing before any officer or body who may be authorized to examine witnesses, in any suit or proceeding. 2 JS. S. 559, sec. 3. The officers authorized to perform the duties of a justice of the Supreme Court within the meaning of the above sec- tion, are the judges of the Superior Court of law, and the judges of the Court of Common Pleas, in the city of New York, the recorders of cities, and judges of the county courts, being of the degree of counselor at law. See ante p. 103. The writ may also be issued by the judges of the Superior Court of the city of Buffalo. Zaws of 1857, vol. 1, j9p. 752, 754. Also by the City Judge of the city of Brooklyn, within the county of Kings. I,aws of 1849, p. 174, sec. 26. And by the City Judge of New York, within that city. Zaws of 1850, 2>. 388 ; 6 Abb. Pr. R. 146. The Ap;plication, and what to contain.] The application CH. v.] HABEAS CORPUS TO TESTIFY. 145 for the writ should be made by the party to the suit or pro- ceeding in -whlcli the writ is required, or by his agent or attorney. Where the writ is required in an action or matter to which the people of this State shall be parties, the applica- tion therefor should be made by the attorney general or dis- trict attorney having charge of the same. 2 H. S. 574, sec. 77. The statute requires the application to be verified by affi- davit, and to state, 1. The title and nature of the suit or proceeding, in regard to which the testimony of such prisoner is desired ; and, 2. That the testimony of such prisoner is material and necessary to such party, on the trial or hearing of such suit or proceeding, as he is advised by counsel, and verily believes. But if the application is made by the attorney general, or the district attorney, it shall not be necessary to swear to such advice or counsel. 2 R. S. 659, sec. 2. For form of affidavit, see Appendix, No. 93. The Writ.] The writ is required to be under the seal of the court by which it is awarded. If awarded by any officer out of court, it should be under the seal of the court before which it is returnable ; or if made returnable before some body other than a court of record, or before an officer out of court, it should be under the seal of the Supreme Court. 2 H. S. 572, sec. 74. It may be made returnable at a day cer- tain, or forthwith, as the case may require. 75. sec. 75. If issued in term, it may be tested on any day in that term, or if in vacation, on any day in the preceding term. Jd. 197, sec. 5 ; 1 Burr. Pr. 453. For form of writ, see Appendix, No. 94. if the court or officer is satisfied with the affidavit on which the application is founded, the writ will issue, with an endorsement of allowance thereon, which may be as follows : '' Allowed this day of 18 — ." The endorsement, if the writ is awarded by the court, should be signed by the presiding officer of such court ; or if awarded by any officer out of court, the endorsement should be signed by such offi- cer. 2 B. S. 514:f.sec. 16. 10 146 HABEAS CORPUS TO TESTIFY. [CH. V. Though the writ do not say, " to testify ;" yet, if it have words equivalent, this is sufficient. 5 Cowen, 176. So, though it do not specify a place of return within the county ; as, at the ofiSce of the first judge ; for this is to be intended. lb. And the alteration of the writ, after it is executed, without the knowledge or privity of the sheriff, will not deprive him of the right to give it in evidence for his justification, though such alteration be made by the deputy who executed it. Ih. Service of Writ, and iy whom.] The writ can only be served by an elector of some county within the State, 2 R. S. 574, sec. 78 ; except where it is sued out on the application of the attorney general or district attorney. Ih. see. 79. It may be served by delivering the same to the person to whom it is directed, or if he cannot be found, it may be served by being left at the jail or other place in which the prisoner may be confined, with any under officer, or other person of proper age, having charge for the time of such prisoner. Ih. sec. 80. If the person upon whom the writ ought to be served, conceal himself, or refuse admittance to the party attempting to serve the same, it may be served by affixing the same in some con- spicuous place, on the outside, either of his dwelling-house, or of the place where the party is confined. lb. sec. 81. Fees, and Bond on Service.] The service of the writ is not complete (except where it has been sued out by the attor- ney general or district attorney), unless the party serving the same shall tender to the person in whose custody the prisoner may be, if such person be a sheriff, coroner, constable or mar- shal, the fees allowed by law for bringing up stich prisoner ; nor unless he shall also give bond to such sheriff, coroner, constable or marshal, as the case may be, in a penalty, double the amount of the sum for which such prisoner may be detained, if he be detained for any specific sum of money, and if not, then in the penalty of one thousand dollars, condi- tioned that such person will pay the charges of carrying back such prisoner, if he shall be remanded, and that such prisoner will not escape by the way, either in going to, or returning CH. v.] HABEAS CORPUS TO TESTIFY. 147 from, the place to whicli he is to be taken. • 2 U.S. 574, sees. 78 and 79. For form of bond, see Ajypendix., No. 95. The fees and expenses for bringing up the prisoner, are one dollar and fifty cents, and for traveling, each mile from the jail, twelve and a half cents; (a) and for attending any court with such prisoner, one dollar per day, besides actual necessary expenses. 2 R. S. 646. Duty of Officer to whom the Writ is Delivered.'] It is the duty of the officer to whom the writ is delivered, or upon whom it shall be served, whether such writ be directed to him or not, upon payment or tender of the charges allowed by law, and the delivery or tender of the bond herein pre- scribed, to obey and return such writ according to the exi- gency thereof ; and every officer who shall refuse or neglect so to do shall forfeit to the people of this State, where the writ was issued upon the application of the attorney general, or district attorney, and in. other cases, to the party upon whose application the same shall have issued, the sum of five hundred dollars. 2 E. S. 662, sec. 20 ; lb. 575, sec. 82 ; 5 Johns. 357 ; 5 Cowen, 176. If the writ is returnable at a certain day, such return shall be made, and such prisoner shall be produced, at the time and place specified therein. If it is returnable forthwith, and the place be within twenty miles of the place of service, such return shall be made, and such prisoner shall be pro- duced, within twenty -four hours ; and the like time shall be allowed for every additional twenty miles, 2 E. S. 575, sec. 85. The prisoner should be taken by the shortest and most convenient route to the court or place where he is to give his evidence ; and, it seems, where he is imprisoned on exe- cution, if the sherifi" voluntarily suffers him to go at large (a) In computing mileage in these cases, it was lield under the Revised Laws of 1813, in which mileage was allowed "for every mile from the jail," that the mileage shall be computed both for going and returning. 1 Cowen, 424. And see Cowen & Hill's Notes to Phil. Ev. 19, note 23. 143 HABEAS CORPUS TO TESTIFY. [CH. V. out of his custody in the mean time, or if lie goes with him out of the way to accommodate the prisoner, or to answer his individual purposes, and not in the exercise of the legitimate purposes of the writ, it is an escape, for which the sheriff is liable. 10 Paige^ 614. The sheriff is not bound, however, to keep the prisoner always in sight, or with the same strictness as before ; and if the prisoner, of his own will, shon.ld go about for a short time on his own business, and out of view of the sheriff, it is not an escape. 18 Johns. 48 ; cmd see 7 Wend. 132 ; Gowen & HilVs Notes to Phil. Ev. 20. The sheriff, would be protected in obeying the command of the writ, if valid on its face, notwithstanding that it was irregularly or erroneously allowed. 5 Cowen, 1Y6 ; cmd see 3 Barl. S. 0. B. 37. After testifying, the Prisoner to he Bemanded-I When- ever any person shall be in execution on any civil process, or committed on any criminal charge, and a habeas corpus shall be issued to bring the body of such prisoner before any court to testify, or to answer for any contempt, or any other matter, and it be returned upon the writ that the prisoner is charged in execution, or committed as aforesaid, he shall be remanded, after having testified ; and if any order or commitment be made against such prisoner, he shall be so committed to the prison from which he was taken. 2 B. S. '560, sec. 5 ; 2 Paige, 104 ; 10 Id. 614. CHAPTER VI. PEOCEEDmGS m EESPECT TO IDIOTS, LUNATICS, AND HABITUAL DKUNKAEDS. Section I. Appointment op committee and proceedings thereupon. II. Proceedings for the sale of their real estate. III. Miscellaneous matters. ♦ SECTION I. appointment of committee, and proceedings thereupon. Bt the Revised Statutes the care and custody, of idiots, lunatics, persons of unsound mind, and persons who are inca- pable of conducting their own aifairs in consequence of habitual drunkenness,— and of their real and personal estates, were vested in the chancellor. And he was required, to pro- vide for their safe keeping and maintenance, and for the maintenance of their families, and the education of their children, out of their personal estates, and the rents and pro- fits of their real estates respectively ; and to see that their estates were not wasted or destroyed. 2 H. S. 52, sec. 1. The vice-chancellors, also, ia their respective circuits had con- current jurisdiction with the chancellor in these proceedings, subject to his appellate jurisdiction. Ih. 168. But now, the powers of the chancellor are vested by the constitution of 18i6, and the judiciary act, in the Supreme Court. And the county courts of the respective counties also have concurrent 150 HJNATI03, HABITUAL DRUNKARDS, &c. [CH. VI, jurisdiction with tlie Supreme Court, in respect to the care and custody of the person and estate of a lunatic, or person of unsound mind, or an habitual drunkard, residing within their respective counties ; and also in respect to the sale, mortgage, or other disposition of the real property of such person, situ- ated within the county. Code of Pro. § 30. The same authority is also given to the Court of Common Pleas of the city and county of New York, where the lunatic, &c., resides in that city, or the property is situated therein. Zaws of 1854, ;p. 464, sec. 6 ; 1 All. Pr. R. 114, 115. And the like authority is also given to the Superior Court of the city of Buffalo, where the lunatic resides in that city, or the property is situated therein. Laws of lS5i, p. 224, sees. 9 and 11. In respect to the Superior Court of the city of New York, although jurisdiction in these proceedings was conferred upon it, in part, by sec. 21, of chapter 470, of the Laws of 1847 {p. 6±1), and which has not in terms been repealed, yet, it seems, the question of jurisdiction is so doubtful that that court will not entertain jurisdiction to issue a[]commission in lunacy. 1 All. Pr. R. 108, 115. (a) The Jurisdiction and Authority of the Courts.] In addi- tion to the general power and authority of the courts, already stated, the Supreme Court may appoint a committee for a non- resident lunatic, to enable the committee to obtain the control of property in this State. And the court may issue a com- mission to inquire as to the lunacy of such person ; but it cannot be executed beyond the limits of fthe State. In such case, the court will direct it to be executed in such county as will be most convenient. 2 Paige, 174 ; 9 Id. 416 ; 2 Barb. Ch. R. 305 ; 2 Johns. Ch. R. 124. And where a lunatic, after becoming deranged, left his place of residence in this State, leaving personal property here, and went to some place unknown; it was held that for the purpose of an (a) See this case, -where the nature and extent of the power to take the per- sona and property of lunatics and habitual drunkards into custody, and the statutory provisions on the subject, are considered and reviewed by Hoffinan, J. CH. VI.] LUNATICS, HABITUAL DRUNKARDS, &o. 151 application to the Court of Cliaiicery (now the Supreme Court), for a commission of lunacy, the lunatic must still be considered as a citizen of this State, where he was domiciled at the time he was deprived of his reason. lb. Proceedings hy Overseers of the Poor against Pahitual Dninkards.] In respect to habitual drunkards, jurisdiction over their persons and estates was first given to the Court of Chancery, by the laws of 1821 {chap. 109,^. 99) ; and in the revision of the laws of 1830 that statute was retained, with some modifications. The statute directs the overseers of the poor of any city or town, who shall discover any person resi- dent therein to be an habitual drunkard, having property to the amount of two hundred and fifty dollars, which may be endangered by means of such drunkenness, to make applica- tion to the Supreme Court for the exercise of its powers and jurisdiction. 2 P. S. 52, sec. 2. And the overseers of the poor may also make such application to the court of com- mon pleas (now the county court), of the county where the drunkard resides, whatever amount of property the drunkard may have. And that court, upon the application by the overseers, is vested with the same powers in relation to the person and property of the drunkard, as are conferred on the Supreme Court, and is in all respects to proceed in the like manner, subject to an appeal to the Supreme Court, lb. sec. 3 ; Cods of Pro. § 30 ; and see Laws o/'lSoi, jj. 464; Will. Eq. Jar. 683. The Kevised Statutes further provide in reference to the jurisdiction of that court in cases of habitual drunkards, that the application by the overseers of the poor for a com- mission, may be made in vacation to the first judge of the coimty ; who is authorized to award the same to one or more proper persons, to inquire into the fact of such alleged habitual drunkenness ; and the inquisition taken thereon shall be returned to the next term of the court, who shall confirm or set the same aside. Id. ibid. / 2 P. S. 52, sec. 4. If the party proceeded against traverses the inquisition on its return, an issue shall be directed by the court, as in other 152 LUNATICS, HABITUAL DRUI^KAEDS, . T. ; Will. Eg. Jur. 690. Affidavit of iMnatic, &c., how Certified.l If a petition or atfidavit in the proceedings, is sworn to by one who has been found by inquisition to be a lunatic or an habitual drunkard, or a person of uusound mind, the officer before whom it is sworn should state in the jurat that he had exam- ined the petitioner or deponent, for the purpose of ascertain- ing the state of his mind, and whether he was capable of understanding the nature and object of the petition or affidavit, and that he was apparently of sound mind and capable of understanding the same. See 5 Paige, 242. And if the party is blind, the officer should also certify that the petition or affidavit was carefully and correctly read over to him in the presence of such officer, before it was sworn to. 11. 243. For form of certificate, see Appendix, No. 127. CH. VI.] LUNATICS, HABITUAL DRUNKARDS, ra ; 9 Paige., 440. The court, however, as we shall see hereafter, cannot direct the sale or other disposition of the real estate of a lunatic, except where it is necessary for his maintenance, or the maintenance of his family, or the educa- tion of his children, or the payment of his debts ; nor in any of these cases if the personal property is sufficient for the pur- pose. 2 R. S. 63, sees. 11, 16, post ; 2 Paige, 596 ; 7 Id. 312. But the court may direct the committee to apply the surplus income to the improvement of unproductive real estate ; and also to apply a portion of the capital of the personal estate in building upon vacant lots, so as to produce an income from the improvements. 9 Paige., 441. Nor is the maintenance of the lunatic limited to the amount of income. 3 Moll. 94. But the whole estate, real and personal,- may be expended in his support ; after which, on the application of the committee, and upon report of a referee, the court will order the lunatic to be delivered over to the overseers of the poor. 2 Johns. Ch. R. 440. 12 178 LUNATICS, HABITUAL DRUNKARDS, &o. [CH. VI. Where the lunatic resides in another State, and has property in the hands of his committee appointed at the place of his residence, that property is the primary fund for his support, and should be first applied for that purpose by the committee who has the control of his person. 9 Paige, 611. The committee, under the direction of the court, has also the entire control of the person of the lunatic, and the riglit to confine him, if necessary. 2 Iloff. Ch. Pr. 262. And where the lunatic becomes furiously mad, or so far disor- dered in his senses, as to endanger his own person, or the person or property of others, if permitted to go at large, if he is possessed of suflicient property to maintain himself, it i^ the duty of the committee to provide a suitable place for bis confinement, and to confine and maintain him in such manner as shall be approved by the overseers of the poor of the city or town. 2 E. S. 634. In respect to an habitual drunkard, the committee has the right, also, subject only to the superintending control of the court, to decide as to the proper residence of the drunk- ard ; and he is responsible for any neglect to take proper care of the person of such drunkard. And the court will aid and protect the committee in the exercise of that right ; and give him directions on the subject, when necessary. 5 Paige, 120. And where a third person, against the wishes of the committee, has the custody of or harbors the habitual drunkard, it is the duty of the committee to apply to the court, in the first instance for an order that the drunkard be delivered up to the committee, or that such person cease from harboring him ; and if such order is disobeyed, the party will be punished for a contempt of court. Tb. And so, also, where vendors of intoxicating drinks furnish the same to a drunkard against the wishes of his committee, the court will make an order prohibiting them from doing so upon pain of being held liable for a criminal contempt. And if the order is disobeyed, it is the duty of the com- mittee to apply to the court to punish the ofi"ender. 7 Paige, 312 ; 3 Id. 200. CH. VI.] LUNATICS, HABITUAL DRUNKARDS, &o. 179 If necessary for the reformation of an habitual drunkard, the court, it seems, will direct the committee to confine him in the lunatic asylum ; and his real estate may be sold for the purpose of paying the expenses of his support there. 7 Paige, 312. , In respect to the property of a lunatic, as a general rule, the committee cannot enter into any transaction or contract, without the authority of the court. Nor can he institute suits in behalf of the estate, without such authority. When authorized to bring any action for any debt, claim, or demand transferred to him, or to the possession and control of which he is entitled as such committee, he may sue for the same in his own name. Laws of 1845, f. 90 ; 12 How. Pr. R. 287. In all other cases the action must be brought in the name of the lunatic. 8 Barb. 562 ; hit see 14 Id. 488. If the lunatic's estate is large, and its interests require the employment of an agent or clerk, the court, upon tlie petition of the committee, will allow him to employ such agent or clerk, and to pay him a reasonable compensation for his services, out of tlie income of the estate. 9 Paige, 440. But the committee himself cannot receive a compensation for services as such clerk beyond his allowance for commissions as the committee. Ih. If waste is committed upon the lands of the lunatic, it is the duty of the committee to apply to the court for an order to restrain it ; and the court may make such order without an action commenced for that purpose. See 7 Johns. Ch. R. 24 ; 1 Ball <& Beatty, 108. And if there is a breach of the order, the committee may move for an attachment. Id. ibid. In case of the death of the lunatic, &c., the power of the committee ceases; and his real estate will thereupon descend to his heirs, and his personal estate be distributed among his next of kin, in the same manner as if he had been of sound mind and memory. 2 R. S. 55, sec. 25. Committee to file Inventory and Aocount.'] It is also made the duty of the committee, within six months after his ap- 180 LUNATICS, HABITUAL DRUNKARDS, . 953, sec. 12; unless the owner serves a notice upon the claimant requiring him to commence his action ; in which case, it must be commenced within thirty days after the time specified in the notice. Jh. sec. 11, suh. 4 ; and see post, " Proceedings by owner to compel commence- ment of foreclosure." The claimant may instantly, however, on filing his lien, if he is in a position to demand relief, insti- tute the proceedings for the foreclosure. See 1 LJ. D. Smith, 675 ; JVoifs Lien Law, 91, 92. The Courts having Jurisdiction.] The only courts having jurisdiction in the proceedings for the foreclosure of the lien, are the court of Common Pleas of the city and county of New 216 LIEN LAW : NEW YORK CITY. [CH. VII. York, the Marine Court, and the District Courts of that city. Laws of 1851, jp. 953, sec. 4. Extent of their Jurisdiction.'] The jurisdiction of the court of Common Pleas is general, under the provis'ons of the statute relating to these proceedings, as well as under the laws regulating their jurisdiction in other cases. It may, therefore, entertain jurisdiction in a proceeding to foreclose a lien, however large or small the claim of the plaintiif may be. 2 E. D. Smith, 639. The plaintiff simply runs the risk of paying his own costs, and tlie costs of the defendant, in case his recovery does not amount to fifty dollars. Ih.; and Code of Fro., ^ -^05. The court of Common Pleas, also, has jurisdiction, by filing a complaint for that purpose, to enforce an equitable lien existing in favor of a party ; although it cannot do so, by a decree made in proceedings instituted under the statute in question. 2 E. D.Smith, 594; Id. 61(;. The jui-isdiction of the Marine Court, under the statute, differs from that of the court of Common Pleas, in respect mainly to the amount of the plaintifi^'s claim. Id. 578 ; N'oti's Lien Law, 70 to 79. By the act ot 1851 {p. 953, sec. 4), its jurisdiction was limited to cases where the amount claimed did not exceed one hundred dollars; but the legisla- ture, having extended its jurisdiction, generally, in actions, to claims amounting to five hundred dollars {Laws (?/"lS52,^. 648 ; Laws of 1853, J). 1165), jurisdiction to the same amount is conferred upon it in the proceedings under the statute in question. See Ih., and 2 E. D. Smith, 6.9 ; Id. 626, 630 ; and see, also, 2 Abb. Pr. P. 219. In respect, however, to actions against tlie mayor and aldermen, &c., of the city of New York, its jurisdiction is limited to cases where the amount claimed does not exceed two hundred dollars. Laios of 1858, p. 569. The marine court has no jurisdiction to enforce equitable liens ; it has no equity jurisdiction except such as is given to it by the statute. But if a lien has been acquired under the statute, that court may order the premises to be applied to CH. VII.] LIEN LAW : NKW TOEK CITY. 217 tile satit-factiou of tlie lien. The statute, having conferred upon it juiisdiction in these proceedings, it is clotlied with all the powers necessary to carry the provisions of the statute into full effect. 2 Id. 595, GOS, per "Wuodruff, J. It possesses, therefore, tlie same power to require the contractor to be brought in as a party, as the court of Common Pleas. Id. 577 ; s.c.l Alh. Pr. R. 415. In respect to the jurisdiction of the District Courts, it may be stated, generally, that they possess the same jurisdiction as the Marine Court, except so far as relates to the sum claimed, and the situation of the property ; and except, also, that they have no jurisdiction in proceedings against the mayor and aldermen, &c., of the city of New York. laws of 1S58, p. 569. By the statute of 1851 {p. 953, sec. 4) jurisdiction was given to those courts where the amount claimed did not ex- ceed one hundred dollars. The act of 1857 {a) {vol. 1 p. 708 ; Pub. Acts, f. 211), extended their jurisdiction in actions, generally, to claims amounting to two hundred and fifty dollars or less ; and that extended jurisdiction, no doubt, ap- plies to claims arising under the provisions of this statute. See '2 E. B. Smith, 639 ; Id. 626, 6o0 ; ]S^ott''s lien law, 17; 2 AU. Pr. P. 219. In addition to the restriction of the jurisdiction of the dis- trict courts, above stated, the statute requires that the pro- ceedings to foreclose the lien, must be instituted in the dis- trict court of the judicial district in which the building is situated. laws of lS51,j). 954, sec. 4. Pequisites of Xotice.\ The notice, according to the provi- sioiisof the statute {sec. 4, awte), should require the defendant to appear in the proper court (to be specified in the notice), either in person or by attorney, at a time certain (meaning the hour of the d ly), upi>n some day to be specified in the notice, not less than twenty days from the service thereof, (a) See this act, for the jurisdiction and practice and proceedings, generally, in actions comnaenced in the district court?. 218 LIEN LAW- NEW TOEK CITY. [CH. VII. and submit to an accounting and settlement in sucli coui-t, of the amount due, or claimed to be due for the labor thus per- formed, or the materials thus furnished. For form, see Ajj)- pendix, No. 142. The notice should also contain a sufiScient reference to the alleged lien, 1 E. D. Smith, 687 ; stating the amount of it, and when it was docketed. 1 Code E., N. S. 286. But the statute does not require that the time when the lien was docketed should be stated in the notice ; and, it seems, it is sufficient if it appears on the trial that it was filed and dock- eted within six months after the performance of the labor. 1 E. D. Smith, 689, supra. It should also be stated that the labor had been performed or the materials furnished, though it need not state the time when this was done {a). Ih. The notice should also require the owner to appear, either in person or by attorney, in the court in which the proceeding is instituted ; and it would be irregular to summon him to appear before the clerk of the court. 7 How. Pr. R. 353. If the proceedings are pending in the court of Common Pleas, it should require him to appear at a special term of that court. The name of the contractor should also, it seems, appear in the notice ; though the defect would be waived if the owner appeared and prc^eeded with his defense without making objection. 1 E. D. Smith, 658. " The defendant," s^ys Daly, J., in giving the opinion of the court, " by enter- ing upon the subject-matter of his defence, waived any ob- jection to the form of the notice to appear in court, served under § 4 of the act. He appeared and contested the claim, upon the ground that nothing was due by him to the con- tractor ; and it does not lie with him now to object that he was not notified of the name of the contractor to whom the materials were furnished." li. 659. (ff) Whether the notice should also describe the building upon which the lien has been obtained, other than by a reference to the notice of lien on file with the clerk, qucere? 1 E. D. Smith, 687. CH. VII.] LIEN LAW : NEW YORK CITY. 219 Service of Notice.] The statute requires the notice to he served personally on the owner or his agent, at least twenty days before the time therein specified, in which the defend- ant is required to appear. Laws of 1851, p. 954, sec. 4. It should, in like manner, be served upon the contractor if he has been made a party to the proceedings. See Laws of 185.=i,^. 760, sea. 5. The notice may be served by the plaintiff himself, or by the sheriff", or other person. Sec. 4, supra. The statute does not specify the manner of service, except that it must be personal. In the absence of any more defi- nite rule on the subject, the better course would be to serve the notice in the manner contemplated by Rule 18 of the Supreme Coiirt, in respect to the service of a summons, &c. ; which rule requires the party making the service, if made by any other person than the sheriff", to state in his affidavit of service, when, and at what particular place, he served the same, and that he knew the person served to be the person mentioned and described in the summons, as defendant therein, and also whether he left with the defendant such copy as well as delivered it to him. And see JSfoti's Lien Law, 23. For fi;rm of affidavit of service, see Appendix, JSTo. 157. Bill of particulars also to ie served.'] In addition to the notice required to be served on the defendant or owner, the statute requires that at the time of the service of such notice, or within fifteen days thereafter, a bill of particulars of the amount claimed to be due, shall be served personally on such owner or his legal representatives. Laws of 1851, p. 953. sec. 5. For form of bill of particulars, see Appendix, ISTo. 14--). In drawing the bill of particulars, care must be taken to include all the items of the plaintiff's claim; as he will not be permitted to recover for any work, &c., not included in it. 3 AU. Pr. R. 475 ; s.c.Z K D. Smith, t.22. Proceedings in case of Owner's difault.] In case the owner, or other person notified, shall not appear at the time 220 LIEN LAW: NEW YORK CITY. [CH VTI. and place specified in the notice served, and submit to an accounting in pursuance of the statute, and the proceedings are pending in the court of Common Pleas, on filing with the county clerk, an afiidavit of the service of such notice, and of the default of the defendants to appeal-, the court will order a writ of inquiry to issue, or appoint a referee to assess the damages therein. And the subsequent proceedings are to lie conducted as in other actions pending in that court. Laws q/'1851,jp. 953, secA\ and Laws of l^^o, p. 760, sec. 6. If the proceedings are pending in the Marine Court, or in a district court, a like affidavit of the service of the notice, and of the default of the defendants, must be filed with the clerk of the court ; and the damages must thereupon be as- sessed by the court. Ld. ibid.; and see Laws r^' 1852,^. 471. In respect to the proceedings upon the execution of a writ of inquiry, the practice is stated by Mr. Nutt, in his Treatise {p. 47), substantially thus : The times when the sheriff's jury sit can be ascertained from printed lists issued at the sheriff" 's office. The attorney for the plaintiff, before the time when it will be convenient to take the inquest, must deliver to the sheriff", the writ, order, &c. He should, also, before the in- quest, have prepared an inquisition for the sheriff and jury to sign. The sheriti''s fees are three dollars, and are to be paid at the time of commencing the inquest. After the inquisi- tion is taken, it is to be signed by the sheriff and jury, and the sheriff must attach his seal. And the jury should find a verdict and sign their inquisition, before hearing any other case. Upon the return of the writ of inquiry, or the report of the referee, or the assessment by the court, as the case may be, judgment is to be entered upon the same, and execution may issue for the enforcement of the claim so adjudicated and established, in the same maimer as in cases upon other judgments in said courts. Id. ibid. For form, see Appen- dix, No. 148. And if the contractor was joined with the owner as a de- fendant in the pioceedings, the court upon his default may render judgment against him for the amount which shall be CH. VII.] LIEN LAW : 'SEW YORK CITY. 221 found owing by him, in addition to the judgment provided for against the ownei*. Zaws of 1S55, p. 760, sec. 6. Appearance hy Owner, and Service of Bill of Particulars.] If the owner intends to appear in the action, which he may do either in person or by attorney, a notice of appearance should be given to tlie attorney for the plaintiff. The object of this is the mutual conyenience of the; attorneys, who will thus be enabled to send a stipulation and rule for pleading, and thereby save the trouble and delay of an unnecessary appearance at the special term. See JVoit's Lien Law, 29. If the owner Las any demands which be desires to off-set against the plaintiff's claims, he is leqnired to serve a bill of particulai's of the same upon the plaintiff. Tlie bill of par- ticulai-s should contain all the items of the defendant's set-off; and items not contained in it would not probably be allowed to him. See 3 Abh. Pr. R. 475 ; 5. c. 3 E. D. Sviith, 622. In respect to the extent of the owner's right to set-off, see post, " "What the owner may show in defence." For form, see Ap>- pendix, No. 144. The service of the bill of particulars should be personal, the same as the service of the plaintiff's bill of particulars upon the owner ; and should be made within fifteen days after the commencement of the proceedings against him. Laws o/'lS51,^. 953, sec. 5. But the service of a bill of particulars upon the claimant is unnecessary, to entitle the owner to prove that the work was not done in accordance with the contract, or that the contract has not been performed ; nor is it necessary that a bill of particulars should be served to entitle him to recoup his dam- ages for imperfections in the work. 1 E. D. Smith, 697. It is only when a set-off \b claimed that the defendant is required to serve a bill of particulars. Ih. Appearance of Parties in Court.'] The statute provides that on appearance of both parties in pursuance of the notice served by the claimant, issue shall be joined upon the claims made, and notice of set-off served, and the same may 222 LIEN LAW : NEW YORK CITY. [CH. VII. be noticed for trial and put upon the calendar of said court by either party, and shall be governed, tried, and the judg- ment thereon enforced, in all respects in the same manner as upon issues joined and judgments rendered in all other civil actions for the recovery of moneys in said court. Laws of 1851, f. 953, sec. 8. The above section contemplates an issue to be joined in open court. The practice, however, is, in the Court of Com- mon Pleas, upon the appearance of the parties, and filing the notice to foreclose, and the bills of particulars (claimant's and owner's), to enter a rule requiring the plaintifl' to file a complaint as in an ordinary action, and to serve a (jopy thereof, within ten days, upon the defendant ; and that the defendant in like manner file his answer, and serve a copy thereof within twenty days after the service of the complaint. 1 Code R., N'. S. 230 ; Nott's Lien Law, 31. For form, see Appendix, No. 145. The proceedings then assume in all respects the form of an ordinary civil action, and are in all things governed by the same rules as other civil actions brought fur the enforcement of similar rights. Id. ibid.; and 1 K D. Smith, 626 ; Id. 700. If the suit is brought by a sub-contractor, or other p irty dealing with the contractor, and the owner desires the con- tractor to be brought in as a party to the proceedings, ho may make tlie application for that purpose on the appearance of the parties in court, and without waiting until issue is joined. /5. 699. " And this appears to me," says Woodruff, J., " to be the most convenient practice. The facts are then all before the court, which show the necessity of sum- moning the contractors. The notice of claim filed with the coitnty clerk, the notice to the owner to appear and submit to an accounting, &c., by which the foreclosure is institirted, and the bill of particulars of the plaintiff's claim, and probably, also, the counter-claims set up by the defendant in his bill of particulars, all allow what relation the contractors bear to the controversy, and that their presence is necessary." II. 712. In the Marine and District Courts the parties appear on CH. TIT.] LIEN LAW : NEW YORK CITY. 223 the return day of tlie notice (which is treated like a sum- mons), and the notice and bills of particulars of the parties are then filed. Issue is then joined as in ordinary actions. JVotffs Lien Law, 78. If the defendant desires the contractor to be made a party to the proceedings, the application for that purpose may be made on the appearance of the parties in court ; and both the Marine and the District Courts have the same power to I'equire the contractor to be brought in as a party, as the Court of Common Pleas. 75. y 2^. D.Smith, 577; s. c. 1 AU.Pr.E.^\5. Pleadings.'] The pleadings of the parties are not regula- ted by statute, nor by any express rule of the court. In practice, however, the rules prescribed by the Code of Pro- cedure, in regard to the form of the pleading, determine the pleadings in these proceedings. 1 E. D. Smith, 626 ; JVotfs Lien Law, 31 ; and see 3 E. D. Smith, 657 ; Ld. 677 ; Abb. PI. 36 i, 36i, and notes. 1. CoTTvplaint. The complaint should allege every fact relating to the plaintiff's claim and lien, necessary to be established on the trial to entitle him to the relief sought. Thus, it should aver that the labor was performed and the materials furnished at or before the time when the notice of lien was filed, 2 E. D. Smith, 639 ; that such labor and materials were furnirhed in conformity with the cotitract between the owner and the original contractor, Ld. 55J: ; Ld. 658 ; *. cases, 1 All Pr. E. 319 ; Ld. 322 ; that the defend- ant is the owner of the building, 1 E. D. Smith, 722 ; that the owner or contractor, as the case may be, is indebted to the plaintiff. Id. 626 ; and generally, it should allege all the facts showing not only that the plaintiff has a valid claim for work performed and materials furnished, but also the facts showing that he has acquired a valid lien upon the premises of the defendant for the security of the same. See the cases supra; and see also, 1 E. L). Smith, 626 ; Ld. 722 ; 2 Ld. 639 ; Id. 556 ; s.c.l All. Pr. B. 321 ; 6 E. D. Smith, 677 ; Ld. 657 ; s. c. 4 All. Pr. R. 432 ; and see All. PI. pyp. 362, 363, 224: LIEN LAW- NEW YORK CITY. [CH. VII. mid notes ; Notts Lien Law, 32, 33. For forms, see Appendix, Nos. 146, 147. If the complaint is defective, it may be set aside on motion, for irregularity, 2 E. D. Smith, 5.06 ; s. c. 1 Alh. Pr. JR. 321 ; or if the complaint does not definitely describe the premises, so as to enable the sheriff to determine without donbt the premises to be sold, the defendant may demur, 4 Id. 432 ; s. c. 3 E. D. Smith, 657 ; or when it does not appear how the labor or materials were furnished, the court may require it to be made more definite and certain. 1 Ahh. Pr. E. 319 ; s. c. 2 E. D. Smith, 554. 2. Other Pleadings. The defendant may either answer or demur to the plaintifl''s complaint. And the plaintiff may, in a proper case, reply to the answer. These pleadings are the same in form as the pleadings in ordinary actions under the Code of Procedure. See 1 E. D. Smith, 626, 619 ; 2 Id. 639 ; Nott's Lien Law, 33. Parties to the Proceedings.] By the statute, the claimant and the contracting owner are the only necessary parties to the proceedings. 1 E. D. Smith, 713 ; Id. 719 ; 2 Id. 677, 682 ; s.c.l Abh. Pr. B. 415. Other parties, however, may be brought in at the instance of either party. Thus, the plaintiff, who is a sub-contractor, or an employee or vendor of the contractor, may in the first instance make the contractor a party to his proceedings. And judgment may thereupon be rendered in the suit against the contractor for the amount found owing by him to the plaintiff, in addition to the judgment against the owner. Laws of 1%^^, jj. 760, see. 5. And as the plaintiff may, by making both the contractor and owner parties, secure a judg- ment against the former, though failing as against the latter, it will be found advisable, in most cases, to make the con- tractor one of the original parties to the proceedings. See 2 E. D. Smith, 693. Besides, it would seem to be necessary to have both the contractor and owner before the court in oi-der to do justice. " The lien holder," says "Woodruff, J., " may claim more than is due to him ; and if so, the contractors CH. VII.] LIEN LAW : NEW YORK CITY. 225 are interested, and are the only persons interested, to reduce it. The owner has no interest in that question. The owner may deny that he owes the contractors ; and if so, the con- tractors have even a greater interest than the plaintiff in the determination of ^/^a^ question." * * * "The more my attention is given to this statute, the more I am satisfied that it cannot be rightly administered where the claim is by a sub-contractor or employee, or vendor of the contractors, but by regarding the foreclosure as in the nature of an inter- pleading suit in equity, in which the presence of all three parties is necessary in order to do complete justice." (a) 1 E. D. Smith, 710, 711 ; and see Id. 666 ; and see also, the observations in JVotfs Lien Law, l"i4, 126. And it has been held, therefore, that the contractor may also be brought in as a party to the suit on the application of the defendant, where the plaintiff has not made him a party in the first instance. 1 E. D. Smith, 699 ; 2 Id. 577 ; s. c. 1 Ahh. Pr. R. 415. The plaintiff may also make prior lien holders parties to his proceedings, when he seeks to impeach the validity of their liens, or deny the amount thereof, or allege some higher equity. 1 E. D. Smith, 673 ; Id. 699 ; Id. 664. And he cannot contest a prior lien without becoming himself an actor, and instituting proceedings for tliat purpose. Id. ibid. But prior lien holders will not be made parties on the application of the owner. Id. 704, 713. The owner is pro- tected by the amount of such prior liens being allowed to . him (as sums to be first paid out of the fund in his hands), before he can be required to pay anything to the subsequent claimant. If the plaintiff does not make the prior lien holders parties " he is to be taken to admit the validity and amount of the prior liens, and his own claim will be taken (a) Whether the law would not be unconstitutional if its administration had not been committed to the court with power to make the contractors parties, as a law by which the contractors' property is taken from them without notice and without " due process of law, "qucere ? 1 E. D. Smith, 699, 709, per Woodruff, J. ; and see Notts Lien Law, 124 to 126. 15 226 LIEN LAW : NEW YORK CITY. [CH. VII. to be subordinate to them. And in tbe inquiry whether anything, and how much, is due from the owner, such j)i'ior liens must be taken into view as sums to be first paid out of the funds in His hands." Ih. per "Woodruff, J. ; and see Id. 672. In respect to those who have acquired liens subsequently to the filing of the claimant's notice, it is unnecessary to make them parties to the proceeding. The notice filed by the plaintiff is to have the effect of a lis jyencLena, so far as respects any subsequent change of interest in the property, and as to subsequent liens. And if the subsequent lien holders desire to contest the validity of a prior lien, they must themselves, as we have seen, institute proceedings for that purpose. See supra. The application to add other parties to the proceedings may be made on the appearance of the parties in court, pursuant to the notice to appear ; or at any subsequent stage of the proceedings. 1 E. D. Smith, 719 ; Id. 699. In respect to the manner in which parties shall be brought in. Woodruff, J., in the case last cited, says, " Upon this subject there can be no difficulty in following in substance the former equity practice. An order being made to add the contractors as parties, they can be summoned to answer the plaintiff's complaint with the other defendant already in court ; and, on being served with the order, summons, and complaint, they would be clearly bound to do so, or they could never after complain of any judgment which might be rendered between the claimant and the owner." Id. 713 ; , and see Id. 721. The Marine Court and the District Courts possess the same power to require the contractor to be brought in as a party, as the Couit of Common Pleas. 2 Id. 577; s. c. 1 Ahh. Pr. R. 415. And those courts may make any order which is essential to carry into full execution the jurisdiction which the statute has conferred upon them by authorizing them to entertain these proceedings ; and in this respect it is not material whether the foreclosure be deemed a strictly legal, or an equitable proceeding. Ih. per Woodruff, J. CH. VII.] LIEN" LA"W: NEW YORK CITY. 227 Amendments ; Waiver of Defects, So.] The court haa no power to allow an amendment of the notice of lien, with the view of remedjing a material defect in it. 1 JS. D. Smith, 654, 658. If the complaint, however, contains proper averments, the court will overlook immaterial errors, or sustain an imperfect notice, which was in substantial com- pliance with the statute. Ih. ; and see 4 Abb. Pr. B,. 432. In respect, however, to proceedings to enforce or foreclose a lien, it seums the court will allow amendments to the same extent as in ordinary actions. Id. ibid ; Notfs Lien Law, 44 ; IE. D. Smith, 639 ; Ld. T19 ; 1 Code R., W. S. 285. And in the case of The Lmpire Stone Dressing Co. vs. Picker- ing (cited in Notfs Lien Law, 44), the plaintiff was per- mitted to amend his complaint, and a new tiial was granted after the cause had once gone to trial and been submitted by the counsel. And the court was understood to say, in that case, that inasmuch as the pleadings in lien cases are required by the court, and not by the statute, the court will look upon them with greater leniency than upon ordinary pleadings, and will exercise with respect to amendments, a more liberal discretion. And so, defects in the proceedings to foreclose a lien may be waived by ths parties. Thus, where the notice of fore- closure omitted to state the name of the contractor, it is too late to make the objection after the defendant has entered upon his defence, and contested the claim on the ground that nothing is owing by him to the contractor. 1 JE. D. Smith, 6.58, 659. And so, it seems, a general appearance by the defendant would waive a merely formal error in the notice. Ih. 657 ; and see Id. 722. Notice of Trial, and other Proceedings.} Issue being joined between the parties, the cause is noticed for trial and placed upon the calendar by either party, the sam» as in ordinary actions. Laws o/"1851, p. 953, sec. 8 ; Code of Pro. § 256. And the ordinary practice in respect to the other proceedings, before trial, such as the notice of inquest, 228 LIEN LAW : NEW YORK CITY. [CH. VII. affidavit of merits, note of issue, and the like, is to be pursued. Id. ibid. ; and 1 Code Ji., ^. S. 230. Trial and proceedings, thereon.] Tlie trial is conducted in the same manner, in all respects, as in ordinary actions. It is to be tried, however, by the court. In the Common Pleas the fourth Thursday is set apart for such cases. Notts Lien Law, 220, note. 1. What the claimant must show. In respect to the proof required to be given by the claimant to establish his action, it may be stated generally, that he must prove the same facts vrhich it would be necessary for him to prove to entitle him to recover in an ordinary action for vFork performed and materials furnished ; and also the additional facts showing that he has acquired a valid lien upon the premises as against the owner. The claimant must show the notice of lien, and that the same was properly filed. This is proved by a copy of the original lien, duly exemplified by the county clerk, and his certificate of the filing. The proceeding to foreclose a lien "is a proceeding in rem, i and the very first step in the pro- ceeding, when the parties are brought into court, is to estab- lish a lien, for without that there is no foundation for the proceeding ; there is no lien to foreclose ; there is no claim in which the owner has any interest." 1 E. D. S?mth, 663, per "Woodrufi", J. ; and see JVotfs Lien Law, 48, 49, 50. The claimant must also show the time when the labor was performed, or the materials furnished, so that it may appear that at the time the notice of lien was filed, six months had not elapsed since the performance of the labor or the furnishing of the material*. 1 E. D. Smith, 687. " The time when the labor was performed," says Woodruff", J., " naust appear on the trial ; and it must appear then that the notice of claim was filed within six months next ensuing the performance, &c. And that was shown in this case by the appellant's admission that the work, &c., was done under the employ- ment of a contractor, whose contract was made in August, and the notice of claim was shown to have been filed in CH. VII.] LIEN LAW : NEW YORK CITY. 229 October," 11. 689 ; Id. 696 ;' NoU's Lien Law, 50 ; but see 3 All. Pr. R. 476, per Ingraham, F. J. "Where the work was performed or materials furnished in pursuance of a written contract with the owner or his agent, the claimant is required, also, by the statiite, to produce such contract, or the best evidence thereof in his possession, the validity of which must be established on the trial. Zaws o/1851, ^. 953, sec. 2. And where the labor w^as performed or materials furnished witliout such written contract, the claimant must in like manner produce the best evidence in his possession, to establish the value of such labor or materials, and that the same were used by the owner or his agent, or the original contractor, in the erection, alteration, or repairing of the building in question. Ih. sec. 3. The existence of a contract between the owner and con- tractor must be shown, whether the proceedinijs are instituted by a contractor or a sub contractor, or employee or vendor of the contractor. 1 E. D. Smith, 722 ; 2 Id. 662. The contract, however, need not be express, Id. and note ; though the mere implied contract, which may be inferred by the owner's suffering improvements to be made upon his premises, to pay what those improvements may be worth, with no stipulation or agreement as to their price or character, is not a sufficient contract to enable a material man or laborer employed by the contractor, to acquire a lien under the statute. 11. Where the lien is sought to be acquired for improvements upon the separate estate of a married woman, it seems the contract must be express, and in writing, and executed by both the husband and wife, and acknowledged by the latter upon a private examination, separate and apart from her hus- , band. lb. note', Id. 729. Though where a contract was made by a husband, as agent for his wife, and labor was performed and materials furnished under that contract, upon a building which was the separate property of the wife, — it was held that the labor thus performed, &c., might be the ba?is of an equitable claim against the property benefited, which the court would enforce under the statute. 4 All. Pr. R. 'iT2 \ s. c. 3 K D. Smith, 666 ; and see 21 Barl. 551 ; 22 Id. 371. 230 LIEN LAW : NEW YORK CITY. [CH. VII. And not only must the claimant show a contract between the owner and contractor, but where the claimant is a sub- contractor, or other person dealing with the contractor, he must also show that the labor was performed and the mate- rials furnished in conformity with the terms of that contract. 1 E. B. Smith, &27 ; 7^668; Id. T2,2 ; Id. 12b; 11728; 2 Id. 662. It should also be shown that the defendant is the owner of the building upon which the lien is claimed ; though in the Marine and District Courts, where the notice of lien is in- formally treated as the complaint, if there be in that an aver- ment of ownership which is not denied by the defendant's answer, nor a recovery objected to for want of proof, the judgment will not be reversed, though no evidence of own- ership vs^as given on the trial. 1 E. D. Smith, 722 ; JVott's I/ien law, 50. The claimant must show, also, before he can be entit'ed to recover, that a payment has become due under the con- tract with the owner, (a) 1 F. D. Smith, 717 ; Id. 6i6 ; Id. 668 ; Id. 728 ; Id. 740. And this proof must be given whether the proceeding is instituted by a contractor, or a sub-contractor, or other person dealing with the contractor. Id. ibid. " Is it necessary, then," says Ingraham, F. J., " that the sub-contractor or material man should show that a pay- ment has become due upon the contract before he can recover against tlie owner? or is it sufficient to show merely the existence of a contract between the parties ? If the action had been between the contractor and the owner upon the contract, the contractor, to make out a prima facie case against him, would be required to show the performance of work sufficient under the contract to entitle him to payment. The operation of the lien law is to transfer to tbe sub-con- (a) Whether it is necessary that payments should be due under the contract to entitle the claimant to recover, where the owner himself commences pro- ceedings by giving the notice prescribed by sub-division 4 of see. 11 of the statute, requiring the claimant to foreclose, qimrei See 1 E. D. Smith, 111 ; Id^ 728 ; Id. 740. CH. VII.] LIEN- LAW : NEW YORK CITT. 231 tractor so miicli of tlie contractor's claim against the owner as would be sufficient to pay tlie debt of the contractor to his sub-contractor. It would be but reasonable to reqiiire the same amount of pri^of to recover against the owner for the same debt, whether the suit is brought by one or the other claimant. It is said that this would be requiring the plaintiff to prove a negative. This is not so. It is an afEirm- ative proposition, that there was a contract, and also that a payment has become due upon it." 1 E. D. Smith, 684; s. c. 8 Sow. Pr. R. 209. The same learned judge also remarks in Sauptman v. Salsey (1 S. D. Smith, 669), that " it rests with the plaintiff to make out a case to show that he is enti- tled to recover against the owner. To do this he must show the work done under the contract, for the contractor, and the performance on the part of the contractor, so as to entitle the latter to a payment imder it." And see Id. 722 ; and 12 Wend. 373. But the claimant will not be required to prove that the contractor has not been paid ; and when he shows work done under the contract, and all the days of payment past, the onus is upon the owner to prove actual payment to the con- tractor. "The plaintiff is not bound to negative a possible defence. It is enough that he shows a prima facie right to recover. The statute gives him the lien, and the right to institute proceedings to test ifs extent, and enforce it at any time after his work is done. If payment to the original con- tractor is a good defence to the owner, he must set up such payment in his answer." 1 E. D. Smith, 631, per Woodruff, J. ; and see 1 Hill, ^11, aff. 7 Id. 529. Where the claimant took the note of the contractor for the amount of his claim, and afterwards endorsed and trans- ferred it to a third person, who discounted it, and paid the amount of it to him ; and the endorsee subsequently recov- ered a judgment upon the note against the contractor, upon which execution was issued and returned unsatisfied ; it was held that the claimant could not recover without proof show- ing that he had, by payment to the endorsee or otherwise, become reinvested with the title to the debt. 2 E. D. Smith, 232 LIEN LAW: NEW YORK CITY. [CH. VII. 621. And the mere production of the note at the trial, with an offer to give it up to be canceled, is not sufficient. Ih. 2. What may ie shown in Defence. The defences which the owner has to the plaintiff's claim, are in general the same in effect as those which he may avail himself of in an ordi- nary action commenced for the recovery of the value of the work performed, or the materials furnished. Thus, he may introduce and prove any offsets which he may have to the plaintiff's claim. And where the proceed- ing is instituted by the contractor, he may avail himself of offsets arising out of other matters than those connected with the contract.(a) 8 How. Pr. E. 199; s. c. 1 E. D. Smith, 6!)1. But to entitle the owner to prove offsets claimed by him, he must have served upon the claimant a bill of particulars of the same ; and without such service he would not be per- mitted to avail himself of them. See 3 Alh. Pr. R. 476 ; s. c.Z E. D. Smith, 622 ; Nott's Lien Law, 28 ; and see ante, " Appearance by owner, and service of Bill of Particulars." The owner may also show that the work was not done in conformity with tlie original contract, and that the contract has not been performed, 1 E. J). Smith, 697 ; 2 Ld. 693 ; and also that the contractor abandoned the work before any pay- ments became due. 2 Id. 560; s. o. 1 Abh. Pr. R. 360 ; and see 1 E. D. Smith, 692 ; Ld. 717. And he may, also, recoup his damages for imperfections in the work. Ld. 697; Ld. 739. The owner is also entitled to show as a defence to the proceed- ing, that there are liens upon the premises prior to that of the plaintiff, exceeding in amount the sum due from the owner.(i) (a) Whether the owner iiiaj' set off demands he has against the contractor not arising out of the contract, wlien the action is between the owner and a sub-contractor, or employee or vendor of tlie contractor, quare? See 4 Hill, 193; 6-. c, in error, 1 Id. 526 -,1 JE. D. Smith, 741 ; Id. 692 ; Notts Lien Law, 128. (6) But the owner would not be permitted, in an ordinary action, com- menced by the contrai;tor to recover the amount dne upon the contract, to show, in bar of the action, that mechanics and others had filed notices of claims CH. VII.] LIEN LAW : NEW YORK ClXy. 233 Id. 647 ; Id. 66i ; Id. 666. And if sacli prior liens are less in amoant tlian the sum due from the owner, lie is also en- titled to have the amount of the same allowed to him (as sums to be iirst paid out of the fund in his hands), before he can be required to paj' anything to the plaintiff. Id. ibid ; Id. 673 ; Id. 704. And the plaintiff will not be permitted to contest the validity or amount of prior liens upon the pre- mises, unless he has made the persons holding the same parties to the action. Id. ibid. It is a defence, also, to the claimant's proceedings, that there was nothing due f i om the owner to the contractor at the time the notice of claim was filed. 1 E. D. Smithy 647 ; 1 Sand. 8. C. R. 14. And pa\ ments made by the owner in good faith, before the notice of claim was filed, are also to be allowed to him. Id. ibid ; and see 1 E. D. Smith, 718 ; Id. 739. And so of credits given by the owner to the contractor, in pursuance of a mutual understanding between them, where the credit was given in good faith, and before the notice of claim was filed. Id. 092. And the owner may, also, show in bar of the plaintiff's claim that a judgment of nonsuit, or judgment dismissing the plaintiff's ]>roceedings, or other judgment, has been ren- dered against the plaintiff in a former proceeding to enforce the same hen. 8 How. Pr. R. 207 ; s. c. I E. D. Smith, 682 ; laws of ISol. p. 953, ^ec. 9. He nwyshow also that the plaintiff has not acquired a valid lien upon the premises : e. g., that the notice of lieu was filed after six months from the per- formance. 3 E. D. Smith, t)22 ; s. c. 3 Abb. Pr. B. 475. And if the claimant has made the contractor a party de- fendant, the latter may set up a counter-claim against the plaintiff, and recover judgment for an excess. 6 Abb. Pr. P. 306. And in such case he may avail himself generally of for labor performed and materials faraislied at the request of the contractor. 2 Duer, 354. The remedy of the owner, in such case, /s to institute a cross-ac- tion, making the persons claiming liens parties thereto ; or by a special appli- cation for leave to pay the amount due from him into court, to abide a final decision upon the claims, and for a stay of proceedings in the mean time. lb. 234 LIEN LAW : NEW YORK CITY. [CH. VII. the same defences which would be available to him if he ■were sued for the same matter in an ordinaiy action. Ih. Witnesses, die] The rales of the Code of Procedure in respect to witnesses, their competency and examination, and the examination of parties, apply to these proceedings. Where the proceeding is instituted against the owner by a person furnishing materials under an agreement with the contractor, the latter, though a party defendant, is a compe- tent witness for the plaintiff. His interest, under such cir- cumstances, is balanced between the claimant and the owner. 2 K D. Smith, 590 ; s. c. 2 Ahh. Pr. B. 106. Judgment.'] The statute, as we have seen, authorizes a lien to be created in favor of a contractor, or party dealing with the contractor, upon the house or building, and appur- tenances, and upon the lot of land upon which the same stand, to the extent of the right, title, and interest, of the owner, existing at the time the notice of claim was filed. Laws of 1851, j!?. 953, seo. 1. And by subsequent sections of the statute, in case the party acquiring the lien, proceeds to enforce it, and in such proceedings establishes his claim, judgment shall thereupon be entered in his favor, with the costs of the proceedings. Ih. sees. 7, 8, 9, 10. In addition to the above statutory provisions, it is pro- vided by the act of 1855 {p. 760, seo. 1), that whenever judg- ment is rendered in favor of the claimant, such judgment shall direct the sale of the interest of the owner in the land aiid premises upon which the lien exists, to the extent of the right of such owner at the time of the filing of the notice of lien, in pursuance of the statute ; and that the pro- ceeds of such sale shall be applied to the payment of the costs of the proceeding, and of the amount found to be due to such claimant; and that the residue of such proceeds be paid to the clerk of the city and county of New York, to abide the further order of the court. And when the proceeding is instituted by a sub-contrac- tor, or employee, or vendor of the contractor, and the con- OH. VII.] LIEN LAW: NEW YORK CITY. 235 tractor is made a party to the proceedings, judgment may also be rendered against the contractor for the amount which shall be found owing by him, in addition to the judgment against the owner ; and the court may award costs against such of the parties as shall be just. Laws of 1855, j). 760, seo. 5 ; 6 All. Pr. R. 306. The proceeding to enforce or foreclose a lien, is a proceed- ing in rem, and not in personam. Its primary object is the foreclosure of a lien, as such. 1 E. D. Smith., 626 ; Id. 661 ; Id. 7-10 ; 2 Id. 596 ; 3 Id. 637, 642 ;^ s. c. 4 All. Pr. E. 206 ; II. 208, note. And in administering the statute, the court acts as a court of equity, and can adapt the judgment or decree to the special circumstances of the case. Id. Hid. Where both the contractor and owner are joined as defendants, judgment may be awarded against the former, though the plaintiff may fail as to the latter; so held where the plaintiff, who was an employee and vendor of the con- tractor, performed labor and furnished materials, in pursuance of his agreement with the conti'actor, but which were not in conformity with the contract with the owner. '2, E. D. Smith 693. And judgment, in that case, was awarded in favor of the owners for their costs of suit, and in favor of the plaintiff, against the contractor, for the amount claimed, with interest. II. ; and see 6 All. Pr. R. 306. The judgment must be special, whether the claim arises upon a cun tract between the owner and the contractor, or be- tween the latter and a sub-contractor or other party dealing with the contractor. And no judgment can be awarded against the owner personally, where he is not personally liable by contract to the plaintiff. 2 E. D. Smith, 596 ; Id. QQi:; 6 All. Pr. R. 306. And therefore a personal judgment cannot be obtained against him where the proceeding is insti- tuted by a sub-contractor, or other person dealing with the contractor, (a) Id. Hid. The judgment against the owner (a) If a personal judgment is entered against the owner, it will be reversed on appeal. Such error, however, applies to the form of the judgment, and 236 LIEN LAW : NEW YORK CITY. [CH. VII. is a judgment against his right, title, and interest, in the premises, at the time the notice of claim was iiled ; thongh if he is iiersonally liable to the plaintiff for the debt, a decree over against him may be made to cover a deficiency, in case there should be any. Id. Hid ; and see Id. 657. The proceeding to enforce a lien, being analogous to a pro- ceeding to foreclose a mortgage, the judgment, in form, should direct a sale of the ov^ner's interest in the specific premises upon vrhich the lien exists, to the extent of his right, title, and interest, at the time the notice of lien w«s filed, and should provide that the proceeds be applied to the payment of the costs, and the amount found due, with interest ; that the residue of such proceeds, if any, be paid to the county clerk, to abide the further order of the court ; and that in case of a deficiency, if the owner is personally liable ior the claim, the sheriff certify the amount in his report of sale; and that the claimant have execution therefor. 2 E. D. Smith, 657; and see Id. 664; Id. 673; 4: Ahh. Pr. R. 205, 208, note ; 2 Duer, 613 ; Laws of 1855, p. 760, seo. 1. And if the claim is in favor of a sub-contractor, or other party dealing with the contractor, and the contractor is a paity to the action, the judgment should direct a sale of the right, title, and interest of the owner in the premises on the day the lien was filed, and that the proceeds to the extent of the lien, or the amount due from the owner, be applied to the satisfaction of the plaintiff's claim, and costs, and if there is a deficiency, that the plaintiff have execution against the Contractor for the same. See Id. ibid.; 2 £. D. Smithy Q-^k ; and see 6 Abb. Pr. R. 306. Where the owner deposits a sum of money equal to the amount claimed, with the clerk of the county, under the eleventh section of the statute {post), it seems a judgment in the usual form, directing a sale of the owner's inteiest in the property, would be erroneous. 2 U. P. Smith, o39. And whether, in such case, the judgment should be against the may be remedied, by tlie entry of a proper judgment, where it appears tlie claimant is entitled to it. 2 £. D. Smith, 664 ; Id. 639. en. VII.] LIEN LAW : NEW YORK CITY. 237 owner personally, or whether it should direct only that the money thus deposited be paid to the plaintiff, was not deter- mined by the court. Ih. The plaintiff's judgment will be limited to the amount claimed by him in his notice of lien, with interest and costs. 1 E. D. Smith, 671. Effect of Judgment.'] If judgment is obtained by the claimant against the owner, and is paid by the latter, such payment will operate, under the statute, as a payment to the amount thereof, to the contractor. Laws o/"1855,^. 760, sec. 4. And if a sale of the owner's interest in the premises takes place under the judgment, the whole of such interest will pass thereby, without any right of redemption to such owner. 4 Ahi. Ft. E. 205 ; s. c. 3 E. I). Smith, 642. If judgment, however, is rendered against the claimant, the effect of it will be, to discharge the lien ; and this will be so whether the judgment is a judgment of nonsuit, or dismis- sal of the plaintiff's proceedings, or other judgment. 1 Id. 682; s. c. 8 Sow. Pr. R. 207. The failure, however, to recover against the owner, will not deprive the claimant of his demand against the contractor. Ih. "■to" Transcript of Judgment.'] The statute provides that a transcript of every judgment rendered, headed " Lien Dock- et," shall be furnished by the clerk of the court, or the justice, to tlie successful party, who may file the same with the county clerk, whose duty it shall be to enter the name of the court and the amount of the judgment, or where judgment is against the claimant, the word " discharged " under the last head in his docket. Laws ofl^^\,p. 953, sec. 9. The transcript and docket should be special, showing that the judgment directed the sale of the owner's interest in the premises, existing at the time the notice of lien was filed, &c. ^K B.Smith, 673. Execution.] The statute provides, in effect, that execution may issiie to enforce the judgment, in the same manner as 23S LIEN LA.W: NEW YORK CITY. * [CH. VII. upon judgments in ordinary actions {a). Laws of 1851, p. 956, sees. 7 and 8. It is settled, however, that the execution, like the judg- ment, must be special, and must direct the sale of the owner's interest in the land and premises upon which the lien exists, at the time the notice of lien was filed ; and that the proceeds of the sale be applied to the payment of the amount found to be due to the claimant, with interest, and of the costs of the proceedings, and that the residue of such proceeds, if any, be paid to the clerk of the county, to abide the further order of the court, and that in case of a deficiency, the sheriff certify the amount in his report of sale. 2 M I). Smith, 673 ; 1 Id. 626 ; and see ante, p. 234, " Judgment." And it would be irregalar fur the execution to direct the sale of the property, instead of the owner's interest therein. Id. ibid.; and 4 Abh. Pr. R. 205, 208, note ; s. c. 3 E. D. Smith, 037. If the judgment is rendered by the Marine Court, or by a district court, a transcript of such judgment should be ob- tained, and filed with the coimty clerk, who will thereupon issue an execution, for the enforcement of the same. laws of 1851,^. 955, sees. 7, 8, 9 ; and see 2 K D. Smith, 673 ; Code of Pro. §§ 68, 63, 64, sub. 13. Sale of the Premises, (&o.] The sheriff is only authorized to sell the owner's interest in the premises ; and where he sold the projpeHy described, and not the owner's interest, a re- sale of the premises was ordered. 4 Abb. Pr. P. 208, note ; and see lb. 205 ; s. c. 3 E. D. Smith, 637, 642. In all sales under judgments in these proceedings, the interest of the owner is to be sold subject to any prior lien existing thereon, unless the claimants under such liens are made parties tothe proceedings ; in which case the court must (a) Whether under the legislative Interpretation of the lien law, contained in the act of 1855 (p. 760), the judgment directing the sale of the owner's interest is not of itself a sufficient warrant for the sale, without the necessity of issuing an execution, when no costs or other moneys are due from the defendant per- sonally, giimre ? 3 E. D. Smith, 687 ; s. c. i Abb. Pr. B. 206. CH. VII.] LIEN LAW: NEW YORK CITY. 239 settle the riglits of the claimants. Laws of 1855, p. 761, sec. 4. But it is not necessary to sell subject to mortgages, or other incumbrances. 3 E. D. Smith, 612, swpra. Hedemption from Sale on Execution.] The owner has no right of redemption from the sale under the execution in these proceedings ; and the provisions of the Revised Statutes (2 Ji. S. 370), allowing the redemption of real estate sold on execu- tion, do not apply to sales under this statute. 4 Abb. Fr. R. 205 ; s. c. 3 E. D. Smith, 637 ; Id. 642. The sale of the premises on the foreclosure of the lien, is an absolute sale, as in case of the foreclosure of a mortgage, of all the interest of the owner. Id. ibid. Application for Moneys deposited with the Clerk.] The statute having directed the residue of the proceeds of the sale of the premises under a judgment in these proceedings to be paid to the clerk of the city and county of New York, to abide the further order of the court, the owner may apply to the Court of Common Pleas for an order directing the clerk to pay to him the proceeds of such sale, so paid to the said clerk, upon producing the certificate of such clerk that there are no liens docketed in his office against or aifecting the said premises which have been filed under the statute. Zaios of 1855, p. 760, sees. 1, 2. And if it appears there are other liens on file with such clerk, aflfecting the premises, notice of such application shall be given to the claimants respectively, filing the notices creating such liens; and thereupon the said court shall distri- bute such proceeds among the parties entitled thereto, accord- ing to their respective rights and priorities, and may order a reference to take proofs in relation to such rights and priori- ties, lb. sec. 3 ; a?id see Fott^s Lien Law, 72. Costs.] The statute directs costs to be allowed in these proceedings, upon the same principles, and by the same rules 240 LIEN LAW : NEW YORK CITY. [CH. VII. as they are now allowed by statute in civil actions for the recovery of money ; and they are to form a part of the jiidg- ment recovered in the same. Laws o/"185l, j>. 953, sec. 10. The costs are not recoverable until the service of the no- tice to foreclose the lien, 1 Code R., JV. S. 230 ; and when allowed, are the same as in an ordinary action, in which judgment upon failure to answer, can only be taken on ap- plication to the court. In reference to costs in ordinary actions, see Code of Pro. §§ 304 to 309. [a) An extra allowance will not be granted in these proceed- ings, where the plaintiif's damages have been assessed by a sheriff's jury after the defendant's default. Such assessment is not a " trial," within the meaning of § 308, of the Code. (&) 4 All. Pr. E. 262; s. c. 3 E. D. Smith, 648. ISTor do the proceedings to foreclose a lien under the statute constitute an action " for the foreclosure of a mortgage," or " procetdings to compel tbe determination of claims to real property," within the meaning of that section. Id. Hid. In re«pect to motions in these proceedings, the costs are allowed, in the discretion of the court or judge, the same as in actions. See Voorhies' Code of Procedure, sec. 315, and note. Where the owner moves to bring the contractor in as a party to the proceedings, it seems that in granting the order the court will not charge the pluintiff with costs. 1 E. D. Smith, 719. If the owner and contractor are both made defendants, the court may award costs against such of the parties as shall be just. Laws of 1855, p. 760, sec. 5. And the owner, it seems, where the proceeding is institu- ted by a sub-conti'actor, or other party dealing with the con- tractor, will not be compelled to pay costs, when it appears that the whole sum due from him to the contractor, is insuffi- (a) See, however, in respect to costs in the Marine Court, and the District Courts, Laws of 1853, p. 1165; Laws of 1857, vol. 1, p. Hi, sees. 67, etc.; Pub. Acts, p. 227. (6) But under the recent amendment of § 808, the power to grant an extra allowance where " a trial has been had," in an action " for the recovery of money," is abolished. Zaws of 1847, vol. ii. jo. 658. CH. VII.1 LIEN LAW ■ NEW YORK CITY. 241 cient for that purpose; though it might be otherwise, in respect to costs made or incurred in consequence of improper litigation produced by the owner himself. See \ E. D. Smith, 626 ; 2 Id. 536, and note ; Id. 644/ hut see Nott^ s Lien Law., 53 to 5S. " The court have repeatedly intimated," says the learned reporter to 2 E. D. Smith H. {p. 536, nole, supra), " that this proceeding is an equitable proceeding, and to be so treated, and that where the words ' other civil actions for the recovery of moneys,' are used in the statute, like actions, or actions for the recovery of moneys secured in a similar manner, are intended ; and if so, it would seem that section ten of the act, which subjects the allowance of costs to 'the same rules,' and makes them depend upon ' the same prin- ciples,' leaves the costs to be disposed of according to the same discretion and control, in respect to the party who shall be charged with the payment, and in limiting the recovery thereof from the owner to tlie amount of the fund in his hands, and in adjusting the matter, as between the owner and the contractor, when the latter is made a party, and the like, as in other equitable actions for the recovery of moneys, foreclosures, &c., addressed to the court as a court of equity. As in the case of a foreclosure against a purchaser, subject to a mortgage, if the property will not produce an amount suffi- cient ti;i pay the mortgage deht and costs, the plaintiff recov- ers no costs from the defendant, unless they are imposed by the court as a penalty for his groundless litigation, and yet the plaintiff takes a judgment or decree against the property for his debt and costs." "Where the owner, after the notice of claim was filed by the sub-contractor, retained the amount claimed, and on proceed- ings to foreclose the lien, interposed no obstacle to its collec- tion, and suffered a default to be taken against him ; but the contractor, on the return-day of the notice, having been made a party to the proceedings, at his own request, whereupon a protracted litigation ensued between the claimant and the contractor, — it was held that the owner should not be charged with the costs of the litigation between the claimant and the 16 243 LIEX LAW : NEW YORK CITY. [CH. VII. contractor, to determine in effect the right as between them to the money held by the owner. 2 E. D. Smith, 6i4. And the owner's omission to pay the money into court, or to the county clerk, in discharge of the lien, will not operate in such case to charge him with the costs of the litigation. Ih. But the amount of the claim, with costs against the owner, as upon failure to answer, are chargeable against the property, and should be decreed to constitute a specific lien thereon. Ih. And the payment of the claim to the county clerk, under the eleventh section of the statute {post), does not neces- sarily relieve the owner from liability for the costs of the proceeding ; so held, where the owner, in proceedings against him by a sub-contractor, after the service upon him of the notice to foreclose the lien, made such payment, and failed to appear on the day designated in the notice, whereupon the plaintiff issued a writ of inquiry, and entered judgment on . the return thereof, against the owner for the amount of his claim and costs. Id. 536. Appeals.'] An appeal may be taken from the order or judgment of the court in these proceedings in the same cases, and with like effect, as in ordinary actions ; and is to be gov- erned by the rules and regulations applicable to appeals in such actions. See Laws of 1851, p. 953, sec. 8. III. Miscellaneous Proceedings. Proceedings hy Owner to compel Commencement of Fore- closure.] The statute in effect authorizes the owner to serve upon the claimant a notice requiring him to commence an action for the enforcement of his lien, on or before a certain hour or day to be specified in such notice ; and the lap=e of thirty days thereafter, without any affidavit from the claim- ant being filed of the service of the notice commencing such foreclosure, will, upon filing with the clerk an affidavit of the service of the notice to commence the action and of the omission of the claimant to file an affidavit of the service of CH. VII] LIEN LAW: NEW YORK CITY. 243 the notice commencing the same, discharge the lien, (a) Laws of 1851,^. 953, sea. 11, sub. 4. "Whether the hour or day specified should be at least thirty days in advance of the service of the notice, or whether it may be at any time subsequent to such service, and the terms " thirty days thereafter," apply to the time thus specified, is not clear from the statute. Mr. Nott, in his Treatise (_^j?. 25, 27), assumes that the latter is the proper- construction, and such seems to be the literal meaning of the section ; though the former construction "would be the fairest towards the claimant, while the effect upon the owner would be the same in either case. Mr. ISTott, also intimates (ji?. 27), that the words, " on or before a certain hour," refer to some hour of the day of the date and service of the notice ; but a more liberal and convenient construction would be to apply that language not only to the day of the date and service of the notice, but to any subsequent day which the owner might designate ; and there is nothing in the language of the sec- tion forbidding such a construction. The effect of notice by the owner requiring the claim- ant to foi-eclose his lien upon the rights of the claimant, where his claim is not jet due, has not been determined by the court. See 1 E. B. Smith, 717 ; Id. 728 ; Id. 740, 745 ; and see JVoWs Hen law, 25, 93, 94. For form of notice and affidavit of service, see Appendix, Nus. 149, 150. How long Lien to Continue.] It is provided by the stat- ute tbat every lien created under the first section of the act shall continue until the expiration of one year from the crea- tion thereof, and until judgment rendered in any proceedings for the enforcement thereof. Laiosofl^b\,jp.QbZ,sec.ll, (a) Whether the contractor, where payments due to him are stopped by the claimant's proceedings to obtain a lien, may not require the owner to give the claimant notice to commence the foreclosure of his lien, — quaere ? 1 E. D. Smith, SYl ; M. 656, and note. If, in such case, the claim is unjust, and is not enforced undei" the statute, the contractor, it seems, may, at any rate, invoke the equitable jurisdiction of the court to compel an inquiry into its validity and amount. Id. ibid. 241 LIEN LA^¥■• NEW YORK CITY. [CH. VII- stib. 3, and sec. 12 ; and see 1 E. B. Smith, 740 ; 6 Abb. Pr. B. bi9; and post, "How lien Discliarged." Order in which Liens are to le Paid.] The liens are to be paid according to the priority of notice filed with the county clerk. 1 M D. Smith, 672 ; and see Id. 664 ; Id. 666 ; Id. 699. And where the claimant desires to contest a prior lien, either by denying its validity or amount, or averring that although it be first in time, it is subordinate in equity, he must do so by becoming hiinself an actor and instituting proceedings against the lien holder for that purpose. Id. ibid. Uoio Lien Dls( hj7'gfd.'] The lien maybe discharged as follows : 1. By filing a certificate of the claimant or his successors in interest, acknowledged or proved in the same manner as the satisfaction of a mortgage, stating that the lien is discharged (3 E. L). Smith, 633) ; or, 2. By the deposit with the clerk of a sum of money equal to the amount claimed, which money shall thereupon be held subject to the lien; or, 3. By an entry of the clerk made in the book of liens, after one year has elapsed since the filing of the claim, stat- ing that no notice has been given to him of legal steps to enforce the lien (6 Abb. Pr. P. 99) ; or, 4. By an affidavit of service of a notice from the owner to the claimant, requiring him to commence an action for the enforcement of his lien, on or before a certain hour or day specified in said notice, and the lapse of thirty days there- after, without any affidavit from the claimant being filed of the service of the notice required in section four. 5. By satisfaction of the lien, upon an action for the enforcement thereof. Laws riflSol,])- 953, sec. 11. The lien will also be discharged by a judgment of non- suit, or other judgment against the claimant, in proceedings commenced by him to enforce the lien, 1 E. P. S/tdik, 683 ; s. c. 8 How. Pr. P. 207 ; and it is the duty of the clerk of the county, in such case, to enter the word " discharged," CH. VII.1 LIEN LAW : NEW YORK CITY. 2i5 under the last head in his docket. Ly Laws of 1850, p. 326), a lien law was passed for the county of Richmond ; by the act of 1851 {chap. 169, p. 319), a like law was passed for the coimties of Ulster, Westchester, and Putnam, and which was afterwards extended to the coiinty of Kensselaer {Laws of 1853,^. 129) ; but the last three counties were subsequently brought within the provisions of other statiites {Laws of 1S52, p. 611, ai^d Laws of 1&54:, supra); by the act of 1852 {chap. SSi, p. Gil ; amended, Laws of 1853, p. 809), a like statute was passed for the counties of Chemung and Eensselaer, and also for the counties of "Westchester, Putnam, Dutchess and Rockland, CH. VII.] LIElf LAW : GENERAL ACT. 247 and the town of Newburgh (county of Orange) ; but the town of Newburgh and the four List-named counties were afterwards brought under the act of 1854 ; and by the act of 1853 (chaj). 335, f. 708), a like lien law was passed for the county of Kings. But by the acts of 1854 and 1858, the laws relating to the cities and counties, &c., above mentioned, except so far as they relate to the city of Buffalo (a), are repealed, and those statutes are substituted for them ; and thus, a general lien law is established for all the counties of the State, except the city and county of New York (which, as we have seen, is already provided with a similar law), and except the county of Erie. I. Proceedings to Create a Lien. In 'what cases a Lien may he created?^ The statute provides in effect, that any person who shall perform any lahor in erecting^ altering, or repairing any house, building, or appur- tenances to any house or building, in any of the counties of this State, except the counties of New York and Erie ; and every resident of either of those counties, except as aforesaid, who shall furnish any materials therefor, — shall, on tiling with the town clerk of the town in which the property is situated, the notice prescribed by the statute, have a lien for the value of such labor and materials, upon such house or building and appurtenances, and upon the lot, parcel, or farm of land upon which the same shall stand, to the extent of the right, title, and interest of the owner of the property existing at the time of filing the said notice. Laws of ISai, p. 1086, sec. 1; Laws ff 185S, p. 324:. In respect to the cases generally in which a lien may be acquired, see the ISTew-York law, ante, p. 198, under the same (a) See thelaw now applicable to the city of Buffalo, — Laws of 1844, chap, 305, in 2 R. S. ith ed. 740; Laws 0/1851, p. 745; and see Nott's Lien Law 157. 214. 2i3 LIEJSr LAW: GENERAL ACT. [CH. VIL head, which is no doubt applicable to the proceedings under this statute. By whom it may he created.'] The right to acquire a lien under the law relating to the city and county of New York, is confined, as we have seen {ante, p. 200), to the original contractor, and his sub-contractor or employee, or person furnishing materials. Under the statute, however, here considered, any person performing labor upon the building or appurtenances, and aM.yj?eraow furnishing materials for the same, may acquire a lien; tliouuh in respect to persons furnishing materials, the statute requires that such persons must reside within th'e county where the building is situated. {a) Laws of 1854,^. 1086, sees. 1, 5, and 6 ; Laws of 1858, p. 324. The right to acquire a lien is personal, being confined to the party performing the labor, or furnishing the materials ; and therefore, an assignee of a claim for work performed, or materials furnished, cannot acquire a lien under the stat- ute. See 4 AU. Pr. R. 263 ; «. c. 3 E. D. Smith, 632. The " assignee" referred to in sections two, three, five and six, is an assignee performing labor or furnishing materials. Against whom it may ie created.] The lien is to be ac- quired against the owner of the house or building, and appur- tenances to any house or building, upon which labor is per- formed, or materials furnished. Laws of 1854, p. 1086, sec. 1. And see generally on this subject, what is said ante, p. 200, under the same head, in reference to the New- York law, which is applicable to the proceedings here considered. Extent of Owner's Liability.] The statute provides that the owner of the building and premises shall be liable to the (a) Whether it is not sufficient that the pei'son furnishing materials is a resident of any one of the counties over which the act extends, qucere? See Laws of 1854, p. 1086, sees. 1, 5, and 6 ; and Nott's Lien Law, 199. CH. VII.] LIEN LAW: GENERAL - ACT. 249 party having a lien for the value of tlie labor an 1 materials furnished, to the extent of the right, title and interest of such owner in the house or building and appurtenances, and the lot, parcel, or farm of land upon which the same stand, exist- ing at the time the notice of lien is filed. Laws of 1854, p. Iii86, sec. 1, But whenever the labor performed and materials fur- nished shall be upon the credit of any contractor, who shall have made a contract therefor with the owner of the prop- erty, or upon the credit of any sub-contractor, or the a&signee of any contractor, the provisions of the statute shall not oblige the owner of the property to pay for or on account of any labor performed or materials furnished for such house, building, or appurtenances, any greater sum or amount than the price stipulated and agreed to be paid therefor in and by said contract. Ih. sec. 2. The statute, however, contains an exception to the limita- tion of the owner's lial lility above stated ; and in this respect is unlike the statutory provisions relating to the city and county of New York. The third section provides, that if the owner of any building altered or rej>aired by contract shall pay to any person any money on such contract by collusion, for the purpose of avoiding the provisions of the statute, or before the right of any claimant to file a notice of lien has expired, or in advance of the terms of any contract, and the amount still due the contractor or his assignee after such pay- ment has been made, shall be insufficient to satisfy the de- mands made in conform^ to the provisions of the. act, the owner shall be liable to the amount that would have been due and owing to said contractor or his assignee, at the time the notice of lien is filed, in the same manner as if no such payment had been made. Ji. sees. 2, 3. It is also further provided by sections seventeen and twenty (p. 1090), — making another variation from the Kew-York law, — that if judgment is rendered in favor of the claimant and docketed with the county clerk within one year after the notice of lien is filed, the judgment shall thereupon be a lien upon the real property of the person against whom it is 250 LIEN LAW • GENERAL ACT. [CH. VIL obtained, to the extent that other judgments are now made a lien thereon, and that if a transcript of such judgment is docketed in the other counties of the State, it shall in like manner be a lien upon the property of the defendant situated in those counties, to the same extent as other judgments. Thus, it seems, a liability may be created against the owner in favor of a sub-contractor, or other party dealing with the contractor, as well as in favor of the contractor himself, to the extent of the owner's interest in any real property situated within the State. In respect to the owner's liability under the New-York law, which is identical with this, except as above stated, see under the same head, ante, p. 203. Extent of the Lien.'] The claimant's lien extends only to the right, title, and interest of the owner iu the house or build- ing and appurtenances, erected, altered, or repaired, and in the lot, parcel, or farm of land upon which the same stand, existing at the time the notice of lien was filed. Laws of 1854, p. 1086, sec. 1. In respect, however, to the lien of the claimant's judg- ment, when obtained against the owner, it may, as we have seen, be made to extend to all the real property of the owner, situated within the State. See further on this subject, ante, p. 207, under the New- York law, which is substantially the same as this statute. Hoio Lien created.'] The lien i^reated by the contractor, sub-contractor, laborer, or persons furnishing materials, serv- ing the notice prescribed by the statute, upun the town clerk of the town where the property is located, within thirty days after the performance and completion of the labor, or the final furnishing of the materials. Laws of l^o-^, p. 1087, sec. 4. In respect to the New-York law, see ante, p. 208. But no lien will attach to the building, &c., unless the notice is filed by the clerk ; and when filed, the notice is thereafter to operate as an incumbrance upon the property. Sec. 4, svpra. CH. VII.] LIBIT LAW: GENERAL ACT. 251 Requisites of the Notice of Zien.] The notice of lien is required by the statute to be in writing, and must specify the amount of the claim, and the person against whom the claim is made, the name of the owner of the building, and if in a city or village, the situation of the building by street and number, if the street be known. Seo. 4, supra. The notice, also, if the claimant is a person who has fur- nished materials, sliould show tliat such claimant resides in the county where the building is situated. See ante^ p. 248, and note. It should also state the name of the claimant, and whether he is a contractor or sub-contractor, or assignee or laborer, or person furnishing materials. See \ E. D. Smith, 716 ; Notfs Lien Law, 10. The notice, also, should show, that the labor was performed or materials furnished in building, or altering or repairing, the house or building and appurtenances, and the town and and county in which the same is situated. And it should describe the premises with reasonable certainty, and if they are situated in a city or village, the street and number should be given, if the street be known. Laws of 1854, ^. 1086, sec. 4. As the statute requires the notice to specify the ami:)unt of the claim, the omission to state any sum as due to the claimant, would no doubt render the proceedings to acquire a lien, illegal and void. And the claimant should, also, be careful to state in the notice, the whole amount due to him ; as his subsequent recov^y would be limited to the amount there claimed. See 1 E. D. Smith, 671. In respect to the 'other matters expressly required to be stated in the notice, the statute, as we have seen, requires the notice to specify the " person against whom the claim is made," "the name of the owner of the building," and " if in a city or village, the situation of the building by street and number, if the street be known." Sec. 4, suj/ra. And in these respects the statute is substantially like that relating to the city and county of New York, as to which see ante, p. 211. Eor forms of notice, see Appendix, Nos. 152, 153. 232 LIEN LAW : GENERAL ACT. [CH. "V:il. In order to tlie acquisition of thelien, the statute must be strictly pursued. See 2 E. D. Smith, 611. And the court will not, in the subsequent proceudings to enforce the lien, disregard or amend any defect in the notice to be filed, which is made by the statute a matter of substance. See 1 E. D. Smith, 654. Duty of the Town Cleric] The town clerk is required by the statute to enter the particulars of the notice of lien in a book to be kept in his office, to be called the " Lien Docket," which is required to be suitably ruled in colunans headed " Claimants," " Against whom claimed," " Owners," " Build- ings," " Amount claimed," " Date of the filing of the notice, hour, and minute," and " "What proceedings have been had." sec. 4, ^wpra. The names of the owners and persons against whom the claims are made, are to be entered in the book in alphabeti- cal order. lb. At the time of filing the lien, a fee of ten cents must be , paid to the clerk. lb. And no lien will attach to the land, buildings, or appur- tenances, unless such notice be filed by the clerk ; and the notice, when filed, is thereafter to operate as an incumbrance upon the property, lb. II. PToceedings in Courts of Record to- enforce Liens. Action to be commenced?^ The statute provides, in eff'ect, that any contractor, sub-contractor, or laborer performing any work, or assignee thereof, and any resident of the county in which the building is situated (see ante, p. 2-1:8, and note) furnishing any materials therefor, may, after such labor has been performed, or materials furnished, and after the service of the notice of lien above-mentioned, bring an action to enforce such lien. Laws of 1854, p. 1087, sec. 6. Within what time the action to be commenced.] The pro- CII. VII.] LIEN LAW : GENERAL ACT. 253 ceedings to enforce the lien must be commenced within one year from the time the notice of lien is filed. Ih. 1091, sec. 20. The owner, however, or the attorney or agent of the owner, may serve npon the claimant a notice requiring him to commence an action for the enforcement of his lien, within twenty days after the service of such notice. For form, see Appendix, No. 173. And if such notice is given the action must be commenced within the time mentioned in the notice ; or, upon filing with the town clerk an affidavit of the service of the notice, and of the claimant's omission to commence such action within the time required, the lien will be dis- chai'ged. II. 1092, sec. 2'!, suh. 4. For form of affidavit, see Appendix, Ko. 174. The like notice may also be served by the contractor of the ownei-, or a sub-contractor, and with the like efl^ect in all respects [sec. 23, sub. 4, supra); and in this and other respects, the statute is unlike that relating to the city and county of New York. See ante, p. 243, and note. The claimant, may instantly, however, on filing his lien, if he is in a position to demand relief, institute proceedings to enforce the same. See under the same head, ante, p. 2i5, in reference to the New- York law. The Courts and their Jurisdiction. '\ The courts having jurisdiction of the action to enforce the lien, are the Supreme Court, the county courts, and justices' courts. Laws of 1S54, p. 1087, sees. 6, 8. In the Supreme Court and the county courts, the amount of the lien must exceed fifty dollars. In the justices' courts, the amount may be one hundred dollars or under. Id. In respect to proceedings in justices' courts, Bedpost, p. 263. In the Supreme Court, or the county courts, the action must be brought in the coimty where the property is situ- ated. Sec. G, supra. In justices' courts, the action must be brought in the town where the prop erty is situated. Sec. 8, supra. And for the purjjose of more effectually transacting the business contemplated by the statute, the Supreme Court 254 LIEN LAW : GENERAL ACT. [CH. VIL and the county courts, are deemed to be always open. Sec. 6, supra. For the jurisdiction of the courts under the New-York law, see ante, p. 216. Parties to the Proceedings.'] By the statute, the claimant and the owner are the only persons who are required to be made parties to the action ; though no doubt others may be brought in as parties, at the instance of the claimant or the owner, and to tbe same extent as under the New- York statute. The statutory provisions under consideration, are sub- stantially the same in respect to the parties to the proceed- ings, as were those relating to the city and county of New York, prior to the amendment of 1855. And under the New- York statute, prior to that amendment, it was the constant practice, where the proceeding to foreclose was instituted by •a sub-contractor, or other party dealing with the contractor, to unite the contractor as a party to the proceeding. His presence was said to be necessary in order to do complete justice, 1 E. D. Smith, 710, 711 ; and he was made a party on the application of the claimant as well as the owner. lb. / and see Id. 713 ; Id. 719 ; Id. 699 ; JSTolfs Lien Law, ISi, 126 ; and see ante, p. 224. The claimant, also, under the New- York statute, was permitted to make prior lien holders parties to his action, with a view of enabling him to impeach the validity of their liens, or to deny the amount of them, or to allege some higher equity in his own favor. 1 E. D. Smith, 673 ; Id. 699 ; Id. 664. The amendment of 1855 affirmed the powers thus exercised by the court, and in respect to the contractor, authorized a judgment to be rendered against him when he was made a party defendant, for the amount due from him to the plaintiff, in addition to the judgment against the owner. Laws of 1855, p. 760, sees. 4, 5. The latter provision, authorizing a judgment against the contractor, cannot, of course, apply to the statute under consideration ; though in other respects, the practice under the New- York law, relating to the parties to the action, can CI-I. VII.] LIEN LAW : GENERAL ACT. 255 properly be made to apply to the statute here considered. See the practice under the New-York law, ante, p. 224. The Plaint'ff''s Notice and Bill of Particulars.] The action is commenced by the service of a notice, containing a statement of the facts constituting the claim, and the amount thereof, on the owner of the property, or his agent, requiring the owner to appear in person or by attorney, within thirty days after such service, and answer the same, and to serve a copy of such answer, together with a notice of any set-off that he may have, on the claimant or his attorney ; or in default thereof that the claimant will take judgment against the owner for the amount claimed to be due for the labor performed, or the materials furnished, with interest thereon and costs. Laws of 1854, f. 1087, sec. 6. For forms of notice, see Appendix, Nos. 154, 155. The claimant must, also, at the time of the service of the notice, serve upon the owner or his agent, a bill of particulars of the amount claimed to be due from the owner, his con- tractor, or sub-contractor, verified by the oath of the claimant or his attorney to tiie effect that the same is true. Ih. 1089, sec. 10. For form, see Appendix, No. 156. The bill of particulars should contain all the items of the plaintiff's claim ; and he will not be permitted to recover for work performed or materials furnished which are not included in it. See 3 AU. Pr. R. 475. How served.] The notice and bill of particulars must be served personally upon the owner, or his agent, unless by reason of absence from the State, or being concealed therein, personal service cannot be made ; in which case, the service may be made by leaving a copy of the notice and bill of particulars at the owner's last place of residence, and publish- ing a copy of the notice for three weeks successively in a newspaper published in the county where the property is situated. Zai.vs of 1854, p. 1088, sees. 9 and 10. For forms of affidavits of service, personal and by publication, see Appendix, Nos. 157 to 159. 2S6 LIEN LAW : GENERAL ACT. [CH. VIL The statute does not indicate tlie number of times per week tlie notice is to be published ; though a single publica- tion, each week, would no doubt be sufficient. If the notice is served by publication, the thirty days in which the defendant is required to appear and answer, would commence to run from the date of tlie first jjublication of the notice. Sec. 9, supra. Entry to he Made in Lien Docket, of Commencement of Action.] To save the plaintiff's rights, and prevent the equi- ties of third parties arising, the plaintiff should, after his action is commenced, cause a pi-oper entry to be made in the lien docket of the town clerk, showing the commencement of proceedings to enforce the litu. Proceedings in case of Owner'' s Default.'] In case the owner shall not appear, as required by the notice to enforce the lien, then on filing with the county clerk, when the action is brought in the Supreme Court or county court, an affidavit of the service of the notice and bill of particulars, and of the failure of the owner to appear as therein required, the county clerk or the court, as the c&se may be, may assess the amount of the plaintiff's claim. Laws of 1854, p. 1089, sec. 11. For forms of affidavits, see Appendix, JSTos. 157 to 160. In case the notice to enforce the lien is served by publica- tion, the affidavit of service should not only show the fact of publication in the manner directed by the statute ; but also the facts justifying the service by publication. The plaintiff upon the assessment oi his damages, must produce evidence to establish the value of his labor or mate- rials, and that the same was performed or used by the owner or his agent, original contractor, or assignee of such contrac- tor, in erecting, altering, or repairing such house, building, or appurtenances. Ih. sec. 5. The plaintiff must, also, upon the assessment, give evi- dence showing that he has acquired a valid lien upon the premises of the defendant. This proof would consist of a copy of the notice of lien, duly certified by the town clerk, CH. yil.] LIEN LAW : GENERAL ACT. 257 whose certificate should also sliow the time and fact of the filing of the notice. See JSfoWs Lien Law^ 206. Upon the assessment of the plaintiff's damages, judgment sliall be entered thereon establishing the amount of the lien, with costs ; and execution sball thereupon issue for the collec- tion and enforcement of the claim so adjudicated and estab- lished, in the same manner as executions upon other judg- ments in said courts, in actions arising on contract for the recovery of money only, except that the execution shall direct the officer to sell the right, title, and interest which the owner had in the premises at the time of filing the notice of lien. 8ec. 11, sxijjra. For form of judgment, see Appendix, No. 161 ; and for form of execution, see Appendix, No. 164:. Defendants Answer and Notice of Set-off.'] The statute directs that within thirty days after the service of the plain- tiff's notice and bill of particulars, the defendant shall serve the claimant or his attorney with a copy of his answer, and also with a notice or bill of particulars of set-off, if he has any. Laws of 1854c, p. 1088, sees. 7, 13. For forms, see Appendix, No. 162. The answer is required to be duly verified by the oath of the owner, his agent or contractor, to the effect that the same is in all respects true. lb. The service of the answer and notice, or bill of particu- lars of set-off, upon the claimant or his attorney, must be personal. See. 7, svpra. But the service of a notice of set-off, or bill of particulars of set-off, is unnecessary to entitle the owner to prove that the work was not done in accordance with the contract, or that the contract has not been performed; nor is the service of the notice necessary to entitle him to recoup his damages for imperfections in the work. It is only when a set-off' is claimed, that the defendant is required to serve a bill of par- ticulars of the same. See 1 E. D. SmJitK, 697. Amendinents.l The statute does not provide for amend- 17 258 LIEN LAW : GENERAL ACT. [CH. VIL ments in these proceedings ; and in that respect it is the same as the statute relating to the city and county of JSTew York. Under the latter statute, however, it has been held that while the court will not allow an amendment with a view of remedying a material defect in the claimant's notice of lien, yet in respect to the proceedings to enforce or fore- close the lien, that amendments will be allowed to the same extent as in ordinary actions. See ante p. 227. And the same practice would no doubt be proper under the statute here considered. Issue, how formed.'] The issue is formed, when tlie action is in the Supreme Court or a county court, by the service of the plaintiff's notice and bill of particulars, and the defendant's answer, duly verified, with a bill of particu- lars of the defendant's set-off, if any, annexed thereto. See. 13, supra. Notice of Trial and other ProceedtTigs.] Issue being joined between the parties, and at least ten days before the court, either party may give notice of trial. And the cause is put upon the calendar by either party furnishing the clerk of the court with a note of issue, the same as is required in other actions. Ih. seo. 14 ; Code of Pro., § 256. And the ordinary practice in respect to the subsequent proceedings, before trial, such as the affidavit of merits, and the like, is to be pursued. Id. ibid. Trial, and Proceedings thereoti.'] The action is to be governed and tried in all respects as upon issues joined in other actions arising upon money demands on contracts. Sec. 14, swpra. 1. What the Claimant must show. In respect to the proof which the claimant must give to establish his claim, he would, without doubt, be required to prove the same facts which it would be necessary to establish to entitle him to recover in an ordinary action for work performed and mate- CH. VII. J LIEN LAW: GENERAL ACT. 259 rials furnished ; and also the additional facts showing that he has acquired a valid lien upon the premises as against the owner. "We have seen, iinder the New-Yt)rk law [ante, p. 229), that the claimant must show a contract between the owner and the contractor ; and if the proceeding is instituted by a sub-contractor, or other party dealing with the contractor, that he must also show that the work was performed, or the materials furnished, in conformity to the terms of that con- tract. This seems to be unnecessary, under the statute here considered ; but it is sufficient, if the claimant upon the trial produces evidence to establish the value of the labor and materials, and that such labor was performed for, or that such materials were used by, the owner or his agent, or the original contractor, or his assignee, in erecting, altering, or repairing the houje or premises in question. Laws of 1854:, p. 1086, sec. 5 ; and see lb. sec. 1 / andNotHs Lien Law., 207. In respect to the evidence required to be given by the claimant, in other respects than as above stated, see the pi ac- tice under the New- York Law, ante., p. 228. 2. What the Owner may show in Defence. The owner may show in defence that the claimant has not acquired any lien under the statute ; and generally, he may, in other respects, avail himself of the same defences whicli he would be entitled to show in an ordinaiy action commenced for the recovery of the value of the work performed, or the materials furnished. Thus, he may introduce and prove any offsets which he may have to the plaintiff's claim, if he has given the plaintiff notice of the same, in the manner provided by the statute. Laws ofl%?>i,p. 1088, sees. 7, 13 ; and see under the New- York law, ante, p. 232. And whenever the pro- ceeding is instituted by a contractor, and the owner or his agent has given the notice prescribed by section eighteen of the statute {Laws of 1854, p. 1091), requiring all persons having claims to present the same as therein provided, he may also present as a set-off to the plaintiff's claim, the claims and liens presented, established, and allowed in pursu- ance of the notice so given. Ih. sec. 19. . And the justice 260 LIEN LAW; GENERAL ACT. [CH. VII. before whom, or the judge of the court in which, the action is commenced, upon the request of the owner or his agent, may grant a stay of proceedings sufficient to enable the owner to give such notice, and call in such claims, lb. See further under this head, ante, jp. 2i8, " Extent of owner's Liability." And in respect to the defences of which the owner may avail himself under the New-York law, see ante, -p. 232. Witnesses, cfec.J The rules of the Code of Procedure in respect to witnesses, their competency and examination, and the examination of parties, apply to these proceedings. In proceedings under the statute relating to the city and county of Ifew Yoi'k, where the action was commenced by a person furnishing materials m pursuance of an agreement with the contractor,— it was held that the contractor, though a party defendant in the action, was a competent witness for the plaintiff. 2 E. D. Smith, 590 ; s. . sec. 19. And the justice before whom, or a judge of the court in which, the proceedings are commenced, may, upon the request of the owner or his agent, grant a stay of proceedings sufBcient to enable the owner to give such notice and call in all such claims ; which claims, if established and allowed by the jus- tice, or court, shall be a set-off to such contractor's claim, to the amount so allowed. Ih. The Owner may Require Liens to le Enforced.'] The owner, or his agent or attorney, may serve upon the claimant, a notice requiring him to commence an action for the enforce- (a) The notice, therefore, must be publicly advertised for six weeks, succes- sively, as follows : 1. It must be fastened up in three public places in the town where the premises are situated ; 2. A copy thereof must be printed once in each week, in a. newspaper of such county, if there be one ; 3. If there be no newspaper printed in the county, then the notice must be published in the State paper once in each week. 2 R. S. 368, sec. 3i. 268 LIEN LAW: GENERAL ACT. [CH. VII. ment of his Hen, within twenty days after the service of such notice. For form, see Appendix, No. 173. If such notice is served, arid the action is not commenced within the time therein required, upon filing with the town clerk an affidavit of such service, and the omission to commence such action, the lien will be discharged. Laws of 1854:, p. 1092, seo. 23, suh. 4. For forms of affidavits of service, &c., see Appendix, No. 174. The like notice may also be served by the contractor of the owner, or a sub-contractor, and with the like effect, in all respects. Sec. 23, supra. And see the statute relating to the city and county of New York, ante, p. 242. Moto Icmg Lien to Oonti?iue.] It is provided that every lien created under the provisions of the statute, shall continue until the expiration of one year, unless sooner discharged by the court, or some legal act of the claimant in the proceed- ings ; but when a judgment is rendered therein, and docketed with the county clerk, within the year, it shall be a lien upon the real property of the person against whom it is obtained, to the extent that other judgments are now made a lien there- on, li. seo. 20. Under a similar statutory provision, it has been held that the lien expires at the expiration of one year from the com- mencement thereof; and that neither the pendency of an action will prolong it, nor a judgment subsequently obtained will relate back to it. 3 Cmns. 305, 308, 309, per Kuggles, J. In respect, however, to the statute here considered, although the question is not free from difficulty, yet the better opinion is, taking all the provisions of the statute together, that the lien is continued indefinitely, if, within the year, a proper action is brought to enforce it ; and that the intention of the section was, rather, to indicate the time within which the action to enforce the lien must be commenced. See sees. 4, 11, 14 a9id 20, supra ; and see Notffs Lien Law, 210, 211 ; and see under the New- York law, ante, p. 243. Order in which Liens are to le Paid.] Tlie liens created CH. VII.1 LIEN LAW : GENERAL ACT. 269 and established by virtue of the provisions of the act, are to be paid and settled according to the priority of the notice of lien filed with the town clerk. Laws of 1854, p. 1092, sec. 22. How Liens Discharged.'] All liens created by the statute may be discharged as follows : 1. By filing with the town clerk a certificate of the claim- ant, or his successors in interest, acknowledged or proved in the same manner as a conveyance of real estate, stating that the lien has been paid or discharged (for form, see Ajyjx'rulix, No. 175) ; or, 2. By depositing with the justice, or clerk of the courts, a sum of money equal to double the amount claimed; which money shall be thereupon held subject to the determination of the lien ; or, 3. By an entry of the town clerk, made in the book of liens, that the proceedings on the part of the claimant have been dismissed by the court in which the action to enforce the lien is brought, or a judgment rendered against the claim- ant ; or, 4. By an affidavit of the service of a notice from the owner, or his agent, attorney, contractor, or sub-contractor, to the claimant, requiring such claimant to commence an action for the enforcement of his lien within twenty days after the service of said notice ; and the failure of the claimant to commence an action as aforesaid. Laws of 1854, j;. 1092, sec. 23. The lien will also be discharged by the failure of the claimant to commence an action for the enforcement thereof within one year from the time the notice of lien was filed. lb. sec. 20. For forms of affidavits under the fourth subdivision above, see Ajypenclix, No. 174. CHAPTER VIII. MANDAMDS AND PROHIBITION. Section I. Mandamus. II. Prohibition. SECTION I. MANDAMUS. The writ of mandamus is described by Sir William Black- stone, as a high prerogative "writ issuing in the king's name out of the court of King's Bench, and directed to any person, corporation, or inferior court of judicature, within tlie king's dominions, requiring them to do some particular thing therein specified, and which appertains to their office and duty, and which such court has previously determined, or at least sup- poses, to be consonant to right and justice. 3 Bl. Com. 110 ; and see Bac. Abr., Mandamus ; 12 Wheat. 561 ; 2 Johns. Cas. 2d ed. 217, note. In this State the writ is issued by our Supreme Court, which, in its judicial relation to the sovereign power of the State, the people, possesses the same authority as the King's Bench. The office of the writ is the same here as in England. Id. {a) (a) For the origin and history of the Writ of Mandamus, and the proceed- ings therein, see the elaborate notes in 2 Johns. Cas., Med, 217 — 1 to 81, where the authorities are collected and stated at large. 272 MANDAMUS. [CH. YIU. I. When, and in what cases, it lies. 1. Generally.] The writ of mandamus issiies in all cases where the party has a right to have anything done, and has no other appropriate legal means of compelling its perform- ance. 3 Bl. Com. 110 ; 2 Barl. S. C. R. 417 ; 13 Id. 440 ; 25 Id. 73. The writ will not issne in cases of doubtful right. The remedy by mandamus is a legal remedy ; and a party will not entitle himself to it unless he has a clear legal right to demand what is asked for in his writ. 1 Kernan, 563 ; 13 Barl. 444 ; 12 Id. 217 ; 1 Wend. 324 ; 10 Id. 366 ; 14 Johns. 416 ; 8 Peters, 291 ; 11 Hemo, 192; 18 Wend. 79; 20 7(^.658; 3 How. Pr. R. 30 ; 13 Id. 277. Thus, the writ has been denied to compel an inferior court to grant a new trial in a cause before it, where it was alleged injustice had been done to one of the parties, 2 Chilty, 250 ; to reinstate an appeal which the court had dismissed, 3 Binney, 273 ; cmd see 20 Wend. 658 ; 1 Penio, 679 ; .to vacate a rule setting aside a report of referees, although the court clearly erred in the decision made, 21 Wend. 20 ; to compel a judge to issue his warrant on a complaint for an intrusion and settlement upon Indian lands, where he had refused to do so, after hearing evidence on the subject, 1 Denio, 617 ; 1 How. Pr. R. 186 ; to com- pel an inferior court to vacate an order authorizing a defend- ant to enter a judgment nunc pro tunc, in a case where the Supreme Court would have denied the application for such order on account of delay in making it, 1 Denio, 644 ; to vacate an order opening a judgment to enable the defendant CH. VIII.] MANDAMUS. 277 to plead a bankrupt discharge, though it was urged that the order interfered with vested rights, 2 Id. 191 ; to vacate a rule setting aside an execution issued by a justice of the peace, on a judgment rendered before hinij and docketed in the county clerk's oflBce. 1 Id. 646, note. Beardsley, J., in denying the motion, said, " The common pleas have acted and decided, and whether right or wrong will not be determ- ined on an application for a mandamus. If the court had no jurisdiction, the order is void ; if it had, it is strictly a judi- cial decision." Ih. / and see the cases cited by Tracy, Sen- ator, 18 Wend. 89, and by Bronson, J., 20 Id. 659. It is also a rule applicable to this writ, that where inferior tribunals have a discretion, and proceed to exercise it, the court have no jurisdiction to control that discretion by man- damus. % Johns. Cas. Qd ed. %\1 — 19, note. The writ, there- fore, will not be allowed to compel a subordinate court to grant a new trial upon the merits, 2 Cowen, 479 ; nor to vacate a rule setting aside a report of referees on the ground that it is founded on insufficient evidence, lb. 458; and see 19 ~We7id. 68 ; nor to vacate a rule setting aside a regular default and permitting the defendant to plead on payment of costs, 6 Cowen, £>92 ; nor to vacate an order allowing rules for interlocutory judgment and assessment of damages to be entered nunc pro tunc, 7 Id. 523 ; nor to vacate the condi- tion of a rule setting aside a ca. sa., for irregularity, 3 Id. 59 ; nor to vacate a rule to quash an appeal taken by default in the absence of the relator's attorney, 7 Id. 363 ; nor a rule granting an amendment without the payment of costs, 8 Wend. 509 ; nor, it seems, to vacate a rule granting an amendment in any case within the power of the court, see 16 We7id. 617 ; 20 Id. 658 ; nor to retax a bill of costs, 19 Id. 113 ; nor for the purj^ose of controlling the mere chamber business of a judge of an inferior court, 5 Cowen, 31,— or, the practice in other courts, 16 How. Pr. H., 200 ; 15 Id. 392, and cases supra; or the like. See 1 Id. 417; Id. 371 ; 1 Wend. 73 ; 18 Id. 92. But, although the Supreme Court will not interfere where the subordinate court has a discretion, and proceeds to 278 MANDAMUS. [CH. VIII. exercise it, yet if tlie subordinate court refuses to act or to entertain the question for its discretion, the court will inter- fere so far as to set the inferior jurisdiction in motion, by directing it to proceed and exercise the discretion and powers conferred upon it. 14 East, 395 ; and see 19 Johns. 260 ; 18 Wend. 92, 95, per Tracy, Senator ; 2 JoJins. Cos. M ed. 217—23, note; 12 Bail. 446. 3. To Corporations and Ministerial Officers.] Tlie writ of mandamus is also an appropriate remedy to compel corporations and inferior officers, besides those occupying judicial stations, to perform the duties which the law imposes upon them. With respect to subordinate judicial tribimals and officers, the operation of the writ, as we have seen, lias been confined simply to a mandate that they proceed ; but as to .corpora- tions and ministerial officers, tlie authority of the writ is recognized to be not only to compel them to act, but to direct the mode and manner in which they shall act. 20 Wend. 658 ; 2 Barb. S. C. i2. 418 ; 19 Johns. 263 ; 12 How. Fr. E. 224 ; 1.3 Id. 277. The writ has been allowed, in such cases, to compel the supervisors of a county to allow the account of a county clerk for expenses incurred and services performed by him according to law, 18 Johns. 242 ; and see 2 Cowen, 530 ; 1 Sow. Pr. B. 163 ; to compel them to restore the names of certain banks which tliey had struck off from the assessment roll as made by the assessors, 4 Hill-, 20 ; to compel them to levy and collect the amount of a deficiency on the sale of lands foreclosed on loan-office mortgages, 10 Wend. 363 ; to levy and collect the amount of damages sustained by owners of lands taken for the improve- ment of a public highway, i Barh. 64; and sei, also, in like cases, 19 Johns. 272 ; 5 Cowen, 292 ; 3 Bari. S. C. R. 332; 20 Id. 294; 12 How. Pr. R. 50. And so, where the supervisors of a county have neglected to perform any duty required of them at their annual meeting,- — e. g., to issue warrants for the military commutation, they may be com- pelled by mandamus to meet again and perform that duty. CH. VIII.] MANDAMUS. 279 i Stlde?i, 318. And where a creditor has an account against a county, and no discretion is vested in the board of super- visors in relation to it, and there is a clear legal duty resting upon them to cause the whole amount of the account to be collected and paid, which they refuse to perform, it seems, the only remedy of the creditor is by an application to the court for a mandamus to compel them to perform that duty. 2,0 Barb. 29i, 297; denying the autAority in 14c Barb. Si', and other cases there cited. In like manner the writ has been issued to compel com- inissioners of highways to open and work a road which has been laid out by commissioners appointed by an act of the legislature, 19 Wend. 56 ; and to open a road where they had refused to do so, and their decision had been reversed on ap- peal, and the appellate tribunal had proceeded to lay out the road. IQ Johns. 61; 12 Burl. 191, 6; 1 Selden, 476; 1 Coicen, 23 ; 4 Id. 511. And the writ will be granted, in such case, without regard to the near approach of the expiration of their offices; if their term of office expires, it will devolve upon their successors to obey the writ. 19 Wend. 56; and see 16 Johns. 65 ; 3 Row. Pr. E. 56. The writ has been issued, also, to compel a toion clerk to record the survey of a road, 7 Johns. 550 ; a county clerk to record a deed properly acknowledged and certified, 14 Johns. 325 ; the clerh of the Marine Cowt of the city of ITew York, to issue an execution upon a judgment rendered by that court, 13 How. Pr. B. 5; 22 Ba?'i. 502, af. 13 Bow. Pr. R. 260 ; 3 Abb. Pr. R. 309 ; the inayoi' of a city to grant a license, where the party was entitled to such license as a matter of legal right, 13 Barb. 206 ; the mayor of a city to administer the oaths of office to persons returned by the in- spectors of election, as assessors of a ward, 3 Bill., 43 ; and see 4 Ahb. Pr. R. 36 ; to compel the trustees of a school dis- trict to issue their warrant for the collection of a tax, 8 Rnc. Pr. R. 358 ; Id. 125 ; to compel a sheriff to exectite and give a deed of lands, 1 Cowen, 502; 18 Wend. 598; 1 Barb. S. C. R. 379 ; 4 Denio, 138, aff. 2 Corns. 485 ; to compel canal ap- praisers to appraise damages occasioned by a canal, 6 Cowen., 280 MANDAMUS. [CH. VIII. 518 ; and tlie canal commissioners to pay the amount of the damages appraised, 7 Id. 526 ; to compel a jury to complete their assessment of damages for the opening of a street in a village, 1 Jiari. S. C. E. 34 ; to compel a county treasurer to pay the amount of an account which had been legally audited and allowed by the board of supervisors, 15 jBarh. 529; 19 Id. 468 ; and see 23 Id. 338 ; 1 Selden, 65 ; 6 Hill, 244 ; to com- pel the auditor of the canal department to pay a draft drawn upon him by a canal commissioner, 13 Barh. 86 ; to compel commiss%oners for loaning moneys of the United States, to pay over surplus moneys in their hands, 1 How. Pr. R. 160 ; to compel the comptroller to issue his warrant to pay certain tolls collected by him for the State, 18 Wend. 659 ; to com- pel the comptroller of the city of New Yorlc, to draw his warrants upon the chamberlain of the city, for certain moneys ordered to be paid by the corporation, 16 Bari. 503 ; to com- pel the cmnmon council of Broohlyn to proceed in the matter of widening a public street, 22 Barh. 404; to compel the trustees of non-resident debtors to appoint referees in pursu- ance of the statute, in order to contest the validity of the debts presented and claimed by attaching creditors, 1 How'. Pr. P. 80 ; 2 Id. 200; to compel a corporation to exhibit its books and papers to a director or corporator, he having a right at all reasonable times to examine them, 1 How. Pr. P. 247 ; 12 Wend. 183 ; and the like. 2 Cowen, 485 ; 23 Wend. 458 ; 2 Johns. Gas. 2d ed. 217—32 to 61 notes. But the writ will not be allowed in cases where corpora- tions, and ministerial and other officers have a,cted jicdicially; nor where they have a discretion with regard to the perfor- mance of an act, and have exercised tlie discretion conferred upon them ; but if they refuse to act when required by law, the court will compel them by mandamus. And the opera- tion of the writ is the same in these I'espects as when directed to subordinate judicial tribimals. 19 Wend. 56 ; 12 Bari. 446 ; 2 Johns. Gas. M ed. 217—12, 32, 37, notes. Thus, the writ will not be allowed to compel a hoard of supervisors to audit and allow an account for services as marshal, where they have adjudicated upon the account, and allowed part CH. VIIL] MANDAMUS. 281 and rejected part, 12 How. Pr.R. 204 ; and see to the same effect, 12 Johns. 414 ; 19 Id. 260 ; 9 Wend. 508 ; 1 Hill, 362 ; 14 Barb. 52 ; 1 How. Pr. R. 116 ; 12 Id. 224 ; nor to compel assessor's to reduce their assessments, where the affidavits pro- duced before them are not in conformity with the statute, see 15 Bail). 608 ; nor to compel the attumey general to prosecute an action to establish the right of a party to an office, 22 Barl. 114 ; s. c. 13 How. Pr. R. 179 and 3 AU. Pr. R. 131. And so the wiit will not be allowed to compel a county treasurer to pay an account audited by aboard of supervisors, where the subject-matter of the account is not within the jurisdiction of the board, 6 Hill, 244; 23 BarT). 350; s. c. 13 Hoic. Pr. R. 314; nor to compel a hoard of sujjervisors to correct an assessment roll after the sam« has been finally acted upon by them, and a warrant for the collection of the taxes issued to the collector of the tgwn, 16 Barh. 608 ; "i^Id. 166 ; and see 1 Hill, 195 ; though it is otherwise, it seems, where tlie mandamus is directed to the supervisors of the county of Ne^o York, 12 How. Pr. R. 224, 230 ; lut see 13 Id. 305 ; S.C.4: AU. Pr. R. 84 ; 24 Barl. 166 ; nor to com- pel the canal hoard to approve or disapprove of a contract for the performance of work on the canal, made by the canal commissioners and otlier state officers, with the relator, 13 Barh. 432 ; nor to compel the commissioners of excise, under the act of 1857, to grant a license, 7 AUb. Pr. R. 34; nor to compel the supervisors of a county acting as county canvas- sers, to re-organize for the purpose of correcting the estimate of the votes of the county, or otherwise, after they have acted upon the matter and adjourned, 12 Id. 218 ; and see 7 Ahb. Pr. R. 34 ; nor to compel commissioners of highways to lay out a highway where they had refused to do so, and the refe- rees, on appeal, had simply reversed then- decision without having made any order laying out the road, 4 Selden, 476 ; or to erect a bridge upon a site selected by them at a different place from that contemplated by the statute under which they were acting, 24 Barb. 241 ; nor to compel a corporation to make transfers of stock on the books of the company, 10 How. Pr. R. 544 ; s. c.\ Abb. Pr. R. 128; nor to compel the per- 283 MANDAMUS. [CH. VIII. fonnance of public duties on tlie part of a corporation of ano- ther State, Ih.j nor to compel obedience to an order made by another court, when that court possesses the authority to en- force its own orders, 11 How. Pr. R. 563 ; s. o. 2 Ahh. Pr. JR. 90 ; nor to afford relief against an illegal tax, which is about to be collected, 1 Hill, 195 ; and see 15 Barb. 608 ; but see as to the city of New York, 1:^ How. Pr. B. 224; 13 Id. 305 ; nor in other cases. 2 Johns. Cas. ^d. ed. 217 — 32 to 61, notes. The writ of mandamus is also frequently resorted to for the purpose of restoring one to an office, where he is illegally deprived of the possession thereof. The > writ, however, confers no title upon the person thus restored ; its sole opera- tion being to put him in a situation to enforce his former title if sufficient in law. 2 Johns. Cas. 2d ed. 217 — 10, 66, notes. The only mode of trying the title to an office in dispute is by an information in the nature of a quo warranto ; or, now, by action under the Code of Procedure, 3 Id. 79 ; 5 Hill, 616 ; 12 Harh. 222 ; Code of Pro. § 428 ; though, if quo warranto or an action will not lie, a mandamus will be granted upon the principle that the party shall not be without a remedy. 6^«s!!)356; ^ Hill, 629; 2 Johns. Cas. 2d ed. 217—11, note. The writ has been allowed, to compel the proper officers to admit to the possession of his office or place one elected to the office of mayor, 2 lioU. Ab., Restitution, pi. 4 ; recorder. Id. pi. 6 ; sergeant. Id. pi. 71 ; alderman, 2 Bulst. 122 ; and brigadier-general, 20 Barb. 302 ; s. c. 12 How. Pr. R. 126 ; and see 25 Barb. 216 ; and 2 Johns. Ca. 2d ed. 217 — 52, note. The writ has also been granted to compel an insurance company to swear in a director, the company having been created by charter from the crown, 1 Stra. 696 ; to restore the directors of a banking company who were refused the exercise of their rights as directors by a majority of the board, 7 loui. jS. 509 ; as, where the cashier of a bank refused to permit a director to inspect the discount book, and his conduct had been approved by a resolution of the board, 12 , Wend. 183 ; and see 1 How. Pr. B. 247 ; and to compel CH. VIII.] MANDAMUS. 2S3 a medical society to restore a party to membersliip, wliere such party had been illegally expelled, 2-i Barb. 570; 2 Johns. Cas. 2d ed. 217 — -56, 57, notes, and oases there cited; and so, also, to compel the trustees of a meeting-house to admit a dissenting minister, who was duly elected, 3 Burr. 1265 ; and it seems, the writ of mandamus is the only proper remedy to put a minister of any religious denomination into possession of the pulpit to which he is entitled, 2 Barb. S. G. R. 398, 417, 419 ; and this, too, notwithstanding such pulpit is occupied by another person, lb. ; but see the observ- ations on this case in 7 Hoiv. Pr. H. 129, per S. B. Strong, J.; aiid see post. But the court will not grant a mandamus to admit a person to an office, where the office is already filled by another person who has been admitted and sworn, and is in by color of right, 3 Johns. Cas. 79 ; 20 Barb. 302 ; s. c. 12 Sow. Pr. R. 126 ; nor where there is an appropriate remedy by quo warranto or the action substituted in its place by the Code. Id. ibid.; and see 5 Hill, fjl6 ; 20 Barb. 303, supra; nor where there is a real and substantial dispute as to the title to the office. Id. ibid ; 7 How. Pr. R. 124. The principles which control in affording relief in these cases, are stated by S. B. Sti'ong, J., in the case last cited, as follows ; " 1st. That a mandamus is inappropriate and should not be issued wliere there is a real and substantial disjDute as to the title to an office. 2d. That where the right of the applicant is clear and unquestionable, and the possession of the official books and papers is all that is necessary to enable him to perform fully and satisfactorily the duties of the office, a resort should be had to the summary process given by the statute to obtain such books and papers, and a mandamus being unnecessary, should not be awarded. But, 3d, That when the title of an applicant to an office is beyond a substantial dispute, so that the objection to it is wholly frivolous, and the possession of the books and papers would not give him the entire control of the office, the remedy by tlie proceedings substituted by our new Code for the writ of quo warranto, would in many cases be so dilatory as to amount to a failure of justice ; and the ^^^ MANDAMUS. [CH. VIII. writ of mandamus would be proper and should be awarded." lb. 128 ; and see 20 Bari. 302, supra ; 2 Johns. Cas. 2d ed. 217—52 to 59, notes. II. How the Writ is Obtained and Proceedings Thereon. Having thus considered the nature of the writ of manda- mus, and stated most of the cases in this State, as well where the writ has been allowed as refused, we shall now consider the practice in obtaining the same, and the proceedings thereon. Who may have the Writ.] In a matter of public right, any citizen may prosecute a mandamus, where the object is to enforce the execution of the common law, or of an act of the legislature. 19 Wend. 56 ; 1 JIow. Pr. R. 186. It has been denied, however, that any citizen can have the writ to com- pel the performance of public duties on the part of State officers. 13 Barh. 449, 450, per Cady. J. Where the matter relates to private or corporate rights, the title to relief, at the suit of the relator, should appear ; otherwise, a mere stranger might obtain a mandamus offi- ciously, and for purposes not desirable to the real party. 19 Wend. 56 ; and 1 Hoiu. Pr. P. 186, swpra ; and see 10 Wend. 30. And where the mandamus is applied for in behalf of a particular cla^s, and the legislature has provided that they should be represented by a particular officer, such officer is the proper person to prosecute the writ, and to be named as relator therein. 1 Denio, 617 ; 1 How. Pr. R. 186. Within what Time it should be Applied for.'] There is no statutory limitation of the time within which the writ may be obtained in this State. See 12 Barb. 449. The writ, how- ever, will not be granted where the party has slept upon his rights. Thus, the court denied a motion for a mandamus to compel the common pleas to quash an appeal after the lapse of five years from the final decision of the cause. 2 Wend. CH. Vm.] MANDAMUS. 285 256. In another case a mandamus to the common pleas, requiring them to compel a justice of the peace to amend his return, was denied, because there had been a delay of a year after the happening of the errors complained of. Id. 264 ; and see 2 Johns. Cos. 2d ed. 217—14, note ; 1 M. d' Sel. 32 ; lB.&Ad.Z19,,mO. But it seems where the object is to enforce a substantial right by means of a mandamus, the party should be allowed the time given by statute to obtain a remedy for injuries essentially of a similar character, in the ordinary way, if that could be pursued. 12 Barb. 446. The affidavits.] Tlie application for the writ of mandamus is founded upon afSdavits, stating the facts upon which the party relies, and which show that he is entitled, to the relief demanded. 1 Johns. Cas. 134 ; 3 Term R. 675. The facts should be set forth with precision ; and where the allegations in the affidavits are not so positive, that an indictment for perjury could be maintained upon them if false, the affi- davits will be insufficient. 5 Term E. 466, 469 ; 2 Johns. Cos., 2d ed. 217 — 62, note. " The affidavits should also anticipate and answer every possible objection or argument in fact which it may be expected will be urged against the claim * * * and where any strong evidence is expected, any disputable or material facts should be corroborated by one or more respectable and experienced individuals." 1 Chit. Gen. Pr. 808, 809 ; and see 2 Johns. Cas., 2d ed. 217— 62, note. The affidavits should not be entitled j as, for example: " Supreme Court, Andrew Roddy vs. Thomas "W. HiU," 1 Wend. 291 ; or, " Eeuben Turner advs. James Haight," 2 Johns. 371 ; and see 2 How. Pt. R. 60 ; and the practice is stiU. the same, in this respect, notwithstanding the Code. 7 How. Pr. R. 124. But where the affidavit was entitled : " Supreme Court. In the matter of John La Farge against The Judges of the Court of Common Pleas of Jefferson county," it was held, that this was not such an entitling of the affidavit as to bring it within the rule that an affidavit 286 MANDAMUS. [CH VIII. entitled cannot be read. 6 Cowen, 61. For form of affidavit, see A2)pendix, N"o. 176. IIo^o and where applied for.] The necessary affidavits having been prepared, the next step is to apply to the court for the mandamus. The application should be made to the Supreme Court, at special term, {a) Rule 40 of Suprejne Cov/rt, 1858 ; and see 12 Barb. 219. The application is either that a peremptory mandamus issue at once, or that an alternative mandamus issue, or for an order to show cause in the nature of an alternative man- damus, why the particular act sought to be commanded should not be performed. 10 'W0nd. 30 ; 3 Row. Pr. R. 164. A peremptory mandamus will seldom be granted in the first instance ; although, where both parties are iieard on the application, and there is no dispute about the facts, and the law is with the application, the court will permit the peremp- tory writ to issue at once. 1 Gowen, 528 ; 4 Abb. Pr. R. 36. And so, it will be permitted to issue at once, where it is apparent that no excuse can be given fjr the non-performance of the act, and the party's rights might be endangered by delay, see 14 Johns. 325 ; and, also, where on an order to show cause, the defendant shows cause, but not satisfactory. 12 Wend. 183 ; 6 Cowen, 518. And see further on the sub- ject of the peremptory mandamus, _pos^,^. 300, 302. The alternative mandamus issues in all cases where the facts on which the party relies are in dispute, or where the parties wish to review the case on appeal. The usual practice, however, is to grant an order to show cause, instead of issuing the alternative writ, 10 Wend. 80 ; especially where the application is to compel the performance of an act by a subordinate court. 9 Wend. 472 ; 2 Johns. Cas. 68. The difference between the order to show cause, and an (a) In the city of Buifalo, tlie application may also be made to the Superior Court of that city, — that court having, within that city, concurrent jurisdiction ■with the Supreme Court, in proceediogs by mandamus. Laws o/1857, vol. 1, p. '752. CH. VIII.] MANDA31US. • 287 alternative iDandamus, is stated by Harris, J., thus : " In the one case, the questions arising upon the application are dis- cussed upon affidavits ; and in tlje other, the questions come before the court upon the alternative mandamus, setting forth the facts upon which the application for relief is founded and the defendant's return thereto. In the former case, the questions between the parties, being heard upon affidavits merely, no formal judgment is given, and of course no writ of error can be brought. In the latter case a record is made up, and a writ of error lies as upon other judgments. The only practical difference between the two modes of proceed- ing is, tliat in the one case the decision of the court upon the application is final, while in the other case such decision may be reviewed upon error." (a) 3 How. Pr. R. 165 ; and see per Walworth, Ch., 10 Wend. 30, sti;pra ; 2 Johns. Cas. 2d ed., 217 — 63, note. For form of order to show cause, see Appe7idix, No. 179. Whether the writ has been granted or denied, on a motion for a peremptory mandamus, or on the return of an order to show cause, the court, on the suggestion of either party, will permit the alternative mandamus to issue to enable the ques- tion to be carried farther, {a) 20 Barb. 86 ; 13 How. Pr. R. 305, 309 ; 10 Wend. 31 ; 12 Id. 183 ; 6 Cowen, 518. The court will not determine doubtful questions on the motion or application for the writ, but will grant the manda- mus that the matter may come before them on the return. See per Edmonds, J., 7 How. Pr. R. 293 ; and see 1 Id. 163. The application for the writ is either ex parte, or upon notice to the defendant. For form of notice, see Ajypendix, E"o. 177. It was stated by Sutherland, J. (12 Wend. 292), that the court would uot, in future, entertain motions for a mandamus, or a rule to show cause, unless upon notice to the (a) But now, the "writ of error is abolished, and eitlier party may appeal from the decision of the court made on the order to show cause. See post, under the head of "Appeals, and the proceedings therein;" and see, also, Laws of 1854, p. 592, ante p. 16 note ; 19 Barb. 651 ; s. c. on appeal, 3 Kernan, 239, 241. 288 .MANDAMUS. [CH. VIII. parties to be affected by the proceedings. But the rule, thus laid down, has not been generally followed by the courts ; and the usual practice now is, to apply ex parte for the alter- native mandamus, or the rule to show cause. See 3 How. Pt. R, 165. Where the application, however, is for a per- emptory mandamus, in the first instance, the usual notice of motion for a special term must be served at least eight days before the first day of the court, together witb copies of the papers on which the same is founded ; and the motion should then be brought on in the usual way. See 2 Burr. Pr. 176 ; and 3 How. Pr.E.im; IK 379 ; '2, Johns. Gas. M ed., 217— 63, note. On tbe return of the order to sbow cause, or on tbe mo- tion for the peremptory writ, if the opposite party appears, the relator will hold the affirmative, — tbus, the relator will move for the mandamus, and after the opposite party has been heard in opposition to the motion, the relator will be at liberty to reply. 12 Wend. 184, note. Alternative Mandamus.} If the alternative mandamus is granted, the rule authorizing it should be entered with the clerk of the court. For form, see Appendix, ISTo. 178. Al- though, as we have seen, it would be irregular to entitle the affidavits on which the writ is allowed, yet it is otherwise with the rule granting the writ, which may properly be entitled in the cause. 2 How. Pr. P. 60. The alternative writ should be directed to the person, body, or tribunal, who is obliged by law to execute it, or whose duty it is to do the thing required. But where it was prosecuted to compel commissioners of highways to do a cer- tain act ; it was held that it need not, in the first instance, be directed to the commissioners by their individual names, and that it was only in case of disobedience to the writ, that they were liable to be proceeded against personally. 16 Johns. 61. (a) And where it was issued to compel a cashier of a (a) Whether, -when the object sought, is the enforcement of a duty resting upon a board of officers in their collective capacity, the alternative mandamus CH. Vm.] MANDAMUS. 289 bank to submit a book to one of the directors for inspection, where he had refused to do so, and such refusal had been approved by the board of directors ; it was held that the writ might properly be directed to the cashier alone ; and, it seems, it would not have been improper to have directed it, also, to the directors, especially as they had had notice of the application for the writ, and several of them had shown cause against it. 12 Wend. 187. If the writ is wrongly directed, as, for example, to the mayor, aldermen, and commonalty of Kipon, and the return shows that they were incorporated by the name of " the mayor, iurgesses, and commonalty," &c., the proceedings will be irregular, and the writ will be quashed. 2 Salh. 443. And so the writ was quashed where it was directed to the mayor and aldermen of Hereford, to compel the admission of a. person to an office, and it appeared that in fact the mayor only was to admit. Id. 701 ; and see Id. 699. If the writ is wrongly directed, such misdirection may be specially returned. Id. 434 ; or it may be superseded on motion. Id. 701 ; 1 Stra. 55 ; See further on the subject of direction, 2 Johns. C, 'id. ed. 217 — 64, 65, nofe, and the cases there cited. An alternative mandamus is in the nature of a rule to show cause. 10 Wend. 25, 30 ; 3 How. Pr. R. 165. In it the relator sets forth his title, or the facts upon which he re- lies for the relief sought, and the defendant is required by it to do the particular act asked for, or to show cause. The title of the relator must be clearly and distinctly stated in the writ, and in such form that the facts alleged may be admitted or denied ; and so that the defendant may at any time after a return, and before a peremptory mandamus is awarded, object a want of sufiicient title in the relator to the relief sought, or show any other defect in substance. Id. ibid. ; 2 ComstocTc, 490 ; 15 Barb. 607 ; 3 How. Pr. R. 30 ; 7 Id. 81. And it is not enough to refer in the writ to the is defective merely because, though addressed to all the memljers of the board it is addressed to them iudividually, instead of collectively, quaere ? 6 Abb. Pr. R. 241. 19 290 MANDAMUS. [CH. VIII. affidavits and other papers on file, on which the order for the mandamus was made ; though, it seems, such reference will be permitted to show the amount of a sum of money claimed ; but not the right of the relator thereto. 10 Wend. 25, supra. Thus, where the writ was directed to the canal commis- sioners, requiring them to pay to the relator certain moneys, " according to the order and certificate of the Canal Board and assignment, &c., mentioned in the aflidavits on file in our Supreme Court of Judicature," &c., — it was held defective, and that the affidavits referred to formed no part of the record, and could not, therefore, be considered by the court. 10 TFmd'25; and tee": Id. 476; 1?> Ba/rb. 607. And so, where the M^-it commanded the defendants to correct an assessment, or show cause, &c., and asserted generally that injustice had been done to the relators in assessing their prop. erty, and that they had been unjustly assessed, and that the defendants had refused to correct the erroneous assessment, — it was held that those allegations were not sufficient, of them- selves, to entitle the relators to relief. " They should have gone beyond that," said the court ; " and stated the particu- lars, in order that it might be seen from them that the charge was well founded, and that the defendants might be enabled specifically to answer the complaint." 15 Barb. 613, supra; and see 2 Johns. Cas. Id ed., 217 — 66, note. But where the writ is issued to compel a subordinate court to seal a bill of exceptions, it need not set forth the bill. 4 Gowen, 73. And if the production of records be the object of the writ, they need not be specifically described ; a gen- eral description is sufficient. 1 Sid. 31 ; 3 Steph. JV. P. 2321. The writ should also set forth, with sufficient certainty the duty to be performed, 2 8tra. 897, 857 ; 6 Mod. 310 ; 2 Id. 316 ; especially as the perernptoiy writ is required to correspond with it in this I'espect. 1 Hill^ 50 ; 12 Barb. 446. And it should not demand too much, otherwise judgment will be given for the defendants. 1 Hill, 56. The writ should be made returnable at a special term. See Suj). Court Rules, 1858, No. 40 ; 12 Barb. 219. But an objection that it is not made returnable at the special term CH. VIII.] MANDAMUS. 291 "vvill not be allowed after the return has been made. 11 How. Pr. R. 89. And though the writ should be made returnable at the special term, yet the court, in one case, entertained the motion for the mandamus at the general term, where the questions involved were important, and the writ had been made returnable at that term, and no objection had been made. 12 Barh. 219, supra; and see 1 Code H. 135. In the case last cited, the motion was heard in the first instance at the general term, notwithstanding objection was made thereto ; but the rules of the Supreme Court, which then authorized such motion, have since been abrogated in that respect. See Rule 57, of 1847, and Rule 40, of 1858. The alternative mandamus should be tested, signed, and sealed, in the usual manner. 1 Burr. Pr. R. 95, 97 ; 2 Id, 177. It is not process, however, within the meaning of the statute regulating the test and retiirn of process. 13 Wend. %'^%, 655 note ; 3 How. Pr. R. 164. For form of alternative mandamus, see Appendix, No. 180. When, and how served.'] The alternative mandamus should be served at least eight days before the day specified in the writ for showing cause. 3 How. Pr. R. 164. The service is made by showing the original writ and delivering a copy thereof. 4 Cowen, 73, 403 ; 1 Johns. 64. When directed to the judges of an inferior court, service may be made in term time or in vacation, Id. ibid. ; 7 Wend. 536 ; though where the application is to compel an inferior court to try a cause, service should.be made in term. 1 How. Pr. R. 114. When directed to a county court, service upon such of the judges as are sitting in open court, is suflicient. 1 Call. 562. Amendment of Writ.] If there are any irregularities in the writ, it may be amended at any time before it is returna- ble. Bac. Ahr., Mandamus, B. ; 6 Mod. 133 ; Doug. 135 ; 5 Alib. Pr. R. 241. But an amendment will not be permitted after the return, especially if the return has been traversed. 4 Term, 690. See also on the subject of amendments, 2 R. 292 MANDAMUS, [CH. VIII.. 8., 424, title 5, the provisions of which are made applicable to writs of mandamus. Id. sec. 10. Under the English practice, the amendment is made by a judge's order. 2 Johns. Cas. M eel. 217 — 67, note, citing 1 Gude Cr. Pr. 193 ; 3 Ste^ph. N. P. 2325. If there is a mis- take in the writ, the prosecutor may qnash it, and have a new one before it is returned. Id. Motion to quash or to set aside the Writ.] After the alter- native writ is served, the defendant may move the court to quash or to set the same aside. 4 Cowen, 73. The motion is founded upon some irregularity in the issuing of the writ, 19 Wend. 61 ; or upon defects in the form or substance of the writ. 10 Id. 25 ; 1 Row. Pr. R. 186 ; 1 Stra. 55 ; 2 Salk. 699; Id. 701. The motion should be made before the return to the writ, except in cases of defects of substance, which may be taken advantage of at any time before the peremptory mandamus is awarded. 10 Wend. 31, and cases there cited ; and see 2 Corns. 492 ; 14 Barl. 52 ; 11 Hmo. Pr. i2. 89 ; 2 Johns. Cas. Id ed., 217—67, 68, noUs. The motion to quash is in the nature of a demurrer, and admits the facts recited in the writ. 7 How. Pr. R. 290. Proceedings if Return is not made.] The party to whom the alternative writ is directed, is required to make return thereto, and for a neglect so to do such party may be pro- ceeded against by attachment, as for a contempt, in the man- ner prescribed in the thirteenth title (2 R. S. 534), of chapter eight of part third of the Revised Statutes. 2 R. 8. 586, sec. 54 {a). Whei'e the mandamus is directed to a corporation, to do a corporate act, and no return is made, the attachment is granted only against those particular persons who refuse to pay obedience to it ; but where it is directed to several per- sons in their natural capacity, the attachment must issue (o) See the subject of Contempts in Chapter XI. post. . 16, note ; and see 19 Barb. 658; and when awarded, are to be at the rate allowed for similar services in civil actions. Id. ibid. Appeals.] From the decision of the court at the special term, an appeal lies to the general term, the same as in man- damus. And from the judgment of the general term, an appeal may be taken to the Court of Appeals. Code of Pro. § 11 ; and see Laws of 1854, p. 592, ante, p. 16, note ^ 19 Barb. 658. CHAPTER IX PARTITIOISr. At the common law, although partition could be made in every case by the consent of all the owners, yet it could not be compelled by one co-tenant against the will of the others, or of any of them, except m tlie case of coparceners, until the statute of 3 1 Henry VIII. cli. 1 ; and 32 Henry YIII. ch: 32, extended the writ of partition to joint tenants and tenants in common. Co. Litt. 187; Bao. Abr., tit. Joint Ten- ant I. No.1\ Will. Fq. Jur. 699. The first act on the subject of partition in this State, was passed under the colonial government, on the 30th October, 1708 ; and other acts were subsequently passed from time to time, on the same subject. /See note in 1 R. L. 507. At the close of the Revolution, on the 16th March, 1785, the first act was passed for the partition of lands, under the State govern- ment. II). The latter act, with the amendments and altera- tions subsequently made, was a substantial re-enactment of the English statutes above-mentioned. lb.; and see Will. Eq. Jur. 699. (a) The several statutory provisions on tbe subject were revised by the laws of 1813, 1 R. L. 5n7 ; and again in 1830, 2 R. S. 317 ; and the latter revision, with the amendments (a) See the history of the statutory law of this State on the subject of par- tition, in part reviewed, by Davis, J., 5-465. Fr. E. 92 to 106. 316 PAETITION. [CH. IX. and alterations since made, constitute the present law of this State, {a) WTien Partition will he Made.] The statute provides that where several persons shall hold and be in the possession of any lands, tenements, or hereditaments, as joint tenants, or as tenants in common, in which one or more of them shall have estates of inheritance, or for life, or lives, or for years, any one or more of such persons, being of full age, may apply for a division a.ud partition of such premises, according to the respective rights of the parties interested therein ; and for a sale of such premises, if it shall appear that a partition thereof cannot be made without great prejudice to the owners. 2 JR. S. 317, sec. 1. The qualification that the persons applying for partition must be of full age, applies equally to all the plaintifi^ ; and, therefore, proceedings for the partition of lands cannot be maintained by an infant, either separately, or jointly, with adult co-tenants in common. 4 Sand. Oh. R. 508. The statute, however, has provided, that whenever an infant shall be possessed of real estate, as tenant in common or joint tenant, the Supreme Court may authorize proceed- ings to be instituted on behalf of such infant for a division and partition of said real estate, and for a sale thereof, if it shall appear that such partition cannot be made without great prejudice to the owners. Zaws o/" 1852,^. 411, s^c. 1. (&) But such authority will not be given, nor will such partition or sale be directed by the court, unless it is made satisfac- torily to appear that the interests of such infant require such partition or sale. Fb. see. 2. And where the question was referred to a referee, and he reported " that in his opinion it (a) For the amendments and alterations since the Revised Statutes, see Laws of 1830, p. 396 ; Laws of 1833, p.ZM; Laws of 1840, /). 128 ; lb. 321 ; Laws of 1846, p. 204 ; Laws of 1847, p. 666 ; lb. 640 ; Laws of 1852, ^. 411 ; Laws of 1861, vol. %p. 604; Pub. Acts, p. 184. ( b) The general guardian of the infant may also he authorized to agree to a division or sale of the infant's estate, on application to the Supreme Court. See 2 R. 8. 331, and post, " Partition and Sale of Infants' Estates." CH. IX.] PARTITION. 317 would be proper to allow the infant to prosecute an action for the partition or sale of the premises," but without setting forth the facts to warrant such a conclusion, — it was held not sufficient, and the application for leave to prosecute, was denied. See 15 Eow. Pr. E. 383. By the statute, also, as we have seen, the party applying for partition, must be in \he possession of the premises. 2 R. S. 317, sec. 1, supra. Under tbis provision it has been held that the party instituting the proceedings must have an estate entitling him to immediate possession. 19 Wend. 867. Again, that he must not only have a present estate in the premises, as a joint-tenant, or tenant in common, but that he must be in the actual or constructive possession of his undivided share or interest. 2 Barb. Ch. E. 393 ; 5 Denio, 388. And that a party having a mere reversionary interest in the prem- ises, which are in the possession of another having a life estate therein, cannot apply for a partition, not having any possession either actual or constructive. 11 How. Pr. E. 489. And again, that a mere reversioner cannot institute proceed- ings for partition without the concurrence of the owners of the present interest. '2iPaige,ZH. In conflict with the above cases, is the case of Blakeiy ag'st Colder and others (13 Row. Pr. E. 476), where it is held that although the party applying for partition must be in the possession of the premises, yet it is not neces- sary that he should be the actual occupant, or should hold an immediate present interest; and, therefore, that an exist- ing admitted life estate, although covering the whole prem- ises, will not prevent the remainderman from being deemed " in possession," within the meaning of the statute, {a) This decision is in accordance with subsequent and other statutory provisions, which seem to contemplate not only a partition, but a sale of the premises, on the application of the remain- (d) See this ease in the Court of Appeals, where the decision of the Supreme Court was affirmed, though not on the ground stated in the court below. 1 6 New York R. 617. But see to the same effect as stated above, the opinion of Denio, C. J. lb. 623. 318 PARTITION". [CH. IX. derman or reversioner, in cases where there is a life estate in the whole or any part of the premises in question. See 2 B. S. 325, sees. 50, 51, and Laws of l%i1,p. 557, sec. 5. As a general rule, proceedings for partition' may be insti- tuted by one tenant in common out of possession against another who is in possession ; for the possession of one is the possession of both. 1 Soff. R. 21. And so, where an intes- tate was seized and possessed of lands which descend to ten- ants in common, one of them though not in possession, may apply for partition, the lands being unoccupied. 4: Kern. 235. Where the party instituting the proceeding is not in the possession of the premises, and there are infant defendants, the court is bound to notice the objection, whether it is taken or not, 11 Sow Pr. R. 489 ; though such disability, ought regu- larly to be pleaded, 19 Wend. 3ri7 ; 3 Paige, 245 ; unless it distinctly appears by the petition itself. 2 Barb. Ch. R. 398. K, however, there has been an omission to plead it, it may be taken advantage of at the trial under the plea of non tenent insimul. 19 Wend. 367. Nor will proceedings for partition be authorized, where the defendant is in possession claiming adversely to the plaintiff. Harp. Eq. R. 106; 2 Barl. Ch. R. 398; 11 Z. 0. 116. Nor in favor of a party who has merely a future contingent interest in an undivided share of the premises. 2 Paige, 387. Nor in favor of a widow having only a right of dower in the premises, 1 Sand. Ch. R. 199 ; and see 15 Johns. R. 319 ; nor against her where she is the sole defendant in the proceedings. Id. ibid. Nor will the proceeding for partition be authorized where the title is denied, or is not clearly esta,blished, or de- pends on doubtful facts or questions of law. 1 Johns. Ch. R. Ill ; 1 Ed. Ch. R. 266 ; 5 Barb. 52 ; 4 Rand. 493. But where the title is not in dispute, partition is matter of right. 4 Ba/rb. 229 ; 10 Paige, 470. And so, where lands are devised subject to the perform- ance of a condition subsequent, and the devisee enters, and suffers a breach of the condition, the party entitled to an un- divided part of the premises in consequence of the breach of the condition, as tenant in common with the devisee, cannot CII. IX.] PARTITION. 319 apply for partition against the devisee. 5 Denio, 385. In such case he must first establish his title by action. Ih. y and see 4 Paige, 639. And so, if there has been an actual ouster of the plaintiff by his co-tenant, or if the land is held adversely, the party must regain the actual seizin by action before pro- ceedings for partition can be sustained. (a) 3 Paige, 245 ; 9 Cowen, &2,(^ ; 11 L. 0. 116. Where lands leased for a term of years, are owned by several persons as tenants in common both of the rents and the reversion, proceedings for partition maybe sustained; and if a sale of the premises is ordered, it must be made subject to the right of the lessees, who, by the sale, will become the tenants to the purchaser of the rents and reversion. 5 Paige, 518. But where a lessee of land becomes a pur- chaser of an undivided moiety of the rent and reversion, the lease and rent thereby become merged and extinguished as to that portion of the premises ; and the lessee is not such a tenant of the rent and reversion with the owner of the other half thereof, as to entitle the latter to a partition of the land during the continuance of the lease. 4 Id. 639. Proceedings for partition may also be instituted by parties who are seized of a life estate, in real estate, by virtue of an assignment to them, by one of the tenants in common in trust for the benefit of his creditors. 2 Barh. S. C. R. 599. But partition will not be granted amongst heirs at law, if the personal property of their ancestor appears to be insuffi- cient for the payment of his debts, 1 Ed. Ch. R. 565 ; at any rate, it seems, not before the expiration of three years from the granting of letters testamentary or of administration upon his estate. Ih. 568, 570 ; 10 How. Pr. R. 189 ; but see 7 Id. 307 ; 7 Paige, 550 ; 5 Ahh. Pr. R. 53. (a) A party, however, may go into a court of equity upon an equitable title. And although the fact that the defendant is in possession of premises, claiming to hold them adversely, is in general a sufficient ground for denying a partition, yet where the question arises upon an equitable title set up by either of the parties, the court will not suspend the proceedings without doing com- plete justice between the parties. See 5 Barb. 52 ; 4 Johns. Ch. R. 271 ; 1 Hoff. B. 21. 320 PARTITIOlf. [CH. IX. Where several tracts or parcels of land lying within this State are owned by the same persons in common, no separate proceedings for a partition of a part thereof only, can be brought without the consent of all the parties interested therein ; and if brought without such consent the share of the plaintiff may be charged with the whole costs of the proceedings. Sitp. Court Rules, 1848, N'o. 77 ; Eq. Rules, 1847, No. 123. How Com.menced.'\ The proceeding for the partition of real estate may be instituted by petition {a) under the Revised (a) It is declared by Mr. Justice Pratt, in Croghan v. Livingston, in the Court of Appeals (6 Abb. Pr. R. 350, 366), reported since this chapter was pre- pared, that the provisions of the Revised Statutes in relation to the partition of real estate, by petition, are abolished. What is there stated, however, upon *hat subject, "was not necessary to the decision of the case ; nor, as I am in- formed, was the question passed upon by the court, or discussed by the counsel who argued it. The learned justice bases his conclusions principally upon the changes made in the Code of Procedure, by the amendments of 1849. By § 390 of the Code of 1848, the Code was not to affect the proceedings provided for by Titles 2, 3, 4, 6, 6, and 8, of chap. 5, part 3, of the Revised Statutes. Title 3, alluded to, relates to proceedings in partition. In the Code of 1849 that title was omitted ; also Titles 2, 4, and 5. By the Code of 1849, also, the provisions of the Revised Statutes, relating to the partition of lands, etc., were made to apply to actions for partition brought under the Code of Procedure, so far as the same could be so applied to the substance and subject-matter of the action, without regard to its form. Code, § 448. And though the Code of 1848, also clearly authorized proceedings by action for partition (§§ 103, 388, 390), yet the question whether it did in fact authorize such proceedings seemed to be left in doubt by the case of Traver v. Tramr (3 How. Pr. R. 351, 364; and see Id. 290, per Hand, J.; Id. 318; 4 Id. 83, 84; Id. 133). Besides, while it was proper that the provisions of the Revised Statutes, relating to proceedings in partition, should be applied to an action for partition brought under the Code, yet the Code of 1848 contained no section in terms making those provisions applicable to such action. Hence the amendments to the Code of 1849 ; which were no doubt thought necessary by the legislature with a view of putting at rest the question whether an action for partition was proper under the Code ; and for the purpose, also, of making the provisions of the Re- vised Statutes applicable to such action. By the amendments of 1849, also, as we have seen. Titles 2, 4, and 5, above mentioned, were also omitted from the Code. Title 2 provides for the determ- ination of claims to real estate; Title 4 relates to the writ of nuisance, and Title 6 to the action of waste. And the amendments of 1849, in respect to those Ca IX.] PARTITION. 321 Statutes, 2 R. S. 318, sees. 5, 10; or by summons, or summons and complaint under the Code of Procedure. Code, §§ 127 to 139, 448 ; and see post, " Petition." If the proceeding is commenced by petition, a copy of such peiition, with a notice that the same will be presented to the court on some certiin day in terra, must be served upon titles, authorized an action for the proceedings under the Revised Statutes, and in express terms abolished the action of waste and the writ of nuisance. Code, §§ 450, 451, 453, 454. But in respect to proceedings for partition, although it authorized an action to be prosecuted for the partition of real estate, and made the provisions of the Revised Statutes applicable to such action, yet it nowhere in terms abolished the proceeding by petition. And as the two proceeding! are not inconsistent with each other, the inference is, that the remedy may be taken by action under the Code, or by petition under the Revised Statutes, in like manner as it could formerly be done by bill or petition in the Court of Chancery. See 2 B. S. 329, sec. 19 ; 3 How. Pr. R. 351 ; 4 Id. 88; Id. 133, per Barculo, J.; Id. 125. But it is said that Title 3, above mentioned, was not "reserved" by § 4*71 of the Code of 1849 ; and, therefore, that it is abolished, unless expresslj' saved by other provisions of the Code. It is submitted, however, that no such con- struction can be given to that section. That section, except in respect to stat- utory provisions inconsistent with the Code, and therefore repealed by § 468, had no eifect, either to reserve or to abolish the several proceedings mentioned in it. But its sole object had reference to the application of the Code to them, and to prevent such application except as therein mentioned ; and though it recognized the existence of those proceedings, it did so for that purpose alone. And as the proceeding for the partition of real estate by petition, is a special statutory remedy, not inconsistent with the Code, the omission to include the title relating to that proceeding among the titles enumerated in § 4'71, can have no eifect upon the question whether that remedy is abolished or not. But, that Title 3 is nevertheless excepted by that section from the oper- ation of the second part of the Code, is evident from the exception of special statutory remedies not theretofore obtainable by action ; language sufficiently general to include the statutory remedy by petition. See 2 Whit. Pr. 332; 16 New York B. 82, 83, per Denio, Ch. J. It is believed, for the reasons above stated, that Title 3 remains unrepealed ; and that proceedings for partition may be taken by petition under its provi- sions, as well as by action under the Code of Procedure. And that such has been the understanding of the profession, will be seen by reference to the fol- lowing authorities : Z How. Pr.R.U\,Zoi; 4 /. 344, sec. 77 ; 2 Abh. Pr. R. 16, 18. ' And the court may, in like manner as is provided where commissioners are appointed, amend the petition and other pleadings, with the like saving to the parties affected thereby ; and may award one or more issues to try any fact contested by the parties. 2 R. S. 330, sec. 81. The practice under the above statutory provisions is regu- lated in part by Rule 79 of the Supreme Court, which pro- vides, that where the wIkjIc premises of which partition is sought, are so circumstanced that a partition thereof cannot be made without great prejudice to the owners, due regard being had to the power of the court to decree compensation to be made for equality of partition, and to the ability of the respective parties to pay a reasonable compensation to pro- duce such equality, or where any lot, or separate parcel of the premises, which will exceed in value the share to which either of the tenants in common may be entitled, is so cir- cumstanced, the plaintiff, upon stating the fact in the affida- vit which is to be filed for the purpose of obtaining an order of reference under the 78th Rule {ante, p. 334), may have a further provision inserted in such order of reference, direct- ing the officer or person to whom it is referred, to inquire and report whether the whole premises, or any lot or separate paicel thereof, are so circumstanced that an actual partition cannot be made ; and that if he arrives at the conclusion that the sale of the whole premises, or of any lot or separate par- cel thereof, will be necessary, that he specify the same in his report, together with the reasons which render a sale neces- sary ; and in such a case, that he also ascertain and i-eport CH. IX.] PARTITIOSr. 3)9 •wliether any creditor not a party to the suit, has a specific lien, by mortgage, devise, or otherwise, upon the undivided share or interest of any of the pai'ties in that portion of the premises which it is necessary to sell; and if he finds that there is no such specific lien in favor of any person not a party to the suit, that he further inquire and report whether the undi- vided share or interest of any of the parties in the premises is subject to a general lien or incumhi-ance, by judgment or decree ; and that he ascertain and report the amount due to any party to the suit, who has either a general or specific lien on the premises to be sold, or any part thereof, and the amount due to any creditor, not a party, who has a general lien on any undivided share or interest therein, by judgment or decree, and who shall appear and establish his claim on such reference. The referee shall, also, if requested by the parties who appear before him on such reference, ascertain and report the amount due to any creditor, not a party to the suit, which is either a specific or general lien or incumbrance upon all the shares or interests of the parties in the premises to be sold, and which would remain as au incumbrance thereon in the hands of the purchaser ; to the end that such directions may be given in relation to the same, in the decree for the sale of the premises, as shall be most beneficial to all the parties interested in the proceeds thereof on such sale. Sup. Court Rules, 1858, JSfo. 79. The true question to be considered by the refei-ee in determ- ining whether a sale of the premises is necessary, is whether the aggregate value of the several parcels into which the whole premises must be divided, will, when distributed among the different parties in severalty, be materially less than the value of the same property, if owned by one person. 6 Paige, 541, 547. The 79th Eule, so far as it relates to the inquiries before the referee, as to the necessity of a sale, is founded upon the 81st section of the statute {supra) ; and that part of the rule which requires the examination as to liens and incumbrances, is in pursuance of the 42d section of the statute. See 2 Barl. Ch. Pr. 305. 360 PARTITION. [CH. IX. The proceedings, in cases of reference under the statute, are substantially the same as before commissioners ; as to which, see ante, jyp. 3.33, 348, 349 to 351 ; and see 2 Bml). Ch. Pr. 304. And for forms, see Appendix, No. 239 to 260. Proceeds of Sale.] The proceeds of every sale, after deducting the costs, shall be divided among the parties whose rights and interests shall have been sold, in proportion to their respective rights in the premises ; and the shares of such of the parties as are of full age, shall be paid to them or their legal representatives by the commissioners, or shall be brought into court for their use. 2 P. S. 327, sec. 63; 16 Barb. 631. If the shares are brought into court, they should be deposited with the treasurer of the county in which the premises sold are situated. Zarvs (?/'1848, j?. 404 ; Laws of 1847, p. 340, sec. 71 ; Sap. Court Pules, 1858, ISTo. 81. The proceeds of the sale are personal property ; and upon the death of any of the parties, subsequent to the sale, they will descend to the personal representatives. 16 Bari. 531, 534. Shares of Infants.'] Where any of the known parties are infants, the court may, in its discretion, direct the shares of such infants to be paid over to their general guardian, or to be invested in permanent securities, at interest, in the name and for the benefit of such infants. 2 P. S. 327, sec. 64 ; 16 Barh. 581 ; 2 Barh. Ch. P. 314. And the shares ought not to be paid to the guardian ad litem of such infants. lb. But such shares, or any part thereof, will not be paid over to the general guardian, except so much thereof, or of the interest or income from time to time, as may be necessary for the support or maintenance of such infants ; unless such guardian has previously given sufficient security on unincum- bered real estate to account to such infants for the same, in the usual form. Suj). Cuurt Pules, 1858, ISTo. 70 ; and see Code of Pro. § 420 ; Laws of 1848, j9. 407, sec. 8. And no order shall be made for the payment of any such moneys to any person claiming the same, except upon petition, CH. IX.] PARTITION. 361 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 depositary of the money, sliowiiig 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. Sap. Court Rules, ~Eo. 70, supra. Where the lands of a wife who is an infant, are sold, the proceeds will not be paid to the husband, but will be directed to be brought mto court, and to be secured for her use until she becomes of age. 1 Paige, 483. If the shares of the infants are directed to be invested, they should be brought into court, and paid to the treasurer of the county for tliat purpose, Sup. Court Rules, 1858, No. 81. ; or, by an order of the Supreme Court, such investment may be directed to be made by and in the name of the guard'an of such infants. Laws of 1848,^. 407, «ec. 8; and see ante, p. 360. Shares of Married Women.] When the lands of a married woman are sold, the proceeds will be directed to be paid to her, and not to her husband. See 11 How. Pr. R. 176 ; 8 Id. i;89; 16 Barb. 533, 535. And where the order of the court directed the share of one of the lieirs who was a married woman, to be paid to her husband, in right of his wife, and before actual payment the husband died, leaving his wife surviving, — it was held that the wife became reinstated in her original rights, and entitled to receive her share, not as her husband's widow, or representative, but as the heir of the original owner of the land. lb. If the wife whose lands are sold, is an infant, the proceeds will be directed to be brought into court, to be invested for her use, until she becomes of age. 1 Paige, 488. With respect to the wife's inchoate right of dower in the 362 PARTITION. [CH. IX. premises sold, see post, p. 367, " Riglits of Married "Women and oihers, having Future Interests in property." Shares of Unknown and Absent Owners.] Where anj^ of the parties whose interests have been sold, are absent from the State, without legal representatives in this State, or are not known or named in the proceedings, the court will direct the shares of such parties to be invested in permanent securi- ties at interest, for the benefit of such parties, until claimed by them or their legal representatives. 2 B. S. 327, sec. 65 ; 16 Barb. 531. Shares of Tenants for Life.] "Where the proceeds of a sale, belonging to any tenant in dower, or by the curtesy, or for life, shall be brought into court as directed by the statute, the court shall direct the same to be invested in permanent securities at interest, so that such interest shall annually be paid to the parties entitled to such estates, during their lives respectively. 2 E. S. 337, sec. 66 ; 16 Barb. 531 ; and see ante, p. 360, " Proceeds of Sale." And the party entitled to such interest shall be charged with the expense of investing such proceeds, and of receiving and paying over the interest or income thereof. Svp). Court Rules, 1858, No. 84. But if such party is willing, and consents to accept a gross sum in lieu of such annual interest or income for life, the same shall be estimated according to the then value of an annuity of six per cent, on the principal sum, during the probable life of such person, according to the Portsmouth or Northampton Tables. lb. See the Northampton Tables in the Appendix to the Suprems-court Rules. Security to Refund.] The court may, in its discretion, require all or any of the parties, before they shall receive any share of the moneys arising from such sale, to give security to the satisfaction of the court, to refund the said share with interest thereon, in case it shall thereafter appear CH. IX.] PARTITION. 363 that such party was not entitled thereto. 2 E. 8. 327, sec. 67. In whone name Securities to he taken.] "Where any security is directed to be taken by a court, or any investment to be made, or any security shall be taken by commissioners on the sale of any real estate, as herein directed, except where pro- vision shall be made for taking the same in the name of any known owner, the bonds, mortgages, or other evidences thereof, shall be taken in the name of the treasurer of the county where the fund belongs, or such other county treasu- rer as the court shall direct, and his successors in office, who shall hold the same by virtue of their respective offices, and shall deliver them to their successors. Ih. 328, sec. 68. And with respect to the shai'es or property of infants, the Supreme Court may order any bond, mortgage, or other secu- rities, to be taken by and in the name of the guardian of such infants, to be collected and invested as such court shall direct. Zaws o/'1848, p. 407, sic. 8. Treasurer to deceive Money, and Account, etc.] The treasurer is required to receive the interest or principal of any Slims as they become due, and apply or re-invest the same, according to the circumstances of the case, as the court shall ^direct. 2 B. S. 328, sec. 69 ; Zaws of 1848, jp. 404. And he is required, also, at the first general term of the court, for the district in which he resides, in each year, to render an account to the court, in writing, and on oath, of all moneys received by him, and of the application thereof. And any neglect of that duty will subject him to suspension or removal from office. 2 R. 8. 328, sec. 69 ; 8a;p. Court Rules, 1858, No. 82. How Investments to le made.] All investments and re- investments under the provisions of the statute, shall be made in the public stocks of the United States, or of this State, or on bond and mortgage upon unincumbered real estate of at 364 PARTITION. [CH. IX. least double the value of such investment. 2 R. S. 328, sec. 10. And no such security, bond, mortgage, or other evidence of such investment, shall be discharged, transferred, or im- paired, by any act of the officer holding the same, without the order of the court, entered in the minutes thereof. lb./ and 4 Sand. Ch. R. 51. Suits in reference, to such Investments.'] The person inter- ested in such investments or securities, may, with the leave of the court, prosecute the same in the name of the existing treasurer ; and no suit shall be abated by the death, removal from office, or resignation of the officer to whom such eviden- ces were executed, or of any of his successors. 2 R. S. 328, sec. 71 ; Laws of 1S4:7,^. 340, sec. 71 ; Laws of 18iS, p. 404. Application to Court for Moneys.] Where there are existing incumbrances upon the estate or interest in the pre- mises of any party to the proceedings, the court, as we have seen {ante, p. 351), is required, in the order of sale, to direct the commissioners, or referee, to bring into court the portion of the moneys arising from the sale of the interest of such party, after deducting the costs, charges, and expenses to which it shall be liable. 2 R. 8. 324, see. 44. And such party is authorized to apply to the court to order such moneys, or such part thereof as he shall claim, to be paid to him ; which application must be accompanied, — ■ 1. By his own affidavit, stating the true amount actually due on each incumbrance, the owner of such incumbrance, and his residence, as far as known to such party ; 2. By proof, by affidavit, of the due service of a notice on each owner of any incumbrance, of the intention to make such application, at least fourteen days previously. If such owner reside in this State, siich notice must be served personally, or if he be absent from his residence, by leaving a cupy there, with some person of proper age. If such owner reside out of this State, such notice may be CH. IX.] PARTITION. 365 served on him personally, twenty days previously, or by pub- lishing the same in the State paper four weeks successively, once in each week. II. sec. 45. Upon such application and proof of notice being made, the court will proceed to hear the proofs and allegations of the parties. Ih. sec. 46. For forms of affidavit, notice, &c., see Ajypendix, E"os. 236 to 238. And if any question of fact arises, which, in the opinion of the court, cannot be satisfactorily determined without a trial by jury, the court will award a feigned issue, to be tried as in other cases. The costs of such trial must be paid by the party failing ; which payment will be enforced by attach- ment, as in other cases. Ih. Distribution of Moneys.] "When the amount of existing incumbrances is ascertained, the court will proceed to order a distribution of the moneys so brought into and remaining in court, among the several creditors having sucli incumbrances, according to the priority thereof respectively. 2 i?. S. 325, sec. 47. Treasurer to heme Incumbrances Discha/rged.'] The statute makes it the duty of the treasurer, or other officer by whom any such incumbrance shall be paid off, to procure satisfac- tion thereof to be acknowledged, in the form required by law, and to cause such incumbrance to be duly satisfied or canceled of record, and to defray the expenses thereof out of the portion of the moneys in court belonging to the party by whom such incumbrance M^as payable. 2 M. 8. 325, sec- 48 ; Laws of 1848, p. 404. Other Parties not to he Delayed.] The proceedings to ascertain and settle the amount of incumbrances, as herein provided, are not to affect any other party in the suit for partition, nor delay the paying over or investing of moneys to or for the benefit of any party upon whose estate in the premises there shall not appear to be any existing incum- brances. 2 B. S. 325, sec. 49. 366 PARTITION. [CH. IX. Proceedings on Sale of Dower, or Other Life Estate.] Whenever the estate of any tenant in dower, or by the curtesy, or for life, to the whole or any part or share of the premises in question, has been admitted by the parties, or ascertained by the court, to be existing at the time of the order for such sale, and the person entitled to such estate has been made a party to the proceedings, the court is required first to consider and determine, under all the circumstances of the case, whether such estate ought to be excepted from the sale, or whether the same should be sold ; and in making such determination, they shall have regard to the interests of all the parties. 2 E. S. 325, sec. 50 ; 7 Paige, 4o6 ; 15 Nevj York H. 625. If a sale of the premises including such estate is ordered, the estate and interest of every sucli tenant or person will pass thereby ; and the purchaser, his heirs and assigns, will hold such premises free and discharged from all claims by virtue of any such estate or interest, whether the same be to any undivided share of a joint tenant, or tenant in common, or to the whole or any part of the premises sold. 2 H. S. 325, sec. 51. Upon such sale being made of any such interest or estate, the court will direct the payment of such sum in gross, out of the proceeds thereof, to the person entitled to such estate in dower, tenancy by the curtesy, or tenancy for life, as shall be deemed, upon the principles of law applicable to an- nuities, a rt- asonable satisfaction for such estate or interest, and which the person so entitled shall consent to accept in lieu thereof, by an instrument under seal, duly acknowledged or proved in the manner that deeds are required to be proved, to entitle them to be recorded. Jh., sec. 52. For annuity table, see Appendix to Supreme-court Rules. In case no such consent be given at or before the coming in of the report of sale by the commissioners, then the court is required to ascertain and determine what proportion of the proceeds of such sale, after deducting all expenses, will be a jiist and reasonable sum to be invested for the benefit of the person entitled to such estate or interest in dower, by the CH. IX.] PARTITION. 367 curtesy, or for life ; and to order the same to be brought into court, for that purpose. ' lb., sec. 53. The proportions of the proceeds of such sale, are to be ascertained and determined, in the several cases, as follows : — 1. If an estate in dower sliall have been included in the order of sale, its proportion shall be one third of the proceeds of the sale of tlie premises, or of the sale of the undivided share in such premises, upon which such claim of dower existed. 2. If an estate by the curtesy, or other estate for life, shall be included in the order of sale, its proportion shall be the whole proceeds of the sale of the premises, or of the sale of the undivided share thereof, in which such estate shall be. And in all cases, the proportion of the expenses of the pro- ceedings are to be deducted from the proceeds of the sale. lb. see. 54. If the persons entitled to any such estate in dower, by the curtesy, or for life, be unknown, the court will take order for the protection of the rights of such persons, in the same man- ner, as far as may be, as if they were known and had appeared. lb. sec. 55 ; and see ante, p. 362. nights (f Married Women, a/nd others, having future in- terests in Property.^ In proceedings for partition the inchoate right of dower of a married woman, in the undivided thare of her husband in the land, where the wife is a party to the proceedings, will be divested by a sale of the premises, under the judgment of the court, 7 Paige, 387 ; 22 Wend. 498 ; 5 Abb. Pr. li. 100, 102; ZawsoflSU),p. 128. And so, also, the interest of those having vested or contin- gent future rights or estates in the land, will be divested by a sale. Id. ibid. In cases of sales of land in which such inchoate risrht, or such future right or estate exists, it is the duty of the court under whose judgment such sale is made, to ascertain and settle the proportional value of such inchoate, contingent, or vested right or estate, according to the principles of law 368 > PARTITION. [CH. IX. applicable to annuities and siirvivorsliips, and to direct such proportion of the proceeds of the sale to be invested, secured, or paid over in such manner as shall be judged best to secure and protect the rights and interests of the parties, (a) Laws of 1840, supra. Formerly, the usual practice where a release could not be obtained from the wife, of her inchoate right of dower in the premises, was, to pay the money set apart for such right, into court. But, it seems, the practice is now changed ; and the money may now be paid directly to the wife. 11 How. Pr. a. 176, 178. Such money represents the present worth of her inchoate right in the premises, and is her absolute prop- erty. 4 Sand. Ch. B. 396. But the wife may release her right or interest to her hus- band, and acknowledge the same before any officer authorized to take the acknowledgment of deeds to be recorded in this State, or before the referee or one of the commissioners mak- ing the sale, separate and apart from her husband in the manner required by law (Ijff. S. 75b), in respect to the acknowledgment of deeds by married women. Laws of ISiO, p. 128 ; lb. 321. Upon the execution of such release, the share of the pro- ceeds of the sale arising fi-om the wife's contingent interest, shall be paid to her husband. Laws of 1840, p. 128, sec. 2. The release, so executed, and also the payment, investment, or otherwise securing the share of such married woman, or of the person having such future right in the proceeds of the sale, as above directed, will be a bar both in law and equity against any such right. lb. sec. 3. And the persons so baiTed not only include those in being in whom the estate might subsequently vest, but those not in being. 5 Abb. Pr. R. -92, 103. With respect to the value of an inchoate tenancy by the curtesy, this depends not only upon the principles applicable ((j) For the rule to compute the present value of an inchoate or contingent right of dower, see 7 Paige, 408 ; M'Kean's Pr. L. Tables, 25, § 4 ; Hendry's Ann. Tables, 87, Prob. 4. And of an inchoate tenancy by the curtesy, 1 1 How. Pr. R. Ill, 180. And see Annuity Table in Appendix of Supreme-court Rules. CH. IX.] PARTITION. 369 to life annuities and survivorships, but upon the fact of issue, and if none, upon the likelihood of issue. 11 How. Pr. B. 177, 180. Costs of Proceedings.] When final judgment for partition is rendered, the court will direct each of the parties, except the plaintiffs, to pay to the plaintiffs, a proportion of the costs and charges of the proceedings, to be ascertained bj^ the court, according to the respective rights of the parties, and the proportion of such costs assessed upon the unknown own- ers, to be chargeable on the part remaining undivided ; and upon such j udgment execution may issue as in personal actions, and maybe levied upon the property of the parties respectively charged with such costs, and upon any share or part of the premises allotted on any such division, to any owner unknown or not named, and upon every portion remaining undivided, for the proportion adjudged to be paid by such owners, or chargeable to the part remaining undivided. And a sale of such premises thereupon shall be as valid as if such unknown owner had been named in the proceedings and in such exe- cution, {a) 2 B. S. 328, sec. 72. If an actual partition of the premises is ordered, the aggregate amount of the costs of the several parties, is to be apportioned and charged upon the parties to the proceedings, according to their respective rights and interests in the prem- ises ; and the parties whose taxed bills exceed their ratable proportions of the whole costs, are entitled to execution against those whose taxed bills are less. See 7 Paige, 204. (5) If the plaintiffs shall become nonsuit, or suffer a discon- (a) But the costs of parties unnecessarily made defendants, iu an action for partition, will be directed to be paid by the plaintiff personally ; and cannot be charged upon the property unless such parties were so brought into the suit at the request or consent of the other defendants. Eammersley v. Hammersley, 1 L. 0. 127. And so, the plaintiflf, where he causes litigation by setting up an unfounded claim, will be charged with the additional costs occasioned thereby. 1 Sand. Ch. R. 40. (6) See this case, also, for form of judgment with respect to the costs of guardians ad litem of infants, where an actual partition is adjudged. 24 370 PARTITION. [CH. IX. tinnance, or a verdict sliall pass against them, or judgment shall be rendered against them on demurrer, they must pay costs, to be recovered and collected as in personal actions. 2 E. S. 329, sec. 73. Where the premises are sold, the costs and expenses of the proceedings are to be deducted from the proceeds of any sale made by the commissioners ; and must be by them, in the first instance, paid to the plaintiffs, or their attorney. li. 327, sec 62. It is also further provided by statute that on an appeal from the order or judgment of the court, the court may direct the costs to be paid by either of the parties, or by any one or more defendant or plaintiif, to his co-defendant or co-plaintiff. 75./ and see 2 Ji. S. 329, sec. 78. And the costs are in the discre- tion of the court. Zivws of 1854, ante, p. 19 ; Code of Pro. §306; \%How. Pr. B. 60. In respect to the rule by which to determine the allowance of costs, reference must be had to the Code of Procedure, the provisions of which relating to costs in civil actions, are no doubt to govern the allowance of costs in this proceeding, {a) See Laws of 1854, p. 592, seo. 3, ante, p. 19 ; Code of Pro. §§ 2, 3, 318, 471 ; 16 mw York E. 82, per Denio, J.; 2 Mon. Pr. 60 ; 24 Barh. 149 ; 25 Id. 336 ; 13 How. Pr. E. 400, per Harris, J.; and see ante, p. 16, note. In respect to the fees and expenses of commissioners and surveyors, see ante, p. 344. (a) In civil actions, tlie costs are regulated by the Code of Procedure. See § 307, (S:c., as amended by Laws of IBS'? and 1868. In addition to the allowances provided by § 30*7, the plaintiff, upon the recovery of judgment in an action for partition, is entitled to the following per- centage to be estimated upon the value of the property of which partition is sought, viz: For any amount not exceeding two hundred dollars, the sum of ten per cent.; for any additional amount not exceeding four hundred dollars, an additional sum of five per cent.; and for any additional amount not exceed- ing one thousand dollars, an additional sum of two per cent. lb. §§ 308, 309. And the court may also, in its discretion, make a further allowance to any party, not exceeding five per cent. lb. §309, as amended by Lams o/'lSoS, ch. 306. The value of the property is to be determined by the court, or by the eom- missionere, in case of actual partition. lb. §§ 308, 309. CH. IX.] PARTITION. 371 Removing Proceedings into the Supreme Court.'] Any proceedings for partition, commenced in the county courts, or in tlie court of Common Pleas of the city of New York, or in the mayors' courts of cities, may be removed into the Supreme Court by writ of certiorari, to be allowed by any of the justices thereof, if the same be served before any juror is sworn to try any issue joined in the proceedings, or before judgment is given that partition be made; and upon such removal, the like proceedings are to be had as if the petition had been originally presented to the Supreme Court. 2 R. S. 329, see. 74 ; 2 Bur. Pr. 247. Apypeals.] It is provided by the Eevised Statutes, that upon any final judgment rendered that partition be made, or confirming partition, or for the sale of any premises, or con- firming such sale, a writ of error may be brought by any of the parties to such judgment, jointly or separately, and with- out the consent of any co-plaintiff or co-defendant, within the same time and under the like restrictions as in cases of per- sonal actions. 2 R. 8. 329, sec. 75. And that it shall not be necessary for a plaintifiT or defendant bringing such writ of error to summon and sever any co-plaintiff or co-defendant. lb. sec. 76. And, also, that error may be assigned upon sucli writ for any erroneous adjudication upon the rights of any of the respective defendants or respective plaintiffs, and that the court will direct the person whose interest is affected by the adjudication, to plead to such assignment of errors, and to appear in such cause as a defendant in error. li. sec. 77. The remedy now, however, to review the judgment or order of the court, is by appeal ; the practice in which is regulated substantially by the Code of Procedure. See Code, §§ 8, 11, 333, 323, 457, 471 ; ^ R. S. 329, sec. 75, sujpra ; lb. 330, sec. 85 ; Xaws of 1854, ante, p. 19; and see, also, ante, p. 16, note. The appeal is placed upon the calendar, and brought on for argument the same as in civil actions. Where the plain- tiff's rights are not contested, no copies of the pleadings need be furnished to the court. Sup. Cowrt Rules, 1858, iVb. 42. But an appeal cannot be taken until after the entry of 372 PARTITION. [CH IX. judgment making partition ; and, therefore, an appeal will not lie fiom an order declaring the rights of the parties, and appointing commissioners to make partition. 2 Selden, 465. The appeal, in such case, should be delayed until final judg- ment, when both the intei-mediate order and the judgment will be open for review. Ih. Tlie court, upon the appeal, may give judgment, either of affirmance or reversal, in whole or in part, and as to any or all the parties, with costs to be paid by either of the parties, or by any one or more defendant or plaintiff to his co-defend- ant or co-plaintiff. 2 S. S. 329, sec. 78 ; and see Qode of P/o. §12. Partition and Sale of Infants' Estates.] "With i-espect to the estates of infants, the statiite provides, that whenever it shall appear satisfactorily, by due proof, or on the report of a referee, to the Supreme Court, that any infant holds real estate in joint tenancy, or in common, or in any other man- ner, which would authorize his being made a party to a suit in partition, and that the interest of such infant, or of any other person concerned therein, requires that partition of such estate should be made, such court may direct and authorize the general guardian of such infant to agree to a division thereof, or to a sale thereof, or of such a part of the said estate as in the opinion of the court shall be incapable of par- tition, or, as shall be most for the interest of the infant to be sold. 2 R. S. 330, sec. 86, as amended hy sec. 46, of chap. 320, of Laws of 1830 ; Laws of 1847, p. 323, sec. 16 ; lb. 3M, sec. 77. The object of the statute was not to authorize the guardian of an infant tenant in common to sell to his co-tenants ; but only to join with them in a sale of the joint interest in the property. 2 Paige, 566. If a co-tenant wishes to purchase the infant's share, at its fair value, the general guardian should apply for liberty to sell, under the article of the Kevised Statutes {post, Ch. XI.) relative to the sale and dis- position of infants' estates. Ih. And it seems, the court will not authorize the guardian to join in a sale, except on the report of a referee, that such sale is necessary and proper. Ih. CH. IX.] PARTITION. 373 The guardian must give sufficient security for the faithful performance of his trust on such sale, and to bring the pro- ceeds of the infant's share into court, or to invest and account for the same as the court shall direct. 75./ and see Sn^y. Court Rules, 1858, ISTos. 62 and 70. The guardian is required to report to the court, on oath, the partition or sale so made by him ; and if the same is approved and confirmed by the court, an order must be entered authorizing the guardian to execute conveyances of the right of the infant to such part of the estate as shall have been sold, to the purchaser thereof, or to execute releases of the right of such infant to such part of the estate as in the division falls to the shares of the other joint tenants, or tenants in common. 2 R. S. 331, sec. 87. Such deeds shall be as valid and effectual to convey the share of the infant as if the same had been executed by him after arriving at full age. li. see. 88. In case of a sale of any part of the estate, the infant is to be deemed a ward of the court ; and such order shall be taken as the court may direct, for securing, investing, and applying the proceeds of the sale, and requiring security from the guardian for that purpose. lb. If the infant is a married woman, the court may, upon petition, appoint her husband as her guardian ; and to every husband so appointed, the above provisions of the statute will apply. lb. sec. 97, added by sec. 47 of chaj). S20 of Laws 0/1830. Partition of Estates of Lunatics, c&c] Whenever it is made to aj^pear to the Supreme Court, on the application of any committee of any idiot, lunatic, or person mentally incapable of inanaging his affairs, holding any real estate in joint tenancy, or in common, or in any other manner, to authorize his being made party to a suit in partition, that the interest of such idiot, lunatic, or other person as aforesaid, or of any of the parties interested in the estate, requires a parti- tion thereof, a reference will be ordered to some suitable person, to inquire into and report upon the circumstances. 2 R. 8. 331, sec. 89; Laws of lSi7, p. 323, see. 16 ; lb. 344, sec. '7 7. 374 PARTITION. [CH. IX. Upon the coming in of the report of the referee, and a hearing and examination of the matter, the court may author- ize the committee to agree to a partition of such estate, and to execute releases of the right of such lunatic, idiot, or other person, as aforesaid, in and to the share of such estate falling to the other joint tenants, or tenants in common. 2 S. S. 331, sec. 90. Such releases will be as valid and effectual to convey the share of such lunatic, idiot, or other person of unsound mind, as if the same had been executed by them respectively when of sound mind and understanding, and for a valuable consideration. Ih. sec. 91. Partition when State is interested^ Where any lands or tenements shall be held by the people of this State, and by any individuals as tenants in common, proceedings for the partition thereof may be had against the people of this State, in the Supreme Court, in the same manner as against indi- viduals, and the like orders, decrees, and judgments shall be had therein. 2 R. S. 331, sec. 92. The petition and all other notices required to be served in other cases, must be served on the attorney general, who is required to appear in behalf of the State, and attend to its interests, lb. sec. 93. And it is the duty of the attorney general, whenever directed by the commissioners of the Land Office, to cause partition to be made of such tracts of land as are held in joint tenancy, or tenancy in common, in which the people of this State are interested ; and for that purpose he is authorized to do all such acts as any joint tenant, or tenant in common, may do by law. 1 E. S. 207, sec. 65. Provision as to Claims barred by Statute of Limitations.'] The authority given by the statute to proceed for the partition of real estate, will not authorize the revival or prosecution of any claim to lands which would or might otherwise be barred by any statute of limitations, or by the acquiescence of any party having any such claim. 2 P. S. 332, sec. 94. CHAPTER X. PROCEEDIISrGS AS FOE CONTEMPTS, TO ENFORCE CIVIL REMEDIES. The contempts proyided for, by the statutory provisions here considered (2 H. S. 634) are those which have been treated as such, merely for the purpose of enforcing some civil remedy. Bev. Ifotes, 3 E. S. Id ed., 772, and Id. 695. The " contempts," strictly so called, punishable by courts of record, are enumerated in Part 3, chap. 3, and title 2, of the Revised Statutes (2 R. S. 278) ; (a) and the like con- tempts, punishable by justices of the peace, are eniimerated in Part 3, chap. 2, and title 4, of the same statutes. 2 B. S. 273. In respect to the contempts last mentioned (the considera- tion of which is not included in this work), reference must be had to the provisions of the Revised Statutes, above men- tioned. I. In what Cases a Party is in Contempt. 1. Statutory Provisions.] The statute undertakes to declare the cases in which the remedy by proceedings for contempt may be adopted. It does not, however, assume to include them all, it being expressly provided by sub-division (a) Applicable, also, to the Marine Court of the city of New York. Laws of 185% p. 648, sec. 1. And by § 272, of the Code of Procedure, the same power is given to referees on the trial of causes before them, to preserve order, and punish all violations thereof, upon such trials, as is possessed by the court. Voorhies' Code, § 272, 5 th ed. 376 PROCEEDINGS AS FOR CONTEMPTS. [CH. X. eight {post), that that remedy may be pursued in all cases where attachments and proceedmgs as for contempts, have been usually adopted and practiced in courts of record, to enforce the civil remedies of any party to a suit in such court, or to protect the rights of any such party. The statute gives to every court of record power to punish by fine and imprisonment, or either, any neglect or violation of duty, or any misconduct by which the rights or remedies of a party in a cause or matter depending in such court may be defeated, impaired, impeded, or prejudiced, in the following cases : 1. All attorneys, counselors, solicitors, clerks, registers, sheriffs, coroners, and all other persons in any manner duly selected or appointed to perform any judicial or ministerial services, for any misbehavior in such office or trust, or for any willful neglect or violation of duty tlierein ; for disobe- dience of any process of such court, or of any lawful order thereof, or of any lawful order of a judge of such court, or of any officer authorized to perform the duties of such judge ; 2. Parties to suits, for putting in fictitious bail as sureties, or for any deceit, or abuse of the process or proceedings of the court ; 3. Parties to suits, attorneys, counselors,' solicitors, and all other persons, lor the non-payment of any sum of money ordered by such court to be paid, in cases where by law execution cannot be awarded for the collection of such sum (2 Paige, 578 ; 1 Duer, 696) ; and for any other disobe- dience to any lawful order, decree, or process of such court ; 4. All persons for assuming to be officers, attorneys, soli- citors, or counselors of any court, and acting as such without authority, for rescuing any property (2 Wend. 262), or persons, which shall be in the custody of any officer, by virtue of pro- cess issued from such court ; for unlawfully detaining any witness or party to a suit, while going to, remaining at, or returning from, the court where such suit shall be noticed for trial ; and fur any other unlawful interference with the pro- cess or proceedings in any action ; CH. X.] PROCEEDINGS AS FOR CONTEMPTS. 377 5. All persons summoned as witnesses, for refusing or neglecting to obey such summons, or to attend or be sworn, or answer, as such witness ; (a) 6. Persons summoned as jurors in any court, for improp- erly conversing with any party to a suit to be tried at such court, or with any other person, in relation to the merits of such suit ; for receiving communications from any such party, or from any other person, in relation to the merits of any such suit, without immediately disclosing the same to the court ; 7. All inferior magistrates, officers, and tribunals^, for dis- obedience of any lawful order or process of a superior court, or for proceeding m any cause or matter contrary to law, after such cause or matter has been removed from their juris- diction; and, 8. All other cases where attachments and proceedings, as for contempts, have been usually adopted and practiced in courts of record, to enforce the civil remedies of any party to a suit in such court, or to protect the rights of any such party. 2 R. S. 534, sec. 1. (J) The authority conferred by the above statutory provisions, is given for the protection of the rights of parties litigating in court, as well as to enable the court to protect itself, and to preserve its own dignity. (a) See the statutory proTisions on the subject of compelling the attend- ance of witnesses, in 2 R. S. 400 ; lb. 540, sees. 34, 35, 36. By the Code of Procedui'e, also (sec. 212, as ainended by act of ISol), referees upon the trial of causes, 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." And the court may also punish for such contempt before a referee. 6 Abb. Pr. S. 211, note. (b) "In this section," say the Revisers, "an enumeration of the general cases has been made, as well to define as to limit a power, which, whUe it is absolutely necessary in many eases, is yet, perhaps, more liable to abuse, and in England has been .abused more, than any other possessed by Ihe courts. The preceding section includes all cases which a diligent examination of all the writers on the subject has discovered, and which, it is supposed, ought to be included. The cases will be found in 4 Chitty's Blackstone, 221 ; American edition of Comyn'sBig. 1, 719, Attachment; 2 Hawk. 142." 373 PROCEEDINGS AS FOR CONTEMPTS. [CH. X. To authorize a person to be proceeded against under the statute, it must appear that his misconduct has tended to de- feat, impair, &c., the rights or remedies of a party in a cause then depending in the court. 1 Duer, 512. And when such misconduct is shown, the authority of the court is not limited to the imposition of a fine sufficient to indemnify the party aggrieved, or to an imprisonment of the accused, for the sole purpose of enforcing the payment of the fine, but it extends to the punishment of the accused, when the misconduct is, in its nature, a " criminal contempt." lb. 2. Contempts in not faying money ordered to he paid.] The statute, as we have seen, authorizes a party to be pro- ceeded against for a contempt, for the non-payment of any sum of money, ordered by the court to be paid, in cases where by law execution cannot be awarded for its collection. Sec. 1, suh. 3, supra; 2 Paige, 578 ; 1 Duer, 696, 698. And it further provides, that when any rule or order of a court, shall have been made for the payment of costs, or any other sum of money, and proof, by affidavit, shall be made of the personal demand of such sum of money, and of a refusal to pay it, the court may issue a precept to commit the person so disobeying to prison, until such sum, and the costs and expenses of the proceeding, are paid. 2 Ji. S. 535, sec. 4 ; and see 1 Hill, 168. In respect, however, to the power of the court to commit for the non-payment of costs, it is now provided by the act of 1847, that no person shall be imprisoned for the non-payment of interlocutory costs, or for contempt of court in not paying costs, except attorneys, solicitors, and counselors, and officers of court, when ordered to pay costs for misconduct as such, and witnesses when ordered to pay costs on attachment for non-attendance. Xaws of lSi:7,f. i91. But the act- of 1847, does not apply to those cases of con- tempt for which a fine may be imposed upon a party for any misconduct which may be productive of an actual loss or injury to the other party. And, therefore, where the defend- ant was ordered to appear before a referee and make an CH. X.] . PROCEEDINGS AS FOR CONTEMPTS. 379 assignment to a receiver, and to pay the costs growing out of a previous default, and failed to do so, a fine was imposed upon him, and an attachment awarded. 2 Barb. S. C. It. 396. And so, that act does not apply to costs allowed in certain cases under the Code of Procedure. Thus, when costs are adjudged against an infant plaint'fi", in an action, the guardian by whom he appeared is responsible for them, and payment thereof may be enforced by attachment. Code,%2>\Q. And so, in actions in which the cause of action, shall, by assign- ment after the commencement of the action, or in any other manner, become the property of a person not a party to the action, such person is liable for the costs, in the same manner as if he were a party, and payment thereof may be enforced by attachment. lb. § 321. In respect to the remedy for the collection of costs for the non-payment of which a party cannot now be imprisoned, the act of 18i7 further provides, that process in the nature of a fieri facias against personal property may be issued for the collection of such costs founded on the order of court. Laws (2/'1847, p. 491, sec. 3, supra. But an execution cannot be awarded to collect costs allowed by a judge in an order made in supplementary pro- ceedings. Such an order is not an order of the cou7't. 11 How. JPr. R. 446. The remedy for the collection of costs made by a judge out of court, it seems, is by precept to com- mit the party as for a contempt, lb. 450, 451. A demand of the costs ordered on a motion, is not neces- sary before issuing an execution for their collection. Laws O/1840, p. 333, sec. 15; 6 How. Pr. R. 121. Nor, if the costs are not paid within the time required, is an application to the court for leave to issue an execution for their collection necessary, lb. 265, 311, note; 3 Alb. Pr. R. 468 ; s. c. 13 How. Pr. R. 191. In cases, however, where a party may be committed for the non-payment of costs, or other sum of money, before the precept to commit the party can be issued, a personal demand of the payment of such sum is necessary ; and it is not enough that such demand is made of the solici- tor of the party. 9 Paige, 609 ; 2 R. S. 535, sec. 4, supra. 380 PROCEEDINGS AS FOR COKTEMPTS. . [CH. X. The order or precept to commit for the non-payment of money, issues directly. For forms, see Appendix, Nos. 264, 265. The process to appear and answer is for contempts other than those for the non-payment of a sum of money. 9 How. Pr. Ji.97; 3 Paige, 43 ; 2 P. S. 535, sees. 3, 4, 5. The order for the payment of money should specify the time within which the money is to be paid. 2 Ba/rh. Ch. Pr. 272. If the person demanding the money under the order of the court, is not the party to whom the order directs the money to be paid, such person should be authorized to receive the money. lb. / 19 Yes. 111. And where, in proceedings supplementary to execution, an order was made directing the defendant to pay a sum of money in satisfaction of the judg- ment ; it was held, that the defendant was not in contempt for not paying the money to the receiver, on demand of the latter, for the reason that the order was not to pay the money into court, or to the receiver, but in effect to pay to the plain- tiff directly in satisfaction of the judgment. 9 How. Pr. P. 97. It is not necessary that the sum for the non-payment of which a commitment is ordered, should be named in the order. It may be ascertained by a reference for that purpose ; and the referee's report, when perfected, though made after the order, is to be regarded as a part of it. 1 Hill, 154. And see this case for forms of orders of reference and referee's report. Where the defendant, in an action upon an ordinary civil contract, admits part of the plaintiff's claim to be due, the court will not, under the last clause of § 244, of the Code of Procedure, enforce the payment of it by proceeding against the defendant as for a contempt. 11 How. Pr. P. 360 ; s.c. 2 Ahh, Pr. P. 129. Otherwise, however, where the money is admitted to be due in a fiduciary capacity, so that under § 179, the defendant might be arrested at any time in the action. 1 Id. 443. And, it seems, the practice in this respect, is the same as before the Code, and that an interlocutory order for the payment of money admitted to be due in an answer, and CH. X,] PROCEEDINGS AS FOR CONTEMPTS. 381 which will be enforced by attachmenf, will in general be granted only to enforce payment of moneys received or with- held in violation of a trust, and not of an ordinary debt. Ih. In the New- York Court of Common Pleas, however, it has been decided, substantially, that a party may, in all cases, be compelled, by attachment, to pay a sum of money admitted by his pleading to be due. 1 Alh. Pr. R. 220 ; Id. 399 ; s. c. 3 E. D. Smith, 607 ; and see Id. 699, 614. The question, therefoi-e, may be regarded as unsettled, though the weight of authority is in favor of the practice above stated, {a) If moneys are collected by a solicitor for his client, which he refuses to pay over, the court will enforce the payment of the money by a commitment fur a contempt. 5 Paige, 311. A guardian may be proceeded against in a surrogate's court, by altachment against his person, as for a contempt, where he neglects or refuses to comply with a decree made on a final accounting by which he is required to pay the balance in his bands to another guardian appointed in his stead, or to the ward, if he has attained his majority. 10 Bari. 524, aff. 1 Kern. 324. And so, an executor may, in like manner, be proceeded against where a decree has been made against him by the surrogate directing the payment of moneys to a legatee under the testator's will ; and this, too, notwithstanding an execution may be issued for the collection of the same moneys. Id. Hid. / 1 Brad. 490 ; lut see contra, 1 Duer, 696. An attachment, however, will not be allowed where an execution has been issued for the collection of the moneys, which has been returned unsatisfied, and the executor, on the return of an order to show cause, sets up his inability to pay, — unless it is made to appear that the debt was fraud- ulently contracted, or that the executor willfully retains pos- session of funds or assets still in his hands, or refuses to pay (a) Since the decision of the cases cited, the last clause of § 244 of the Code has been amended. Laws of 1857, vol. 2, 'p. 555. It now prorides, that " When the answer of the defendant expressly or hy not denying, admits part of the plain- tififs claim to be just, the court on motion, may order such defendant to satisfy that part of the claim, and may enforce the order as it enforces a juJgrMnt or provisional remedy." The amendment consists of the words in italics. 382 PROCEEDINGS AS FOR CONTEMPTS. [CH. X. when he has the means of doing so. 1 Brad. 490, 493. But the executor, in such case, should be required to submit to an examination as to his property, and to consent to the appli- cation of his choses in action to the payment of the sum decreed, as conditions or terms of relief. Ih. If the defendant is committed for the non-payment of costs, or other sum of money, he is entitled to the jail liber- ties, 4 Paige, 282 ; Id. 397 ; 'iR.S. 433, sec. 40 ; otherwise, however, where the party is committed for the non-payment of a fine imposed upon him by the court for the breach of an injunction, or other contempt. In such case he must be con- fined within the walls of the prison. Id. ibid. ; 10 Paige, 606. And so, a defendant committed for the non-payment of costs or other sum of money, may be discharged from impris- onment, imder the statute, upon presenting a petition and making an assignment of his property. 2 P. S.Zl, sec. 1. Laws of 1847,^. 491, sec. 1 ; 3 Paige, 38, 43 ; 4 Id. 282. Such discharge, however, is not authorized, where the party is in execution for a fine imposed for a contempt of court, or where he is committed for the non-performance of some act or duty which it is in his power to perform. Id. ibid. 3. Yiolation of Injunction Order. '\ It is also a contempt of court to violate an order of injunction granted in a case in which the court has jurisdiction. 2 Paige, 326 ; 4 Id. 444 ; 5 All. Pr. R. 244 ; 1 Duer, 512 ; 5 Seld. 263 ; 3 Sand. S. G. R. 676 ; 15 Barb. liM; 15 How. Pr. R 81. It is the duty of a party served with an injunction, not only to refrain from taking any further active part in the proceedings enjoined, but also to direct the officers of the court and others who act in the proceeding at his instance and under his control to delay further steps in the matter pending the injunction. ^ All. Pr.R.'i,^^; 16 Uow.Pr. R. 81. And therefore, if the party stands by and allows a pro- cess over which he has control to be executed, after he has himself been served with an injunction restraining it, he is guilty of disobedience to the order, and may be punished as for a contempt. Id. Hid. And so, when an injunction is CH. X.] PROCEEDINGS AS FOR CONTEMPTS. 383 directed to a corporation, it is operative and binding, not only upon the corporation itself, but npon every person whose per- sonal action, as a member or officer of the corporate body, it seeks to restrain or control. 1 Duer, 451 ; Id. 512. And every such person is as fully boimd to personal obedience, as if he were personally named in the process ; and is therefore just as liable for his disobedience. Ih. ; and see 5 Selden, 263. If an injunction is violated, in a proceeding against a party for the contempt the coui't will not look into the merits of the cause to see if the injunction was properly issued. 2 JPaige, 326, supra. "While the injunction remained in force," says Chancellor "Walworth, " it was the duty of the vice-chancellor to punish every breach thereof; and in no case can a defendant be permitted to disobey an injunction regulai'ly issued, whatever may be the final decision of the court upon the merits of the cause. If there is not sufficient equity upon the face of the bill to support the injunction, the proper course for the defendant is to apply at once for a disso- lution." Jb. 329 ; and see 1 Duer, 452. A party, therefore, will be in contempt for breach of an injunction, if the officer allowing it had jurisdiction, notwithstanding that it was erroneously granted, and for an insufficient cause. 4 Paige, 4i4, The point on this subject is correctly stated in Wilcox V. Jackson (13 Peters, 511), thus : "Where a court has juris- diction it has a right to decide every question which occurs in the cause, and whether its decision be correct or otherwise, its judgment, until reversed, is regarded as binding in every other court. But if it acts without authority, its judgments and orders are regarded as nullities ; they are not voidable, but simply void." And see also, 1 Duer, 451 ; and 5 Selden, 263, 266, per Johnson, J. But when the injunction which is violated has been erroneously issued, the court will take the fact into consideration in determining the extent of punishment to be imposed upon the party guilty of a breach of it. 4 Paige, 444, supra. Nor is it any answer to the proceeding for a contempt, where the rights of the adverse party are involved, that the 384 PROCEEDINGS AS FOR CONTEMPTS. [CH. X. violation of the injunction was committed under the advice of counsel. 4 Paige, 163 ; Id. 450 ; 7 Id. 364. " The fact that the defendants acted under the erroneous advice of counsel, to whom they applied for information how they could elude the justice of this court, and at the same time avoid punishment for a breach of the injunction, cannot pro- tect them from a fine sufficient to compensate the adverse parties for the injuries they have sustained by the wrongful acts complained of; though it may furnish a ground to justify the court in refusing to inflict a further punishment upon the offenders for a violation of its order." Id. 367, per Walworth, Ch. ; and see 3 Sand. S. O. E. 662. And to enable the court to regai'd such advice, the defendant should state the name of his counsel, the information which was laid before him, and the exact import of the advice given ; and if the advice was written, the writing should be produced, or if not, it must be verified by the ' affidavit of the counsel who gave it. 1 Duer, 513. Nor is it any answer to the proceeding that the defendant believed the court had no jurisdiction to make the order; and such belief, even, furnishes a very slight, if any, excuse for his disobedience. Id. In respect to the acts which will constitute a violation of an order of injunction, it has been held in a case where a party was restrained by injunction from interfering with the books and papers of a public ofiice, that to assume the custtidy of the room appropriated to the office, and contain- ing those books and papers, is a violation of the injunction, although the party does not touch the books and papers, nor allow others to do so. 5 AUb. Pr. P. 244. And so, where an injunction was granted against the mayor, aldermen, and commonalty of the city of New York, restraining them from granting the right to construct a certain railroad in that city, — it was held that the passing of a resolution by the common council, granting that right, on condition that the grantees should accept the terms of the resolution, was a violation of the injunction by those voting for it, whether the terms were accepted or not, the resolution itself doing all that could be done by the council to make the grant efiPectnal, CH. X.] PROCEEDINGS AS FOR CONTEMPTS. 385 5 Selden, 264 ; and see the case in the court below, 1 Duer, 452 ; lb. 612. {a) And so, also, where supplementary pro- ceedings were instituted against a defendant, and he was enjoined by an order of a justice of the court from disposing of, or in any manner interfering with, his pi'operty, and the defendant delayed the proceedings, and protracted the ap- pointment of a receiver for a long period, and in the mean time confessed a judgment in another court to a third party, upon which an execution was issued and immediately return- ed, supplementary proceedings taken, a receiver appointed, and an assignment made to such' receiver by the defendant under a judge's order before a receiver in the first proceeding was appointed, and the latter was thereby prevented from receiving the fund which the party in that proceeding was seeking to reach,— it appearing that the judgment was con- fessed for the purpose and with a view of enabling the second judgment creditor to obtain a receiver and a transfer to him of the fund, and thereby to prevent the first creditor from reaching it, — it was held to be a plain and intentional viola- tion of the injunction. 3 Sand. S. C. H. 676 ; but see 4 Paige, 378. The mere confession of a judgment would not, of itself, be a violation of such an injunction ; yet it will be so deemed when accompanied by other acts showing an intent to change the disposition of the debtor's property to the prejudice of the party obtaining the injunction. 3 Sand., supra. In respect to the manner in which an order of injimction should be served to bring a party into contempt, see ^o«^, p. 3S8. 4. Breaking open Sealed Parts of JBooks produced for Inspection.'] It is a contempt of court, also, to break open the sealed parts of books produced for the inspection of an adverse party ; so held, where the books, under the order of the court, were deposited in a master's ofiice, with liberty to (a) See the oases here cited, ia respect to the liability of municipal corpo- rations, or the several members thereof, for contempt, and the proceedings in such cases; and see also, 15 Barb. 194. 25 386 PROCEEDINGS AS FOR CONTEMPTS. [CH. X. the adverse party to inspect and take extracts from such parts as related to certain partnership transactions, with the parts thereof not relating to the partnership transaction sealed up ; and the adverse party, during the absence of the master, broke open the sealed parts, which contained the private memoranda and remarks of the party depositing the books, in relation to his private business. 2 Paige, 494. The chancellor, in that case, at first doubted the authority of the court to punish the improper conduct complained of ; but on further examination was satisfied that the case was provided for by the 2d and 8th sub-divisions of the first section of the statute. Supra. " It was," he remarks, " an abuse of the proceedings of the court ; it was also a case in which the rights of the adverse party were materially involved. While the course of judicial investigation fre- quently requires a party to produce parts of his books in which the adverse party has an interest, for the inspection of the latter, it may frequently be of great importance to the former that his accounts and transactions with other persons should not be exposed to the examination of strangers, and particularly of an enraged adversary. "Where his books are subjected to inspection, it is the uniform practice of the court to permit a party to seal up those parts which do not relate to the subject of litigation. 1 Wils. Ch. E. 222 ; 1 Cox's Ca. 288. And it has been the practice of courts of record to protect suitors against any unwarrantable inter- ference by the adverse party with rights of this description, by proceeding against the offender as for a contempt." lb. 495. If the adverse party has reason to believe that the parts sealed contain matters material to him, his remedy is to apply to the court for an order directing them to be opened, 1 Barh. 8. C. R. 444 j though if the books are produced before a referee, before making application to the court, the party should first apply for such order to the referee. Ih. 5. Interfering with Property in possession of Receiver, Committee, c&c] And so, it is a contempt of court to inter- ■CH. X.] PROCEEDINGS AS FOR CONTEMPTS. 387 fere with property in the possession of an officer of the court ; as, where property is rightfully in the hands of a receiver, it is in the custody of the court, and cannot be distrained upon for rent without permission of the court by whom the receiver was appointed ; and any person who takes the property out of the possession of the receiver, without such permission, after he has notice of the character in which such possession is holden, is guilty of a contempt. 7 Paige, 513. And so, after a person is declared by inquisition to be a lunatic, it is a contempt of court for a creditor, or other person who is informed of the proceedings, to sue the lunatic, or to levy an execution upon his property or other wise to interfere with it, without the permission of the court. 2 Id. 422 ; 3 Id. 199 ; 5 Id. 489. 6. Contem/pts in other Cases.] It is a contempt of the court, also, to bring an action in the name of another, with- out his privity or consent. 2 Johns. Cas. 291. The nominal plaintiff, in that case, being nonsuited, an attachment was allowed against the person who brought the action, for the costs. Ih. ; and see 2 Cow en, 589. And so, it is a contempt not to pay alimony directed by the court to be paid by the defendant in a suit commenced against him for a divorce. 15 How. Pr. R. 568 ; 2 Barb. Ch. P. 73. Though where alimony was fixed on a reference to a master, and the order of reference did not require the defendant to pay the sum which should be- allowed ; and no order had been made requiring the defendant to pay the sum so allowed, — ^it was held that the defendant was not liable for a contempt for not paying the same. Ih. And so, it seems, a party may be punished as for a con- tempt for refusing compliance with an order of the court, made under the Code of Procedure, directing him to make discovery of books and papers in his possession. See Code of Pro. § 388 ; 1 Kernan, 575, 582. It would be otherwise, however, in respect to an order of discovery made under the provisions of the Eevised Statutes. Ih. ; and 4 Wend. 196. ao8 PROCEEDINGS AS FOR CONTEMPTS. [CH. X. If a person to whom a writ of habeas corpus is directed, make an insufficient or evasive return, he may be proceeded against as for a contempt : so held, where the return was, that the party, whose body was directed to be produced, was not in his custody ; it appearing from affidavits produced, that tlie party was in fact in the custody of a subordinate officer, acting under the order of the person to whom the writ was directed, and that the command of the writ was intentionally eluded and disregarded. 10 Johns. B. 328 ; and see 2 R. S. 566, sec. 34. And it is a contempt, also, for a sheriff willfully to disobey the order of the court ; as, where a party committed for contempt was placed in the custody of the sheriff, who permitted him to go at large in the sheriff's sitting room ; it was held that this was an escape, and that the sheriff was guilty of a contempt. 10 Paige, 606. And so, in a creditor's suit in the late Court of Chancery,, where the master directed the defendant to deliver to the receiver the possession of his property, the defendant, Unless he applied to the court to review the decision, might be com- pelled, by process of contempt, to comply with the master's- directions. 8 Paige, 388. The defendant, however, in such case, was not in contempt for neglecting to deliver over to the receiver property which was claimed to be in the possession of, and to be owned by, a third person ; unless the master decided that such property was owned by the defendant, and was under his control. Ih. 273. A party may also be proceeded against as for a contempt who refuses to attend and testify, when required to do so by an adverse party in an action under the Code of Procedure.. Cods, § 394. How Order to he Served to iring Party into Contempt.'] It is not necessary that the order, for the violation of which the defendant is proceeded against for a contempt, should in all cases be served upon the party personally. In one case it was held to be sufficient if it is served upon the defendant's solicitor, where a knowledge of such service is brought home to him. 4 Paige, 405. So, if the defendant is informed of ■CH. X.] PROCEEDINGS AS FOR CONTEMPTS. 389 .an order for an injunction, by a person who was present in court at the time it was granted, it is sufficient. 3 Ed. Ch. R. 236. So, if he has personal notice of an order, by being himself in court when it is made. 2 Barb. Ch. Pr. 275 ; 2 Jao. cfe W. 264 ; 12 Ves. 202 ; 14 Id. 136. In the case, howevei-, of Coddington v. Webb (4 Sand. 8. C. ^.639), the court held that for the purpose of founding a proceeding for a contempt of court, it is necessary to show the original order, with the signature of the judge, at the time of the delivery of the copy. To the same effect is the case of Watson v. Fuller (9 How. Pr. E. 425). In the former case, however, the injunction order was made ex parte ;. and in the latter, the parties proceeded against were not parties to the action. The rule adopted in Coddington v . Webb was alluded to by Bosworth, J., in the case of TJie People v. Compton and others (1 Duer, 513, 553) ; and that justice, alhiding to the manifest propriety of restricting the application of the rule there laid down, remarked : " The rule adopted in the case cited, if adhered to as a rule to be applied to all cases, would be productive of irreparable injury to parties, as will be man- ifest from looking into the facts of some of the reported cases, which hold that a party may be punished as for a contempt, when he has knowingly and designedly done acts which he knew, at the time, the court had, by an order, prohibited him from doing, although at the time no order had been served, or in fact entered — but had only been directed to be entered." The same learned justice also remarks, that " where a party is directed by an order of court to do something, as to pay money, deposit papers, &c., and his wliole obligation to act at all depends not only on the existence of the order, but also upon its being served in a particular manner, it is a proper rule of practice not to hold him guilty of a disobedience of the order for not having done the thing required until he has been shown the order, and furnished with a copy of it." lb. 554. And so, in The People v. Sturtevant (5 Selden, 263, 278), :the court, alluding to the practice in the late Court of Chan- 390 PROCEEDINGS AS FOR CONTEMPTS. [CH. X. eery, remarked that that court " never lost sight of the prin- ciple that it was the disobedience to the order of the court which constituted the contempt, and, therefore, although it required of the party availing himself of its order, a substan- tial compliance with the rules and practice upon the subject,, it would not usually allow the effect of its orders to be wholly lost, when the party sought to be bound by the order had actual knowledge or notice of its existence, although there mighthave occurred some slip in the formal method of bringing it home to him." And see 5 Abb. Pr. R. 251, per Ingraham F. J. ; 1 Craig & Phil. 98 ; 4 Myl. & C. 498. If the injunction order is granted by the cov/rt, and not by a judge out of court, it is properly served by delivering a cer- tified copy ; and no exhibition of the original order is requisite. 5 Abh. Pr. P. 244, supra. The service of an injunction order upon a person who is not a party to the proceedings in which it was granted, and to- whom the order is not directed, does not operate to bind him. Its utmost effect upon him, is as a notice. 19 Barh. 356. II. How Parties Proceeded Against. Cowrts and Officers having Jurisdiction.] The proceed- ings for contempts to enforce civil remedies, and to protect the rights of parties in civil actions, are confined, by the statute here considered, to courts of record. 2 P. 8. 534, sec 1. Jurisdiction, however, in such proceedings, is conferred by other statutes upon surrogates' courts, though not courts of record, to the same extent, substantially, as upon the latter courts, {a) 10 Barh. 524, aff. 1 Kern. 324 ; 1 Brad. 490 ; 1 Duer, 696. (a) By the Revised Statutes (2 R. S. 221, sees. 6 and 9), the surrogate has power to punish witnesses for disobedience to subpoenas, or for refusing to tes- tify ; to enforce all lawful orders, process, and decrees, by attachment; and to issue process to, and exact obedience from, sheriffs, jailors, coroners, or other- executive officers. And by the act of 1837 (p. 535, sec. 67), the 10th, 12th, and 13th sections, and also sections 16 to 82, of the Revised Statutes, here considered,, are made to apply to attachments issued by surrogates' courts. CH. X.] PROCEEDINGS A3 FOR CONTEMPTS. 391' By the Code of Procedure, also, if any person, party or witness, disobey an order of the judge or referee duly served, in proceedings supplementary to execution, such person, party or witness may be punished by the judge, as for a contempt. {a) Code, § 302 ; 3 Sand. S. C. E. 676. The power to punish in such case, however, is not confined to the judge, but the court, also, may punish the disobedience. 13 How. Pr. JR. 331 ; s. c. 4 AU. Pr. B. 93 ; and see 6 Id. 217, note ; Yoor- hies' Code, § 302, and notes y but see contra, 13 JIow. Pr. P. 174 ; s. c. 3 Ahb. Pr. E. 424 ; and see 2 K D. Smith, 503. Who may apply.} The person applying to punish a party for a contempt must show that he has some interest in the subject-matter of the injunction or other matter pending in court, or that lie has a right to prosecute for the misconduct or other injury complained of. 4 Paige, 163. It is otherwise, however, in respect to infants, lunatics, &c., who are unable to protect their own rights. lb. Where, and how Application to be made.} The applica- tion to punish a party for a contempt must be made to the court in which the cause or matter prejudiced by the mis- conduct alleged, is depending. 2 E. S. 534, sec. 1, supra. Where, however, the misconduct has occurred at any circuit covirt, or in reference to any process or proceedings pending in or returnable to such court, and which has not been pun- ished by such court, the Supreme Court shall have the same jurisdiction and power to inquire into and punish the same, as if such misconduct had occurred in the Supreme Court, or in reference to any process or proceedings therein. Ih. 539, sec. 33. (5) (a) Although the Code of Procedure gives to the judge the power of punish- ing contempts to his orders, reference must be had to the statutory ptovisions here considered, as to the mode in which that power is to be exercised. 2 Sand. 8. C. R. 724 ; s. c.i Sow. Pr. R. 369 ; and see notes to § 302 of VoorUes' Code. If the party is proceeded against by attachment, it may properly, in such case, be made returnable before the judge at his office. Id. ibid.; and see 2 -E. D. Smith, 603. (6) The Revisers, in their original note to this section, remarlc, that " ques- 392 PROCEEDINGS AS FOR CONTEMPTS. [CH. X. And so, where the contempt charged consists in disobe- dience to an order made by a judge or referee in supple- mentary proceedings, the application should be made to the judge making the order, or appointing the referee. Code of Pro. % 302; and see ante, p. 391, note a. Though the court, also, may entertain jurisdiction and punish the disobedience to the judge's order. 13 How. Pr. R. 331 ; 5. c. 4 All. Pr. It. 93; but see coiitra, 13 How. Pr. R. 174; s.c.ZAlh.Pr. R. 424. And so, where a rule shall be entered in any court requir- ing anj' officer, or other person, to whom any process of such court has been directed and delivered, to return the same, an attachment will issue for disobedience to such rule, of course, and without special application to the court. 2 R. S. 636, sec. 6 ; Sup. Court Rules, 1858, JVo. 8 ; and Rules of 1847, No. 13, post. And an attachment will also issue against a sheriff, without special application to the court, where he fails to return an attachment issued for a contempt, by the return day therein specified, and without any previous rule or order for that purpose. 2 R. S. 537, see. 17, post. In such case, the application must be made to a judge of the court, or some officer authorized to perform the duties of such judge. lb. sees. 11 and 17. The application is founded upon affidavits, setting forth the neglect or violation of duty, or the misconduct com- plained of; though where the misconduct is committed in the immediate view and presence of the court, it may be pun- ished summarily. 2 R. S. 536, sees. 2, 3. Methods of Proceeding for Contempts.] The statute pro- vides that when any miscondiict punishable by fine and im- prisonment is not committed in the immediate view and pre- sence of the court, the couj-t shall be satisfied by due proof) tions may arise, how far the circuit coui'ts are now distinct from and independent of the Supreme Cour . To remove all room for doubt, and to provide for cases where it will be absolutely necessary such a power should be exercised by the Supreme Court, this section is prepared." 3 R. S., 2ded., 11i. CH. X.] PROCEEDINGS AS FOR CONTEMPTS. 393 by affidavit, of the facts charged, and shall cause a copy of such affidavits to be served on the party accused, a reasona- ble time to enable him to make his defence ; except in cases of disobedience to any rule or order requiring the payment of money, and of disobedience to any subpoena. 2 B. S. 535, sec. 3. And when any rule or order of the court has been made for the payment of costs, or any other sum of money, and proof, by affidavit, has been made of the personal demand of such sum of money, and of a refusal to pay it, the court may issue a precept to commit the person so disobeying to prison until such sum, and the costs and expenses of the proceed- ings, are paid. li. sec. 4. In all cases, other than that specified in the last section, the court is required either to grant an order on the accused party, to show cause, at some reasonable time to be therein specified, why he should not be punished for the alleged mis- conduct ; or to issue an attachment to arrest such party, and to bring him before the court to answer for such misconduct. Ih. sec. 5. But when a rule shall have been entered in any court, according to the practice thereof, requiring any officer, or other pei-son, to whom any process of such court may have been directed and delivered, to return the same, an attach- ment for disobedience of such rule may issue, according to the practice of the court, to arrest such officer or person, to answer for such disobedience, without special application to the court. Ih. sec. 6 ; and see Sap. Court Rules, 1858, No. 8 ; amd Rules of 1847, No. 13, post. The statute thus allows two methods of proceeding against a party as for a contempt to enforce civil remedies (i. e. in all cases, except where the contempt is for the non-payment of money), viz : by attachment to bring the party into court to answer for the alleged contempt, or by an order for the accused to show cause why he should not be punished for his alleged misconduct. 9 Paige, 372 ; 2 Sand. S. 0. R. 724, 728 ; S.C.4: Mow. Pr. R. 369. The application for an attachment may be made ex parte, 394 PROCEEDINGS AS FOR CONTEMPTS. [OH. X. or on notice of motion, accompanied with copies of tlie papers on which the same is founded. And whether it shall issue in the first instance, or on notice, is in the discretion of the court, or officer granting it. The usual and more advisable course, however, is — except in those cases where it may be important, for the rights of the party prejudiced, that the defendant be brought into court in^the first instance — to apply for the attachment on notice in the usual manner, or on an order to show cause. Id. ibid. ; mid see 1 Hill, 168 ; 10 Johns. 333. For forms in proceedings for attachment generally, see Appendix, Nos. 263 to 286. In respect to attachments against a sheriff or other officer for not returning process, &c., in actions under the Code of Pro- cedure, "it is provided by rule 8 of the Supreme Gourt {Rules of 1858), that at any time after the day when it is the duty of the sheriff or other officer, to return, deliver, or file any process, undertaking, order, or other paper, by the provisions of the Code of Procedure, any party entitled to have such act done, may serve on the officer a notice to return, deliver, or file such process, undertaking, order, or other paper as the case may be, within ten days ; or show cause at a special term to be designated in said notice, why an attachment should not issue against him. For form of notice, see Appen- dix, ISTo. 266. And in proceedings other than those relating to actions under the Code, the party interested may serve a notice upon the officer at any time before the return day of the writ, requiring him to return such writ within twenty days after service of such notice ; and, if not so returned, upon filing in the office of the clerk of the county in which the writ is return- able, an affidavit of the service of such notice, and of the delivery of the writ, the officer's default may be entered, and an attachment issued of course. See Sup. Court Rules, lSi7, No. 13. Where, however, the attachment is issued against an officer for neglect to return an attachment issued in pro- ceedings for contempts, such attachment issues, of course, without any previous rule or order for that purpose, upon being allowed by a judge of the court, or by some officer an- CH. X.] PROCEEDINGS AS FOR CONTEMPTS. 395 thorized to perform the duties of such judge. 2 E. 8. 537, S6G. 17. 1. Proceedings hy attachment.'] In proceeding by attach- ment the party complaining of the alleged misconduct must produce proof, "by affidavit, or other legal evidence, showing that the party is in contempt. Sec. 3, supra. For form of affidavit, see Appendix, No. 271. Copies of the affidavit and other papers on which the application is founded, must be served upon the party accused, a reasonable time to enable him to make his defence ; except where the party is proceeded against for disobedience to any order requiring the payment of money, and for disobedience to any subposna. lb. It is sufficient if copies of the papers are served simultaneously with the attachment. 2 Sand. S. C. R. 728 ; s. c. 4 Eow Pr. R. 369. The affidavits on which the attachment is founded, as well as the attachment and subsequent proceedings, where the at- tachment is issued against the parties to the writ, are properly entitled in the original cause. 4 Paige, 360 ; 7 Id. 325 ; 1 Barb. S. C. R. 227. Though where the proceeding is against persons who are not parties to the suit, the affidavit and papers previous to and including the order for the attachment, should be entitled in the original cause, and all the subsequent pro- ceedings should be in the name of the people, on the relation of the party prosecuting the attachment. 4 Paige, supra ; 5 Johns. 235 ; 9 Id. ItiO. Thus, "The People of the State of New York ex rel. A. B. (the plaintiff) against C. D., sheriff of the county of "Washington." Id. ihid. ; 1 £wr. Pr. 359. Where both parties are heard on the application for an attachment, if the affidavits in relation to the alleged con- tempt are conflicting, an attachment will properly issue to bring the defendant into court, so that he may be examined on interrogatories as to the contempt, and to enable the plain- tiff to compel the attendance of witnesses to prove the facts. 4 Paige, 378. It is no answer to the application for an attachment against the defendant, that the order for the disobedience of which he is sought to be punished, was improperly issued, where 396 PEOCEEDINGS AS FOR CONTEMPTS. [CH. X. such order was obtained on a motion which the defendant neglected to oppose. 3 Paige, 253 ; and see 2 Id. 326 ; i:Id. 444. The order for the attachment should not contain an adju- .dication of the court that the defendant is guilty of the contempt; but it should merely direct the issuing of the attachment, or declare only, that it appears to the court that there is probable cause for the issuing of an attachment, to bring the defendant before the court to answer as to the alleged contempt. lb. At the time of issumg the attachment, the court must direct the penalty in which the defendant must give bond for his appearance to answer. 2 B. 8. 536, sea. 10. And the clerk should indorse upon the attachment a certificate to the effect that the same is issued by the special order of the <50urt. Ih. sec. 14. The attachment should be directed to the sheriff of the county ; though where the sheriff is the party proceeded against, or is otherwise interested in the proceeding, it should be directed to the coroner. It should be made returnable at a special term ; and is tested, signed, and sealed like ordinary process. See 15 How. Pr. P. 494 ; Sup. Court Rules, 1858, No. 40. 2. Order to show Cause.] The application for an order that the party show cause why he should not be proceeded against for a contempt, is, like the application for an attach- ment, founded upon affidavit showing the misconduct alleged. Sec. 3, supra. It is brought on like other motions founded on orders to show cause. The order to show cause, with copies of the affidavit and other papers on which it is founded must be served upon the party accused, a reasonable time before the hearing ; and the time for the hearing must be specified in the order. Sec. 5, supra. For form of order, see Appendix, No. 272. The order should be served upon the party personally ; unless personal service is dispensed with, on special grounds. 3 Barb. Ch. Pr. 2Y8 ; am,d see ante, p. 388. If the defendant does not appear at the day appointed, or CH. X.] PROCEEDINGS AS FOR CONTEMPTS. 397 at such other day as may be afterwards designated for that purpose, or if he appears and does not deny the alleged mis- conduct, the court may at once proceed to make a final decision, that the accused has been guilty of the contempt charged, and to award the proper punishment, as directed by the statute. If the alleged misconduct is denied, the court may discharge the order to show cause ; or may allow inter- rogatories to be filed, and direct a reference to take the answers of the defendant to such interrogatories, and to take such proof as either party may wish to offer, and report the -same to the court. But tlie proofs themselves should be reported to the court, and not merely the referee's opinion thereon ; and the court is to determine, upon the original affidavits, the answers of the defendant, and such subsequent proofs, whether the accused has been guilty of the alleged misconduct. 9 Paige, 375, per Walworth, Ch. ; cmd see 4 Id. 378 ; 2 Sand. S. C. R. 724 ; s. c. 4 Bow. Pr. R. 369. Habeas Corpus may Issue where Party is in Custody.] If the party charged with misconduct, is 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 is authorized to award a writ of habeas corpus, to bring up the body of such person, to answer for such misconduct. 2 R. S. 536, sec. 7 ; 22 Wend. 635. In cases where a party is entitled to an attachment against any person, without the special order of the court, and such person shall be in custody, as specified in the last section, a writ of habeas corpus, to bring up such person, may be allowed by any judge of the court, or by any officer authorized to perform the duties of such judge in vacation. 2 R. S. 536, sec. 8. Such writ shall authorize the sheriff in whose custody such person shall be, to remove and bring him before the court to which the same is returnable, and to detain him at the place where such court shall be sitting, until some order be made by the court for his disposition. lb. sec. 9. Rail y Penalty of Rond.] When the attachment is issued 398 PROCEEDINGS AS FOR CONTEMPTS. [OH. X. by the special order of the court, iinder the statute, the court must direct the penalty in which the defendant must give bond for his appearance to answer. 2 R. 8. 536, sec. 10. In all other cases, when a party shall be entitled to an attachment, without the special order of the court, he shall make application to a judge of the court, or to some officer authorized to perform the duties of such judge, who, upon due proof of the facts and circumstances, shall direct the penalty in which the defendant shall give bond fo^; his appear- ance, to answer to the matters alleged against him ; and shall endorse such order on the attachment. Ih: sec. 11. And if, in such case, the order specifying the sum in which the defendant is to be held to bail, is not endorsed upon the attachment, the defendant may be discharged from arrest on executing a bond in the penalty of one hundred dollars with sureties, as prescribed by the statute. lb. sec. 15, post; 21 Wend. 57. Ariest of Defendant, and Duty of Sheriff". ] Upon arrest- ing the defendant upon an attachment, to answer for any alleged ' misconduct, the sheriff is required to keep such defendant in bis actual custody, and to bring him personally before the court issuing the attachment; and to keep and detain him in his custody, until the court shall make some order in the premises ; unless such defendant entitles himself to be discharged by giving the bond prescribed by the statute. 2 B. S. 536, sec. 12 ; 1 Mil, 154. But when the court has once acquired jurisdiction, by arrest, under an attachment for contempt, it continues while the case is under consideration, whether the defendant remains in actual custody, or not. lb. The inability of the defendant, from sickness, or other- wise, to attend the court, personally, will be a sufficient excuse for not bringing him before the court, Nor will the officer be required in any case, to confine any person arrested upon an attachment to answer for misconduct, in any prison, or otherwise to restrain him of personal liberty, except so far as shall be necessary to secure his personal attendance. 2 i?. S. 540, sec. 37. CH. X.] PROCEEDINGS AS FOR CONTEMPTS. 399 When Defendant to he Discharged on giving Bond, cfco.J In cases wliere a sum shall have been endorsed on any attach- ment issued by the special order of the court, and where any sum, shall have been so endorsed by any judge or other officer as prescribed by the statute, the defendant shall be dis- charged from arrest on such attachment, upon executing and delivering to the officer making the same, at any time before 'the return day in such writ, a bond, with two sufficient sure- ties, in the penalty endorsed on such attachment, to such officer, by his name of office, and his assigns, with a condition that the defendant will appear on the return of such attach- ment, and abide the order and judgment of the court there- iipon. 2 R. S. 537, see. 13. For form, see Appendix, No. 276. But when an attachment is issued without the special order of the court, and an order specifying the sum in which the defendant is to be held to bail is not endorsed thereon, the defendant shall be discharged from the arrest thereon, on executing a bond in the penalty of one hundred dollars, with sureties, in the same manner and with the like condition as above required. Ih. sec. 15. And wliere the attachment was issued against an officer, without the special order of the court, and withoiit any order fixing the amount of the bond, and the officer gave a bond to be discharged from arrest, with a penalty exceeding one hundred dollars, — it was held that the bond was void. The penalty, in such case, cannot legally exceed one hundred dollars. 21 Wend. 57. Upon returning any attachment, the officer executing the same must return the bond, if any, taken by him, of the defendant, which must be filed with the attachment. 2 B. S. 537, sec. 16. When Deftndant cannot he Discharged, except iy Court.'] In cases where the attachment is issued by the special order of the court, and no sum is specified in which the defendant shall be held to bail, he shall not be entitled to be discharged from the arrest on the attachment upon executing any bond, or in any other manner, unless upon the special order of the court issuing the attachment. 2 B. S. 537, sec. 14. 4:00 PROCEEDINGS AS FOR CONTEMPTS. [CH. X. And SO, when a sheriff, or other officer, is proceeded against for not returning an attachment, as required by the statute, and such officer is arrested, he is not to be discharged upon bail, or in any manner, except by the order of the court. lb. sees. 17, 18, post. Sheriff's Return, and Attachment for Default^ The sheriff or officer to whom the attachment is delivered, is . required by the statute to return the same by the return-day specified therein, without any previous rule or order for that purpose ; and in case of default, an attachment may be issued against him, of course, upon being allowed by a judge of the court, or by some officer authorized to perform the duties of such judge, upon proof of such default. 2 H. S. 637, sec. 17. And the court, in term time, may also allow such attach- ment. 23 Wend. 102. The court, or judge, in the allowance of the attachment, must state the cause of issuing the same, and that the defend- ant is not to be discharged upon bail, or in any other manner, but by order of the court. 2 E. S. 537, sec. 17. The officer to whom the last-mentioned attachment is delivered, is required to execute the same by arresting and keeping the defendant in his custody, bringing him personally before the court, and detaining him in his custody until the order of the court. lb. sec. 18. The officer who serves the attachment must return the same to the court, at the place where the court is held, on the return-day of the attachment, and during the actual sitting of the court on that day. 7 Paige, 435 ; and see 3 Id. 85. For form of sheriff's return, see Appendix, 'So. 272. But he has the whole time of the actual sitting of the court upon the return-day to return the same, unless he is specially directed by the court to return it immediately. And where the party prosecuting the attachment wishes to expedite the proceedings, he may, upon an affidavit of the delivery of the process to the proper officer a sufficient time before the return day to have enabled him to serve and return it, and that it has not been returned, move the court, previous to its adjourn- ment on the return day, for an order that such officer return CH. X.] PROCEEDINGS AS FOR CONTEMPTS. 401 the attachment during the sitting of the court on that day, or that an attachment issue against him, upon filing the clerk's certificate of his default. But it is irregular to take out an attachment against the officer during the actual sitting of the court on that day. 7 Paige, swpra. If the attachment which is returnable on a particular day, is not received by the sheriff in time to serve it and to bring ■ the defendant before the court at the place required, he should not arrest the defendant, but should return the attachment tarde. 4 Id. 360. Proceedings in case of PefendanGs Default.'] If the attachment which has been issued against a defendant is returned served, and the defendant does not appear on the return day thereof, the court may either award another attachment, or may order the bond, taken on the arrest to be prosecuted, or both. 2 P. 8. 539, sec. 27. For form of order that attachment issue, see Appendix, No. 277. If the bond is ordered to be prosecuted the order should also specify the name of the aggrieved party, and should authorize him to prosecute the same. Ih. sec. 28 ; and see 21 Wend. 57. For form, see Appendix, No. 278. But if there is no party aggrieved by the misconduct of the defendant, the order should direct it to be prosecuted by the attorney general, or by the district attorney of the county in which the bond was taken, in the name of the officer who took the same. 2 P.S. 539, sec. 30. If a bond has been given, and the attachment is return- able before the Supreme Court, ai special term, it is not abso- lutely necessary that the defendant should be called on the first, or return day, especially if the attachment is not filed'on that day. An appearance on the second day is sufficient for him, as well as for the relator. 15 How. Pr. P. 494. For- merly, the defendant was required at least to appear on the second non-enumerated day in term, lb.; 3 Wend. 423 ; and the court requires nothing more than that now, by requiring him to appear on the second day in a special term. 15 How. Pr. P., supra. 26 402 PROCEEDINGS AS FOR CONTEMPTS. [CH. X. Action hy Party Aggrieved upon the Defendants Bond-I If tlio court orders the bond taken on the defendant's arrest to be prosecuted, and authorizes the party aggrieved to pro- secute the same, such order operates as an assignment of the bond, and such party may maintain an action thereon in his own name, as assignee of the sheriff or officer to whom the same was given, in the same manner as in other actions on honds, with condition to perform covenants other than for the payment of money. 2 E. 8. 539, sees. 27, 28. The action upon the bond is to be conducted in conformity to the Code of Procedure. Code, § 471. In respect to the complaint in the action, it should set forth, substantially, tlie same facts as the old declaration. Thus, it should aver that the party bringing the action is the party aggrieved ; and it should show his connection with, and relation to, the attachment proceedings, and how and to what extent he has been aggrieved by the acts of the defendant. 7 Bai 5. 581 ; s. c. 3 Code B. 230. And it should a'so show that the bond has been ordered by the court to be prosecuted, and that the plaintiif in the action has been authorized by the court to prosecute the same. Id. ibid.; 21 Wend. 67, 58. But it is not necessary to allege in the complaint the misconduct for which the attachment issued ; nor to specify the manner in which the plaintiff is connected with the proceeding : it is sufficient if it is alleged that he is the party aggrieved. See 17 Wend. 59 ; 7 Barb. 584, supra. Nor is it necessary to aver that the attachment on which the defend- ant was arrested, has been returned ; nor that the defendant was called on the return day and his default entered. Id. ibid. Nor, where the process on which the defendant was artested, is a pluries, is it necessary to set forth the attach- ment and alias. Id. ibid. And so, where ati action is brought upon a bond given for the appearance of the defend- ant under attachment in proceedings supplementary to execu- tion, it is not necessary to set forth in the complaint the issuing or return of an execution unsatisfied ; nor that an order was made for the attachment. 2 JE. D. Smith, 503. The measure of damages to be assessed in the action, shall CH. X.] PROCEEDINGS AS FOR CONTEMPTS. 403 be the extent of the loss or injury sustained by such aggrieved party, by reason of the misconduct for which the attachment was issued, and his costs and expenses in prosecuting such attachment. 2 E. S. 539, sec. 29. And the court may allow reasonable counsel fees to the aggrieved party, as forming a part of the expenses to which he is justly entitled. 4 Duer, 148. But if the "costs and expenses" of the relator included in a fine imposed by the court, are paid to the aggrieved party, his acceptance of the payment is a bar to a recovery of such costs and expenses, in an action on the bond given for the defendant's appearance, li. Action upon Bond, where there is no Party Aggrieved.} If there is no party aggrieved by the misconduct for wliich the attachment was issued, the court, in case the defendant shall fail to appear according to the condition of the bond taken on the arrest, shall order ihe same to be prosecuted by the attorney general, or by the district attorney of the county in which the bond was taken, in the name of the oilicer who took such bond. 2 H. S. 539, sec. 30. In such case, the whole penalty of the bond shall be forfeited and recovered, and from the moneys collected thereon, the court shall order such sum to be paid to the party prosecuting the attachment, as the court ordering the prosecution shall think proper, to satisfy the costs and expenses incurred by him, and to compensate him for any injury he may have sustained by the misconduct for which such attachment was issued ; and the residue of such moneys shall be paid into the treasiiry of this State. lb. sec. 31. Liability of Officer, if insufficient Sureties are taken.] If on the return of executions duly issiied upon any judg- ment obtained on the bond taken on the arrest of the defend- ant, it shall appear that the sureties taken therein were, at the time of taking them, insufficient, and that the officer receiving them had reasonable grounds to doubt their suffi- ciency, he shall be liable in an action on the case, to the party aggrieved, who may have prosecuted such suit, for the 404 PROCEEDINGS AS FOR CONTEMPTS. [CH. X. amount of the judgment recovered by him, and for his costs and expenses in such suit. 2 i?. S. 539, sec. 32. If such suit was brought by the attorn3y general, or a district attorney, an action on the case may in like manner be brought by them, in the name of the people of this State, for the amount of the judgment so recovered ; and from the moneys collected in such action the court shall order such sum to be paid to the party prosecuting the attachment, as the court ordering the prosecution shall think proper, to satisfy the costs and expenses incurred by him, and to com- pensate him for any injury he may have sustained by the misconduct for which the attachment was issued ; and the residue of such moneys shall be paid into the treasury of the State. lb. Proceedings on Return of Attachment.'] When the defendant is arrested upon the attachment, and brought into court, or has appeared therein, the court will cause interrog- atories to be filed, specifying the facts and circumstances alleged against the defendant, and requiring his answer thereto ; to which the defendant shall make written answers on oath, within such reasonable time as the court may allow. And the court may receive any affidavits or other proofs, contradictory of the answers of the defendant, or in confirm- ation thereof ; and upon the original affidavits, such answers and such subsequent prooF, shall determine whether the defendant has been guilty of the misconduct alleged. 2 R. 8. 537, sec. 19. («) (a) The following is the Revisers' original note to this section: "By the existing law, if a defendant brought up on attachment, purges himself by setting up new matter or otherwise, no contradictory evidence can be received, and he must be discharged. True, the remedy is, by indictment for perjury ; but this affords no relief to the party, and his civil remedy is thus merged in the pxiblic offense. This doctrine of merger is, in all other cases, abolished, in this State, and no reason whatever is perceived for retaining it in this case. But on the contrary, as the proceeding treated of in this article is wholly to enforce civil remedies, it would seem that the object and design would be entirely frustrated by stopping short, on the defendant's denial, or showing some new matter CH, X.] PROCEEDINGS AS FOR CONTEMPTa 405 It seems to be necessary, under the statute, where the party is brought into court, on attachment, that interroga- tories should be filed, as above required, unless the defendant admits the alleged contempt. 4 Paige, 378 ; 2 Sand. S. 0. E. 728 ; 5 Duer, 630. The interrogatories, under the former practice, were required to be tiled within four days after the return of the attachment; and the defendant either remained in custody or put in bail, or his recognizance was taken to appear from day to day, until the court determined the case, 1 Johns. Cas. 31 ; 8 Cowen, 341 ; and if the interrogatories were not exhibited within that time the defendant might move to be discharged out of custody, or if he was out on bail, for the discharge of his recognizance. 2 Wend. 617. The party prosecuting the attachment might, however, exhibit his inter- rogatories at any time before the motion wns actually made. 2 Hatch, c. 22, sec. 1 ; 1 -GraharrCs Pr. 2d ed. 696. The same practice, no doubt, still prevails in the Supreme Court, except that now, when the attachment is returnable at. a special term, the interrogatories must be filed within two days from the return of the attachment. See 15 How. Pr. R. 494. A copy of the interrogatories should be served upon the defendant. 2 Paige, 103. In the case cited the court directed an order requiring the prosecutor to file interrogatories in relation to the alleged contempt, and to serve a copy thereof upon the defendant ; aiid that the defendant put in written answers thereto, upon oath, and file the same within twenty- four hours thereafter. After the interrogatories are filed, if the defendant refuses to make written answers thereto on oath within the time directed by the court, he may be re-committed ; or if out on bail, and he fails to attend to be examined, the court may either award another attachment, or may order the bond taken on whiah the adverse party may have the means of disproving. The practice of examining on oath is borrowed from chancery, 4 Black. 223 ; but in that court, evidence is, and ever was received, to contradict the defendant." 3 B. S. 2d ed. 11$. 406 PROCEEDINGS AS FOR CONTEMPTS. [CH. X. the arrest to be prosecuted, or both. 2 B. S. 537, sec. 13 ; Id. 539, sec. 27 ; 1 Doll. 319. ' The interrogatories must be confined to the subject-matter of the misconduct alleged, and not to any previous or other proceeding. 1 Barh. S. C. B. 228 ; and see 9 Paige, 376. And if the interrogatories are improper, tlie defendant may except or demur to them. 12 Mod. 499 ; Str. 444; 1 Barh. supra. Thus, he may demur, where the interrogatories relate to other alleged contempts than that for which he is arrested. n. If the interrogatories are defective, they maybe amended, where an amendment is necessary for the purpose of explain- ing an ambiguity, or obtaining a full answer to matters already stated. 1 Johns. Gas. 31 ; 6 Cowen, 41. Thus, in a case where a sheriif, brought up on an attachment for not returning SLJi.fa., in answer to the interrogatories filed, said, that the fi. fa. had been received by his under-sheriff; and that the money had been collected ; and that he had not returned the execution ; but did not say whether he had received notice of a rule to make the return,— the court allowed an amendment inserting an additional interrogatory, it appearing that the attorney for the plaintiff had inadver- tently omitted an interrogatory to that point. Ih. An amendment, however, it seems, will not be allowed for the purpose of introducing any new matter. 1 Johns. Gas. 31, swpra. All the interrogatories, material to show the misconduct alleged, must be answered by the defendant. And so, also, interrogatories which are designed to show, by the answers of the accused, the true nature and character of the miscon- duct, must be answered. 1 Buer, 512. Thus, whether the accused had voted for certain resolutions, the passage of which was relied on as evidence to show that his disobedience to an injunction was intentional and willful. Ih. The party must file his interrogatories, and obtain answers thereto, before the court can make a final order; unless the accused, upon being brought into court, upon the attachment, admits the contempt, as charged. 9 Paige, 372. CH. X.] PROCEEDINGS AS FOR CONTEMPTS. 407 Upon the interrogatories being filed and answered, the court proceeds in a summary manner to decide whether the defendant has been guilty of the misconduct alleged. And in determining that question, the court, as we have seen, may receive and take into consideration, the original affidavits, and also, any other affidavits or other proofs contradictory of the answers of the defendant, or in confirmation thereof. 2 H. 8. 537, sec. 19, supra. Where the defendant is proceeded against by an order to show cause, if he appears and denies the contempt, the subsequent proceedings are the same, substantially, as upon the return of an attachment against him. 4 Paige, 378. But it is not essential to the validity of any final order that may be made, that interrogatories should be filed and answered. 5 Duer, 629. And, it seems, it is sufficient, in general, if the course pursued conforms to the practice of the court upon any order to show cause why relief should not be granted. Ih. Reference to Examine Party and report as to Contempt?^ The court may, in its discretion, order a reference to some suitable and jDroper person, to take the answer of the defen- dant to the interrogatories, and to take and report such other evidence as either party may wish to produce before him, in respect to the alleged contempt. 7 Paige, 372 ; Id. 603 ; 2 Barl. Ch. Pr. '2,11, and note; 3 Sand. S. C. P. 677; 5 Puer, 629 ; 8 How. Pr. E. 61, 65 ; Laws of 1847, p. 344, sec. 77. Upon the hearing of the matter before the referee, he is not authorized to receive the ex-parte affidavits of witnesses ; unless the court, by the order of reference, specially directs him to receive such affidavits as proof. And the court will not, as a general rule, allow ex-parte affidavits to be used on such reference ; but will compel the parties to produce and examine the witnesses before the referee, so that they may be cross-examined by the adverse party. 7 Paige, 603. If the answers of the defendant to the interrogatories are short and evasive, they may be excepted to ; and if they 408 PROCEEDINGS AS FOR CONTEMPTS. [CH. X. appear to be insufficient, the court -will order them to be sent back to the referee, that they may be fally answered. 2 Bari. Oh. Pr. 277. After tlae answers of the defendant, and the other proofs have been taken, the referee must report the same to the court ; and it is not enough that he reports merely his opinion upon such proofs. 7 Paige, 372. Proceedings if Defendant is found Guilty.] It is pro- vided by the statute, that if the com-t shall adjudge the defen- dant to have been guilty of the' misconduct alleged, and that such misconduct was calculated to, or actually did, defeat, impair, impede, or prejudice the rights or remedies of any party, in a cause or matter depending in such court, it shall proceed to impose a fine, or to imprison him, or both, as the nature of the case shall require. 2 P. 8. 538, sec. 20, as amended hy Laws of ISiS, chaj). 9. If the relator has sustained an actual loss, the amount of it may be ascertained by a reference for that purpose. It would be improper, however, to comprise the inquiiyin respect to the damages sustained, with that in relation to the miscon- duct charged. 1 Hoff. Pr. 441 ; 2 Barh. Ch. Pr. 279. Punishment of Defendant, and Extent thereof^ The statute provides, that if an actual loss or injury shall have been produced to any party, by the misconduct alleged, a fine shall be imposed sufiicieut to indemnify such party, and to satisfy his costs and expenses, which shall be paid over to him, on the order of the court. 2 P. S. 5.8, sec. 21. In all other cases the fine shall not exceed two hundred and fifty dollars, over and above the ci'Sts and expenses of the pro- ceedings, lb., sec. 22. "When the misconduct complained of, consists in the omis- sion to perform some act or duty, which it is yet in the power of the defendant to perform, he shall be imprisoned only until he shall have performed such act or duty, and paid such fine as shall be imposed, and the costs and expenses of the proceedings. Ih. sec. 23. CH. X.] PROCEEDINGS AS FOR CONTEMPTS. 409 In all other cases, where no special provision is otherwise made by law, if imprisonment be ordered, it sliall be for some reasonable time not exceeding six months, and until the expenses of the proceeding are paid ; and also if a fine be imposed, until such fine be paid ; and in the order and process of commitment, the duration of such imprisonment shall be expressed. lb., sec. 25. If the misconduct consists in the refusal to pay costs, or any other sum of money ordei'ed to be paid by the court, the party is to be imprisoned until such sum and the costs and expenses of the proceedings are paid. lb. 535, seo. 4. In respect to the punishment to be inflicted for misconduct which has been productive of an actual injury to the relator, the court has no discretion, but must impose a fine sufiicient to indemnify the party for the injury, and for his costs and expenses. 7 Paige, 364 ; 2 Id. 326 ; 1 Duer, 513. Thus, where the defendants were proceeded against for the viola- tion of an injunction requiring them to deliver over their property to the receiver in a creditor's suit, and the defen- dants, in violation of the injunction, procured the same to be delivered to the sheriff for the benefit of other creditors, the defendants were fined a sum equal to the value of the prop- erty delivered to the sheriff, and the costs of the proceedings upon the attachment. Y Paige, supo^a. And so, in supple- mentary proceedings, where it appeared that the fund divert- ed by the defendant's violation of the injunction was sufficient to pay the plaintiff's debt and costs, the defendant was fined a sum equal to the amount of the judgment with interest, and the plaintiff's costs of the supplementary proceedings, and of the application to punish the contempt ; and the defendant was committed until the fine was paid. 3 Sand. S. G. P. 676 ; and see 10 Paige, 607; 2 Denio, 570 ; 1 Kernan, 62. But the actual losses intended by the statute, are those which are pecuniary in their nature, and capable of being estimated as such, with reasonable certainty ; and where there is no evidence that an actual loss has been sustained, the relator is entitled only to his costs and expenses. 1 Duer, 512 ; and see 4 Paige, 164 ; Id. 456. 4:10 PROCEEDINGS AS FOE: CONTEMPTS. [CH. X. Under the authority to inflict a fine sufficient to indemnify the party aggrieved, and to satisfy his costs and expenses, the court may allow reasonable counsel-fees to such party. Such fees form a part of the expenses to which the party prosecut- ing the attachment is justly entitled. 4 Duer, 148. If no actual loss has been produced to the relator, the next and necessary inquiry is in respect to the nature of the misconduct alleged, — in other words, was it the result of pardonable ignorance or inadvertence, or was it willful and intentional ? 1 Duer, 512, supra. After reviewing the authorities bearing upon the question of the punishment to be inflicted for disobedience of an order of the court, Mr. Justice Bosworth, in the case cited, alluding to those author- ities, remarks, " They seem to show a uniform understanding of the statute, that the disobedience of an order may not have been willful ; that it may have arisen from an honest misapprehension by the offending party of the nature of the act which he did ; and may have occurred in good faith, and in the belief that it was not disobedience. That in such a case, if actual loss resTilts from the disobedience, the com-t has no discretion which will absolve it from imposing a fine which will indemnify the injured party for the loss. That in such a case, no fine should be imposed or imprisonment ordered, purely and solely as a punishment, beyond the punishment that may result from the imposition of a fine sufficient to indemnify against the actual loss, and to satisfy the expenses of the proceedings. That the disobedience may also have been willful and designedly contemptuous ; and in such case, the contempt is criminal, and may be punished according to the aggravation of the case." Ih. 526. And it was held, therefore, in that case, that where the misconduct is shown to be willful, the court has the power, and is bound, to punish it as a " criminal contempt." And in such case, although no actual loss to the relator is shown, the court may impose a fine not exceeding two hun- dred and fifty dollars, and imprison the accused for a term not exceeding six months, for no other purpose than that of punishment, li. CH. X.] PROCEEDINGS AS FOR CONTEMPTS. 411 The court cannot control the effect of a commitment ; as, by directing the defendant to be denied the jail liberties, where he is entitled to them by law. So held, where the relator moved for an attachment against an attorney for the nonpayment of costs, and that the jail liberties be denied to hiiu until the costs were paid. 2 Oowen, 589. The costs in that case, being the costs of an action which the attorney had commenced without being retained for that purpose, the commitment was in the usual form ; but the court made an order that the attorney pay the costs within ten days after notice of the rule, or be suspended from all practice as an attorney until the costs were paid. Ih. A similar order was also made in a case where a solicitor collected money for his client which he refused to pay over. 6 Paige, 311. The payment, and acceptance by the relator, of a fine imposed for an actual loss or injury produced to him, is made, by the statute, an absolute bar to any action by him to recover damages for such injury or loss. 2 S. S. 538, sec. 21 ; 4 Duer, 148. To whit Extent the Defendant'' s Misconduct may he excused.] In determining the punishment to be inflicted upon a party, a statement, in general terms, that the party acted under the advice of counsel, will not be accepted by the court in excuse or palliation of the defendant's miscon- duct. To enable the court to regard such advice, the defend- ant should state the name of his counsel, the information which was laid before him, and the exact import of the advice given, and if the advice was written, the writing should be produced, or if not, it should be verified by the affidavit of the counsel who gave it. 1 Duer, 513. Such advice, however, will not be regarded at all, so far as the rights of the relator are concerned. 4 Paige, 163 ; Id. 450 ; 7 Id. 361 ; and see 3 Sand. S. C. B. 662. Nor is it any answer to the violation of an injunction order that the defendant believed the court had no jurisdic- tion to make the order ; and such belief, even, fui-nishes a very slight, if any, excuse for his disobedience. 1 Dv£r, 412 PROCEEDINGS AS FOR CONTEMPTS. [OH. X. 513, supra. Nor, that it was erroneously and improperly- allowed, 4 Paige, 444; and see Id. 326 ; 3 7d 263 ; thougli the court in determining the extent of the punishment to be inflicted, in such case, will take into consideration the fact that the injunction was improperly granted, and was without sufficient equity to sustain it. Id. ibid. Nor is it any answer or defence to the violation of an injunction issued upon a judgment creditor's bill, that the defendant was afterwards discharged from his debts under the bankrupt law ; so held, where the defendant had rendered himself liable to a conviction for a criminal contempt, for the violation of the injunction, and after his discharge under the bankrupt act, was prosecuted for the contempt. 2 Denio, 570 ; and see 10 Paige, 284. Nor is it any defence to the attachment that the injunction was violated under the direc- tion of a third party, who, since the service of the injunction, has become entitled to do the act complained of. 4 How. Pr. B. 225. Order and Process of Commitynent.'] The statute provides that when the misconduct of which the defendant is convicted, consists in the omission to perform some act or duty which it is yet in his power to perform, the order and process of com- mitment must specify the act or duty to be performed, and the amount of the fine and expenses to be paid. 2 P. S. 538, sees. 23, 24. In all other cases, it imprisonment is ordered, the order and process of commitment must express the duration of such imprisonment. lb. sec. 25. The defendant may be committed either by a rule or order of commitment, or by process, at the election of the relator. 1 Sill, 154. The term " process," above men- ■ tioned, includes a rule or order of commitment, lb. The rule for commitment should show the cause of com- mitment. It is enough, however, that the cause be substauti- ally stated and without technical precision. lb. And where the rule mentioned a previous order to pay money, which the defendant had not complied with ; it was held that the rule suflSciently showed that the cause of commitment was for a contempt, lb. CH. X.] PROCEEDINGS AS FOR CONTEMPTS. 413 Nor is it necessary that the sum for the non-payment of which a commitment is ordered, should be named in the order ; biit it may be ascertained by a reference, and the referee's report, when perfected, though made after the order, is to be regarded as a part of it. IT). For form of commit- ment for the non-payment of money, see Appendix, ISTo. 265. And^o the process of commitment need not recite all the facts and proceedings necessary to confer jurisdiction ; but it is sufficient, if, upon its face, it appears that the court had jurisdiction, states in substance the cause of commitment, and specifies the act or duty to be performed, and the expen- ses to be paid. So held, where an order was made in a sur- rogate's court, directing a guardian to pay moneys in his possession to another guardian appointed in his place, and the guardian neglected to make such payment ; and was thereupon proceeded against as for a contempt. 1 Kernan, 324 ; 10 Barb. 524. In a case where an attachment was issued against the de- fendants for interfering with personal property in the posses- sion of a receiver, it was held by Chancellor Walworth, before whom the proceedings were brought, by appeal, that the order of commitment, in cases of that description, should recite the substance of the alleged misconduct, the adjudica- tion of the court that the defendants were guilty thereof, and that such misconduct was calculated to and did impair, de- feat, impede, and prejudice the rights or the remedies of the prosecutor, or the parties to the action ; and should direct the payment of a fine sufficient to indemnify the party injured, and to satisfy the costs and expenses of the proceeding. And that if anything remains to be done by the defendants, the order should also specify particularly what they are to do, and the manner in which it is to be done, to entitle them to be discharged upon the payment of the fine imposed. 9 Paige, 372 ; and see 2 Id. 103. The order of commitment should also direct to whom the fine is to be paid, or what is to be done with the money when paid. Id. ibid. ; and see 2 Denio, 570. The order should not direct the defendant to pay the costs 4:14: PROCEEDINGS AS FOE CONTEMPTS. [CH. X. of the proceedings to be taxed ; but the costs should be taxed and inserted in the order as a part of the fine to be imposed. 9 Paige ^ 373 ; and see 2 Id. 104. And a reference to ascer- tain the costs and expenses of the proceedings may be ordered, in the discretion of the court. See 1 Duer, 54cQ,-note. Wliere there are two or more defendants, the court may, in the imposition of the fines, charge an equal prop.ortion of the whole costs and expenses upon each defendant. For forms of order or judgment of commitment, see Appendix, ISTos. 284, 285. Where Defendant to le Confined-I If the defendant is committed to prison upon a conviction for a contempt, it is the duty of tlie sherifi' to keep the defendant in that part of the building appropriated for the purposes of a prison, and in the same manner as he is required by law to keep a person charged with a criminal offense. And it would be an escape to permit the defendant to go at large in the sitting room oc- cupied by the sheriff's family, although such room is a part of the building which contains the jail. 10 Paige, 606 ; 4 Id. 282. K the defendant is committed for the non-payment of costs, or other sum of money, he is entitled to the jail liberties, 2 B. S. 433, sec. 40 ; 4 Paige, 282 ; 3 Id. 397 ; otherwise, how- ever, where he is committed for the non-payment of a fine, or of costs in the nature of a fine, imposed upon him. Id. ibid. ; 10 Paige, supra. And the court cannot deny the jail liber- ties to a party who is entitled to them by law. So held, where the relator moved for an attachment against an attorney for the non-payment of costs, and that the jail liberties be denied to him until the costs were paid. 2 Cowen, 689. Effect of Contempt in respect to Applications for Favors, t&c] In general, a party cannot apply to the court for a favor while he is in contempt. He must first purge his con- tempt by complying with the former order of the court ; and until he does this the court will not grant an application in his favor which is not a matter of strict right. 1 Paige, 646 ; CH. X.] PROCEEDINGS A3 FOR CONTEMPTS. 415 i U. 450 ; Glmhe Ch. ^. 22 ; 1 Ba/rb. 8. G. B. 225 ; 4 Sand. Ch. R. 366 ; 15 How. Pr. R. 568. Thus, a defendant in eon- tempt for the breach of an injunction, cannot be heard upon a motion to discharge a ne exeat against him in the same cause, until he has purged himself of the contempt, 1 Clarke Ch. R. 223 ; nor to open a default for not answering, 4 Sand. Ch. R. 366 ; nor to vacate the injunction for the violation of whicli the defendant is in contempt. 4 How. Pr. R. 225 ; 1 Code R., N. S. 137. Nor, in a suit in chancery, could a defendant in contempt move to refer a bill for impertinence. 1 Moll. 221. Nor, where he is in contempt for want of an answer, can he move to have the bill dismissed, even upon terms of giving the plaintiff all the advantage of a decree. 2 Younge c6 Coll. 70. The defendant, in such case, might purge his contempt by putting in either a plea or an answer to the whole bill, and paying the costs, after the service of the first or ordinary process of attachment to compel an answer. 10 Paige, 443. But a party in contempt may be heard in court upon a motion to show that the proceedings against him have been irregular. 3 My. c& Craig, 191 ; 1 Moll. 492 ; 1 Pan. 657 ; Mose. 258 ; 1 Paige, 646, 647. In such case, however, the party must confine his motion to the object of getting rid of the order of which he complains ; and if he embraces other matters in his notice, he will not be allowed to go into them until he has shown that the order upon which his contempt was incurred, was irregular. Id. ibid. Nor is the party pre- cluded by his contempt from making a motion in another cause, having reference to a distinct subject, though between the same parties. 1 Russ. & My. 103. Nor from making a motion to dismiss a bill for want of prosecution. 1 Paige, supra. Nor can a party object to a cause being heard, on the ground that the adverse party is in contempt. 7 Sim. 200. And so, a party may be heard in opposition to any special application which the other side may make, upon notice duly served, notwithstanding that such party is in contempt. 1 Dan. 657. It may also be observed, that parties in contempt are fre- 416 PROCEEDINGS AS FOR CONTEMPTS. [CH. X. quently permitted to make applications to the court for favors, notwithstanding their contempt ; but, in such cases, the appli- cations will not be granted, except upon condition that the parties purge their contempt by complying with the furmer order of the court. Thus, where a defendant in contempt, applied, after the proofs in a cause were regularly closed, to examine a witness upon commission, the application was granted upon payment of the costs of the motion, and the costs necessary to be paid to purge his contempt. 1 Paige, 646 ; omd see 4 Sand. Ch. E. 366, 368. Release or Discharge of Parties Imprisoned^ In all cases which may arise under the statute, the court or tribunal ordering the imprisonment, may, in their discretion (in cases of inability to perform the requirements imposed), relieve the person or persons so imprisoned, in such manner and upon such terms as they may deem just and proper. 2 P. S. 538, see. 20, as amended by Laws of 18i3, chap. 9. And so, where a party is committed for disobedience to an order in proceedings supplementary to execution, such party may, in case of inability to perform the act required, or to endure the imprisonment, be discharged from imprisonment, by the court or judge committing him, or the court in which the judgment was rendered, on such terms as may be just. Code of Pro. §302. Where the defendant was committed for violating an injunction by selling property which equitably belonged to the plaintiff, and after two months' imprisonment, applied to be discharged, on tlie ground that he had no property or means with which to pay the fine, — the court refused the application because the defendant, instead of acknowledging his error, denied the offense of which he had been convicted, and thus impaired the credibility of his statement as to his ability to pay the fine. 4 Sand. Ch. P. 575. If the defendant is committed for the non-payment of costs, or other sum of money, he may be discharged from imprisonment upon presenting a petition, and making an assignment of his property under the statute relating to vol- CH. X] PROCEEDINGS AS FOR CONTEMPTS. 417 untary assignments, by debtors imprisoned in execution in civil causes. 2 H. S. 31, sec. 1 ; Laws of 1847, p. 491, sec. 1 ; 3 Faiffe, 38, 43 ; 4: Id. 282; and see 1 Sill, 168. Such dis- charge, however, is not authorized, where the party is in execution for a fine imposed for a contempt of court, or where he is committed for the non-performance of some act or duty which it is in his power to perform. Id. thid. A party guilty of an ordinary contempt ; as, where he is attached for neglecting or refusing to appear in pursuance of a subpoena, duly served, and the like, will in general be released from imprisonment, on doing the act for the non-per- formance of which the contempt was incurred, and paying the costs occasioned by his contumacy. 1 Dan. 660 ; and see 2 Barb. Ch. Pr. 282. But a party will not be discharged for a mere irregularity in the proceedings in the course of which he was committed, if the oflBcer has jurisdiction. 3 Alh. Pr. E. 302. Costs.} The court is required, as we have seen, where the defendant's misconduct has produced a loss or injury to the relator, to impose a fine sufficient to indemnify the latter, and to satisfy his costs and expenses of the proceeding. 2 P. S. 538, sec. 21 ; 7 Paige, 364 ; 2 Id. 326 ; 1 Duer, 513. In aU other cases, also, the defendant is liable for the costs and expenses, where he is found guilty of the alleged contempt. 2 P. S. 538, sees. 22, 23, 24, 25, ante. II. 619, sec. 42. When allowed, the costs are to be at the rate allowed for similar services in civil actions, (a) Laws of 1854:, p. 592, ante, p. 19 ; and se-e 9 Row. Pr. P. 304 ; s. c.Z Duer, 616. And the court may order a reference for the purpose of ascertaining the costs and expenses to which the party prose- cuting the attachment is entitled. 1 Duer, 546, note. In determining the amount of the costs and expenses which the defendant is to pay, the court may allow reasonable counsel-fees to the aggrieved party. Such fees form a part (a) See further on the subject of costs, ante, p. 16, note. ■27 418 PROCEEDINGS A3 FOR CONTEMPTS. [OH. X. of the expenses to which such party is justly entitled. 4 Duer, 148. Appeals.] An appeal may be taken from the order or judgment of the court, the same as in other cases of special proceedings. Laws of 1854, ante, p. 19 ; and see 1 Duer, 453, note; 11. 513 ; 5 Selden, 263 ; 9 How. Pr. R. 304, per Duer, J. ; s. e. 3 Duer, 616 ; Code of Pro. % 11 ; and see also ante, p. 16, note. But no appeal will lie from an order discharging the defendant from an attachment, 9 How. Pr. R. 9T ; nor from an order granting an attachment to bring the defendant into court. 4 Paige, 378. The order adjudging a party in contempt should be filed or entered with the clerk of the court, before bringing the appeal. 10 How. Pr. R. 147. The practice upon the appeal is regulated substantially by the Code of Procedure. Laws o/"1854, supra; and see ante, p. 16, n^te ; 9 How. Pr. R. 304, per Duer, J. ; s. c.Z Duer, 616. The costs of the appeal, when allowed, are in the discre- tion of the court ; and are regulated by the Code of Proce- dure. Id. iMd. Parties in Contempt liable to Indictment, also.] Persons who have been proceeded against, as for contempt, under the provisions of the statute, are also liable to indictment for the same misconduct, if it be an indictable offense ; but the court before which a conviction is had on such indictment, are required to take into consideration the punishment before inflicted, in forming its sentence. 2 R. S. 538, sec. 26. CHAPTER XI. PEOCEEDINGS IN EELATION TO THE SALE OF ESTF ANTS' ESTATES. Section I. Sales in behalf of infants. II. Proceedings to compel specific performance bt INFANT, OF contract OF ANCESTOR, &C. III. Proceedings to compel infant trustees to convey. The jurisdiction of the court to order tlie sale of real estate in behalf of infants, rests entirely upon the statute. Independently of an authority given by statute, the court has no power or right to entertain the question or to direct a sale, {a) 6 Bill, 416 ; 4 Corns. 257 ; 10 Bari. 555. The first statutory provision on the subject was passed April 9, 1814. Zavjs of 1814, p. 128. An additional act, enlarging the powers of the chancellor, was passed in the (a) If it is important to sell the real estate of an infant in a case not author- ized by the statute, recourse must be had to the legislature. Where the rents and profits of an estate were given to a father for life, and the remainder in fee to his children, and it was necessary for the benefit of the tenant for life, and his family and children, that the estate should be sold, and a private act of the legislature was passed authorizing a sale for that purpose, and for the payment of debts incurred by the tenant for life in the necessary support of himself and family, and the education of his children, — it was held that the act of the legislature was valid, and that the deeds of conveyance executed in pursuance of it were binding upon the infants, and conveyed all their interest in the premises. 15 Wertd. 436; affirmed, 20 Id. 365. 420 SALiS OF INFANTS' ESTATES. [CH. XI. following year. Laws of 1815, p. 103. And in the revision of 1830, these acts were, in substance^ embodied into the Revised Statutes; and they now constitute the law of this State. 2 H. S. 194 to 196. The provision of the Revised Statutes (2 H. S. 194, sec. 169), authorizing the court to decree and compel the specific peiformance by an infant heir of the contract of his ances- tor, was first adopted by the act of 1814 {Laws of 1814, pp. 128, 129, sec. 3) ; the object being to prevent the necessity of a special application to the legislature in cases where it was necessary to obtain the title before the infant became of age. See Will. Eq^. Jut. 269. The statutory provisions (2 R. S, 194, sees. 167, 168) compelling infants to convey real estate held by them by way of mortgage, or in trust only, for .others, are in sub- stance the same as in the original act, passed February 6, 1788. 2 Zaws of New Yorh, Gr. ed. 26 ; and see 1 B. L. of 1813, f. 148, sec. 7. SECTION I. SALES IN BEHALF OF INFANTS. When Sale will be authorized.'] The statute provides that any infant seized of any real estate, or entitled to any term for years in any lands, may by his next friend, or by his guardian, apply to the court for the sale or disposition of his property, in the manner authorized by statute. 2 B. S. 194, sec. 170 ; 4 Corns. 257. And whenever it shall appear satisfactorily that a disposi- tion of any part of the real estate of such infant, or of his interest in any term for years, is necessary and proper, either for the support and maintenance of such infant, or for his education ; or that the interest of such infant requires or will be substantially promoted by such disposition, on account of any part of his property being exposed to waste and dilapidation, or on account of its being wholly unproductive, CH. XI.] SALES OF INFANTS' ESTATES. 421 or for any other peculiar reasons or circumstances, the court may order the letting for a term of years, the sale, or other disposition (a) of such real estate or interest, to be made by such guardian or guardians so appointed, in such manner, and with such restrictions, as shall be deemed expedient. 2 li. S. 195, sec. 175 ; 1 ITop. Ch. H. 122. The authority to sell the real estate of infants, under the statute, was intended for the better education or maintenance of infants, and for their special and substantial benefit, i Johns. Ch. E. 378. It is a sufficient ground to authorize a sale, that the real estate is held in common with adults, and that the value of the estate is small in comparison with the expense of a parti- tion suit, to which it must otherwise be subjected. 2 Paige, 566. The court has no power to direct the sale of infants' real estate, unless they are seized of the property. 4 Coins. 257. But it may order the sale of a vested remainder belonging to infants. Tb. The court, however, will not make an order authorizing the sale of a future interest in real estate belong- ing to infants, except under very special circumstances. And it is not sufficient to authorize a sale, that it will increase the income of an adult owner of a present interest in such estate. 2 Barl. Ch. R. 22. But no i-eal estate or term for years shall be sold, leased, or disposed of in any manner, against the provisions of any last will, or of any conveyance, by which such estate or term was devised or granted to such infant. 2 B.. S. 195, sec. 176 ; (a) Under the authority to sell, lease, or otherwise to dispose of the real estate of an infant, the court, instead of ordering the property to-be leased or sold, frequently orders it to be mortgaged. And the application by the guardian or next friend may be made in the first instance for leave to mortgage, if that shall be thought the most eligible course. But leave to mortgage will not generally be granted except upon condition that the mortgage shall not be foreclosed before the infant attains the age of twenty-two years, — so that he may have one year after becoming of age to raise the money, by sale or other- wise, to pay the mortgage ; as, otherwise, the property might be sold for half its value. 2 Barb. Ch. Pr. 218. The proceedings are substantially the same as on the application for leave to sell. 422 SALE3 OF INFANTS' ESTATES. [CH. XI. and see 10 Barb. 553. And where real estate, devised to an infant, was ordered by the court to be sold, contrary to the provisions of the devise, it was held that the sale was void, and that the deed passed no title to the premises. 6 Mill, 415. Petition and Affidavits.] The statute authorizes the infant, by his next friend, or by his guardian, to apply to the court for leave to sell or dispose of the property. 2 E. S. 194, sec. 170. And by the rules of the Supreme Court it is provided, that 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 situ- ation and value of his real and personal estate, 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 tlie 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. If the infant is of the age of fourteen, he shall join in the application. /Sw^. Court Rules, 1858, No. 66. And if the infant has no general guardian, that fact must be stated in the petition. 3 Paige, 266. And where several infants are interested in the same premises, as tenants in common, the application in behalf of all shall be joined in the same petition, although they may have several general guardians. 8uf. Court Rules, 1858, No. 69. The petition should be verified in the usual form, 3 Paige, 266 ; and should be addressed to the court to which the appli- cation is to be made ; as " To the Supreme Court of the State of New York." 21 Barb. 348. For form of petition and affidavits, see Aj>pendix, Nos. 287, 288. Where, and How Application to he Made.] The applica- tion should be made to the Supreme Court, 2 R. 8. 194, sec. CH. XI.] SALES OF INFANTS' ESTATES. 423 170 ; Laws of 1847, p. 323, sec. 16 ; or to the county court of the county where the premises are situated. Code of Pro. § 30, svb. 6 ; or to the Court of Common Pleas of the city and county of New York, when the premises are situated within the limits of that city. Laws of ISbi, p. 464, sec. 6 ; or, in the city of Buffalo, to the Superior Court of that city when the premises are situated therein. lb. p. 224, sec. 9. The application is ex parte, and should be made to the court at special term ; and cannot be made to a judge at chambers. 21 Barb. 348. In respect, however, to the county court, the application may be made at any term of the court, or even out of term, or to the judge at chambers, that court being always open for the transaction of such business. Code of Pro. § 31. But whether the application, in such case, is made in court or out, the papers should recite the proceed- ings to have been in court. WJm may be Special Guardian.] The general guardian of infants is the proper person to be appointed special guar- dian to sell their real estate ; and another person will not be appointed without some special reasons shown to the court ; as, that the general guardian cannot procure the requisite security, or the like. 2 Paige, 412 ; 3 Id. 265. A part owner of the property intended to be sold, and who is also a creditor against the infant's share, ought not to be appointed the special guardian to sell the property. 2 Edw. Ch. P. 113, per McCoun, Y. C. And if such a person should be appointed, his accounts will be strictly scrutinized by the court, lb. Nor can a husband be appointed guardian to sell the estate of his infant wife. 4 Johns. Ch. P. S'i8. But although the husband cannot be appointed, in such case, yet a third person may be appointed, with the consent of the husband, to join him in the sale. 3 Paige, 265. Appointment of Special Guardian.] The court, on the application, is required by the statute to appoint one or more 424 SALE3 OF INFANTS' ESTATES. [CH. XI. suitable persons guardians of the infant, ia relation to the proceedings on such application. 2 R. S. 194, sec. 171. And, therefore, if it satisfactorily appears that there is reasonable ground for the application, an order may be entered appointing a guardian for the purposes of the appli- cation, on his executing and iiling with the clerk the requisite security, approved of as to its form and manner of execution, by a justice of the Supreme Court, or a county judge, signi- fied by his approbation endorsed thereon. Sv^. Court Rules, 1858, JVo. 67. For form of order, see Apj/endtx, ISTo. 289. Bond of Guardian.'] The guardian must give a bond to the infant, in such penalty, with such sureties, and in such form, as the court shall direct. 2 R. S. 194, sec. Yl^. For form, see Appendix, ISTo. 290. The court have provided, by general rule, that the security required on a sale of the real estate of an infant, shall be a bond of the guardian, with two sufficient sureties, in a penalty of double the value of the premises, including the interest on such value during the minority of the infant, each of which sureties shall be worth the penalty of the bond, over and above all debts ; or a similar bond of the guardian only, secured by a mortgage on unencumbered real estate of the value of the penalty of such bond. Sup. Court Rules, 1858, JSfo. 68. The security here required cannot be dispensed with, although the petition sets forth the inability of the infants to procure such security. 1 Edw. Cli. R. 507. The condition of the bond is for the faithful performance of the trust reposed in such guardian ; for the paying overj investing, and accounting for all moneys that shall be received by such guardian, according to the order of any court having authority to give directions in the premises ; and for the observance of the orders and directions of the court in rela- tion to such trust. 2 R. S. 194, sec. 172. The bond must be duly proved or acknowledged, in like manner as deeds of real estate. Sup. Court Rules, 1858, JVo. 6 ; and must be approved of, as to its form and manner of execution, by a justice of the Supreme Court, or a county CH. XL] SALES OF INFANTS' ESTATES. 425 judge, signified by his approbation endorsed tliereon. Ih. Wo. 67. And when duly executed and. approved, it should be filed in the office of the clerk where the order for the appointment of the guardian is entered. 2 Paige, 409. If the bond be foi"feited, the court will direct it to be prosecuted, for the benefit of the party injured. 2 H. S. 194, sec. 173. But an action cannot be maintained upon the bond until proceedings for an account have been had against the guardian in a court of equity, 19 Johns. 304; 3 ITUl, 77 ; hut see contra, 5 Paige, 92 ; though, it seems, this would be otherwise under circumstances where it would be difficult to compel the parties to account. 3 Rill, supra. Reference, and Proceedings thereon.'\ The order appoint- ing a guardian, will also direct a reference to ascertain the truth of the facts stated in the petition, and whether a sa]e of the premises, or any and what part thereof, would be bene- ficial 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 upon which it should be sold ; and whether the infant is in absolute need of any and what part of the pro- ceeds 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 willing to join in the sale, also to ascertain the value of her life estate in the premises, on the principle of life annuities. Sup. Court Mules, No. 61. For form of order, see Appendix, No. 289 ; and for annuity table, see Appendix in Sup. Court Pules. But no proceedings shall be had upon such reference until the guardian produces a certificate of the clerk, that the requisite security has been duly proved, or acknowledged, and filed agreeably to the order of the court ; and which cer- tificate shall contain the name of the officer by whom it was approved, and shall be annexed to the report. Ih. For 426 SALES OF INFANTS' ESTATES. [CH. XI. form, see Appendix, No. 291. And it is the duty of the clerk with whom the order is entered, before he gives the certificate to see that the bond or other security is executed by the proper persons, and in the form prescribed by the order of the court. 4 Paige, 46. Where several infants are interested in the same premises, as tenants in common, and the application in behalf of all shall be joined in the same petition, as required by the rule, there shall be but one reference to ascertain the propriety of a sale as to all, notwithstanding that they may have several general guardians. Sup. Court Rules, 1858, No. 69. The referee should not rely upon the petition as evidence of the facts he is directed to ascertain and certify to the court ; but he should examine witnesses as to those facts. See 4 Paige, 44 ; and 3 Id. 365. Referees Report?^ The referee, after ascertaining the truth of the matters required under the order of reference, must make his report to the court. Under the late practice, where the facts alleged in the petition were found to be true, it was sufficient for the referee to report briefly in reference to those facts; and he was required only to state generally in his report that, from the examination of the witnesses before him, he had ascertained that all the matters set forth in the petition were true. See 4 Paige, 44, 46. And it was sufficient, also, if he stated briefly the result of his inquiries as to the other matters which he was required to ascertain. Ih. But under the recent amendment to the rules, the report of the referee is required to 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 he cannot now refer to the petition or affidavits for such state- ments. Sup. Court Rules, 1858, No. 67. For form of report, see Appendix, No. 292. Order thereupon.^ If the report of the referee is in favor CH. XL] SALE3 OF INFANTS' ESTATES. 427 of the application, and the proceedings are regular, and it appears satisfactorily to the court that such sale is necessary and proper, the court will authorize the guardian to contract for the sale or other disposition of the property. 2 B. S. 195, sees. 175, 177. For form of order, see Appendix, No. 293. Agreement of Sale and Report of Guardian.] After an agreement for a sale, leasing, or other disposition of the pro- perty has been made in pursuance of such ordei-, the same must be reported to the court on the oath of the guardian making the same ; and if the report be confirmed, a convey- ance will be authorized to be executed under the direction of the court. 2 E. S. 195, seo. 177. The agreement for the sale or other disposition of the property, should be made in writing, subject to tlie ratifica- tion of the court. It should specify the terms of the sale, the manner in which the purchase money should be secured, and the time of payment. And, to prevent any dispute with respect to the terms and conditions of the sale, it should be signed by the special guardian, and the purchaser. 9 Paige, 365. For form of report, see Appendix, No. 294. Order of Confirmation.'] If the agreement made by the guardian is approved by the court,- it will direct an order to be entered, confirming his report, and directing a conveyance to be executed to the purchaser on his complying with the terms of sale. See 2 JR. S. 195, sec. 177. For forms, see Ap- pendix, No. 295. The order will also direct as to the manner in which the proceeds of the sale, if less than five hundred dollars, are to be invested or applied for the infant's benefit, after the costs of the proceedings are deducted, and will direct the guardian to make a return to the court of such investment or disposi- tion. And the order will also provide for the payment or satisfaction of any claim of dower to which the premises are subject. 2 Ba/rh. Oh. Pr. 215. Conveyance ly Special Guardian.] Upon the report being 428 SALES OF INFANTS' ESTATES. [CH. XI. confirmed, the special guardian will execute a conveyance of the premises, in pursuance of the direction of the court. 2 B. S. 195, seo. Ill, supra. The guardian should strictly pursue the order of the court in respect to the manner of execution of the conveyance. He cannot convey the premises, except pursuant to such order. See 1 Kern. 62. Effect of such Conveyance.] All sales, leases, dispositions, and conveyances, made in good faith by the guardian, in pursuance of the orders of the court, when so confirmed, shall be valid and eflfectual as if made by such infant when of full age. 2 E. 8. 196, sec. 178. The sale, however, would be invalid, if the order appoint- ing the special guardian was fraudulently obtained, — at least as to all persons who were parties or privies to the fraud. 17 Barb. 202 ; and see 4 Sand. Ch. R. 1. And so, the sale would be void, if ordered by the court contrary to the provi- sions of any last will, or of any conveyance by which the estate was devised or granted to such infant. 6 Hill, 416 ; 2 R. S. 195, sec. 176. Where the court directs the sale of a farm in which four infants, as tenants in common, had a fee determinable as to each on his death without issue, and in which there was a devise over to the survivors upon such contingency, — it will be deemed that the court intended that the purchaser should acquire the whole title, and on any of the proceeds coming within the control of the court, it will require the infants, on becoming of age, to convey to the purchasers, as a condition of receiving such proceeds. 3 Sand. Ch. R. 456. Hoio Mortgages to le given.] If a mortgage upon real estate is ordered to be taken for the purchase money of the premises, or any part thereof, the same must be taken in the name of the treasurer of the county in which the order of sale is entered, or such other county treasurer as the court shall direct. Sup. Court Rules, 1858, No. 81; Laws of 1848,^. 404, sec. 1 ; and see Laws of 1847, _p. 340, sec. 71. Or, the CH. XI.] SALES OF INFANTS' ESTATES. 429 court may direct the mortgage to be taken by and in the name of the general or special guardian of such infant. Laws 0/1848,;?. 407, sec. 8. The Proceeds of the Sale.'l From the time of the applica- tion to the court, the infant is considered award of the court, so far as relates to the property to be sold, its proceeds and income ; and the court shall make order for the application and disposition of the proceeds of such property, and for the investment of the surplus belonging to such infant, so as to secure the same for the benefit of such infant, and shall direct a return of such investment and disposition to be made on oath, as soon as may be, and shall require accounts to be ren- dered periodically by any guardian or other person who may be entrusted with the disposition of the income of such pro- ceeds. 2 R. S. 195, see. 179. If the proceeds of the sale exceed five hundred dollars, and the guardian has not given security by mortgage upon real estate, he is required to bring the proceeds into court, or to 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 maintenance of the infant, without the order of the court. Sup. Court Eules, 1858, Ifo. 69. If the moneys are brought into court, they should be paid to the county treasurer of the county in which the order of sale is entered, lb. Rule 81 ; Laws of 1848,^. 404, see. 1. It is also provided by the statute, that the court may order any bond, mortgage, stocks, securities or moneys, in the possession or under the control of any county treasurer, to be transferred and delivei'ed to the general or special guardian of an infant, upon his giving security to the satisfaction of the court for the faithful execution of the trust. Laws of 1848, p. 407, sec. 8. And if the court has ordered any bond, mortgage, or other securities to be taken in the name of the guardian, the same shall be collected and invested by him as the court may *30 SALES OF INFANTS' ESTATES. [CH. XI- direct. And such guardian shall annually file a report in the county clerk's office of the county where the property is situ- ated, lb. But no moneys arising from the sale of the real estate of an infant under the order of the court shall be paid over to his general guardian, except so much thereof, or of the inter- est 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. Sv^p. Court Rules, 1858, Nos. 62 and 70 ; and see Code of Pro. § 420 ; Laws o/1848, 'p. 407, sec. 8. And no order shall be made for the payment of any such moneys to any person claiming the same, except upon petition, accompanied by a certified copy of the order in pursuance of which the money was brought into court, together with a statement of the county treasurer, city chamberlain, or other depository 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. Swp. Court Mules, 1858, m. 70. Sights of Infant in Proceeds.'] The statute declares that no such sale of the real estate of an infant, shall give to such infant any other or greater interest or estate in the proceeds of such sale, than he had in the estate sold. 2 R. S. 195, sec. 180. The object of this provision was to protect the interests of those who might have future estates, vested or contingent, in the real estate sold. 1 Kern. 551, per Euggles, J. ; and see 4 Corns. 267. Where the shares of sereral infants were determinable fees, with executory devises to the survivors, and the whole estate in the land was sold, it was held on the death of one of the infants, by which the devise over in her share would CH. XI.] SALES OF INFANTS' ESTATES. 431 have taken effect if the land had not been converted, that her share of the proceeds must be paid to the executory- devisees, and that her personal representatives had no right to such share. 3 Sand. Ch. B. 456. But the interest which accrued on the proceeds in her lifetime, belongs to such representatives. 11>. The Proceeds are to he deemed -Real Edate.'] The sale authorized by the statute is not only not to give an infant any other or greater interest in the proceeds of the sale than he had in the estate sold ; but the proceeds are to be deemed real estate of the same nature as the property sold. 2 M. S. 196, sec. 180. And if the infant die under age, the proceeds will be subject to the same law of succession as the property which produced them. 1 Duer, 286. But the character thus impressed upon the proceeds, ceases on the infant's attaining his majority and obtaining possession thereof. Accordingly, where the real estate of an infant was sold by order of the court, and a bond and mort- gage thereon were taken to his special guardian to secure the purchase money ; and the infant, after his majority, settled the guardian's account touching the trust and discharged him therefrom, took from him individually a receipt for the bond and mortgage, and constituted him his attorney to collect and reinvest the amount secured thereby in his discre- tion ; and before the payment of any part of the amount, died intestate, — it was held, that the bond and mortgage and the moneys secured thereby were personal estate, and to be distributed as such. 1 Kern. 544, overruling 1 Barh. 215. The object of the statute was to preserve during the infant's minority, the character of the property in reference to the statutes regulating descents and distributions. Id. ibid. ; and see 3 Sand. Ch. E. 456, 464. AoGOvnts of Guardians, <&g.] The special guardian within six months after the order confirming the sale of the estate, or any part thereof, is required to file in the office where the appointment is entered, a just and true inventory, under *32 SALE3 OF INFANTS' ESTATES. [CH. XL oatb, of the whole estate committed to his care or guardian- ship, 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 effects, so far as the same have come to his knowledge. Ch. Rules, 1844, No. 154 ; ^ R. S. 195, sec. 179. The special guardian is also required annually thereafter, so long as any part of the proceeds remains in his hands, or under his care or control, to file in the same ofiice an inven- tory and account, under oath, of such guardianship or trust, &c. II). / cmd see Laws of 1848, p. 407, sec. 8. If he neglects to file such inventory and account, as required by the above rule, in the settlement of his accounts, every presumption will be taken most strongly against him. 3 Paige, 146. And the court will order him to file the inventory and account, and to pay the expense of the order and proceedings thereon, in twenty days, or that an attachment issue against him. 2 Id. 409. Claim of Dower ,' how Satisfied, c&c] If the real estate of an infant, or any part of it, shall be 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 invest- ment of a reasonable sum, in such manner as that the interest thereof be made payable to the person entitled to the said dower, during life, the court may direct the payment of such sum in gross, or the investment of such sum as shall be deemed reasonable, and shall be acceptable to the person entitled to such dower, in manner aforesaid ; which sums so paid or invested, shall be taken out of the proceeds of the sale of the real estate of such infant. 2 B. S. 196, sec. 181. But before any such sum shall be paid, or such investment made, the court shall be satisfied that an efl'ectual release of such right of dower has been executed. lb. sec. 182. For the rule by which to compute the gross value of a widow's dower, see Appendix to Supreme-coui't Eules. Costs.] If the infant's interest in the property does not CH. XI.] SALES OF INFANTS' ESTATES. 433 exceed one thousand dollars, the whole costs, including dis- bursements, shall not exceed twenty-five dollars. Sup. Court Rules, 1858, No. 69. But if several infants are joined in the same application, or several parcels of land are sold at different times, an allow- ance may be made for the extra expense beyond the twenty- five dollars at which the costs are limited. 4 Paige, 44. "Where there are several infants, who are interested in the same premises, as tenants in common, and the application in behalf of all shall be joined in the same petition, as required by the rule, but one bill of costs will be allowed, notwith- standing that they may have several general guardians. Sup. Court Rules, 1858, No. 69. Final Report, and order thereon.] After the sale has been consummated, by the payment of the purchase money and the delivery of the deed to the purchaser, the guardian should make a final report of his proceedings to the court ; stating what deduction has been made from the proceeds for costs, and the disposition that has been made of the balance. And an order should then be obtained confirming the report and the sale and conveyance, and the disposition of the pro- ceeds. 2 Barh. Ch. Pr. 217. 28 434 SALES OF INFANTS' ESTATES. [CH. XI. SECTION II. PROCEEDINGS TO COMPEL SPECIFIC PERFORMANCE BY INFANT OF CONTRACT OP ANCESTOR. In what Cases.} At the common law, if the estate of the contracting party devolved npon an infant, by the death of the party to the contract, the remedy to enforce specific performance was delayed until the infant became of age. Adams's Eq. 81 ; Will. Eq. Jur. 269. But by the statute, it is provided, that the court shall have power to decree, and compel, a specific performance by an infant heir or other person, of any bargain, contract, or agree- ment, made by any party who may die before the perform- ance thereof, on petition of the executors or administrators of the estate of the deceased, or of any person or persons inte- rested in such bargain, contract, or agreement, and on hear- ing all parties concerned, and being satisfied that the specific performance of such bargain, contract, or agreement ought to be decreed or compelled. 2 B. S. 194, sec. 169 ; 17 Barb. 162. A specific performance between an infant and a surviving party to the contract, will, in general, be ordered when • a specific performance would be decreed between the original parties, unless there are some intervening equities controlling the case. Will. Eq. Jur. 269 ; and see 10 Paige, 343. And the heir will be compelled to convey, in such case, notwith- standing that he is not named in the contract. 17 Bari. 162. Where the infant is a resident of the State, and the lands which the ancestor had contracted to convey are situated in another State,- the court may decree a specific performance of the contract, and direct a conveyance by the infant when he arrives at the proper age to enable him to do so, according to the laws of the State where the property is situated ; and CH. XI.] SALES OF INFANTS' ESTATES. 435 that in the mean time the vendee be permitted to take and to retain the possession of the premises until that time, if he can obtain possession thereof without suit. 9 Paige, 280, 282. Where, and how, Application to he made.] The applica- tion should be made to the Supreme Court at special term, 2 B. S. 194, sec. 169 ; Laws of 1847,^. 323, tsec. 16 ; 21 Barb. 348 ; or, to the county court of the county where the prem- ises are situated, Code of Pro. § 30, suh. 6 and 7 ; or, to the Com-t of Common Pleas of the city and county of New York, when the premises are situated within the limits of that city, Zaws of 1854, jp. 464, sec. 6; or, in the city of Buffalo, to the Superior Court of that city, when the premises are situated therein. lb. 224, sec. 9. The application is by petition, addressed to the court in which the motion is to be made. It should set forth clearly the facts on which the title to relief is founded ; and should be verified in the usual form. For form of petition, see Ap- pendix, 'No. 297. All the parties concerned are entitled to be heard on the application. 2 P. S. 194, sec. 169. Notice of the motion, therefore, should be served upon the parties interested, accom- panied with copies of the petition and other papers on which the motion is founded. For form of notice, see Appendix, No. 298. Guardian ad litem.] A suitable and proper person should be appointed to act as guardian for the infant ; whose duty it will be to examine into the circumstances of the case, so far as to enable him to make the proper defence, if necessary for the protection of the rights of the infant. Sup. Court Pules, 1858, No. 61 ; 1 Kern. 52. And it is the duty of every attorney or ofiicer of the court to act as the guardian of any infant defendant in. any proceeding against him, whenever appointed for that purpose by an order of the court. Sup. Court Pules, No. 61, supra. Such guardian will be appointed upon the application of 4:36 SALES OF INFANTS' ESTATES. [CH. XL the infant, if he be of the age of fourteen years, and apply within twenty days after the service of the petition and notice of motion. If he be nnder the age of fourteen, or neglect so to apply, then upon the application of any other party to the proceeding, or of a relative or friend of the infant, after notice of such application being first given to the general or testamentary guardian of such infant, if be has one, within this State ; if he has none, then to the infant himself if over fourteen years of age ; or, if under that age^ and witliin this State, to the person with whom such infant resides. Code of Pro. § 116; and see 2 Paige, 306 ; Eq^. Rules, 1847, No. 98. The appointment may be made by the court in which the proceeding is brought, or by a judge thereof, or a county judge. Id. ibid. ; Code of Pro. § 116. But no person will be appointed guardian ad litem, either on the application of the infant or otherwise, unless he is the general guardian of such infant, or is fully competent to understand and protect the rights of the infant, and who has no interest adverse to that of the infant, and is not connected in business with the attorney or counsel of the adverse party. Nor will any person be appointed such guardian who is not of sufficient ability to answer to the infant for any damage which may be sustained by his negligence or misconduct in the defence or prosecution of the proceeding. Sup. Court Rules, 1858, No. 60. No guardian ad litem for the infant, unless he has given security to the infant, according to law, shall, as such guard- ian, receive any money or property belonging to such infant, or which may be awarded to him in the proceeding, except sxich costs and expenses as may be allowed by the court, to the guardian, out of the fund, or recovered by the infant in the proceeding. See lb. No. 62 ; and see Code of Pro^ §420. The guardian ad litem is entitled to such compensation for his services as the court may deem reasonable. Sup. Court Rules, 1858, No. 61. And where the infant has derived no property from the person from whom the premises have- OH. XI] SALES OF INFANTS' ESTATES. 437 descended, except that in respect to which the specific per- formance is sought, the costs of the guardian ad litem must 'be paid by the applicant. See 9 Paige, 280, 283. Reference, and Proceedings thereon.] The court may order a reference to some suitable person, to ascertain the facts, and report the same to the court; or it may dispose of the application without such reference, in its discretion. 1 Barl. Ch. Pr. 468 ; 1 Kernan, 53 ; Laws of 1847, p. 344, sec. 77. After ascertaining the matters required, under the order of reference, the referee must make his report to the court. And upon the coming in of his report, the same shall be filed, and a note of the day of the filing shall be 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 exceptions thereto are filed and served within eight days after service of notice of the filing of the same. Sup. Couri Rules, 1858, No. 32. If exceptions are filed and served within such time, the «ame may be brought to a hearing at any special term there- after, on the notice of any party interested therein. Ih. Order directing Performance of Contract?^ If the court is satisfied from the report of the referee, or otherwise, that a specific performance of the contract should be decreed, an order, directing a conveyance of the premises and the per- formance of the contract, will be directed to be entered in the usual form. The Conveyance.] Neither infants, nor guardians appoint- ed for that purpose, can convey land, except pursuant to the order of the court. 1 Kern. 62. And therefore, where an order directed infants to convey all their interest in certain real estate, — the deed to he executed ly J. 8. M. the guardian ad litem, in the name and hehalfofthe infants, and the deed recited the appointment of J. S. M. as their guardian, in which they were named as parties of the first part, without 438 SALES OF INFANTS' ESTATES. [CH. XI. the guardian's name being mentioned, and which was exe- cuted and acknowledged by the infants and by J. S. M., without any addition to his signature indicating the character in which he executed, — it was held that the deed was not pursuant to the order, or one which the purchaser was bound to accept. Jb. Under such an order, a deed reciting the names of the infant heirs, by J. S. M., their guardian, as parties of the first part, but executed by him by subscribing " J. S. M., guardian, &c.," is defective. The guardian should execute the deed by Subscribing the name of the infant, and adding " by J. S. M. his guardian ad litem." lb., per Selden, J. ; and see 2 ^d2'\ Gh. E. 204 ; 2 Johns. Ch. E. 537. "Where the ancestor stipulates to convey the premises with covenants as to title, the court will not require the infants to enter into personal covenants. 5 Johns. Ch. E. 261 ; and see 1 Kern. 52. They are only bound to fulfill the contract to convey, to the extent of the estate that descends to them. 17 Barb. 162. " If they are to be bound by cove- nants at all," says Selden, J., " it should obviously be to the same extent only as they would have been bound by the covenants of the ancestor, had the deed been executed 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." 1 Kern. 56, sufra. But the purchaser is entitled to some seciirity that his title will be good. And, therefore, in a case where the ancestor had contracted to convey with full covenants as to title, the court ordered the purchase money to be invested, and the principal retained, subject to the further order of the court on the infant's coming of age ; to the end that an indemnity might be provided for the purchaser, if the title should in the mean time fail. 5 Johns. Ch. E. 261, 262, supra. Appeals.^ An application to the court to compel a spe- cific performance by infant heirs of a contract for the sale of lands, made by the ancestor, is a special proceeding, 1 Kern.. CH. XI.] SALES OF INFANTS' ESTATES. 439 52 ; and an appeal may be taken from an order therein to the general term, the same as in other cases of special proceed- ings. Laws ofl%M,p. 592, a/iite,p. 19, note; Laws of 1857, vol. l,p. 753 ; and see Code of Fro. §§ 344 to Sid. The practice upon the appeal is regulated substantially by the Code of Procedure ; sections 327, 329, 330, and 332, of which, are expressly made applicable in such cases, (a) Laws of 1B54:, p. 592, supra ; and see 9 Soiv. Pr. R. 304 ; s.c.Z Duer, 616. From the decision of the court at general term, an appeal may be taken to the Court of Appeals. Code of Pro. § 11 ; 1 Kern. 52 ; and see lb. 276 ; 2 Id. 409, Laws of 1857, vol. i. p. 753. The costs of the appeal, when allowed, are in the discre- tion of the court ; and are regulated by the Code of Proce- dm*e. See Laws of 1854t, ante, p. 19 ; Code of Pro. § 318 ; 9 Sow. Pr. B. 804 ; s. c. 2 Duer, 616 ; a/nd see ante, p. 16, note. (a) See these sections, ante, p. 20. And see further on the subject of appeals, ante, p. 16, note. 440 SALES OF INFANTS' ESTATES. [CH. XI. SECTION III. PROCEEDINGS TO COMPEL INFANT TRUSTEES TO CONVEY. In what Oases.] The statute provides that whenever any infant shall be seized or possessed of any lands, tenements, or hereditaments, by way of mortgage, or in trust only, for others, the court on the petition of the guardian of such infant, or of any person in any way interested, may compel such infant to convey and assure such lands, tenements, and hereditaments, to any other person, in Such manner as the court may direct. 2 E. S. 194, sec. 167. Applicatimi, where inade^ d;c.] The application must be made to the Supreme Court, 2 H. S. 194, sec. 167 ; Laws of 1847, f. 323, 'sec. 16 ; and at the special term of such court. 21 Barh. 348. It is founded upon petition, addressed " To the Supreme Court of the State of !N"ew York." lb. Notice of the application should be served upon the parties inter- ested in the usual manner. For forms of petition and notice, see Appendix., Nos. 299, 300. Otcardian ad litem.] If the application is made by any other than the guardian of the infant, the court will appoint a guardian ad litem, to look after the interest of such inf^t in the proc.eeding. See ante, p. 435, " Guardian ad litem." Reference, and Proceedings thereon.] The court may order a reference to some suitable person to ascertain the facts, or it may dispose of the application without such refer- ence, in its discretion. See 1 Bar}). Gh. Pr. 468 ; 1 Kernan, 53 ; Laws of 1847, p. 344, sec. 77. If a reference is ordered, the referee must proceed in the iisual way, and after ascertaining the matters required by the CH. XI.1 SALES OF INFANTS' ESTATES. 44:1 order of reference, must make his report to the court. And upon the coming in of such report, the same shall be filed, and a note of the day of the filing entered by the clerk in the proper book, under the title of the proceeding, and the said report shall becJome absolute, and stand as in all things confirmed, unless exceptions thereto are filed and served ■within eight days after service of notice of the filing the same. If exceptions 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. 8wp. Court Rules, 1858, No. 32. If the com-t is satisfied from the report of the referee, or otherwise, that the facts stated in the petition are true, and that the property should be conveyed or assured to the peti- tioner or party in whose behalf the application is made, an order directing such conveyance and assurance will be directed to be entered. Effect of Conveyance.] Every conveyance or assurance made pursuant to an order of the court on such application, shall be as good and efi"ectnal in the law, as if the same were made by such infant when of lawful age. 2 H. S. 194, sec. 168. Costs.] The cestui que trust must pay the necessary costs of the proceedings to obtain the transfer of the title. 9 Paige, 280, 283 ; 2 Edxo. Ch. E. 415; amd see 1 Barh. S. C. B. 499. Appeal from Order.] The order made on such applica- tion, is an order in a special proceeding, and an appeal may be taken therefrom to the general term. Laws of 1854, p. 592 ; 1 Kern. 52 ; and see ante, j). 16, note. From the decision of the court, at general term, an appeal lies to the Court of Appeals, Code of Pro. § 11 ; and see 1 Kern, supra; Ih. 276; 2 Id. 409; and see the subject of " Appeals," in the proceedings to compel specific perform- ance by infants of the contract of their ancestor, a/i^e, ^. 438. CHAPTER XII. PROCEEDINGS FOR THE SALE OF THE REAL ES- TATE OF RELIGIOUS CORPORATIONS. At the common law, every corporation aggregate, includ- ing religious corporations, had unlimited power over its prop- erty. It might alienate the same in fee, or grant any lesser estates therein, without limitation or restriction. Coke Litt. U, a. 300 ; 7 Paige, 83 ; 16 Bari. 241 ; 23 Id. 338 ; 3 Bari. Oh. R. 122. But this common-law right, in respect to the disposition of church property, or the property of religious corporations, was taken away, in England, at an early day, by several restraining statutes. See 1 Evans' Statutes, 381 to 390. And although those statutes were never re-enacted in this State, yet they were believed to have become a part of the laws of the colony, upon its settlement by emigrants coming hither from the mother country. " For it is a natural presumption," says Chancellor Walworth, " and therefore adopted as a rule of law, that on the settlement of a new territory by a colony from another country, and where the colonists continue sub- ject to the government of the mother country, they carry with them the general laws of that country, so far as those la^s are applicable to the colonists in their new situation ; which thus become the unwritten law of the colony, until altered by common consent or legislative enactment." 3 Barb. Ch. R. 122 ; and see 23 Ba/rb. 333. Acting upon that presumption, and deeming it important 444 SALES OF THE REAL ESTATE [CH. XII. that provision should be made by which religious corporations might be enabled to dispose of their real estate, the legisla- ture, in March, 1806, passed an act authorizing the chancel- lor upon the application of a religious corporation, in case he should deem it proper, to make an order for such sale, and for the application of the proceeds thereof to such uses as the corporation, with his consent and approbation, should con- ceive to be most for the interests of the society to which the real estate so sold belonged. Id. ibid ; Laws of 1S06,^. 90 ; Will. Eq^. Jur. 734. But that provision was not to extend to any of the lands granted by the State for the support of the Gospel. Id. ibid, (a) The act thus passed, was afterwards embodied in the gen- eral act for the incorporation of religious societies (2 H. L. 218, sec. 11), and continues at this day, the law of the State (3 B. S. 3d ed. 249 ; 1 M. ith ed. 1184), except, as we shall see hereafter, the power to consent to the sale of the property, and to direct the application of the proceeds, is now devolv- ed upon other tribunals than the Court of Chanceiy. To what Courts Apjilication to be Made.] Formerly, as we have seen, the application was required to be made to the chancellor ; but that office having been abolished by the constitution of 1846, the powers of the chancellor were con- ferred upon the Supreme Court. 3 It. 8. 3d ed. 24r9 ; 1 Id. Uh ed. 1184 ; Const, art. 14, sec. 8 ; 23 Bail). 327 ; 5. e. 4 Abb. Pr. B. 182 ; Laws oflMl,p. 323, sec. 16. Jurisdiction in this proceeding is also now given to the (a) In respect to burying grounds, it is further provided by statute, that it shall not be lawful for any church or religious corporation to mortgage any burying ground used for the interment of human remains, for the use of which th'ey shall have received compensation, without the previous consent in ^vl•iting of three-fourths in number of the congregation or society of such church or corporation ; which consent shall be proved or acknowledged, in the same man- ner as deeds are now required by law to be proved or acknowledged, and shall thereupon be recorded in the office of the register of the city, or clerk of the county, in which such burying ground is situated. Laws o/1842, p. 259 ; and see 7 How. Pr. R. 411. CH. Xri.] OF RELIGIOUS CORPORATIONS. 445 county court of the county where the premises are situated. Laws of 1847, p. 643, sec. '28 ; Code of Pro. % 30. Also, to the Court of Common Pleas of the city and county of New York, when the premises are situated within the limits of that city, Laws of 1854, j?. 464, sec. 6 ; and, in the city of Buffalo, to the Superior Court of that city, when the premises are sit- uated therein. Ih. p. 224, sec. 9. When Religious Corporations may Sell, and the Authority of the Cou7't.'\ Keligious corporations have still an unlimited authority to sell or dispose of their real estate ; provided, however, that they sell with the consent and approbation of the court. 7 Paige, 84. " I have no doubt," observes Chan- cellor Walworth, in the case cited, "that the intention of the act of March, 1806, was to give to every religious corpo- ration an unlimited power to convey any real property held by them in trust for the corpoi'ators ; provided, the previous consent of this court to such- alienation of the church property and a duection for the proper application of the proceed? thereof for the benefit of the corporators, was obtained, in the summary mode which is there prescribed." And see Will. Eq. Jur. 735. The previous assent of the court must, therefore, be obtained to every sale of the real estate of a religious corpo- ration; and without such assent, it is doubtful whether a subsequent ratification by the court would give validity to it. {a) See 7 Paige, 84. But the court has power only to ratify or veto a sale made by the corporation. It may withhold its assent to a sale, and thus compel the corporation to retain the property; but it has no power to dictate to the corpora- tion how, or to whom, it shall sell, or to require it to sell against its will, or otherwise to control it in the disposition of its property, or of the proceeds thereof. 16 Barh. 237; 23 Id. 335 ; 5. c. 4 All. Pr. E. 182. (a) Nor can a religious corporation submit the question of sale to an arbi- trator for decision. And if an arbitrator is chosen, and he decides the property shall be sold, his award is not binding upon any one, and gives no authority to make the sale. 23 Barl. 327; s. c. 4 Ahh. Pr. R. 182. 4:46 SALES OF THE REAL ESTATE [CH. XII. But the order of the court is not necessary to give validity to a mortgage executed Jjy a religious corporation for a por- tion of the consideration taoney of premises purchased. 18 Barb. 36. " I am satisfied,?' says Mr. Justice Parker, in the the case cited, " that such an order was never necessary to enable a religious corporation, purchasing land, to execute a mortgage for the purchase-money. The church never owned the land, except subject to the mortgage. It was a question of purchase, rather than of sale. The statute is only appli- cable to a case where the church is the owner of real prop- erty; and its object is, that the court may control the disposition of the proceeds, and prevent a misapplication of trust funds." i5. 49. ' Nor is the consent of the court necessary to enable the corporation to sell the pews in its church, 5 Cowen, 494; otherwise, however, if an absolute sale' is intended. 16 Barb. 237; 8 Id. 147, aff. 17 Id. 104. The authority of the court to make an order for the sale of the real estate of a religious corporation, relates to cases where the absolute right and title to lands belonging to the corporation, are to be sold. 5 Cowen, supra. And Wood- worth, J., remarks in the case cited, that cases of that kind may and do occur. " It is often necessary," he observes, " to sell a portion of the real estate for the advancement of the residue. Sometimes it becomes necessary to sell the church and lot, when a new church is built and located at a diflferent place. In all these cases, the purchasers acquire the absolute inheritance ; and to such only, in my opinion, does the statute apply. A sale of real estate ex vi termini, means an absolute transfer of the property. But the sale of pews in a church, is not a sale of real estate, within the meaning of the act. By the grant of a pew, the grantee acquires a limited usufructuary right only. He may use it as a pew in a house of religious worship; but has not an unlimited, absolute right. He cannot use it lawfully for purposes incompatible with its nature. The right, too, is limited as to time. If the house be burnt, or destroyed by time, the right is gone." And see 8 Barb. 147, aff. 17 Id. 104 ; 16 Id. 237. CH. XII.] OF RELIGIOUS CORPORATIONS. 447 How, and Tyy whom application to be made.} The appli- cation is ex parte ; and should be made to the court at special term. K the proceeding, however, is instituted in the county court, the application may be made at any term of the court, or even out of term, or to the judge at chambers, that court being always open for the transaction of such business. Code of Pro.%Zl. But, in such case, whether the application is made in court, or out, the papers should recite the proceed- ings as in court. The application must be made by and in the name of the corporation ; and the court has no power to grant an order of sale upon the apphcation of the trustees, or otherwise than upon the application of the corporation. 23 Barb. 327 ; s. c. 4 All. Pr. R. 182 ; and see 1 Kernan, 94 ; Id. 243. The corporation consists of every member of the congre- gation having the privilege of voting; and the acts of a majority are binding upon the whole. 23 Barb, swpra; and see 16 Id. 243, per Harris, J. And where the court made an order givmg its consent to the sale of property, on the petition of a majority of the board of trustees, but such petition had not been authorized or sanctioned by a majority of the corporators, and the order was still in fieri, and not executed, no rights having been acquired under it, — it was held that the order was still under the control of the court, and that it was competent for the court to revoke its consent. 23 Barb. 327, swpra. And it appearing to the court, in that case, that a sale of the prop- erty would be in opposition to the views of a large majority of the corporators, the previous order of sale was revoked. The application is by petition, which should set forth the lands desired to be sold, and the disposition which the corporation proposes to make of the proceeds of the sale. And the petition, or affidavit accompanying it, when pre- sented by the trustees in behalf of the corporation, should allege that the application was authorized by a majority of the corporators thereof, or otherwise show that such applica- tion was made in their behalf, and with their assent. See 23 Barb. 327, supra. For form, see Ajypendix, No. 301. 448 SALES OF THE REAL ESTATE [CH. XII. It is not necessary for the corporation to show that it has found a purchaser for the premises proposed to be sold ; but a conditional order can be made authorizing a sale at a price . not less than a sum fixed by the court, and so that if a pur- chaser cannot be found at that sum, there will be no sale. S Edw. Gh. R. 157, post. Reference to Ascertain Facts.] The court may order a reference to some suitable and proper person to ascertain the facts, and report the same to the court ; or it may dispose of the application without such reference, in its discretion. 1 Barb. Oh. Pr. 468 ; Laws of IM7, p. SU, sec. 77. But in respect to the pr^ipriety and eifect of references, in such cases, where the proceedings are contested, see 16 Barb. 239, per Harris, J. Order of the Court, and Disposition of the Proceeds.] If the application is approved by the court, an order will be entered directing a sale of the premises in pursuance of the prayer of the petition. The order will direct the sale to be made by the trustees of the corporation ; or, it seems, the sale may be directed to be made by a referee, or other oflBcer, appointed or selected for that purpose. 3 Corns. 238. If the persons proposing to purchase the property, have not actually agreed to buy, a provisional order may be entered, in the first instance, authorizing a sale generally, at a price not less than a sum fixed by the court. And if a purchaser " be found, and an actual agreement is made, the court, by a subsequent order, can approve or confirm it, and direct the application of the proceeds." See 3 Edw. Ch. R. 157. The order of the court will also direct the uses to which the proceeds of the sale shall be applied. And the court will not direct the proceeds to be dis- tributed among the original contributors and pew-holders, on the application of a minority of the corporators. 16 Barh. 237, 242. But " in case of a sale, the proceeds are to be applied to such uses as the corporation, with the consent and CH. XII.] OF RELIGIOUS CORPORATIONS. 449 approbation of the court, shall conceive to be most for the interest of the society. The authority of the court is entirely' negative. It may withhold its assent, and thus prevent the application of the proceeds in any specified manner ; but it cannot direct the corporation how to apply the moneys. It is the right of the corporation to designate the object for which the moneys arising from the sale of its real estate shall be used. If the object thus designated, meet the approval of the court, the appropriation will be made. If not, the money must be retained by the corporation until it can make such an application of it as will secure the consent and approba- tion of the court." Ih., per Harris, J. For form of order, see Appendix, No. 302. 29 CHAPTER XIII. SUMMAEY PKOCEEDESTGS TO EECOYEE THE POS- SESSION OF LAND, IN CEKTAIN CASES. The proceeding under this Chapter, giving the landlord a summary remedy in certain cases, was first authorized by statute in 1820. Zaws of 1S20, p. 176. Prior to that time, the landlord was obliged, in such cases, to resort to his action, which was dilatory and expensive. The law of 1820 was afterwards incorporated, with some material modifications, into the Eevised Statutes, the provisions of which have also been altered and amended from time to time. 2 H. S. 512 ; Zaws 0/1849, p. 291 ; Zaws o/1851,^. 852 ; Laws of 1857, chap. 684, vol. 2, p. 509. These statutory provisions being in derogation of the com- mon-law rights of tenants, are to be strictly construed ; and the proceedings under them must conform in all respects to the requirements of the statute. Jn what Oases.] It is provided by statute that any tenant or lessee at will, or at sufferance, or for any part of a year, or for one or more years, of any houses, land, or tene- ments, and the assigns, under-tenants, or legal representa- tives of such tenant or lessee, may be removed from such premises in the following cases : 1. Where such person shall hold over and continue in possession of the demised premises, or any part thereof, after 452 SUMMARY PROCEEDINGS [CH. XIIL the expiration of his term, witbout the permission of the landlord ; 2. Where such person shall hold over without such per- mission, as aforesaid, after any default in the payment of rent pursuant to the agreement under which such premises are held, and a demand of such rent shall have been made, or three days' notice in writing requiring the payment of such rent or the possession of the premises shall have been served by the person entitled to such rent, on the person owing the same, in the manner prescribed for the service of the summons in the thirty-second section of the statute, {post, i?.463); 3. "Where the tenant or lessee of a term of three years or less shall have taken the benefit of any insolvent act, or been discharged under any act for the relief of his person from imprisonment during such term ; 4. Where any person shall hold over and continue in possession of any real estate which shall have been sold by virtue of an execution against such person, after a title under such sale shall have been perfected. Laws of 1849, p. 291, amending 2 i?. S. 512, sec. 28. (a) Tenants from year to year, are included in the term " tenant at will," and may also be removed under this statute. 5 How. Pr. B. 81. To warrant proceedings under the statute (except in the case mentioned in the fourth sub-division above, where land has been sold on execution), the conventional relation of landlord and tenant, created by agreement, and not by mere operation of law, must exist between the parties, or between those under whom they hold. 4 Denio, 185 ; 1 Selden, 383 ; 5 Wend. 281 ; 9 /d 227 ; 10 How. Pr. E. 84. That relation exists between the lessee or his assignee, and the assignee or grantee of the lessor, provided there was a conventional relation between the original parties. 17 Wend. 473 ; 2 R. (a) For the statutory provisions in relation to proceedings to obtain pos- session of lands deserted by u tenant, see 2 R. S. 612, sees. 24 to 27 ; and see, also. Laws o/ 1846, p. 369; 2 Abb. Pr. R. 121, 123. Ca XIII.] TO EEMOVE TENANTS. 453 S. 512, see. 28, supra. But it does not necessarily exist in many cases, where the legal ownersliip is in one person and the possession in another, although by the express compact of the parties. It can arise only where the one in possession has by some act, or agreement, recognized the other as his lessor, or landlord, and taken upon himself the character of a tenant under him, so that he is not at liberty afterwards to dispute his title ; and this statutory remedy in favor of a lessor or landlord, can properly be resorted to only in cases of a holding over after the expiration of such tenancy. If any other question than such as relates to the tenancy and the holdmg over, is to be litigated between the parties, recourse must be had to an action. 1 Selden, 388, per McCoun, J. An agreement, therefore, to work a farm on shares, does not create the relation of landlord and tenant, so as to entitle a party to avail himself of this statute. 15 Wend. 226 ; and see Id. 379 ; 1 Hill., 234. And so, of a conditional agreement, for the sale of real estate, where the purchaser makes default in payment, and, having possession, holds over, after notice and demand. 11 Row. Pr. JR. 84. Nor can such proceedings be instituted on the ground of the expiration of the term by forfeiture ; the statute mean- ing expiration by lapse of tiTne, not by forfeiture. 15 Wend. 226 ; and see 5 Selden, 35, post / nor against a mortgagor to turn him out of possession of the mortgaged premises. 9 Wend. 227. And see further as to the creation of the estate of landlord and tenant, 15 Wend. 665 ; 3 Sill, 90 ; 1 Denio, 602. The party instituting the proceeding must be entitled to the possession of the premises. Where such party is merely the owner of the reversion, expectant on the termination of the estate of the tenant for life, who is in the actual posses- sion of the premises, he cannot institute proceedings against one to whom he has assumed to let the same. 3 Barh. S. C. R. 391. And in cases of non-payment of rent, if the tenant at the time of the proceeding, is holding under a new agreement with the landlord, he cannot be dispossessed upon the ground 454 SUMMARY PROCEEDINGS [CH. XIII. that lie is in default in the payment of rent, under a former one. 16 Barh. 621. Nor can the tenant be removed where the landlord has done some act which amounts to an acknowl- edgment of a subsisting tenancy ; as, if he receive rent due at a subsequent quarter, or distrain for that in respect of which the forfeiture accrued, &c. 21 Wend. 587 ; 5 Cowen. 448 ; 19 Wend. 391. And where the lease provided, that in case of the non-performance or violation of any of the lessee's covenants in the lease, the relation of landlord and tenant should cease at the option of the landlord, and that he should be entitled to recover the possession under the statute, for holding over after the expiration of the term, without any notice other than by the usual summons, — it was held that the clause in the lease created a condition only, and that the estate was not determined bj the breach ; and that, there- fore, a default in the payment of rent did not constitute a holding over after the expiration of the term, so as to author- ize proceedings iinder the statute, to recover the possession of the premises. The statute, not giving jurisdiction to remove a tenant by warrant in such a case, it cannot be given by the agreement of the parties.* 5 Selden, 35. In respect to proceedings to remove a person in possession, in cases arising iinder the fourth sub-division above, where land has ieen sold on execution ^ it has been held, that the judgment debtor, who continues in possession after title thereto has been perfected under a sale on execution against him, is a tenant within the meaning of that word, as used in the statute, and is entitled to deny the facts upon which the summons against him was issued, and to have a trial by jury. 16 N. York R. 567. And where the proceedings are before a justice of the peace, and the debtor appeals from the judg- ment rendered by the justice, he is also entitled to stay the issuing of a warrant to remove him, by giving the undertaking prescribed by section five of chapter one Imndred and ninety- three, of the act of 1849 {yosf). lb. And the remedy given by the statute is not limited tothe purchaser at the sale, but the application for process may be made by any person in whom the title is at the time of such application. 13 Wend. 29. CH. XIII.] TO REMOVE TENANTS. 455 The regularity and validity of the judgment on which the execution issued, are not to be inquired into in this proceed- ing ; nor whether the sale was fraudulent ; nor whether the purchaser was a bona-fide purchaser. It is sufficient if the judgment and execution are regular upon their face, and the applicant shows a title under them. Ih. And the officer does not lose jurisdiction by proof that the person and estate of the defendant were, at the time the proceedings were insti- tuted, in the charge of guardians appointed under the act respecting habitual drunkards. Ih. 32. And it is no objec- tion, either, that the person proceeded against is a tenant in common whose interest has been sold ; the purchaser acquires all his right and interest, and is entitled to be substituted in his place in the possession. Ih. 33. The proceeding to dispossess a party where land has been sold on execution, is equally applicable against the judgment debtor, and all who hold under him, under pretense of title acquired subseqiTent to the judgment. 17 Wend. 474-. And where a party is made defendant, who entered under title subsequent to the judgment, that fact must be distinctly alleged or the proceeding will be quashed. 20 Id. 22. Officers wlw may Remove a Tenant.'] The tenant or party in possession may be removed by any judge of the county courts of the county, or by any justice of the peace of the city or town, where the premises are situated, or by any mayor or recorder of the city where such premises are situa- ted ; or, in the city of New York, by the mayor, recorder, city judge, any justice of the Marine Court, or any one of the justices of the district courts of that city. Zaws of 184:9, jp. 291, sec. 1 ; Zaws of 1852, j?. 471; Zaws of 1857, vol. l,p. 727; Zaws of 1850, p. 388 ; 5 Abb. Pr. R. 208, 6 Id. 146. And also by any justice of the Superior Court of the city of Buffalo, when the premises are situated within that city, Zaws of 1857, vol. l,p. 754, sec. 25 ; and by the city judge of the city of Brooklyn, when the premises are situated within the county of Kings. Zaws qfl8i9,j>. 174, sec. 26. Where the proceedings are commenced before a justice of 456 SUMMARY PROCEEDINGS [CH. XIII. the district courts in the city of New York, they may be con- tinued before any other justice, having jurisdiction of the subject-matter in that city, the same as if they had been ori- ginally commenced before him. Laws of 1857, vol. l,p. 728, sec. 78. And so, where they are commenced before a justice of the Superior Court of the city of Buffalo, they may be con- tinued, with the like effect, before any other justice of that court. Ih. 764, seo. 25. Demand of Rent., or Notice to Pay, dtc] We have seen {supra), that in cases where the tenant is proceeded against for default in the payment of rent, the person entitled to the rent, before instituting the proceeding, is required, by the statute, to make a demand of the rent of the person owing the same, or serve him with three days' notice, in writing, requiring the payment of such rent, or the possession of the premises. For form of Notice, see Appendix, ISTo. 303. It is not necessary that there should be both a demand and notice. 14 Wend. 172. The rent may be demanded of the tenant in possession ; and so, too, it seems, the notice may be served on him, although he is not the lessee. Tb. And where two tenants hold jointly, a demand of the rent of one of them is sufficient. 5 Selden, 227. It will be seen that the statute does not point out, how, or at what time, the demand of rent is to be made ; whether it may be made at any time after the rent becomes due, and at any place, or whether, the object of the landlord being a for- feiture of the estate and his claim stricti juris, all the niceties of the common law with respect to the demand must be com- plied with. See 16 Johns. 222 ; 17 Id. 66 ; 18 Id. 447. But the statute requires only, that " a demand of the rent shall have been made." Substantially the same language is used in the act of 1820. Laius of 1820, p. 177, sec. 1. Statutes are not presumed to make any alteration in the common law further or otherwise than the act expressly declares ; and, therefore, in all general matters the law presumes the act did not intend to make any alteration, for if the legislature CH. XIII.] TO REMOVE TENANTS. 457 had had that design, they would have expressed it in terms. Per Trevor, Ch. J., 11 Mod. 150; Bac. Abr. Statutes ; 16 Ba/rb. 12. If, then, the statute intended a common-law demand of the rent, great particularity and strictness is required in making it. It must be of the precise rent due. It must be made on the very day when the rent is due and payable, and at a convenient time before sunset. It must be made on the land, and at the most notorious place of it, unless a place is appointed where the rent is payable. And a demand must be made in fact, although there should be no person on the land ready to pay it. 17 Johns. 71. In the absence of any reported case giving a construction to this language of the statute, it would bo safer, in all cases, where there has not been a strict common-law demand, to give the three days' notice in writing, requiring the payment of the rent or the possession of the premises. This notice is required to be served in the same manner prescribed for the service of the summons ; in respect to which, see post, p. 463, " How summons to be served." Affidavit of termination of Tenancy ; Deinand of Posses- sion, die] Previous to the issuing of the summons hereinaf- ter mentioned, in the case of a tenancy at will, or at sufferance, the magistrate shall be satisfied by afiidarit, that such tenancy has been terminated by giving notice in the manner prescribed by law. See post, " Notice to quit," &c. And if apph- cation be made for such summons to be served on any person holding over real estate which sball have been sold on exe- cution, the magistrate shall, in like manner, be satisfied that a demand of the possession of such premises has been made. '2 R. S. 513, seo. 31. Por forms, see Appendix, ISTos. 305, 306. Notice to quit, and how Sei'ved.'] Wherever there is a tenancy at will, or by sufferance, created by the tenant's hold- ing over his term, or otherwise, the same may be terminated by the landlord's giving one month's notice in writing to the tenant, requiring him to remove therefrom. 1 B. S. 745, sec. 1. Por form, see Appendix, No. 304. Such notice shall be served by delivering the same to such 4:58 SUMMARY PROCEEDINGS [CH. XIII. tenant, or to some person of proper age residing on the prem- ises ; cir if the tenant cannot be found, and there be no such person residing on the premises, such notice may be served by aflSxing the same on a conspicuous part of the premises, where it may be conveniently read. It.'* sec. 8. At the ex- piration of one month from the service of such notice, the landlord may proceed in the manner prescribed by the statute, to remove such tenant, without any further or other notice to quit. Ih. sec. 9. Where the notice required the tenant to remove from the premises in " thirty days," and it was served during a calen- dar month which contained but thirty days ; it was held to be a " month's notice," within the meaning of the statute. 2 All. Pr. B. 28. A tenant for a year who holds over after the expiration of his term, without the permission of his landlord, is not a ten- ant at sufferance, within the meaning of the statute ; and, therefore, he may be removed from the demised premises, without having been served with the month's notice to quit above provided for. To entitle such tenant to a month's no- tice to quit, the holding over must be continued for such length of time, after the expiration of the term, as to authorize the implication of assent on the part of the landlord to such continuance ; and where the landlord waited three months and twelve days before instituting proceedings, under the statute, it was held that he was not chargeable with laches, especially as it appeared that he had attempted to obtain possession without recourse to coercive measures. 11 Wend. 616. Tenants from year to year, at the common law, were enti- tled to six months' notice to quit terminating with the year. 4 Cow. 349 ; 1 Johns. 325. But, now, tenants from year to year, with respect to these proceedings, are included in the term " tenant at will," within the meaning of the statute, and may be summarily removed upon one montli's notice to qiiit, terminating with the year. 5 How. Pr. P. 81. And so of a tenancy from month to month : the notice must terminate with the month. P>. 92 ; see, also, 23 Wend. 616. "Where the landlord after service of notice to quit accepted OH. XIII.] TO REMOVE TENANTS. 459 rent, which accrued subsequent to the notice, it was held to be a waiver of the notice. 19 Wend. 391. It would have been otherwise, it seems, had the acceptance been stated as conditional, and as saving and reserving all rights under the notice. lb. 394 ; see also, 11 Barb. 33 ; 21 Wend. 587. Where the premises on the 1st of September, 1837, were demised to the defendant " for and during the will and plea- sure of the plaintiff," and the plaintiff on the 12th February, 1852, caused notice to be served on the tenant, requiring him to remove from and quit the premises within one month af- ter the service of such notice, — it was held to be strictly a case of tenancy at will, within the meaning of the statute ; and that the landlord had a right to give the month's notice to quit at any time, and commence proceedings to remove the tenant after the expiration of the notice. 14 Barb. 253. And under the act of 1820, from which the present statute was taken, where there was proof of a tenancy, and nothing appeared as to the terms of holding, it was presumed to be a tenancy at will. 8 Cowen, 13. Affida/oit to Remove Tenant-I In preparing the affidavit upon which to found an application for a warrant to remove a tenant, or party in possession, great particularity is required, and every fact necessary to give the officer jurisdiction must be distinctly alleged. 20 Wend. 22. And unless this be done, the proceeding will not only be declared void, but if a warrant be issued and- executed, the landlord as well as the officer issuing the same, will be a trespasser, and liable in damages to the party injiired, 8 Oowen, 68 ; and this, too, it seems, notwithstanding that the person dispossessed came illegally into possession. 5 Wend. 281. The affidavit must not be uncertain, or contradictory; but must make out a plain case. 16 Barb. 474; 24 Id. 438 ; 6 Hill, 314; 5 Eow. Pr. R. 95. The facts, and not the evidence of facts, should be alleged, — nor should matter of law be stated, but facts, from which the matter of law arises. 6 Hill, 317, per Bronson, J. The affidavit is not to be regarded as evidence on the merits, but as a plaint in a cause, 4:60 SUMMARY PROCEEDINGS [CH. XHI. and stands for a declaration, or complaint. 20 Wend. 103. For forms, see Appendix, Nos. 307 to 310. The provisions of the statute with respect to the requisites of the aflBdaVit to be made, are as follows : — Any landlord,, or lessor, his legal representatives, agents, or assigns, may make oath in writing of the facts which, according to the preceding section {sec. 1, Lmos ofliA:^, sujjra), authorize the removal of a tenant, describing therein the premises claimed ;. and may present the same to one of the officers authorized by law to issue the warrant. 2 M. S. 513, sec. 29. Among other things, it must appear by the affidavit that the plaintiff let the premises to the defendant, or that he is the landlord of the defendant with respect to the premises of which the possession is sought to be recovered ; and also that the plaintiff was the owner of the premises, or entitled to the possession thereof, at the time of his demise to the defendant. 3 Barh. S. C. E. 391 ; and see 1 How. P,\ B. 213. But, it is sufficient if these facts are substantially alleged. 2 Alh. Pr. E. 29, per Mitchell, J. "Where the proceedings were instituted by S., and the affidavit stated that J. demised the premises, &c. ; that he afterwards died leaving S. his widow, that she became legally entitled to receive the accruing rents, and to have possession of the premises, without setting forth any fact explaining how she became entitled, — it was held that the affidavit was not sufficient to show her right to proceed. 6 Hill, 314. And this is so, even though the affidavit state further that the tenant and those claiming under him "have recognized the widow's right to the premises, by paying rent to her and by other acts." Ih. In another case, however, where the landlord described himself " as trustee of the estate of A. B., deceased," that he " now owns said premises and holds said lease, as sole trustee of said estate," the coiirt held it was a sufficient description as landlord of the premises. 2 Hcno. Pr. E. 63. The affidavit should point out, too, the person intended to be removed, by name, and should show with reasonable certainty that he is in the possession or occupation of the CH. XIII.] TO REMOVE TENANTS. 461 premises, togethei- with his relation to the landlord. 6 Hill, 314; Lai. Supp. to Rill & Denio, 236; 24 Barl. 438. "Where the affidavit stated that W. (the lessee), " or his assigns, or those claiming under him or them," held over, and it appeared that W. was not in possession, hut that the premises were occupied by H., it was held that the affidavit was insufficient to give the officer jurisdiction. Id. ibid. ; and see 14 Wend. 172. And where the proceedings are against several parties, the affidavit should show which of the persons proceeded against are tenants, and which of them are under-tenants. 16 Barb. 474; Lai. Swpj). to Hill & Denio, 236. If the affidavit is made by the agent of the landlord, it is not sufficient that he describes himself as agent, but that fact must be distinctly sworn to. 4 Denio, 71. And where the affidavit omits to state that the tenant is holding over, " without the permission of his landlord," it is error, for which the proceedings will be reversed, 5 Hoio. Pr. a. 81 ; and it is not enough that the affidavit shows probable want of permission, lb. 95 ; but see 20 Wend. 103. In proceeding under the statute against a tenant for the non-jpayment of rent, it is laid down by Cowen, J. (20 Wend- 107), that the affidavit should disclose an agreement by which the lessors were entitled to re-enter. But it is believed that the position there taken is not sustained by the letter or spirit of the statute. It is sufficient if there has been a default in the payment of the rent, pursuant to the agree- ment under which the premises are held, and that a demand of the rent has been made, or notice served, requiring pay- ment or the possession of the premises. Laxos o/'1849,^. 291, sec. 1, svh. 2. The affidavit in cases of non-payment of rent should name the person of whom the rent was demanded; but though defective in this particular, if it states that the demand was made upon the premises, it is sufficient to give the officer jurisdiction, and the defect cannot be objected to collaterally: the remedy, if any, is by certiorari or appeal. 14 Wend. 172. 462 SUMMARY PROCEEDINGS [CH. XIIL In cases where real estate has been sold on, execution, and the party proceeded against is one who has come into posses- sion of the land under the judgment debtor, under title derived from him subsequently to the lien of the judgment iinder which the sale was made, the fact that he entered under title so subsequently acquired, must be distinctly alleged in the affidavit, or the proceedings will be void. 20 Wend. 22. The affidavit cannot be twice used. Accordingly, where a verdict was found for the tenant under the statute author- izing these proceedings, it was held that the original affidavit could not be used as the foundation of a new proceeding. And the affidavit, having been so used, and the tenant turned out of possession, it was further held that the proceedings were void, and that trespass lay against both the landlord and judge. 8 Cowen, 68. The Sumtnons.] On receiving the affidavit the officer is required to issue his summons, describing the premises of which the possession is claimed, and requiring any person in the possession of said premises, or claiming the possession thereof, forthwith to remove from the same, or to show cause, before the said magistrate, within such time as shall appear reasonable, not less than three nor more than five days, why possession of said premises should not be delivered to such applicant; provided, however, that in the cases where a person continues in possession of the demised premises after the expiration of his term, without permission of his landlord, — the magistrate may direct such summons to be made return- able on the same day. 2 H. S. 513, sec. 30, as amended ly Laws of 1851,^. 852 ; and see 24 JBarh. 438. The summons must be directed to the tenant or occupant by name ; and where the direction was left in blank, the proceedings were , held to be defective, though service was made upon the proper party. 4 Denio, 71 ; 7J. 186 ; 6 Hill, 314 ; 24 Barh. 438. And an appearance by the defendant, for the purpose of objecting to the summons, is not a waiver of the defect. 4 Denio, 71. But where the proceeding was CH. XIII,] TO REMOVE TENANTS. 46a instituted against two, both of ■whom were named in the- affidavit, and the summons was directed to one of them, " and any other person in possession of the premises," and both appeared before the officer, made affidavit, and had a trial by jury, without objecting to the summons, — it was held that it was sufficient. 4 Denio, 185. For form of summons, see Appendix, No. 311. How Swmmons to ie Served.'] The summons must be served, either, — 1. By delivering to the tenantto whom it shall be directed, a true copy thereof, and, at the same time, showing him the original; or, 2. If such tenant be absent from his last or usual place of residence, by leaving a copy thereof at such place, with some person of mature age, residing on the premises, 2 R. S. 514, sec. 32 ; or, if there be no such person residing thereon, then such service may be made by affixing such copy upon a con- spicuous part of said demised premises. Zaws of 1857, vol. ii. p. 509, sec. 1. The summons may be served by any person competent to testify as a witness, and who is not a party to the proceeding. Proof of such service should be made by affidavit. For form, see Ajypendix, No. 312. Where the summons was served by copy, and the only proof of such service was that the tenant was absent, and that the copy was left with E., residing on the premises, — it was held that the proof was insufficient, as not showing the tenant's absence from "his last or usual place of residence," or that the copy was left with a " person of mature age." 1 Hill, 512. If the summons is directed to the original lessee, but served only upon an under-tenant in possession, the service is insufficient : it should be served upon both. 1 Ho^d. Pr. E. 213. What the Defendant to do in certain cases.] If the defendant holds the premises by lease or agreement from any 464 SUMMARY PROCEEDINGS CH. XIII. Other party tban the plaintiff mentioned in the affidavit or summons, he must forthwith give notice of the service upon him of such summons, to his immediate landlord. And this he is required to do, under a penalty of forfeiting the value of three years' rent of the premises so occupied by him ; which xijaay be sued for and recovered by the landlord or person of whom such tenant holds. 1 R. 8. 748, sec. 27. If the Tenant do not defend, Warrant to issue.'] If at the time appointed in the summons, no sufficient cause be shown to the contrary, and due proof of the service of the summons be made to such magistrate, he is required thereupon to issue his warrant to the sheriff of the county, or to any constable or marshal of the .city or town, where the premises are situated, commanding him to remove all persons from the premises, and to putthe applicant into the full possession there- of. 2 R. S. 514, sec. 33. For form, see Appendix, 'Eo. 313. The officer to whom the warrant for delivering the pos- session of the premises shall be directed and delivered, is required to execute the same according to the tenor thereof. Id. 515, sec. 40. The Issue.] Any person in possession of the demised premises, or any person claiming the possession thereof, may, at the time appointed in such summons for showing cause, file an affidavit with the magistrate who issued the same, denying the facts upon which the summons was issued, or any of those facts. 2 R. S. 514, sec. 34, as amended iy Laws of 1857, vol. 2, p. 509, sec. 2; and for previous amendment, see Taws of 1849, p. 292. For form of affidavit, see Appendix, No. 314. The denial in the defendant's affidavit should be express and positive, and not circumstantial and argumentative ; no possibility of evasion should exist. 25 Wend. 284. Allega- tions in the landlord's affidavit, not denied by the defendant, will be taken as true. 2 Ahk Pr. R. 29. Where the proceeding was against the tenant after default in the payment of rent, and the tenant in his affidavit stated that the landlord had before commenced a similar proceeding ■CH. XIII.] TO REMOVE TES-ANTS. 465 for the non-payment of the same rent, and that the parties appeared, and after their proofs and allegations M^ere heard, the magistrate gave judgment for the tenant ; it was held that the affidavit M^as insufficient, as it did not show what issue, or whether any, was joined, or upon what ground the judgment proceeded. 6 8elden, 227. And where two tenants were jointly charged in the affidavit of the landlord, an affidavit by one of the defendants that the rent was not demanded of Mm, is not sufficient to make an issue requiring the summon- ing of a jury, lb.; see also post, p. 467. "What tlie defendant may show." How thelssueto he Tried.'] If the defendant appears and denies the facts alleged in the landlord's affidavit, or any of them, the matters, thus controverted, are to he tried by the magistrate, or by a jury ; provided either party to such pro- ceedings, shall, at the time designated in the summons for showing cause, demand a jury, and at the time of such demand pay to the magistrate the necessary costs and expen- ses of obtaining such jury, {a) 2 B. S. 514, seo. 34, as amend- ed by Laws of 1857, vol. 2, p>- 509) sec. 2. For previous amendment, see Laws of 1849, 2>- 292, sec. 2. The necessary costs and expenses of obtaining the jury are, the magistrate's fees for the venire, the sheriff' 's or consta- ble's fees for the service thei'eof, and the fees of the jury. Adjournments.] Any magistrate before whom the appli- cation may be pending, may, i^pon the request of either party, adjourn the hearing of such application, for the pur- pose of enabling such party to procure his witnesses, when- ever it shall appear to be necessary ; such adjournment, how- ever, shall in no case exceed ten days. 2 H. S. 515, sec. 41. (a) It was held by M'Coun, J., prior to the recent amendment of this sec- tion (1 Selden, 385), where the proceedings were before a county judge, and the defendant had appeared and denied the facts alleged in the landlord's aff. davit, that the judge had no authority to try the issue, thus joined, without a j ury. But it will be seen by the section as amended, that the power to try, in such case, is now given to him. 30 4:QQ SUMMARY PROCEEDINGS [CH. XIII. Subpcenas for Witnesses.] The magistrate may, also, at the request of either party, issue his subpoena, requiring any person to appear and testify before such magistrate, or before the jury, touching the matters directed bylaw to be heard by them ; and every person who, being served with such sub- poena, sliall, without reasonable cause, refuse or neglect to appear ; or, appearing, shall refuse to answer upon oath, touch- ing the matters aforesaid ; shall be subject to the proceedings and penalties provided by law in similar cases. 2 H. S. 515, sec. 42. The Jury, and their Proceedirigs.] In order to form the jury, the magistrate with whom the affidavit is filed, is re- quired to nominate twelve reputable persons, qualified to serve as jurors in courts of record (2 H. S. 411, sec. 13), and to issue his precept, directed to the sheriff or to one of the constables of the county, or any constable or marshal of the city or town,, commanding him to summon the persons so nominated, to appear before such magistrate at such time and place as he shall therein appoint, not more than three days from the date thereof, for the purpose of trying the said matters in diflfer- ence. 2^. S. 514, sec. 35, as amended hy Laws of lS49,j?. 292. For form of precept, see Appendix, No. 315. Six of the persons so summoned shall be drawn in like manner as jiirors in justice's courts (2 R. S. 243, sec. 98, dec), and shall be sworn by such magistrate well and truly to hear, try, and determine, the matters in diiference between the pai'ties. 2 R. S. 514, sec. 36, as amended hy Laws q/'1849,. p. 292. It would be erroneous for the magistrate to nominate more than twelve jurors, especially if the tenant object to the pro- ceeding. 20 Wend. 207. If there be a default of jurors on the return of a venire, the magistrate is authorized to renew the venire until a jury appears. 9 Wend. 227. And so, also, if some of the jurors are disqualified. 7 How. Po\ B. 441. After hearing the allegations and proofs of the parties,, the jury are to be kept together until they agree on their ver- CH. XIII.] TO REMOVE TENANTS. 467 diet, by the sheriff or one of his deputies, or a constable, or by some proper person appointed by the magistrate for that purpose, who shall be sworn to keep such jury as is usual in like cases in courts of record. 2 R. 8. 514, sec. 37. If the jury cannot agree, after being kept together for such time as the magistrate shall deem reasonable, he may discharge them, and nominate a new jury, and issue a new precept in manner aforesaid. lb. sec. 38. Wliat the Defendant may Show.'] We have seen {supra) that the defendant may answer to the aflSdavit of the land- lord, by filing an affidavit with the magistrate, denying the facts upon which the summons issued, or any of those facts. 2 H. 8. 514, sec. 34; and see ante, f. 464, "The Issue." Anything, therefore, which would tend to disprove those facts, or any of them, would be proper for the defendant to show in defense. He would not, however, be permitted to set up title to the premises acquired by him from a third party since the taking of his lease 11 Wend. 616. But though the tenant cannot deny his landlord's title, yet, no doubt, in analogy to the rule which prevails in actions to recover the possession of real estate, he may show that the land- lord's title has terminated either by its own limitation, or by conveyance, or by operation of law. 5 Cowen, 124 ; 11 Wend. 621 ; 3 Barb. S. C. R. 402 ; 3 Sand. S. G. R. 664, per Mason, J. ; see also 6 Wend. 666 ; 22 Id. 121 ; 1 Sand. S. O. R. 517; 15 New York R. 377; 16 Id. 573. In cases arising under the fourth subdivision of the stat- ute, where land has been sold on execution, the defendant will not be permitted to inquire into the regularity and validity of the judgment, on which the execution issued ; nor whether the sale was fraudulent ; nor whether the purchaser purchased in good faith ; but it will be sufficient if the judg- ment and execution are regular upon their face, and the plain- tiff shows a title under them. 13 Wend. 29. Exa/mination of Parties on the Trial.'] The second part of the Code of Procedure does not apply to these proceedings ; 468 SUMMARY PROCEEDINGS [CH. XIII. and, therefore, it seems, the parties cannot be sworn and examined, in their own behalf, under the provisions of the Code (§ 399, dtc), notwithstanding that those provisions authorize such examination in special jjroceedings of a sum- mary nature. See Code § 471 ; 1 Park. Cr. E. 169 ; 2 Brad. 224 ; 16 Barl. 201 ; 1 Selden, 383 ; 3 Sand. S. C. E. 665 ; 10 How. Pr. i?. 83 ; 5 Ahh. Pr. E. 212. Proceedings., when before a Justice of the Peace.] In case of proceedings before a justice of the peace, the justice shall enter the finding of the jury, or in case no jury is called, his final decision upon the application for the warrant, in his docket, and render judgment therefor, and include in such judgment, costs of such proceedings to the prevailing party at the same rate of fees now allowed by law in civil actions in courts of justices of the peace, and limited in like man- ner ; and in the warrant for delivery of possession, or by exe- cution, issued by him, the justice shall direct the collection of such costs. Paws of 1849, ^. 292, sec. 5, sub. 1. Warrant of Possession.] If the decision of the magis- trate, or the verdict of tlie jury, shall be in favor of the lessor, or landlord, or other person, claiming the possession of the premises, the magistrate shall issue his warrant to the sheriff, or to any constable of the county in which the premises are situated, commanding suCh ofiicer to put the landlord, lessor, or other person, into the full possession of the premises. 2 E. S. 515, sec. 39, as amended by Laws of 1857, ch. 684, sec. 3. For form, see Appendix, Ko. 316. The ofiicer to whom the warrant for delivering the posses- sion of the premises shall be directed and delivered, is required to execute the same according to the tenor thereof. 2 E. S. 515, sec. 40. Effect of Issuing Warrant.] The statute provides that where a warrant shall be issued for the removal of any tenant from any demised premises, the contract or agreement for the use of the premises, if any such exists, and the relation of CH. XIII.] TO REMOVE TENANTS. 46 9- landlord and tenant between the parties, shall be deemed tO' be canceled and annuled. 2^. S. 515, sec. 43. Though the tenant has been removed from the demised premises for non-payment of rent, yet the landlord may recover the same by action. And he may recover all the rent due up to the time of issuing the warrant. 6 Jlill, 507 ; 3 Denio, 452 ; 4 Ooms. 270. But it seems that compensation for the use of the premises by the tenant intermediate the default and the time he is dispossessed, cannot be recovered by action on the lease ; but the landlord's remedy is by proceed- ing against the tenant as a trespasser. Id. ibid. ; and see 1 Wend. 134. Where the rent was payable quarterly, in advance, it was held that an eviction during the quarter, but after the rent became due, did not bar an action for the rent. The most the evicted tenant could equitably claim, in such case, was a deduction for so much of the quarter as elapsed after his eviction. 1 I>i(,er, 266 ; 4 Corns. 270 ; atid see 1 K D. Smith, 416; 2 Id. 121. When, and in what Cases, the Proceeding xvill he Stayed.'] The statute authorizes the proceedings to be stayed before warrant issued, except where the tenant holds over after the expiration of his term. It provides that the issuing of the warrant of removal shall be stayed in case of a proceeding for the non-payment of rent, if the person owing such rent, shall, before such warrant be actually issued, pay the rent due, and all the costs and charges of the proceedings ; or give such security as shall be satisfactory to the magistrate, to the person entitled to the rent, for the payment thereof and the costs aforesaid, in ten days. But in case the person giving sitch security shall not within the said ten days produce to the magistrate satisfactory evidence of the payment of the rent and costs, the warrant of removal may at any time thereafter be issued. 2 R. S. 515, sec. 44, as amended l)y Laws of 1857, vol. 2, p. 609, sec. 4. For form of security, see Aiypendix, No. 317. Where the application is founded on the fact that the 470 SUMMARY PROCEEDINGS [CH. XIII. tenant or lessee has taken the henefit of any insolvent act, or been discha/rged under any act for the relief of his person from imprisonment, the proceedings will be stayed, if at any time before issuing the warrant for removal, the tenant or lessee, or liis assignee, shall pay the costs of such proceedings as have been had, and give such security to the person enti- tled to the rent, for the payment thereof as it shall become due, as shall be satisfactory to the magistrate. 2 H. S. 515, sec^ 45. For form, see Appendix, No. 318. And when the application is founded upon an alleged sale l}y execution of the premises occupied by the defendant in such execution, the proceedings shall be stayed, if at any time before issuing the warrant of removal, the occupant shall, 1. Pay the costs of such proceedings; 2. File with the officer before whom the application is pending, an affidavit that he claims the possession of such premises by virtue of some title or right acquired after such premises were sold, or as guardian or trustee for any other ; and, 3. Execute a bond to the applicant for such warrant, in such penalty and with such sureties as the magistrate shall approve, conditioned to pay the costs which may be recovered against him in any ejectment that may be brought by such applicant within six months, for the recovery of the posses- sion of such premises ; and to pay the value of the use and occupation of such premises, from the date of such bond to the time siich applicant shall obtain possession of the same by virtue of a recovery in such action of ejectment ; and also conditioned not to commit any waste or injury to such premises, during his occupation thereof. Ih. sec. 46. For forms of affidavit and bond, see Appendix, Nos. 319, 320. See further on this subject, post, p. 475. " Stay of Proceed- ings on Certiorari." Redeeming the Premises in certain Cases.'\ In case of proceedings against the tenant for default in the payment of rent, if the unexpired term of the lease under which the premises are held exceeds five years, at the time of issuing ■CH. XIII.] TO REMOVE TENANTS. 471 the warrant upon such proceedings, the lessee, his assigns or personal representatives, may, at any time within one year after possession of the demised premises shall have been deliv- ered to the landlord, pay or tender to the lessor, his represen- tatives or attorney, or to the oiEcer who issued the warrant, all rent in arrear to the time of such payment or tender, and all costs and charges incurred by the landlord ; and in such case the premises shall be restored to the lessee, who shall hold and enjoy the same without any new lease thereof, according to the terms of the original demise ; and any mort- gagee of the lease, or of any part thereof, who shall not be in possession of the demised premises, or any judgment creditor of the lessee who shall, within one year after the execution of such warrant, pay all rent in arrear, all costs and charges as aforesaid, and perform all the agreements which ought to be performed by the first lessee, shall not be affected by such recovery; and such judgment creditor may file a suggestion of such payment upon the record, and may issue execution for the amoiint of the original judgment and of such pay- ment, laws of 1842, j>. 293. Ap]j)eal to the County Court.'] If the proceedings are before a justice of the j)eace, either party may have the same reviewed on appeal to the county court, or a writ of certiorari may be awarded by the Supreme Court, for the purpose of examining any adjudication made in such proceedings; the remedy by appeal and by certiorari, in such case, being con- current. 11 Hoiv. Pr. E. 83; and see post, " Certiorari to remove proceedings." But an appeal does not lie from the decision of a justice of one of the district courts of the city of New York, to the Court of Common Pleas of that city. Tlie only mode of review, in such case, is by certiorari, issuing out of the Supreme Court. 5 Abb. Pr. E. 205 ; but see contra, Id. 61. In respect tu appeals from the decision of a justice of the peace, it is provided by statute, that proceedings before a justice of the peace, may be removed by appeal to the county court of the county, in the same manner, and with the like 472 SUMMARY PROCEEDINGS [CH. XIII. effect, and upon like security, as appeals from the judgment of justices of the peace in civil actions, except that the decis- ion of such county judge shall be an affirmance or reversal of such judgment, and be final. But in addition to the security for such judgment as required by law, in case of such appeal, in order to stay the issuing of such warrant or execution, there shall, in case of appeal by the tenant, be security also given for the payment of all rent accruing or to accrue upon such premises subsequent to the said application to such justice. Laws of i9>^2,p. 292, seo. 5, sui. 2. The statute further provides that no appeal will be allowed unless the security for said judgment shall be given, and approved by the judge at the time of allowing such appeal, and served on the justice with the affidavit for appeal. Ih. suh. 3. The practice on appeals to the county court, in these proceedings, has been somewhat modified by subsequent statutory provisions. Thus, under the present practice, no affidavit is necessaiy to be served on the justice in order to perfect the appeal ; nor is it necessary that the appeal should be allowed by a judge of the appellate court, or other officer. See 24 Bath. 438. The appeal is now brought by the service, within twenty days after judgment, of a notice of appeal, stating the grounds upon which the appeal is founded. If the judgment, how- ever, was rendered upon process not personally served, and the defendant did not appear, he has twenty days, after per- sonal notice of the judgment to serve the notice of ajipeal. Ih. ,• Code of Pro. § 353. For form of notice, see Appendix., No. 321. The notice of appeal must also, within the same time, be served on the jiistice, personally, if living and within the county, or on his clerk, if there be one, and on the respond- ent personally, or by leaving it at his residence, with some person of suitable age and discretion, or, in c;ise the respond- ent is not a resident of such county, or cannot after due diligence be found therein, in the same manner on the- CH. XIII.] TO REMOVE TENANTS. 473 attorney or agent, if any, who is a resident of such county, who appeared for the respondent on the trial ; and if neither the respondent nor such agent or attorney can be found in the county, tlie notice may be served on the respondent by leaving it with the clerk of the appellate court, and the appellant must, at the time of the service of the notice of appeal on the j ustice, or on his clerk, as herein provided, pay to such justice or clerk the costs of the proceeding included in the judgment, together with two dollars costs of the return, which shall be included in the judgment for costs on reversal. IT). % 354 ; and see 24 Barh. supra. In order to perfect the appeal, security must be given the same as on appeals in actions in cases where the appellant desires a stay of execution. lb. ; and see 10 How. Pr. H. 87. The security is a written undertaking, executed by one or more sufficient sureties, to the effect that if judgment be ren- dered against the appellant, and execution thereon be returned unsatisfied, in whole or in part, the sureties will pay the ■ amount unsatisfied. Oode^ § 356. Eor form, see Appendix, N"o. 322. And it seems, the security must be approved by the county judge, or by a justice of the Supreme Court. 24 Barb. 442, supra. In addition to the security on the judgment, in case of an appeal by the tenant, in order to stay the issuing of the warrant or execution, security must also be given, as we have seen, for the payment of all rent accruing, or to accrue, upon the premises, subsequent to the application to the justice. lb.; and see Laws of 1849, supra. For form, see Appendix, No. 322. And the judgment debtor, whose land has been sold on execution, and who holds over and continues in pos- session of the premises after title thereto has been perfected under the sale, is a " tenant" within the meaning of the statute. 16 Wew YorTc R. 568, 574. And the word " rent," above mentioned, where the proceeding is between such debtor and the purchaser of his land, on execution, means compensation for the use and occupation of the premises, subsequent to the commencement of the proceedings. lb. No appeal lies from the judgment of the county court t(^ 474: SUMMARY PROCEEDINGS [CH. XIII. the Supreme Court. The judgment is final, in the sense of being ultimate and conclusive ; at least, so far as an appeal to the Supreme Court is concerned. 24 Barb. 438, supra. The proceedings upon the appeal, subsequent to notice of appeal, security, &c., are substantially the same as on appeals in actions. If the tenant fails to appear on the return of the su'mmons, before the justice, he will thereby admit the rights of the landlord; and wilUbe precluded, on the appeal, from object- ing to irregularity in the proceedings. 2 AUb. Pr. R. 28. Where judgment is rendered against the tenant, and he is turned out of possession of the premises, and, on appeal, the judgment is reversed, the court has no power to restore him to the possession of which he has been deprived by the erroneous judgment. 10 How. Pr. R. 83. K the tenant desires to retain possession in such case, he must give security for the payment of the rent. Ih. Certiorari to Remove Proceedings.] The Supreme Court is authorized to award a certiorari for the purpose of examin- ing any adjudication made on any application authorized by the statute ; but the proceedings on any such application shall not be stayed or suspended by such writ of certiorari, or any other writ, or order of any court or ofiicer. 2 R. S. 516, sec. 47 ; 9 Wend. 228. For form of writ, see Appervdix, JSTo. 823. It was formerly held that on the return to a certiorari, under the above section, no other questions could be raised than those relating to the jurisdiction of the officer before whom the proceedings were had, and to the regularity of such proceedings. 11 Wend. i^Qi:; 19 Id. 391; 20/^103, 189. But it seems, now, to be fully settled, that the authority of the court is not limited in such case to questions of juris- diction and regularity ; but that the court has power, also, to examine upon the merits every decision of the judge, a quo, upon a question of law, and to look into the evidence, and affirm, reverse, or quash the proceedings as justice should require. And the court will direct the return of such parts CH. XIII.] TO REMOVE TENANTS. 475 of tlie proceedings as are material to the examination of the case upon its merits. 23 Wend. 616 ; 25 Id. 280 ; 1 Selden, 383 ; 2 Id. 309 ; 3 Barb. S. O. R. 391 ; 7 How. Pr. E. 154. In the return to the certiorari, it should affirmatively appear that the statute has been strictly pursued, in the pro- ceedings before the magistrate. 20 Wend. 207. But the tenant will be precluded from objecting to irregularity in the proceedings, on certiorari, where he has failed to appear before the magistrate on the return of the summons. 2 Ahh. Pr. E. 28. A party who has no interest in the subject-matter of the proceedings, cannot have the writ. 12 Wend. 234. The com-t will not reverse the judgment as to part of the defendants and affirm it as to the rest. See 5 Selden, 227. If it is irregular as to one, it is irregular as to all of them, li.; and see Lai. Swpp. to Mill & Denio, 236; though where the Supreme Court reversed the proceedings as to part of the defendants and affirmed them as to others, the error was held not available on appeal to the Court of Appeals, brought by those against whom judgment was rightfully pronounced in the Supreme Court. 5 Selden, 227, supra. The certiorari may be brought to a hearing by either party upon the usual notice of argument; and is entitled to preference, on the morning of any day during the first week of term. Sup. Court Eules, 1858, No. 47. Stay of Proceedings on the Certiorari.'] In respect to the second branch of the 47th section (supra), declaring that " the proceedings on any such application shall not be stayed or suspended by such writ of certiorari, or any other writ or order of any court or officer," it was held by Edmonds, J. (1 Barh. S. C. E. 65), that that provision operated as a pro- hibition to a court of equity to stay the landlord's proceed- ings on the application to remove his tenant. But afterwards, the same justice held that the statute, being inconsistent with the provisions of the Code of Procedure (§ 219), which authorizes an injunction in any case where the act complained 476 SUMMAEY PEOCEEDINGS [CH. XIII. of -would " produce injury to the plaintiif," was repealed (§§ 468, 4Y1) ; and accordingly he denied a motion to dissolve an injunction restraining the landlord's proceedings. Cure vs. Crawford, 5 How. Pr. R. 293 ; «. c. 1 Code B., N. S. 18. See also to the same effect, ^Sand. S. C. R. 662 ; 1 Duer, 624. But see contra, Wordswoi th vs. Lyon, 5 How. Pr. R. 463 ; s. c. 1 CodeR., If. S. 163, per Barculo, J., where the decision of Justice Edmonds in Cure vs. Crawford is disapproved ; and where it is held that to authorize the issuing of an injunction under § 219 it must appear that the plaintiff is entitled to the final relief demanded according to other or pre-existing laws, independently of the Code. And so, in Hyatt vs. JBurr (8 How. Pr. R. 168), in the Supreme Court, first district, at special term, — it was held, that by the true construction of the Code, an injunction cannot be granted to stay or suspend proceedings under the statute for the recovery, by summary proceedings, of the possession of premises. And, per Koosevelt, J., in a note at p. 170, " I have consulted on this subject with two of my colleagues with the view of establishing a uniformit}' of prac- tice on a point so important to the community, as well as the profession — and they concur with me in saying that by the true construction of the Code, an injunction cannot be granted to stay or suspend proceedings under the statute for recovering summary possession of houses or lands." And see 6 How. Pr. R. 164. {a) But it seems that even if the statute applies to injunctions out of courts of equity, as well as to proceedings at law, yet (a) The Revisers, in their original note to tlie 47th section, saj', it is " con- formable to 20 Johnson's E. 80." That case merely decides, that the writ of certiorari will not lie to remove the proceedings until the magistrate has finally adjudicated upon them; and that even then, the certiorari will not staj- the writ of restitution or possession. Taking the whole of the section together, in connection with the note of the Revisers, it is doubtful whether it was intended by the section to do more than to declare that the proceedings before the magistrate should, in no case whatever, on account of the certiorari, be stayed or suspended, — thus leaving the court to exercise its equitable power to restrain by injunction in all ]iroper cases, unaffected by the statute. CH. XIII.] TO REMOVE TENANTS. 477 it can only affect cases in which the magistrate has jxirisdic- tion, and not where, by the admission of the person assuming to be landlord, he has no jurisdiction. 3 Scmd. S. O. R. 665, per Mason, J. ; s. c.l Code R., N. S. 90. Nor would the statute prevent a court of equity from relieving the tenant in case of fraud or surprise. James vs. Stuyvesant, 3 Sa/)id., supra, note,' 1 Duer, 624 ; 16 How. Pr. R. 170 ; nor, it seems, %vhere he is without an. adequate remedy at the common law. 2 Alh. Pr. R. 125, per Gierke, J. But the certiorari, notwithstanding the statute, suspends the effect of the judgment of the magistrate in everything except what remains to be done by the magistrate himself. The magistrate may issue his warrant to dispossess the tenant ; but during the pendency of the writ of certiorari, his judg- ment is no evidence that the tenancy has ceased, or of a right to re-enter. And after the writ is issued, and while it is pending, the landlord cannot maintain an action for the costs of the proceedings, nor for rent accruing intermediate the forfeiture and the issuing of the warrant. 5 Sand. S. 0. R. 249. As to the cases where the proceedings are authorized by the statute to be stayed, see ante, f. 469. Ajypeal to the Court of A2?peals.] After the decision of the Supreme Court upon the certiorari, either party may have the same reviewed on appeal to the Court of Appeals. This review was formerly bad by writ of error ; but an appeal under the Code of Procedure is now the appropriate remedy — the provisions of which relating to appeals to the Court of Appeals, apply to appeals in these proceedings, so far as the same are applicable. Code of Pro. §§ 8, 11, 333 to 343; and see 9 Hmjo. Pr. R. 304, 310, per Duer, J.; s. c. 3 Puer, 616 ; ante, p. 16, note. ' If the Court of Appeals award to either party the costs ot the appeal, they are to be taxed at the rate allowed by the Code of Procedure (§ 307, sub. 7, § 311). Id. ibid. Awarding Restitution, c&g.] Whenever the proceedings 4T8 SUMMARY PROCEEDINGS [CH. XIII. brought before the Supreme Court by certiorari shall be reversed or quashed, the court may award restitution to the party injured, with costs ; and may make such orders and rules, and issue such process, as may be necessary to carry their judgment into effect. 2 E. S. 516, sec. 48. But where the proceedings of the landlord are reversed in the Supreme Court, upon certiorari, that court should not award restitution to the tenant, if the term has expired before the judgment of reversal, is rendered. 1 Comstoclc, 420. The court may give costs on the reversal of the judgment, whether restitution is awarded or not. lb. 423, per Ruggles, J. In cases of appeal to the county court from the decision of a justice of the peace, the court has no power, upon a rever- sal of the justice's judgment, to award restitution of the pos- session of the premises to the tenant. 11 How. Pr. S. 83. Costs.] In all cases of an application under the statute, the prevailing party is entitled to costs, and may maintain an action for the recovery thereof. 2 R. S. 516, see. 49. The costs allowed are merely the fees of officers who are required to perform the services, such as the magistrate, sheriff, constable, &c.,and do not embrace any compensation to the attorney or counsel. 5 How. Pr. P.2\; 6 Id. 178 ; 4 Hill, 541. County judges are not now entitled to fees in these proceedings. Laws of 1857, chap. 564. To recover the costs of the proceedings on the application for the warrant, the party is limited to an action, in all cases, except where the proceedings are before a justice of the peace ; in which case the justice is authorized to include the costs in his judgment, and to direct their collection in the warrant for delivery of possession, or by execution. Laws of 1849, J). 292, sec. 5, sm5. 1. If a certiorari is issued before the landlord's action to re- cover his costs is commenced, the action will be stayed until the writ is disposed of. And if issued while the action is pending, the certiorari suspends the force of the judgment before the officer, as well as the right to recover the costs. 5 Sand. 249. CH. XIII.] TO REMOVE TENANTS. 479 Where the proceedings are taken by certiorari into the Supreme Court, and reversed or quashed, costs will be awarded to the successful party ; 2 U.S. 516, sec. 48 ; and this, too, whether restitution is awarded or not. 1 Corns. 420, 423. It is doiibtful as to what law applies in regulating the allowance of costs on certiorari ; though the better opinion is that they are to be taxed at the rate allowed by the Code for similar services in civil actions. Laws of 1854, p. 592 ; ante, p. 19; 1 How.Pr. B. 154 ; 9 Id. 304; s.c. 3 Duer, 616 ; and ante, p. 16, note. In appeals to the Com-t of Appeals, if costs are awarded, the Code (§§311 and 307, sub. 7) is to determine the allow- ance. 9 How. Pr. P. swpra ; ante, p. 16, note. The costs in proceedings before justices of the peace, are to be at the same rate of fees allowed by law in civil actions in justices' courts, and limited in like manner. Laws of 1S49, p. 292, sec. 5, sub. 1 ; Laws of 1857, vol. 2, p. 723. Pamages on Peversal of Proceedings, <&c.] The statute provides that in case the proceedings on the certiorari shall be reversed or quashed by the Supreme Court, the tenant or lessee may recover, by action, against the person making application for his removal, any damages he may have sus- tained by reason of such proceedings, with costs. 2 P. S. 516, sec. 49. Saving of Pights.] It is also provided by the statute that nothing contained therein shall be construed to impair the rights of any landlord or lessor, or of any tenant in any case not therein provided for. P. sec. 50. APPENDIX OF FORMS. CHAPTER I. FORMS IN ADMEASUREMENT OF DOWER. Wo. 1. ' Petition for Admeasurement. See ante, p. 2. To the Supreme Court of the State of New York [or other court ; or, To M. F., Esquire, Surrogate of the count)' of '\. The petition of A. B., of, d'c, respectfully shows, that she is the widow of J. B., late of said town, deceased ; that she was lawfully- married to the said J. B. in his lifetime, and lived and cohabited with him until his decease, on the day of 18 — ; that the said J. B., at the time of his decease and prior thereto, was seized of an estate of inheritance, of and in the following lands and premises situated in said county, \nz. : \here describe the premises'] (*). And your petitioner further shows, that W. B., an infant child and heir of the said J. B., deceased, and R. B., another son and heir of said deceased, claim to be the owners of said lands and premises, as the heirs at law of the said deceased ; and your petitioner believes they are the owners of the said lands and premises, subject to your peti- tioner's right of dower in the same. Your petitioner, therefore, prays for an order that admeasurement may be made of the dower of your petitioner in said lands and prem- ises ; and that three reputable and disinterested freeholders may be 31 482 APPENDIX. [CH. I. appointed commissioner.^, for the purpose of making the said admea- surement, pursuant to the statute in such case made and provided. J. S. C, Attorney for Petitioner. A. B. County of ss. A. B., the petitioner above named, being duly sworn, says. That she has read the above petition, subscribed by her, and knows the contents thereof, and that the same is true of her own knowledge, except as to the matters which are therein stated on infor- mation and belief, and that as to those matters, she believes it to be true. Sworn, dc. A. B. Wo. 2. Notice of Application for Admeasurement. See ante, p. 3. To W. B. and R. B., heirs at law of J. B., late of the town of , deceased, and to all others claiming a freehold estate in the lands described in the annexed petition. Take notice, that a petition, of which the annexed is a copy, will ?)e presented to the Supreme Court \or other court'], at the next special term thereof, to be held at the Court House in the village of , on the day of , 18 — , at the opening of the court on that day or as soon thereafter as counsel can be heard ; and that a motion will then and there be made, that the prayer of the said petition be granted. Dated, <&c. J. S. C, Attorney for Petitioner. Yours, &c., A. B. No. 3. Notice by Heirs, (tc, to Widow. See ante, p. 4. To A. B., widow of J. B., late of, dc, deceased. Take notice, that you are required to make demand of your dower in the lands owned by the said J. B. at the time of his decease, within ninety days after the service of this notice. The said lands are bounded and described as follows : [insert description^ Dated, &c. Yours, (fee, R. B., &€. No. 4. Petition by Heirs, &c.,for Admeasurement. See ante, p. 4. [The petition and notice in Nos. 1 and 2, ante, may be modified so as to suit this case.] CH, I] APPENDIX. 483 No. 5. Petition for appointment of Guardian. See ante, p. 4. [Same as in iVo. 1 to the (*), and then proceed as follows.] And your petitioner further shows, that W. B., of, dc, is an infant ■under the age of twenty-one years, and is one of the owners of the lands and premises aforesaid, as your petitioner believes ; that the said W. B. has no guardian ; and that your petitioner has a right of dower in the said premises, and is desirous of obtaining an admeasurement thereof. Your petitioner, therefore, prays that some suitable and proper person may be appointed guardian of the said infant, for the purpose of appearing for, and taking care of, the interest of such infant in the proceedings. A_. B. J. S. C, Attorney for Petitioner. [Add jurat to petition, as in No. 1.] No. 6. Order appointing Guardian. See ante, p. 4. At a special term of the Supreme Court [or other court], Iield at the Court House in , in and for the county of , on the day of , 18 — , Present, A. B. J., Justice. In Supreme Court. In the matter of the application of A. B. i for the admeasurement of dower. i On reading and filing the petition of A. B., widow of J. B., late of the town of , deceased, dated the day of , 18 — , showing that the said petitioner is desirous of obtaining an admeasurement of her dower interest in the lands and premises described in said petition, and praying that a guardian may be appointed for W. B., an infant, and one of the owners of said premises ; It is, on motion of J. S. C, attorney for the petitioner, ordered, that O. F. T., a freeholder of said county, be and he is hereby appointed guardian of the said W. B., for the sole purpose of appearing for and taking care of the interest of the said infant in the proceedings. 484 APPENDIX. [CH. I. No. 7. Order for Admeasurement, and Appointing Commissioners.. See ante, p. 5. At, &c. \as in No. 6]. [Title as in No. 6.] On reading and filing the petition of A. B., widow of J. B., late of the town of , in the county of , deceased, dated the day. of- , 18 — , and the notice accompanying the same; and also on reading and filing proof of the due service of the said petition and notice upon O. F. T., special guardian for W. B., an infant, and upon E. B., named in said petition, and after hearing J. S. C, of counsel for said petitioner, and 0. F. T., the special guardian aforesaid, in behalf of said infant ; It is ordered that admeasurement be made of the dower of the said A. B., in the lands of her husband, the said J. B., deceased, specified in said petition, and which are therein described as follows : [insert descri'ption.^ And it is further ordered, that J. R. L., J. C. B. and J. H. C, of, &c., three reputable and disinterested freeholders, be and they are hereby appointed commissioners, for the purpose of mating such ad- measurement. It is further ordered that the said commissioners report their pro- ceedings to this court on the day of next. No. 8. Oath of Commissioners. See ante, p. 6. [Title, as in No. 6.] We, J. R. L., J. C. B. and J. H. C, com- missioners appointed by the Supreme Court [or other courtl, to make admeasurement of the dower of A. B., above named, in the premises described in the order of said court, dated the • day of , 18 — , being duly sworn, do severally make oath, and each for himself makes oath and says, that he will faithfully, honestly, and impartially dis- charge the duty, and execute the trust reposed in him by such appoint- ment. [Signatures of Commissioners.J Subscribed and sworn, dc. ■CH. I.] APPENDIX. 485 No. 9. Report of Comminsioners. See ante, p. 8. YTitle, as in Xo. 6.] To the Supreme Court of tlie State of New York [or other court, or, To M. F., Surrogate of the county of ]. The undersigned, J. R. L., J. C. B., and J. H. C, commissioners appointed by an order of the Supreme Court \or other court, (fx.] dated the day of — — , 18 — , to make admeasurement of the dower of A. B., above named, widow of J. B , late of the town of , in said county, deceased, in the lands and premises described in said order, and situated in the town of aforesaid, do respectfully ■report, that having first been duly sworn, faithfully, honestly, and impartially to discharge the duty and execute the trust reposed in us by the said appointment, we met on the premises hereinafter described on the day of , to discharge the duty and exercise the trust aforesaid, and as well the said A. B. and W. B., by his guardian, 0. F. T., and R. B., by his attorney L. F., appeared at the time and place afore- said \or, if they did not appear, state the fact, and that they had been duly notified to appear at the time and place aforesaid^, whereupon the undersigned, commissioners, caused a survey of the said lands and premises to be made, in the presence of the said parties, a map of which survey is hereunto annexed. And we do further report, that we have admeasured and allotted to the said A. B., for her dower in the said lands and premises, the one-third part thereof, which part is bounded and described as follows : [insert description, containing the quantity, courses, and distances of the land admeasured and allotted to the widoiu, with a description of t%e posts, stones, and other permanent monuments thereof^ being the part designated on. the said map, hereto annexed, by the letter " A." We do further report that the following are the items of the charges attending said admeasurement, including our fees as commis- sioners, viz. : Three days' .services for each commissioner, at §2 per day for each, - 818 00 Cash paid A. F. for two days' services as surveyor, 82 50 per day,- 5 00 Cash paid for two chain and flag bearers, two days each, at |1 per day, for each . 4 00 82Y 00 In witness whereof, we have hereunto set our hands, this day of , A. D. 18 — . [Signatures qfCommissioners.'j 486 APPENDIX. [CH. No. 10. Notice of Motion to Confirm Report. See ante, p. 9. {Title as in No. 6.] SiK, — Take notice that I shall move the Supreme Court \or other court], at the next special term thereof, to be held at the Court-house in , in the county of , on the day of ■ next, or as soon thereafter as counsel can be heard, for an order confirming tlie report of the commissioners appointed to make admeasurement of the dower of A. B., in the premises mentioned in said report ; and for such other or further order as may be just, which motion will be founded upon the said report, a copy of which is herewith served. Dated, tfec Yours, &c., J. S. C, Atty. for A. B, To 0. F. T., special guardian for W. B., and L. F., Attorney for R. B. No. 11. Order Confirming Commissioners' Report. See ante, p. 9. At, (kc. \as in No. 6.] [Title, as in No. 6.] On reading and filing the report of J. R. L.,. J. C. B. and J. H. C, commissioners appointed to admeasure the dower of A. B., widow of J. B., late of the town of • , in the county of , deceased, which report is dated the day of , 18 — , and by which it appears, among other things, that the said commis- sioners have admeasured and allotted to the said A. B., for her dower, the one-third part of the lands and premises described in the order appointing said commissioners, a map of which is annexed to said report, which third part so allotted to the said A, B. is particularly described in said report, as will more fully appear by reference to said report, and to the minutes of the court where said report is entered at large. Now, on motion of J. S. C, attorney for the said A. B., no one appearing to oppose [or, and after hearing O. F. T., special guardian for W. B., and L. F., attorney for R. B.J, it is ordered that the said report and admeasurement be, and the same is, in all respects confirmed. CH. I] APPENDIX. 487 No. 12. Notice of Appeal. See ante, p. 11. K. B. and O. F. T., Appellants, j against \ A. B., Respondent. To A. B. Take notice, — That the above named appellants appeal to the Supreme Court, from an order made by the county court of the county of \or, by M. R, surrogate of the county of ], con- firming the report and admeasurement of J. R. L., J. C. B. and J. H. C. commissioners appointed by the said court [or, surrogate] to admeasure and set off to the said A. B., the one-third part of the lands and premises, mentioned in said report. Dated, dx. Yours, (fee, L. F., Atty. for Appellants. To A. B., Respondent. No. 13. Bond on Appeal, See ante, p. 12. Know all men by these presents, That we, 0. F. T., of, dr., and R. B. of the same place, and S. R. C, of, c&c, are held and firmly bound unto A. B. of, etc., in the penal sum of one hundred dollar?, to be paid to the said A. B., her executors, administrators and assigns; for which payment well and truly to be made, we bind ouvselve?, our heirs, executors and administrators, firmly by these presents. Sealed with our seals, and dated the • day of IS—. Whereas, the above-bounden, 0. F. T. and R. B., have this day appealed to the Supreme Court, from the admeasurement of the dower of the above-named A. B., lately made by J. R. L., J. C. B., and J. H . C, commissioners appointed by the county court of said county of [or, by M. F., surrogate of the county of ] to admeasure and set off for the dower of the said A. B., one third part of the land and premises described in their report to the said co.urt [or, surrogate], and from an order confirming the said report and admeasurement. Now, the condition of this obligation is such, that if the above- bounden, 0. F. T. and R. B., shall diligently prosecute the said ap- peal, and shall pay all costs that may be adjudged by the Supreme 488 APPENDIX. [CH. I. Court against the said appellants, then the above obligation to be void, otherwise to remain in full force and virtue. \_Signaiures and Seals.^ Sealed and delivered, (£c. [Endorse upon. the ho7id the followinij certificate : The security in the within bond is approved. Dated, dc, which is to be signed by the surrogate or a judge of the court hy v)hich the order appealed from was made.^ No. 14. Order of Reversal. See ante, p. 1.3. At a general term of the Supreme Court held at the Court House in , in the' county of , on the day of , 18—. Present, C. L. A., A. B. J., and E. H. K, Justices. Supreme Coukt. 0. F. T. and E. B., Appellant?, against A. B., Eespondent. '1 \ I J On reading and filing an appeal from the admeasurement of dower made in pursuance of an order of the county court of the county of [or, in pursuance of an order made by M. F., surrogate of the county of ], and the affidavits and report of commissioners and other papers accompanying the said appeal ; and on hearing L. F., attorney for the appellants, and J. S. C, attorney for the respondent, it is ordered, that the order confirming the said report, and the admea- surement of dower therein made, be, and the same is hereby, vacated and set aside. (*) And it is further ordered that the commissioners appointed by the said court [or, surrogate], proceed to admeasure the dower of the said A. B., as in the order appointing said commissioners the)- were directed to do. CE. I.] APPENDIX. 489 No. 15. Another form of order of reversal, where the right of dower is in mines which have been worked. See ante, p. 13. 1 Cowen, 480. [^Same substantially as in last form to the (*) and then jjroceed ;] And it is further ordered that the commissioners proceed to assign to the said Maria, her reasonable dower in the lands and tenements mentioned and described in the order of the said surrogate. And whereas it appears that on the premises in which dower is claimed, there is a valuable i)-on ore bed, which J. C, the husband of the said Maria, opened and worked in his lifetime, and that he was the owner and proprietor of the said lands, when the said ore bed was opened and worked, as aforesaid ; by reason whereof the said Maria is dowable of, and in, all such ore beds on the said premises as were, in fact, opened and wrought before the death of her said husband, and wherein he had an estate of inheritance during the coverture ; It is therefore further ordered, that in making the assignment, the admea- surers estimate the annual value of the ore beds that had been opened as aforesaid, as part of the value of the estate of which the said Maria is dowable ; that the admeasurers may, in their discretion, assign the dower of the said Maria, in land set out by metes and bounds, and containing none of the said ore beds, or they may include any of the said ore beds, so as aforesaid opened, in the said assignment, describing them specific- ally, if the particular lands in which they lie should not also be assigned ; but if those lands should be included in the assignment, the open ore beds within them need not be so described, being part of the land itself assigned ; or the said admeasurers may divide the enjoyment or perception of the profits of any of the said open ore bed^, by directing a separate alternate enjoyment of the whole, at short periods, propor- tioned to the share each party had in the subject, or by giving the said Maria a proportion of the profits. In each and every case, howe\'er, the said admeasurers are not to take into account, or assign dower of any part, or portion of said ore bed opened by said A. C, the appellant, and others, since the death of the said J. C, nor the improvements made on the said premises by the said A. C, and others, since the death of the said J. G. 490 APPENDIX. [ce. II. CHAPTER II. FORMS IN ARBITRATIONS. No. 16. General Submission to Arbitration. • See ante, p. 28. Whereas divers disputes and controversies have existed and arisen, and are now existing and pending, between A. B. of the town of in the county of , and 0. D. of the same place. Now, therefore, we the undersigned, A. B. and C. D. aforesaid, do hereby mutually covenant and agree to and with each other, that E. F., G. H. and K. L. of, Sc, or any two of them, shall arbitrate, award, order, adjudge, and determine of and concerning all and all manner of actions, cause and causes of action, suits, bills, bonds, judgments, quarrels, controversies, trespasses, damages, claims and demands what- soever, now pending-, existing or held, by and between us the said parties. And we do further mutually covenant and agree, to and with each other, that the award to be made by the said arbitrators, or any two of them, shall in all things by us, and each of us, be well and faithfully kept and observed ;— provided that the said award be made in writing and signed by the said E. F., G. H. and K. L. or any two of them, and ready to be dehvered to the said paities in difference, or such of them as shall desire the same, on or before the day of next ensuing the date hereof. \If a judgment is intended to be entered on the award, ip 'pursuance of the statute, add the following clause: And it is hereby further mutually agreed by and between the said parties, that judgment in the Supreme Court of the State of New York \or, County Court of county, or other court of law and of record^ shall be rendered upon the award to be made pursuant to this submission.] Witness our hands this day of , 18 — . In presence of A. B. M. N. C. D. Ce. II.] APPENDIX. 491 No. 17. Bond of Arhitration. (a) See ante, p. 28. Enow all men by these presents : That I, A. B. of the town of in the county of ■ am held and firmly bound unto C. D. of the same place \or as the case may 6e], in the sum of five hundred dollars, lawful ifloney of the United States, to be paid to the said C. D., or to his certain attorney, executors, administrators, or assigns, for which payment to be well and faithfully made, I bind myself, my heirs, executors and administrators firmly by these presents, sealed with my seal, and dated the day of A. D. 18 — . (*) The condition of this obligation is such that if the above-bounden A. B. shall well and truly submit to the decision and award of E. F., (t. H. and K. L., arbitrators, named, selected and chosen, as well by and on the part and behalf of the said A. B. as of the said C. D. to arbitrate, award, order, adjudge and determine of and concerning all and all manner of actions, cause and causes of action, suits, contro- versies, claims and demands, whatsoever, now depending, existing or held, by and between the said A. B. and the said C. D., so as the said award be made in writing, and signed by the said E. F., G. H. and K. L., or any two of them, and ready to be delivered to the said parties, or such of them as shall desire the same, on or before the day of ■ , 18 — , then this obligation to be void, or else to remain in full force and virtue. [If there is no submission in writing, se'joaroAe from the hond, and it is intended to have a judgment on the award in punuanceofthe statute, insert the following clause : And the above -bounden A. B. hereby agrees that judgment in the Supreme Court of the State of New York, \or, county court of county; or oiAer cowrZ], shall be rendered upon the award to be made pursuant to this submission]. Signed, sealed, and delivered A. B. (l. s.) in presence of M. N. No. 18. Bond for an Award by an Umpire. See ante, p. 28. [Proceed as in last form to the asterisk (*) and then continue .•] The condition of the above obligation is such that if the above- (a) The parties should execute bonds to each other. The obligor in one will be the obligee in the other. 492 APPENDIX. [CH. II. boundeu A. B. shall well and truly submit to the decision and award of E. F. and G. H., arbitrators indifferently named, selected, and chosen, as well by and on the part and behalf of the said A. B. as of the said C. D. to arbitrate, award, order, adjudge, and determine of and concerning all and all manner of actions, cause and causes of action, suits, controversies, claims and demands whatsoever, now depending, existing, or held, by and between the said A. B. and the said C. D; so as the said award be made in writing, signed by the said E. F. and G. H., and ready to be delivered to the said parties, or such of them as shall desire the same, on or before the day of , 18 — (*) ; but if the said arbitrators do not make such their award _ of and concerning the premises by the time aforesaid, then if the said A. B. shall in all things well and truly stand to, obey, per- form, fulfill and keep the award, order, arbitrament, umpirage, and final determination of such person as the said arbitrators shall appoint as an umpire between the said parties, of and concerning the premises aforesaid, so as the said umpire do make his award or umpirage of and ooncerning the said premises in writing, signed by the said umpire, and ready to be delivered to the said parties or such of them as shall desire the same, on or before the day of 18 — ; then the above obligation to be void, or else to remain in full force and virtue. [If a judgment is intended to be entered on the award, in pursuance ■of the statute, then add the following clause : And the above-bounden A. B. hereby agrees that judgment in the Supreme Court of the State of New York \or other court^ shall be rendered upon the award to be made pursuant to this submission.] Signed and sealed A. B. [l. s.J in presence of M. N. No. 20. Condition providing for a third Arbitrator. See ante, p. 28. The condition of this obligation is such, etc., [as in last form, to the (*) — then proceed .-] But if the said arbitrators do not make such their award by the time aforesaid, then if the said A. B. shall in all things well and truly stand to, obey, perform, fulfill and keep the award, order, arbitrament, and final determination, of and concerning the premises aforesaid, which either of said arbitrators shall make with such person as they shall appoint as an arbiti'ator to act with them, or one CH. II.] APPENDIX. 493 of them, in hearing and determining the said matters in controversy, so as the said award be made in writing, and signed by the said arbi- trators, or any two of them, and ready to be delivered to the said parties, or such of them as shall desire the same, on or before the day of 18 — , then the above obligation to be void, or else to remain in full force and virtue,, c&c. [as in last form]. No. 21. Arbitrator's Oath, See ante, p. 32. You and each of you do swear that you will faithfully and fairly hear and examine the matters in controversy submitted to you as arbi- trators, by and between A. B., of the one part, and C. D., of the other part, and a just award thereof make, according to the best of your understanding. No. 22. Notice of Searing before Arbitrators. See ante, p. 32. In the matter of an arbitration, of and concerning certain matters in diflference between A. B., of the one part, and 0. D., of the other part. i Sib: — Take notice, that the above matter will be brought to a hear- ing before the arbitrators appointed therein, at the office of in the village of on the day of 18 — , at o'clock, in the noon of that day. Yours, ikc. To C. D. A. B. No. 23. Oath on Ajxplication for a Subjooma. See ante, p. -34. You do swear that you will true answers make to such questions as I shall put to you, touching the necessity and propriety of my issuing a subpcena upon your present application for the same. No. 24. Subpoena to appear before Arbitrators. See ante, p. 34. The People of the State of New York : To 0. P., Q. E., and S. T.:— 494 APPENDIX. [CH II. You and each of you are commanded personally to appear and attend at the office of in the village of in said county, on the day of ■ 18 — , at o'clock, in the noon of that day, before E. F,, G. H., and K. L., arbitrators, chosep to determine a controversy between A. B., on the one part, and 0. D., on the other, then and there to testify as a witness in relation thereto, before the said arbitrators, on the part of the said A. B. Hereof fail not at your peril. Given under my hand, this day of 18 — . O. S., Justice of the Peace. No. 25. Oath of Witness. See ante, p. 34. You do. swear that the evidence you shall give to these arbitrators [or, this arbitrator, or, this umpire], touching or concerning the matters in difference submitted for their [or, his] determination and award, by and between A. B., of the one part, and C. D., of the other part, shall be the truth, the whole truth and nothing but the truth. [Or, the oath may be varied, as follows: You do solemnly, sincerely, and truly affirm and declare, that, c£t., as ahove^ No. 26. Revocation. See ante, p. 62. To. E. F., G. H., and K. L. : — Take notice, that I do hereby revoke your powers as arbitrators, under the submission made to you by C. D. and myself, by our mutual bonds [or, agreement in writing], dated, dec. Witness my hand and seal, (a) this day of 18 — . A. B. No. 27. Notice of Revocation. See ante. p. 52. To C. D. :— Take notice, that I have this day revoked the powers of E. F., G. H., and K. L., arbitrators, chosen to settle the matters in controversy between us, by an instrument of revocation, of which, see a copy below. Dated day of 18 — . Yours, &c., A. B. [Here insert copy of revocation.] {a) The revocation need not be under seal unless the submission was under seal. CH. n.] APPENDIX. 495 No. 28. Award. See ante, pp. 34 to 40. To all to whom these presents shall come, or may concern : E. P., G. H., and K. L., send greeting . AVhereas, divers suits, disputes, controversies, and differences, have happened and arisen, and are now depending, between A. B., of , and C. D., of , for pacifying, composing, and ending whereof, the said A. B., and C. D., have entered into a written agreement, dated the day of last past, to submit the said matters to the award and final determination of the said E. F., G. H., and K. L., arbitrators, selected by the said parties, as by reference to which agree- ment will more fully appear, \or, the said A. B^ and C. D., have bound themselves each to the other in the penal sum of $ , by bonds, bearing date the day of last past, with condition thereunder written, to stand to, obey, abide, perform, and keep the award, order, arbitrament, final end and determination of the said E. F., G. H., and K. L., arbitrators, selected by the said parties, as by reference to the said bonds of submission will more fully and at large appear.] Now, therefore, know ye that the said E. F., G. H., and K. L., having taken upon themselves tbe charge and burcfcn of the said award, and having deliberately heard the allegations and proofs of the said parties, do by these presents, arbitrate, award, order, and adjudge of and concerning the premises in manner and form following, that is to say : First. They do award, order, and adjudge that the said C. D. or his representatives, shall and do on or before the day of next ensuing the date hereof, make and execute a good and sufficient conveyance of his interest as lessee for years of a certain farm in the posse.^sion of the said C. D., situate {describe the •premises], pursuant and according to the true intent and meaning of certain articles of agreement, bearing date on or about the day of and made between the said C. D. of the one part and the said A. B. of the other part. Second. The said arbitrators do further award, order and adjudge that the said C. D., his executors or administrators, shall and do, on or before the day of next ensuing the date hereof, pay, or cause to be paid unto the said A. B., his executors, administrators or assigns, the sum of dollars, in full payment, discharge and satisfaction of and for all moneys, debts, duties, due or owing unto the said A. B. by 496 APPENDIX. [CH. II. the said C. D. upon any account whatsoever, at any time before their entering into the said agreement of submission [or, bonds of arbitra- tion] as aforesaid. Third. The said arbitrators do liereby further award, order and adjudge, that all actions and suits commenced, brought or depending between the said A. B. and C. D. for any matter, cause or thing what- soever, arising or existing at the time of, or before, their entering into the said agreement of submission [or, bonds of arbitration], shall from henceforth cease and determine, and be no further prosecuted or pro- ceeded in by them, or either of them, or by their, or either of their, means, consent or procurement. And lastly. The said arbitrators do hereby further award, order and adjudge that the said A. B. and C. D. shall and do within the space of days next ensuing the date of this present award, seal and execute unto each other, mutual and general releases of all actions, cause and causes of actions, suits, controversies, trespasses, debts, duties, damages, accounts and demands whatsoever, for or by reason of any matter, cause, or thing whatsoever, from the beginning of the world to the day of tlje date of the said agreement of submission [or, bonds of arbitration], as aforesaid. In witness \diereof the said arbitrators have hereunto set their hands and seals, this day of 18 — . [Signatures and Seals.\ Signed and seajed, in presence of A.T. No. 29. Affidavit proving the Award. See ante, p. 42. County of ss. A. T. of in said county, being duly sworn, deposes and says : That he was present and saw E. F., G. H. and K. L. sign, publish and declare, their final award and determina- tion in writing between A. B. of, c6c., and C. D., of, etc., bearing date the day of 18 — , and hereunto annexed ; that the names E. F., G. H. and K. L. subscribed to the said award, are the proper and genuine signatures of the said E. F., G. H. and K. L., and that they seve- rally acknowledged the execution thereof; and that the said deponent set his name as a subscribing witness to the said award, at the time of its execution and publication as aforesaid ; and further he says not. Sworn to, <&c. A. T. -CH. II.] APPENDIX. 497 No. 30. Affidavit Proving the Bond of Arbitration. See ante, p. 42. County of ■ ; ss. M. N., of , in said county, being duly •sworn says : That he was present and saw A. B. sign, seal, acknowledge and deliver, as and for his act and deed, the within bond of arbitration ; that the name A. B., subscribed to the said bond, is the proper and genuine signature of the said A. B. ; and that the said deponent set his name as a subscribing witness to the same, at the time of its execution ^nd delivery by the f aid A. B. as aforesaid ; and further says not. Sworn to, dc. M. N. No. 31. Affidavit proving the Agreement of Submission. See ante, p. 42. County of ,ss. M. N., of in said county, being duly sworn, •deposes and says : That he knew A. B. and C. D., the individuals described in and who executed the within agreement of submission, that he was present and saw them sign, acknowledge, and deliver the same as and for their act and deed, and that he set his name as a sub- scribing witness to the same, at the time of the execution and delivery •of the said agreement, as aforesaid. M. N. Sworn to, <£'c. No. 32. Kotice of Motion to Confirm the Award. See ante, p. 42. Supreme Court \or other couri!\ In the matter of an Arbitration of and con- i cerning certain matters in difference be- i tween A. B. of the one part, and C. D. of j the other part. Sir : Take notice that I shall move the Supreme Court, at the next special term thereof, to be held at the Court House in , in and for the county of , on the day of ■ next, at the opening of the court on that day, or as soon thereafter as counsel can be heard,.for an order (*) that the award made by the arbitrators in the above matter, be confirmed ; and that judgment be rendered thereon in favor of the 32 498 APPENDIX, [CH. II. said, A. B. ; and foi' sucli further, or other order as t'le court may think proper to grant, — which motions will be founded upon the agreement of submission [or, bond of arbitration], and proof thereof, and the award of said arbitrators, and the proof thereof. Dated the day of , 18 — . Yours, &c.. To C. D., above mentioned. L. P. C, Atty. for A. B. No. 33. Notice of Motion to Vacate the Aivard. See ante, pp. 43, 45. [As in last form to the (*) — then as follows ;] That the award made by the arbitrators in the above matter be set aside and vacated "with costs ; and for such further or other order as the court may think proper to grant, — which motions will be founded upon the affi- davits, with copies of which you are herewith served, and also upon the agreement [or, bond] of submission, and the award of said arbi- trators. The following are the grounds upon which it is sought to vacate said award : [Here set forth the irregularities complained o/.] Dated the day of , 18 — . Yours, &o., J. S. C, Atty. for C. D. To A. B., above mentioned. No. 34. Notice of Motion to Modify or Correct the Award. See ante, pp. 45, 46. [As in No. 32, to the osterisl; (*) — then as follows :] That the award made by the arbitrators in the above matter, be modified and corrected in the following particulars : [Here set forth the particulars as to which the party desires the award to be modified, or corrected ; and then continue :] and for such further, or other order, as thecour may think proper to grant, — which motions will be founded upon the said award, and the agreement [or, bond] of submission between the said parties, and also upon an affidavit, with a copy whereof you are herewith served. Dated the • day of , 18 — . Yours, &c., L. F., Atty. for A. B. To C. D., above mentioned. CH. II.] APPENDIX. 499 No. 35. Order confirming Award, and for Judgment. See ante, p. 47. At, d:c. \as in No. 6.] \Tiile as in No. 32.] On readiDg an4 filing the award, dr. [recite the papers on which the motion is founded'], and on motion of L. P. C, of counsel for A. B., one of the parties to said arbitration, no one appearing to oppose \or, and on hearing J. S. C, of counsel for C. D., the other party to said arbitration, in opposition thereto], it is ordered that the award of the arbitrators in this matter be, and the same hereby is, confirmed. It is further ordered and adjudged that the said A. B. do recover against the said C. D., the sum of dol- lars awarded to the said A. B., in the said award, and also • dollars and cents, for his costs and charges by the court now here adjudged to the said A. B., which said sum, so awarded as aforesaid, and f-aid costs and charges, in the whole amount to dollars. And it is further ordered that the said C. D. execute and deliver to the said A. B., a good and sufficient conveyance of his interest as les- see for years, of a certain farm in the possession of the said C. D., situ- ated in the town of, cfcc, \descrihe the premises] in the manner required in and by the siiid award. No. 36. Order vacating Award. See ante, p. 46. [Title as in No. 32, then as follows ;] On reading and filing afB- davits and notice of motion, and the award and the agreement \or, bond] of submission in the above matter, and on motion of J. S. C, of counsel for C. D., one of the parties to said arbitration, no one appear- ing to oppose [or, and on hearing L. P. C, of counsel for A. B., the other party to said arbitration, in opposition thereto], it is ordered that the award of the arbitrators in this matter be, and the same hereby is, vacated, wiih dollars costs, to be paid by the said A. B., to the said C. D. 500 APPENDIX. [CH. ir. No. 37. Judgment Record. See ante, p. 49. Yates' PI. 813. Pleas before the Supreme Court of tlie State of New York, the 21st day of February, in the year. of our Lord one thousand eight hundred and fifty-eight. Witness, C. L. A., Justice of the Supreme Court. County of ss. Be it remembered that at a special term of this court held at the Court House in the village of on the day of Februar3', in the year of our Lord one thousand eight hundred and fifty-eight, A. B., by L. P. C, his attorney, being in the Supreme Court of the State of New York, brings, according to the statute in such case made and provided, a certain submission of matters in differ- ence between the said A. B., of the one part, and C. D., of the other part to E. F., G. H., and K. L., which submission was made by an agreement in writing executed by the said parties, and is in the words and figures following, that is to say [copy agreement^ \or, which sub- mission was made by bonds of arbitration executed by the said A. B., of the one part, and the said C. D. of the other part, one of which said bonds executed by the said C. D., is in the words and figures following, that is to say, \copy the bond^ The said agreement \or^ bond] of sub- mission was duly proved by the affidavit of M. N., a subscribing witness thereto, in the words and figures following, that is to say : {copy afi- davU?\^ And the said A. B. says, that after the making of the said submission, to wit, on the • day of January, last past, the said arbi- trators met at the house kept by in the village of and as well the said C. D., as 'the said A. B. appeared before the said arbitra- tors ; and the said arbitrators did then and there proceed to the hearing and examination of the matters in controversy, and of the proofs and allegations of the respective parties, and continued such hearing, by adjournment from time to time, until the day of February, instant, on which day, last aforesaid, the said arbitrators made and signed their award in writing under their hands and seals, in the words and figures following, that is to say : \copy award\^ which award is duly proved by the affidavit of A. T., a subscribing witness thereto. And hereupon the said A. B. prays that the said award may be in all things confirmed, together with his costs and charges in and about the confiimation of said award. And the said C. D., by J. S. C, his attorney, comes and says nothing in bar or preclusion thereof. Where- CH. III.] APPE^-DIX. 501. upon the matters aforesaid having been seen, and by the court now- here fully understood, and mature deliberation thereupon had, I It is hereby ordered, adjudged and determined that the said I -T. award be in all things confirmed, and that the said C. D. do exe- ^ "3 cute and deliver to the said A. B., a good and sufficient convey- ^ g ance of his interest as lessee for years, of a certain farm in the j pi possession of the said C. D., situate in the town of, (fc. \d,escribe I ^ the premises and the order, the same as it is in the aivard^ •^ And it is hereby further ordeied, adjudged and determined, ^ that the said A. B., do recover against the said C. D., the sum of S dollars, so awarded to be paid by the said C. D. : and also ■^ I dollars and cents for his costs by him about his pro- § ,-H ceedings in this behalf expended, by the court aforesaid now here fecp adjudged to the said A. B., which damages and costs a'mount to = J, dollars and cents. CHAPTER III. FORMS ON THE FORECLOSURE OF MORTGAGES BY ADVERTISEMENT. No. 38. Notice of Sale. See ante, p. 62. MOETGAGE SALE. Whereas, default has been made in the payment of the money secured by a mortgage, dated the day of , 18 — , executed by and his wife, of the town of , county of , New York, to , of the same place [or as the case may 6e], and which mortgage was recorded in the clerk's office of said county in Book No , of mortgages, on page , on the day of , 18 — , at o'clock, — M. [If the mortgage is foreclosed hy the assignee, then say : And whereas the said mortgage has been duly assigned to , of , and the same is now owned by him.] And whereas the amount claimed to be due upon said mortgage at the time of the first publication of this notice, is the sum of dollars, and cents, to wit. : $ of principal, and $ of interest, and which is the 502 APPENDIX. [CH. III. whole amount claimed to be unpaid on said mortgage [or, and the whole amount claimed to be unpaid on said mortgage is the sum of • — ■ — dollars]. Now, therefore, notice is hereby given, that by virtue of the power of sale contained in said mortgage, and duly recorded as aforesaid, and in pursuance of the statute in such case made and provided, the said mortgage will be foreclosed by a sale of the premises therein described, at public auction, at the front door of the Court-house [or, hotel, kept by ], in the town, [or, city], of in the county of on the day of next, at ten o'clock in the forenoon of that day. The said premises are described in said mortgage as follows : [or, substantially as follows : and then give description of premises as stated in the mortgage^. Dated the day of 18 — . [Bate of the first publication of the notice.] A. B., mortgagee [or assignee]. L. P. C, Attorney. No. 39. Affidavit of Publication of Notice of Sale. See ante, p. "72. State of New York, ) ^^ county of . J ^' E. F., of in said county, being duly sworn says : That he is, and during the whole time [Attach here a hereinafter mentioned, has been, the printer, [or, fore- printed notice man, or, principal clerk of the printer], of the of sale. ] Herald, a newspaper printed in said county of , and that the annexed printed notice of sale was published in the said newspaper twelve weeks, successively, at least once in each week; which publication commenced on the day of , 18 — , and terminated on the day of , 18 — . E. F. Sworn to, before me, this ) day of , 18—. j J. A. M., Justice of the Peace. No. 40. Affidavit of Affixing Notice on Court-House Door. See ante, pp. 72, 73. State of New York, ) county of . j ^^' C. D., of , in said county, being duly sworn, says: That on the day of- , 18 — , [Attach here a he affixed a true copy of the annexed printed notice printed notice in a conspicuous place, and in a proper and substan- of sale.] tial manner, on the outward doJr of the building CH. II[.] APPENDIX. 503 where the county courts are directed to be held in the countr of , to wit., at the Court- House [or as the fact may he\, in the town [or, city], of , in said county. \If there he two or more such huildings in the county, then add : that being the building where such courts are directed to be held nearest to the premises described in said notice]. ' C. I). Sworn, See ante, p. 190. This indenture made the day of , 18 — , between H. R., of the town of , in the county of , and State of New York, committee of the person and estate of A. T. R., a lunatic, of the first part, and D. C. of the same place, of the second part. Whereas, by an order of the Supreme Court [or other court], made on the day of , 18 — , reciting that it appeared to the said court that the personal estate of the said A. T. R. was insufficient for the payment of his debts, and that a sale of a portion [or, the whole] of the real estate of the said lunatic was necessary for the payment thereof, the said party of the first part, as such committee, was, among other things, authorized and directed to sell, at public or private sale, subject to the approbation of the court, the piece or parcel of real estate owned by said lunatic, and specified in said order, for the purpose of paying and discharging the debts of the said lunatic, and to report the terms of the sale made by him, to the court, on oath, before any con- veyance of the said premises should be executed. And whereas, the said party of the first part, as such committee, having in pursuance of the 566 APPENDIX. [OH. vir. said order, on tlie day of , made his report to the court, stating, dc. [state the substance of the report of salel. And whereas by another order of the said court, dated day of , 18 — , it was ordered that, i&c. [state order confirming sale, tfec] Now, therefore, this indenture witnesseth that the said party of the first part, committee as aforesaid, by virtue of the power and authority conferred upon him by the several orders above-mentioned, and in pur- suance of the statute in such case made and provided, for and in con- sideration of the sum of dollars, to him in hand paid at or before the ensealing and delivery of these presents, by the party of the second part, the receipt whereof is hereby confessed and acknowledged, has granted, bargained, sold, remised, released, and conveyed, and by these presents does grant, bargain, sell, remise, release, and convey, unto the said party of the second part, his heirs and assigns forever, all the right, title, and interest of the said lunatic of, in, and to, all that certain piece or parcel of land bounded and described as follows : [insert description]. To have and to hold the said premises, and every part and parcel thereof, with the appurtenances, to the said D. C, his heirs and assigns, to his and their only proper use, benefit and behoof forever. In witness whereof, the said party of the first part has hereunto set his hand and seal, the day and year first above-written. Sealed and delivered in presence of L. F. H. E. [iSea?.] CHAPTER VII. FORMS UNDER LIEN LA.WS. Section I. FORMS UNDER LAW RELATING TO THE CITY AND COUNTY OF NEW YORK. No, 141. Notice of Lien. See ante, pp. 209 to 212. To R. B. C, Esq.. Clerk of the city and county of New York : Sir : Please to take notice, that I, A. B., of the city of New York, have a claim against 0. D., of the same place, amounting to the sum of dollars. That the said claim is for materials furnished to the said C. D. [or, work and labor performed for the said C. D.], to wit : CH. VII.] ■ APPENDIX. 567 [describe the claim for the materials, or the work performed]. That six months have not elapped since the said materials were furnished [or, the said work was performed]. That the said materials were furnished to and used by the said C. D., who is the contractor of E. F., herein- after named, in pursuance of an agreement with said contractor, and in conformity with the terms of a contract between the said C. D. and E F., in the erection [or, alteration, or, repairing] of the building and ap- purtenances hereinafter described. That the said E. F. is, as the said A. B. is informed and believes, the owner of said building ; that said building is situated in the ward of the city of New York, on, dec. [describe the situation of the building by its street and number. If the number is not known, state the fact, and describe it on the street as defin- itely as possible^ Also take notice, that I have and claim a lien on the building and appuitenances above-mentioned, and upon the lot of land upon which the said building and appurtenances stand, pursuant to the provisions of an Act of the Legislature of the State of New York, entitled "An Act for the better security of Mechanics and others erecting buildings and furnishing materials therefor, in the City and County of New York," passed July 11, 1851 ; and of the act amending the same. Dated this day of , 18 — . H. B., Att'y for claimant. A. B., Claimant. City and County of New York, ss. A. B., being duly sworn, says : He is the claimant above named ; that the foregoing notice of claim and statement therein, is true to his own knowledge, except as to the matters therein stated on information and belief, and as to those mat- ters he believes it to be true. A. B. Sworn to, &c. No. 142. Notice to Enforce lAen. See ante, p. 21'7. Court of Common Pleas for the city and county of New York, [or other court\. ~1 A. B., Claimant, agst. E. F., Owner. \. To E. F., above named,- the owner of the building situated in the first ward of the city of New York, on, <&c., [describe the situation of the building as in the notice of lieni\ 568 APPENDIX. [CH. VII. You will please to take notice, That the subscriber having on the ■ day of , 18 — , filed with the clerk of the city and county of New York, the notice requiied by law to effect a lien on the building and prernises above mentioned, for the sum of dollars, against C. D., contractor, as tbe person against whom the claim is made, and against you the said E. F., as owner ; and which claim i-s for materials furnished [or, work performed] for the said C. D., prior to th« filing of said notice, in erecting [or, altering, or, repairing] the building above mentioned, owned by you, in pursuance of an agreement witb the said C. D,, and in conformity with the terms of a contract between said contractor and you, to wit : [describe the daini]. And the said sum being due and payable you are hereby required to appear in the above named court of Common Pleas, at a special term thereof, to be held at the City Hall, in said city, either in person or by attorney, on the day of next, at o'clock in the noon of that day, and submit to an accounting and settlement in the said court of the amount due or claimed to be due, as aforesaid. Dated, this day of , 18 — . A. B., Claimant. H. B., Attorney for Claimant, No. "Wall street. New York. No. 143. Claimanfs Bill of Particulars. See ante, p. 219. [Title as in No. 142.] A bill of paiticulars of the amount claimed to be due (and the items of the claim) from C. D., contractor, to A. B., claimant, for and on account of materials furnished, and used in the erection [or, alter- ing, or, repairing] of a ceitain building owned by E. F., defendant in the annexed notice [or, in the notice heretofore served on him], and which building is situated in the first ward of the city and county of New York, on, &c. [Describe the situation of the buildinff.'j CD. To A. B., Dr. 1858, August 1. To, cfcc, [set out all the items.] [indorsed ;] To E. R, Defendant. Take notice that the within is a copy of the claimant's bill of particulars in the within proceedings. Dated, dc. Yours, &c. H. B., Attorney for Claimant. CH. VII.] APPENDIX. 569 No. 144. Owner's Bill of Particulars of Set- Off. See ante, p. 221. [Title as in No. 142.] A Bill of Particulars of the set-oflf claimed by E. F., the owner, above named, against the claim or lien of the said A. B., filed in the clerk's office of the city and county of New York, on the day of , 18 — , viz. : Moneys loaned by the said E. F. to the said A. B. at the times and to the amounts following : 1858. June 1. To cash lent this day, - - $200 00 " 6. To, &c. [Set out all the items ;] Moneys advanced to C. D., the contractor mentioned in the said claimant's notice to foreclose said lien, at the times and to the amounts following : 1858. Aug. 1. To, &c. [Set out the items and their amounts.^ [Endorsed .■] To A. B. within named. Take notice that the within is a copy of the owner's bill of particulars in the within mentioned proceedings. Dated, &c. Yours, (fee, W. E., Attorney for Owner. No. 145. Order for an Issue on Appearance of Parties. See ante, p. 222. At a special term of the Court of Common Pleas, for the city and county of New York, held at the City Hall, in that city, on the day of , 18 — . Present, Hon. D. B. I., First Judge. A. B., Claimant, ) ag'st [ E. F., Owner. ) On filing the notice of the plaintiff to the de- fendant to appear and submit to an accounting of the amount due under a certain lien filed the day of , 18 — , against the defendant, as owner, and C. D. as contractor, in which there is claimed to be due the sum of dollars ; and on filing the plaintifi^s bill of particulars, and the bill of particulars of the offset claimed by the 670 APPENDIX. [CH. VII. defendant, and on both of said paities appearing for the purpose of joining issue, after heaiing E. H., fur the plaintiff, and W. E., for the defendant : It is ordered that the issues herein, between the said parties, be joined by the plaintiff filing a complaint as in an ordinary action, and that he serve a copy thereof upon W. B., the defendant's attorney, within ten days after the date hereof, and that the defendant, in like manner, file his answer, and serve a copy thereof upon E. H , the plaintiflf's attorney, within twenty days after the service of the said complaint. No. 146. Complaint against Owner and Contractor for Lahor. See ante, p. 223 ; and see Abb. PI. 364, and notes. [yi^Zc] The complaint of the plaintiff A. B., filed pursuant to an order of this court, made on the day of , 18 — , shows : That on the day of , 18 — , the defendant C. D. entered into a contract with the defendant E. F., for the erection of a building and appuitenances upon the premises hereinafter described ; by the terms of which contract it was agreed that, &c. \&laie the terms of contracti\ And the said plaintiff further shows : That the said contract has been performed by the said defendant, C. D. ; and the defendant E. F. is justly indebted to the said C. D., upon the same, in the sum of dollars. That between the day of , 18 — , and the day of 18 — , the said plaintiff, in pursuance of an agreement thereto- fore entered into by him with the defendant C. D., and in conformity to the terms of the contract above mentioned, performed labor, as a carpenter, to the value of dollars, the nature, amount and value of which labor, are set forth in the bill of particulars filed herein. That by the terms of the agreement between the plaintiff and the defendant, C. D., the said sum of dollars became due on the day of , 18 — , but the said defendant has not paid the same, or any part thereof, but is now justly indebted therefor to the plaintiff. That the said labor was performed in erecting \or, altering, or, repair- ing], a building and appurtenances, situated in the ward of the city and county of New york, on, &c. \_descrihe the situation of the premises]. That the said building and premises were at the time the said labor was performed, and until the filing the notice of lien herein- after mentioned, the property of the defendant, E. F. And the said plaintiff further shows : That on the day of CH. VIL] APPENDIX. 571 -, 18 — , he duly filed with the clerk of the city and countv of New York, a notice of lien claimed upon said premises for the indebt- edness aforesaid, which notice was duly verified, and specified the amount of the claim, as above stated, and also specified the defendant, C. D., as the person against whom the claim was made, and the de- endant E. F., as the owner of said building, and which was therein described by the street and number, as aforesaid. Wherefore the plaintiff demands judgment directing a sale of the interest of the defendant, E. F,, in the building, appurtenances, and premises above described to the extent of the right of the said defend- ant at the time the notice of lien was filed, as aforesaid ; and directing, also, that the proceeds of such sale be applied to the payment of the costs of these proceedings, and to the payment of the plaintiff's claim, as aforesaid ; and that the residue of such proceeds, if any, be paid to the clerk of the city and county of New York, to abide the further order of the court; and the said plaintiff also demands judgment against the defendant, C. D., for the sum of dollars, aforesaid, with interest from the day of , 18 — , together with the costs of these proceedings. H. B., Attorney for Plaintiff. No. 147. Complaint by Contractor for Building Materials. See ante, p. 223 : and see Abb. PL 362, and notes. [Title:\ The complaint of the plaintiff, C. D., filed pursuant to an order of this court, dated the day of , 18 — , shows : That on the day of , 18 — , at, <£c., the plaintiff, by virtue of a contract with the defendant, E. F., sold and delivered to the defendant certain building materials, consisting of of the value of dollars ; the quantity and value of which is set forth in the bill of particulars filed herein. That by the terms of said contract and sale, the said sum of dollars became due to the plaintiff on the day of ■ , 18 — , but the defendant has not paid the same, and is now justly indebted therefor to the plaintiff. That the said materials were used in erecting a building and" appurtenances situated in the ward of the city and county of New York, on, <&c. [describe the situation of the premises^, and which building and premises were, at the time of making the said contract, and until the filing of the notice of lien hereinafter mentioned, the property of the defendant. And the said plaintiff further shows : That on the day of 572 APPENDIX. [CH VII. - 18 — , the said plaintiff duly filed with the clerk of the city and county of New York, a notice of lien claimed upon said premises for 'the indebtedness aforesaid ; which notice was duly verified, and speci- fied the amount of the claim, as above-stated, and also specified the defendant as the person against whom the claim was made, and as the owner of said building, and which was therein described by the street and number, as aforesaid. Wherefore, the plaintiff demands judgment directing a sale of the interest of the defendant in the building, appurtenances, and premises, aforesaid, to the extent of the right of the defendant at the time the notice of lien was filed, as aforesaid ; and directing, also, that the proceeds of such sale be applied to the payment of the costs of these proceedings, and the plaintiff's claim, as aforesaid, and that the residue of the proceeds, if any, be paid to the clerk of the city and county of New York, to abide the further order of the court ; and that, if the proceeds of such sale shall not be sufiioient to discharge the said claim and costs, that the sheriff certify the amount of the deficiency in his report of sale, and that the claimant have execution therefor. E. C, Attorney for Plaintiff. No. 148. Judgment on Failure of Owner to Appear. See ante, p. 219. [Title:\ At, dc. [as in No. 145]. The above-named A. B., having acquired a lien against the defend- ant, E. F., as owner, on the day of , 18 — , for the sum of dollars, in pursuance of the statute, upon the building and premises hereinafter described ; and the said defendant having failed to appear at a special term of this court held on the day of > 18 — , as required by the notice to enforce such lien, duly served on the defendant, on the day of , 18 — . And the court having made an order on the said day of , 18 — , that a writ of inquiry issue to the sheriff of the city and county of New York [or, that it be referred to M. F., of the city and county of New York], to assess the amount of the plaintiffs claim and damages therein; and the said sheriff, having on the day of , 18 — , by the oaths of twelve good and lawful men, duly assessed the amount thereof, and having found the same to be the sum of ■ dollars, as appears by the inquisition duly returned \or, and the said referee having, on the day of , 18 — , made his report in writing, wherein it appears that CH. VII.] APPENDIX. 573 he has assessed the amount thereof, and found the same to be the sum of dollars, as will more fully appear by the said report on file with the clerk of this court]. Now, on motion of H. B , attorney for the said plaintiflF, it is ordered, adjudged, and decreed that judgment be recovered by the plaintiff herein for the sum of dollars damages, and dollars costs, amounting in all to dollars. And it is further ordered, adjudged and decreed, that the right of the said defendant, E. F., in the building and premises upon which said lien exists, to wit : All that certain piece or-lot of land, Sc. [describe the prem,ises\, to the extent of the right of the defendant, at the time the notice of lien was filed, as aforesaid, be sold at public auction, in the manner prescribed by law, and that the said sherifi' be and he hereby is directed to apply the proceeds of such sale to the payment of the costs of these proceedings, above mentioned, and to the payment of the amount of the plaintiffs claim, as assessed as aforesaid ; and that the residue of said proceeds, if any, be paid to the cleik of the city and county of New York, to abide the further order of this court. No. 149. Notice Requiring Claimant to Commence Proceedings. See ante, p. 242. To A. B. Sir : You will take notice that you are hereby required to commence an action for the enforcement of a certain lien filed by you, in the office of the clerk of the city and county of New York, on tte day of , 18 — , against E. F., as owner, and one C. D., as the person against whom the claim is made ; the amount of said claim being dollars, and the premises affected by said lien being all that certain building and lot of land, d:c. [describe the premises'] ; which said action you are hereby required to commence on or before one o'clock, P. M., of the day of , 18 — . Dated, Ac. E. F., Owner. No. 150. Affidavit of Service of Notice in Last Form. See ante, p. 243. City and County of New York, ss.: H. S., of said city, being duly sworn, deposes and says : That on the day of , 18 — , he personally served a copy of the above notice upon A. B., the claimant mentioned therein, by delivering the same to, and leaving the same 674 APPENDIX. [CH. Til. ■with, the said A. B., at his residence, No. — , Broadway, in said city. And deponent further says, that he knew the person so served, to be the person mentioned and described in said notice, as claimant therein. Sworn, t&c. H. S. No. 151. Satisfaction of Lien. See ante, p. 244. I do hereby certify that a certain lien for labor performed [o?-, materials furnished], filed in the office of the clerk of the city and county of New York, on the day of one thousand eight hundred and , at — o'clock in the noon, in favor of A. B., claimant, and against the building and lot situate in the ward of said city, on, dc. [describe their situationi, owned by E. R, upon a claim agamst one C. D., contractor, is paid, satisfied and discharged. A. B. [Add acknowledgment in the usual form. See iVb. 290.] Section II. FORMS UHDER THE GENERAL LAW. Ko. 152. Contractor's Notice of Lien. See ante, p. 251. To J. M. C, Town Clerk of the town of , in the county of . Take notice, that I., A. B., a resident of the village of , in said county, have a claim against E. F., of said village, amounting to the sum of ■ dollars, for three months' labor performed for the said E. R, as a carpenter and joiner [or, for large quantities of lumber furnished to and used by the said E. F.], in pursuance of an agreement with him. That the said labor was performed [or, the said materials were furnished and used] in erecting the building. No. , and appurtenances, situ- ated on Main street, in said village ; and thirty days have not elapsed since the performance and completion of such labor [or, since the said materials were furnished]. That the said E. F. is the owner (*) of the said building and appurtenances, and the lot and premises upon which the same stand, which said lot and premises are situated in the town of , aforesaid, and are known and described as follows : [describe premises^. Also take notice that I have and claim a lien upon said building CH. VII.] APPENDIX. 575 and appurtenances, and the lot upon whicli the same stand, as security for the amount due me, as aforesaid, in pursuance of the statute in such case made and provided. [^Claimani's Signature.] No. 153. Notice of Lien hy other person than Contractor. See ante, p. 281. To J. M. C, Town Clerk of the town of in the county of . Take notice, that I, C. D. a resident of the village of , in said county, have a claim against A. B., who was the contractor with E. F. of said village, for the erection of the building and appurtenances, hereinafter mentioned, amounting to the sum of dollars, for three months' labor performed for the said A. B., as a carpenter and joiner [or, for large quantities of lumber furnished to, and used by the said A. B.], in pursuance of an agreement with him. That the said labor was performed [or, the said materials were furnished and u-sed] in erecting the building No. and appurtenances situated on Main street in said village ; and thirty days have not elapsed since the performance of such labor [or, since the said materials were furnished.] That the said E. F., is the owner, (fee. [conclude as in the last form from the asterisk] No. 154. Contractor's Notice to Enforce Lien. See ante, p. 255. In Supreme Court [or, In the County Court, county]. A. B., Claimant, against E. F., Owner. To E. F. above named, owner of the building and premises herein- after mentioned. Take notice, that I, A. B., above-named, residing within the county of , have a claim against you, amounting to the sum of dol- lars, with interest thereon from the day of last, for three months' labor performed for you as a carpenter and joiner [or, for large quantities of lumber furnished to you and used by you], in pursuance of an agreement with you, the same being fully set forth in the bill of particulars hereto annexed ; and which labor was performed [or, which materials were furnished and used] in erecting the building No. 576 APPENDIX. [CH. VII. and appurtenances owned by you, situated on Main street (*) in tte village of , in the town of , in said county, the lot upon which the same stand being bounded and described as follows: [describe premises.] Also take notice that within thirty days after the performance and completion of such labor [or, the final furnishing of such materials], to wit, on the day of , iSj — , I duly filed with the town clerk of said town of , the notice required by law to effect a lien on the building and premises above mentioned, owned by you as aforesaid, for the amount of the claim above stated, to wit, for the sum of dol- lars, and interest as aforesaid. You will therefore also take notice, that you are required to appear in person or by attorney, within thirty days after the service of this notice, and answer the same, and to serve upon me or my attorney, a copy of your answer, together with a notice of any set-off that you may have ; or in default thereof, I will take judgment against you for the amount claimed as aforesaid, to wit, the sum of dollars, and inter- est thereon from the day of , 18 — , together with the costs of this action. Dated, Sc. L. P. C, Attorney for Claimant, A. B., Claimant. [Annex bill of particulars — See form in No. \5Q,post.'\ No. 155. Notice to enforce Lien by other person than Contractor. See ante, p. 265. la Supreme Court [or other court, as in last form]. C. D. Claimant, against E. F., Owner. To E. F., above named, owner of the building and premises herein- after mentioned. Take notice, that I, C. D., above named, residing within the county of , have a claim against A. B., of the village of , in said county, who was the contractor with you for the erection of the build- ing and appurtenances hereinafter mentioned, amounting to the sum of dollars, with interest thereon from the day of last, for three months' labor performed for the said A. B., as a carpenter and joiner [or, for large quantities of lumber furnished to and used by the CH. YII.] APPENDIX. 577 said A. B.], in pursuance of an agreement with him, the same being fully set out in the bill of particulars hereto annexed ; and -which labor was performed [or, which materials were furnished and used] in erecting the building No. — and appurtenances, owned by you, situated on Main street, Sc. [conclude as in the last form from the asterisk]. [Siffncd,] 0. D., Claimant. 0. F. C, Attorney for Claimant. [Annex bill of particulars. See No. 156.] No. 156. Claimants Bill of Particulars. See ante, p. 265. Bill of Particulars referred to in the annexed notice, being a hill of particulars of the amount claimed to be due from E. F., the owner mentioned in said notice [or, A. B., the contractor mentioned in said notice], for the work performed [or, the materials furnished] as therein mentioned, to wit : E. F., owner [or, A. B., contractor]. To A. B., conti-actor [or, C. D., laborer, or as the case may be], Dr. 1858. Aug. 1. To, eke. [set out the length of time the claimant was in the employment of the owner, or contractor, the time when the labor was performed, and the price or value of the same ; and if the claim is for materials furnished, set out the items in full, and the price of the same, (&€.] County of , ss. : A. B. [or, C. D.], the above-named claimant, being duly sworn, says, that the bill of particulars above mentioned is in all respects true. No. 157. Affidavit of Service of Notice and Bill of Particulars. See ante, pp. 255, 256. [Title.] County of , ss. H. S., of- , in said county, being duly sworn, says : That on the day of . 18 — , he personally served a copy of the annexed notice and bill of particulars upon E. F., the owner mentioned therein, by delivering the same to, and leaving the same with, the said E. F., at his residence in the village of , in said county. And deponent further says, that he knew the person so 37 578 APPENDIX. [CH. VII. served to be the person mentioned and described in said notice as owner and defendant therein. H. S. Sworn, dc. No. 158. Affidavit of Facts justifying Service by Publication. See ante, pp. 255, 256. [Title.] County of , 6s. H. S., of , in said county, being duly sworn, says : That he is acquainted with E. F., the owner men- tioned in the annexed notice ; that the said E. F. is now absent from this State, and has been so absent for days, or more, last past. [Or, that deponent has made diligent inquiry to find the said E. F., for the purpose of serving him with a copy of the notice and bill of particulars annexed, and has been several times to his house with a view of making such service, and has looked and inquired in other places for said E. F. ; that said E. F. was well aware that deponent was looting for him to make such service, and kept out of the way purposely, as deponent believes, to avoid said service]. And deponent further says, that on the day of , 18 — , he left a copy of said notice and bill of particulars annexed at the last place of residence of the said E. F., in the village of , with the wife of said E. F. [or other person if there.J H. S. Sworn, <&c. No. 159. Affidavit of Publication of Notice. See ante, pp. 265, 256. [Title.'] County of , ss. E. D. B., of , in said county, being duly sworn, says, he is the publisher [or, [Attach here a printer or, foreman, of the ^ Herald, a news- printed copy paper printed in said county of , and that the of notice.] annexed printed notice was published in the said newspaper three weeks successively, at least once in each week ; which publication commenced on the day of , 18 — , and terminated on the day of , 18 — . E. D. B. Sworn, £&c. No. 160. Affidavit of Owner's Default. See ante, p. 256. [Title.] County of , ss. L. P. C, being duly sworn, says, CH. VII.] APPENDIX. ^ 579 he is the attorney for A. B., the plaintiff in the above action ; that this action was commenced to enforce a lien against real property owned by the defendant above named, and the notice and bill of particulars herein were served on the defendant on the day of , as appeai-s by the aflidavit of H. S., hereto annexed. And deponent further says, that no answer or copy of answer has been received herein by deponent, nor has the defendant appeared in this action. L. P. C. Sworn, die. No. 161. Judgment on Failure of Owner to Afpear. See ante, p. 25Y. Judgment, August 20, 1858. \Title, as in JVos. 154 or 155.] The notice and bill of particulars, in the above action, having been personally served on E. F., the owner and defendant above named, more than thirty days previous to this date, and no copy of an answer to the same having been served upon the plaintiff's attorney as required by said notice ; and due proof of the service of such notice and bill of particulars, and of the defendant's failure to appear as aforesaid, having been made and filed ; and the plaintiff having also given evidence showing that he has acquired a valid lien upon the building and premises of the defendant, situated in the village of , in the county of , and which premises are particularly described in said notice ; and also evidence to establish the value of the labor performed [or, materials furnished] by the plain- tiff, as stated in said notice, and that the same was performed for [or, used by] the said defendant [or, A. B., the original contractor with said defendant, as stated in said notice], in the erection of the building above mentioned and the appurtenances thereto; and the plaintiff's claim having been assessed by the court [or, by the clerk of said county] at the sum of, dollars ; Now, therefore, on motion of L. P. C, attorney for the plaintiff, it is ordered and adjudged, that the plaintiff recover of E. F., the owner and defendant above named, the sum of dollars and cents, with dollars and cents costs and disbursements, amounting in the whole to dollars and cents. Wo. 162. Answer of Owner. See ante, p. 257. [Title, as in JVo. 154, or 155.] The defendant, E. F., above named, 580 APPENDIX. [CH. VII. in answer to the notice of the above-named C. D. [or, A. B.], says : [Set forth the defences which the defendant has to the plaintiff's claims as in an answer in an ordinary action.] The said defendant in further answering said notice says : That the said plaintiff, 0. D., is indebted to him in the sum of dollars, for moneys loaned and advanced to the plaintiff, from time to time, and which moneys are fully set out in the bill of particulars hereto annexed. [The defendant also says, in further answering said notice, that A. B., the contractor mentioned therein, is also indebted to him in the sum of • dollars, for moneys loaned and advanced to the said A. B. during the time the building mentioned in said notice was in the pro- gress of erection, — the items of which are set forth in said bill of parti- culars annexed.] And the defendant claims to set off the demands above mentioned, and set out in said bill of particulars, against the claim of said plaintiff, as stated in said notice. E. F., Owner. E. H., Attorney for owner. County of , ss. : E. F., the owner above named, being duly sworn, says : That the foregoing answer is true to his own knowledge, except as to the matters therein stated on information and belief, and as to those matters he believes it to be true. E. F. Sworn, d:c. Bill of Particulars. Bill of Particulars of set-off claimed by E. F., owner, in the action commenced by , to enforce a lien under the statute, and mentioned in the answer of E. F., hereto annexed, viz : Moneys loaned by the said E. F. to C. D., at the times and to the amounts following : 1858. June 1. To cash lent this day . . . $200 00 " 6. To, (fee. [set out items]. [Moneys advanced by E. F., above-named, to A. B., the contractor mentioned in the notice to enforce said lien, at the times and to the amounts following : 1858. Aug. 1. To, c&c. (set out the items and amounts.)] E. R, Owner. CH. VII.] APPENDIX. 581 No. 163. Judgment on Issue and Trial. See ante, p. 260. [Title as in No. 154.] Judgment, Nov. 1, 1858. This action being at issue upon the claimant's notice and bill of particulars to enforce his lien, and the owner's answer and bill of parti- culars of set-off annexed thereto ; and the issue being an issue of fact and triable by the court ; and such issue being tried by the court on the day of , 18 — , the Hon. E. H. E., justice \or, county judge], presiding, whose decision, in writing, has been filed with the clerk of this court, whereby judgment is ordered against the said E. F., owner, in favor of the above-named claimant, for dollars, with costs and disbursements against said owner, to be taxed. Now, on motion of L. P. C, Attorney for A. B., the above plaintiff, it is ordered and adjudged that the said plaintiff recover of E. F., owner, above named, the aforesaid sum of dollars, together with the sum of dollars costs and disbursements, amounting in the whole to the sum of dollars. No. 164. Execution Against the Property Covered hy Lien. See ante, p. 261. The People of the State of New York : To the Sheriff of the county of . Greeting : Whereas, judgment was rendered on the day of , one thousand eight hundred and fifty , for the sum of dollars, in favor of A. B., plaintiff, against E. F., defendant, in an action in the Supreme Court [or, county court of the county of J, com- menced against the said E. F., as owner, to enforce a lien under the statute existing in favor of the said A. B., as claimant, against the building No. , on Main street, in the village of , in said county, and the lot of land and premises upon which the same stands, and which lot and premises is bounded and described as follows : ^describe premises.] And whereas, the said E. F. was the owner of said building and premises at the time said lien was created, (o wit : on the day of ' ^^~ ■' And whereas, the said lien was created to secure a claim for three months' labor performed by the said A. B., for tKe said E. F., as a car- penter and joiner [or, for large quantities of lumber which the said A. B. furnished to, and which were used by, the said E. F.], iu erect- 582 APPENDIX. [CH. vir. ing the building, aforesaid, and the appurtenances thereto ; which matters, above recited, will more fully appear by the judgment roll filed in the office of the clerk of the county of , reference being thereunto had ; And whereas, the said judgment was docketed in your county on the day of — ; — , 18 — ,and the sum of dollars, with interest thereon from the day of , 18 — , is now actually due upon said judgment. (*) Therefore, we command you, that you sell the right, title and interest which the said E. F., owner, as aforesaid, had in the building and premises above mentioned, at the time the notice creating said lien was filed, to wit : on the day of , 18 — , and out of the avails of said sale that you satisfy the amount of said judgment, and return this execution within sixty days after its receipt by you to the clerk of the county of 1. Witness, E. H. E., Esq., Justice of the Supreme Court [or, county judge of said county], the day of , 18 — . L. P. C, Attorney for Plaintiff. [To be indorsed ;] [Title.] To the sheriff of the county of ■ — — : Levy, as within directed, the sum of dollars, with interest thereon from the day of , 18 — , besides your fees. L. P. C, Plaintiff's Attorney. No. 165. Execution Against Real Estate Generally. See ante, p. 262, and notes. \As in the last form to the (*), and then continue ;] Therefore, we command you, that you satisfy the said judgment out of the real property in your county belonging to said defendant on the day when the said judgment was so docketed in your county, or at any time thereafter, and return this execution within sixty days after its receipt by you, to the clerk of the county of . Witness, dtc. [as in last form. CH. VII.] APPENDIX. 5S3 No. 166. Contractor's Notice to Enforce Lien in Justice's Court. See ante, p. 263. In Justice's Court, before A. B. L., Justice. A. B., Claimant, against E. F., Owner. To E. F., above named, owner of the building and premises here- inafter mentioned. Take notice, that I, A. B. above named, residing within the county of , have a claim against you, amounting to the sum of dollars, with interest thereon from the day of last, for three months' labor performed for you as a carpenter and joiner [or, for large quantities of lumber furnished to you and used by you], in pur- suance of an agreement with you, the same being fully set forth in the bill of particulars hereto annexed ; and which labor was performed \or, which materials were furnished and used] in erecting the building No. , and appurtenances, owned by you, situated on Main street, (*) in the village of , in the town of , in said county ; the lot upon which the same stand being bounded and described as follows : [describe premisesi\ Also take notice, that within thirty days after the performance and completion of such labor [or, the final furnishing of such materials], to wit : on the day of , 18 — , I duly filed with the town clerk of said town of , the notice required by law to effect a lien on the building and premises above-mentioned, owned by you, as aforesaid, for the amount of the claim above stated, to wit : for the sura of dollars, and interest as aforesaid. You will, therefore, also take notice, that you are required to appear, in person or by attorney, before A. B. L., Esq., a justice of the peace in and for said town, at his office in said town, on the day of next, (a) at ten o'clock, A. M., and answer this notice, or in default thereof, I, the said claimant, will take judgment against you for the amount claimed, as aforesaid, to wit : the sum of dollars, and interest thereon from the day of , 18 — , with costs. Dated, (£'c. A. B., Claimant. L. P. C, Att'y for claimant. [Annex hill of particulars — see form in No. 156, ante.'\ (a) The time must be not less than thirty days after the service of the notice. See ante, p. 263. 584 APPENDIX. [CH. Til. No. 167. Like Notice in Justice's Court, by other Person than Contractor. See ante, p. 263. In Josticb's Court — Before A. B. L., Justice. C. D., Claimant, against E. F., Owner. J To E. F., above named, owner of tlie building and premises herein- after mentioned : Take notice, that I, C. D., above named, residing within the county of , have a claim against A. B., of the village of , in said county, who was the contractor with you for the erection of the build- ing and appurtenances hereinafter mentioned, amounting to the sum of - — - dollars, with interest thereon from the day of last; for three months' labor performed for the said A. B., as a carpenter and joiner \or, for large quantities of lumber furnished to and used by the said A. B.], in pursuance of an agreement with him, the same being fully set out in the bill of particulars hereto annexed, and which labor was performed [or, which materials were furnished and used], in erect- ing the building No. , and appurtenances, owned by you, situated on Main street, <&:c. [conclude as in the last form from the asteris]c\. [Signed^ C. D., Claimant. O. F. C, Att'y for Claimant. [Annex bill of particulars, as in No. 156, ante.^ No. 168. ClaimanCs Bill of Particulars. See ante, p. 264. [Same as in No. 156, ante.^ No. 169. Affidavits of Service of Notice, t&c, on failure to Appear. See ante, p. 264. [For forms of affidavits of service of notice, persona land by publi- cation, and of affidavit of facts justifijing service by publication, see Nos. 15Y, 158, 159, awte.] CH. VII.] APPENDIX. 585 No. 170. Affidavit of Owner's Default in Justices' Court. See ante, pp. 264, 265. [Title.] County of ss. A. B., above named [or, L. P. C, attorney for A. B., above named], being duly sworn says : He is the plaintiff [or, attorney for tbo plaintiff] in the above action. That this action was commenced to enforce a lien against real property owned by the defendant above named ; and the notice commencing the same is returnable before A. B. L., Esq., justice of the peace, at his office in the town of , on the day of , at 10 o'clock A. M., as will more fully appear by said notice hereto annexed. And deponent further says : That the said E. F., has not appeared before the said justice as required by said notice, and that one hour and over has elapsed since the time fixed in said notice for tbe appear- ance of said defendant. [Signature of Deponent^ Sworn, (&c. No. 171. Owner's Answer, before Justice. See ante, p. 265. [Title as in suit before a justice ; and then proceed the same as in A^o. 162, ante, including the verification and bill of particulars there given.] No. 172. Notice Requiring Claims to be Presented. See ante, p. 266. To all persons having claims under any of the provisions of the act entitled " an act for the better security of mechanics and others erecting buildings in the counties of Westchester, Oneida, Cortlandt, Broome, Putnam, Rockland, Orleans, Niagara, Livingston, Otsego, Lewis, Orange and Dutchess," passed April 17, 1854 [and the act to estend the provisions of the above-recited act, to all the counties of this State, except the city and county of New York and the county of Erie, passed April 14, 1858], against the building No. ■ ■ and appurtenances, owned by the undersigned, and the land upon which the same stand, and which is situated in the town of , in the county of , and is described as follows: [insert brief descripition of premises], at the time of the first publication of this notice, (to wit : the day of 18—.) 586 APPENDIX. [CH. VII. Take Notice, That you are required to present the said claims, ■with vouchers in support thereof, to A. B. L., Esq., a justice of the peace of said town, at his office in said town, on or before the iVth day of November next [or, on or before 10 o'clock A. M., of the 17th day of November next]. Dated, October 5th, 1858. E. F., Owner. No. 173. Notice Requiring Claimant to Commence an Action to enforce his Lien. See ante, pp. 253, 26'7. To A. B. \or, 0. D.], claimant. You will take notice, that you are required, "within twenty days after the service of this notice, to com" mence an action to enforce a lien created by you on the day of 18 — , against the building No. and appurtenances, and the lot upon which the same stand, owned by E. F., to secure an alleged claim for dollars, alleged to exist against the said E. F., as owner [or, against A. B., as contractor]. The building and premises, above mentioned, are described in the notice, creating said lien, as follows : \insert description']. Dated, dtc. E. F., Owner [or, T. C, Attorney for E. F., the owner above named ; or, A. B., contractor ; or, C. D., sub-contractor]. No. 174. Affidavits of Service of iVb. \13, and that Action is not commenced. See ante, pp. 253, 26'7. County of ss: H. S., of , in said county, being duly sworn, says: That on the day of -, 18 — , he personally served a notice, of which the above is a copy, upon A. B. [or, C. D.], the claimant mentioned therein, by delivering the same to, and leaving the same with, the said A. B. [or, C. D.], at his residence in the village of , in said county. And deponent further says : That he knew 'the person so served to be the person mentioned and described in said notice as claimant therein. H. S. Sworn, (kc. County of , ss. : E. F., being duly sworn, says. That more than twenty days have elapsed since the service of the notice, men- tioned in the affidavit of H. S., hereto annexed ; and that no action has been commenced against him to enforce the lien mentioned in said notice. E. F. Sworn, dc. GH. Vin.-1 APPENDIX. 587 No. 175. Satisfactinn of Lien. See ante, p. 269. [Same substantially as in N'o. 151, ante.^ CHAPTER VIII. FORMS IN MANDAMUS AND PROHIBITION. No. 176. Affidavit on Application for Mandamus. See ante, p. 28S. State of New York, ] County of , ss. j A. B., of , in said county, being duly sworn, says : That, (i:c. [set forth the facts to show that the relator is entitled to the writ, and to the relief demandedl^. A. B. Sworn, (&c. No. 177. Notice of Motion for a Writ of Mandamus. See ante, pp. 286, 28'7. To C. D. Sir : You will take notice that I shall move the Supi-eme Court, at the next special term thereof, to be held at the Court House, in the village [or, city] of , on the day of instant, at the opening of the court on that day, or as soon thereafter as counsel can be heard, for an order (*) that a writ of mandamus issue out of the said court, directed to you, and commanding you that, dc. [state the object of the writj, or, for such other or further relief as the court may be pleased to grant ; which motion will be founded upon the affidavits, wiih copies whereof you are herewith served. Dated, Sc, Yours, &c , L. P. C, Atty. for A. B. S88 APPENDIX. ICH. VIII. No. 178. Order that a Mandamus Issue. See ante, p. 288. At a special term of the Supreme Court held at the Court House in , in and for the county of , on the day , 1 8 — . Present, Hon. P. P., Justice. In Supreme Court. The People ex rel. A. B., vs. CD. On reading and filing the affidavits of A. B., the relator above- named, and of S. R, dated the day of , 18 — , and on motion of L. P. C, Esq., counsel for the relator, (*) [after hearing C. H., Esq., in opposition thereto], it is ordered, that a mandamus issue out of and under the seal of this court, directed to the said C. D., commanding him forthwith to, cfcc, [state what is required to he done], or that the said C. D. show cause to the contrary before this court at the next special term thereof, to be held at the Court House in , on the day of next. No. 179. Order to Show Cause why Mandamus should not Issue. See ante, pp. 286 to 288. \_Same as in No. 1'78, to the asterisk, (*) and then continue:] it is ordered that C. D., above-named, show cause, at the next special term of this court, to be held [or, at the special term of this court now sit- ting], at the Court House in , on the day of instant, why the said C. D. should not be compelled forthwith, dr., [state the matters required to be done] or why an alternative mandamus should not issue directed to the said C. D., in the usual form, and requiring him to do the acts above mentioned, or to show cause, ifcc. And it is further ordered that a copy of this order, together with a copy of the affidavits on which the same is founded, be served on the said C. D., days before the time above mentioned. CH. VIII.] APPENDIX. 689 No. 180. Alternative Mandamus — general form, (a) See ante, pp. 288 to 291. The People of the State of New York, to 0. D. [or, the court, com- missioners or other officers, or persons to whom it is directed^, greeting : [l. s.] Whereas, [here recite the fads or statements, briefly, which preceded the gravamen or injury^. Nevertheless, you the aforesaid C. D. [or court, or officer^ have unjustly \_state briefly the order or pro- ceeding complained o/"], as we are informed by the complaint of the said A. B. Now, therefore, we being willing that full and speedy justice be done in this behalf to him, the said A. B., do therefore command you, that immediately after the receipt of this writ, you, d:c. [insert the mat- ter required to be done, or omitted, substantially according to the order of the court allowing the mandamus"], or that you show cause to the contrary thereof, before our Supreme Court, at the next special term thereof to be held at the Court House in , on the day of , next, lest complaint shall again come to us by your default ; and in what manner you shall have executed this our writ make known to our Supreme Court, at the next special term thereof, to be held at the time and place aforesaid. Witness C. L. A., Justice of the Supreme Court, at , the day of ,18—. L. P. C, Attorney. N. B. M., Clerk. [Endorsed :\ " By the Court," N. B. M., Clerk. No. 181. Answer or Return to Alternative Writ. See ante, p. 293. The Answer or Eeturn of C. D., to the alternative writ of mandamus within mentioned. I, the said C. D., do answer and return to the Supreme Court, within mentioned, that, (be. [deny the facts alleged in the writ, or set forth other facts in avoidance of the relator's claim.] C. D. (a) For a variety of forms of alternative mandamus, in particular cases, see 2 Johns. Cas., 2d. ed. 21Y— 81 to 90, notes. 590 APPENDIX. [CH. VIII. Another Form. See Tates' PI. 760. The Answer of the Mayor, Aldermen and Commonalty of the city of , within mentioned. We, the said Mayor, Aldermen and Commonalty, do certify to the Supreme Court, within mentioned, that the within named A. B. was not elected an alderman, as by the within writ is within alleged; and therefore, we could not cause him to be sworn nor admitted, as by that writ we were within commanded. 0. D., Mayor. [Seal of Corporation^ No. 182. Notice requiring Relator to Demur or Plead. See ante, p. 295. [Title:] To L. P. C, Attorney for the relator [or, To A. B., the above-named relator] : Sir — You will take notice that the defendant's return to the writ of mandamus in this cause, has been duly filed with the clerk of county ; and that you are required to demur or plead to the said return within twenty days after the service of this notice. Dated, dc. Yours, &c., C. H., Att'y for the defendant. No. 183. Notice of Hearing, on failure of Relator to Demur or Plead. See ante, p. 296. [Title.} To C. H., Attorney for the defendant [or, To L. P. C, Attorney for the relator] : (a) Sir : You will please take notice that the above matter will be brought to a hearing on the return to the writ of mandamus in this matter, at the next special term of this court, to be held at the Court House in , on the day of , instant, at the opening of the court on that day, or as soon thereafter as counsel can be heard. Dated, the day of , A. D., 18—. Yours, &c., L. P. C, Att'y for relator. [Or, C. H., Att'y for defendant.] (a) Either party may notice the matter for hearing. Bee ante, p. 296. CH. VIII.] APPENDIX. 591 No. 184. Judgment Record on Mandamus. See ante, p. 299 ; and Yates' PI., 760; 3 Bur. Pr., 623. Supreme Court. Pleas before the Justices of the Supreme Court of Judicature of the People of the State of New York, at the City Hall in the city of , of the term of \term of which judgment is entered], in the year of our Lord one thousand eight hundred and . Witness, W. M., Esq., Presiding Justice. R. B. C, Clerk. State of New York, ss. The People of the State of New York (*) sent to [the Mayor, Aldermen, and Commonalty of the city of New York], their writ close in these words, to wit : The People of the State of New York, cfcc. [insert copy of manda- mus in full]. The answer of the Mayor, Aldermen, <£c. [insert copy of return infullj. [If an issue in fact is joined, the entries upon the record will he as follows .•] And now, at this day, to wit, on, dc, before the justices aforesaid, at, c&c, come as well the said A. B. by E. F., his attorney, as the said mayor, aldermen, and commonalty, by G. H., their attorney. And the said A. B., by his said attorney, says, that he was duly elected an alderman of the ward of the said city, as in the said writ is above alleged ; and this the said A. B. prays may be inquired of the country. And the said Mayor, Aldermen, and Commonalty, by their said attor- ney, do the like, &c. It is therefore ordered by the Supreme Court, that the issue above joined be tried at the Circuit Court, appointed to be held at the in the city of , on the day of , one thousand eight hun- dred and . Afterwards, to wit, on the day and at the place last mentioned, before H. E. D., Esq., one of the justices of the Supreme Court of the State of New York, according to the form of the statute in such case made and provided, come as well the above named A. B., as the above named mayor, aldermen and commonalty, by their respective attorneys, above mentioned ; and the jurors of the jury, summoned to try the said issue, being called also come ; who to speak the truth of the matters above 592 APPENDIX. [CH. Vlir. contained, being chosen, tried and sworn, say upon tteir oath that the said A. B. was duly elected an alderman, in manner and form as by the said writ of mandamus is within alleged ; and they assess the damages which the said A. B., has sustained by reason of his not being sworn and admitted into the said office, as alleged in the said wiit, over and above his costs and charges by him about his writ in this behalf expended, at dollars, and for those costs and charges to six cents. Whereupon the said A. B. prays judgment, and also, the people's writ of peremptory mandamus, to be directed to the said mayor, aldermen and commonalty, commanding them to cause the said A. B. to be sworn and admitted into the said office of aldermen, &c. "o ^ Therefore it is considered that the said A. B. recover against ^^ the said mayor, aldermen and commonalty his damages aforesaid by the jurors aforesaid, in form aforesaid found, and also ■ ^ dollars and cent', for his costs and charges by the court now gj '^ here adjudged to the said A. B. ; which said damages, costs and "5 ^ charges, in the whole, amount to dollars and cents. 'a And it is further considered that the people's writ of mandamus .y ]■ do forthwith issue, directed to the said mayor, aldermen and com- ^ 2 monalty, commanding them upon pain and peril that shall fall " thereon, to cause the said A. B. to be immediately swora and admitted into the aforesaid office of alderman, according to the command of the said former writ of alternative mandamus, &c. [If the verdict was against the plaintiff, make the necessary altera- tions in the above, according to the fact, and then proceed as follows in respect to the judgment^. It is therefore considered that the said mayor, aldermen, and com- monalty, recover against the said A. B., dollars and cents, for their costs and charges by them laid out and expended in and about their defence to the said writ of mandamus, adjudged to the said mayor, aldermen, and commonalty, by their assent; and that they have execution therefor, &c. No. 185. Peremptory Mandamus, — General Form. See ante, pp. 286, 300. The People of the State of New York to C. D. \or, the other court, commissioners, or other officers, or persons to whom it is directed'] greeting : CH. VIII.] APPENDIS. 593 Whereas, [here recite the facts or statements, briefiy, which j^L. s.] preceded the gravamen or the injury'\. Nevertheless, you, the aforesaid ■ \court, officer, or person], have unjustly [stoi!e briefly the order or proceeding complained of], as we are informed by the complaint of A. B., and which complaint we have adjudged to be true as appears to us of record. Now, llierefore, we being willing that full and speedy justice be done in this behalf to him the said A. B. as it is just, command you, firmly enjoining, that immediately after the receipt of this writ, you, (&c. [insert the thing or matter required to be done, substantially according to the order of the court allowing the mandamus], lest complaint shall again come to us by your defaults ; and in what manner this our command shall be executed, make appear to our said Supreme Court, on the • day of , at the Court House, in ■ ; then and there returning this our writ. Witness, C. D. A., Justice of the Supreme Court, at , the day of , 18—. N. B. M,, Clerk. L. P. C, Attorney. [£!ndorsement as in No. 180.] No. 186. Notice of Motion for Writ of Prohibition. See ante, p. 310. [Same substantially as in No. 177, to the asterisk, and then con- tinue :] That a writ of prohibition issue, directed to the county court, of the county of -, \or other court to be restrained], and to C. D., and commanding them to desist and refrain from any further proceed- ings in, (tc, [state the suit or matter sought to be prohibited] ; or for such other or further relief as the court may be pleased to grant ; which motion will be founded upon the afiidavits, copies of which are herewith served. Dated, <&c. Your?, (fee, L. H. N., Attorney for A. B. No. 187. Affidavit on Application for Writ of Prohibition. See ante, p. 310. [Same form as in No. 176, ante.] No. 188. Order that a Writ of Prohibition issue. See ante, p. 310. [Same substantially as in No. 178, to the asterisk, and then pro- SB 591 APPENDIX. [CH. VIII. ceed ;] After hearing tT. G. P., Esq., in opposition thereto, it is ordered that a writ of prohibition issue out of and under the seal of this court, directed to the county court of the county of and to C. D., commanding them to desist and refrain from any further proceedings in, <&e. \state the suit or matter sought to he prohibited], until the next term of this court, to be held at the Court House in , on the day of , 18 — , and until the further order of the court thereon, and that they show cause at the time and place last aforesaid, why they should not be absolutely restrained from any further proceedings in such suit or matter. No. 189. Writ of Prohibition. See ante, p. 310. The People of the Stale of New York, to the county court, [l. s.] of the county of , \or other court to be restrained^, and to C. D., greeting. Whereas, A. B., of, cfcc, lately in our Supreme Court of judicature, at the Court House in , on the day of , 18 — , repre- sented to our said court that, &c. \state the facts and proceedings com- plained of]. (*) Nevertheless you, the said county court, aforesaid \or other court], and the said C. D., well knowing the premises, yet contriving, as it is said, the said A. B. unjustly to aggrieve and oppress, have [state the grievance], in contempt of us, against the laws and customs of our said State, and to the manifest damage, prejudice and grievance of him the said A. B. ; wherefore the said A. B. has prayed relief, and our writ of prohibition in that behalf. We, therefore, being willing that the laws and customs of our said State should be observed, and that our citizens should in no wise be oppressed, do command you that you desist and refrain from any further proceedings, in, <£c. [state the matters to be prohibited], until the next term of this court to be held at the Court House in , on the day of , 18 — , and until the further order of the court thereon ; and that you show cause, before our said court, at the time and place last aforesaid, why you should not be absolutely restrained from any further proceedings in such suit or matter, — And have you then there this writ. Witness C. L. A., Justice of the Supreme Court, at , the day of , ] 8—. L. H. N., Attorney. N. B. M., Clerk. [Endorsed:] "By the Court." N. B. M., Clerk. CH. VIII.] APPENDIX. 595 Uo. 190. Return to Alternative Writ of Prohibition. See ante pp. 311, 312. [Same substantially, as in cases of Mandamus, see ante, No. 181.] [If the party adopts the return of the Court, then annex to the return the following f\ [Titlei\ I, C. D., tlie party to whom tlie writ of prohibition hereto annexed, is directed, do hereby adopt the return of the County Court, hereto annexed, and rely upon the matters contained in said return, as sufficient cause why such court should not be restrained as mentioned in said writ. In witness whereof, I have hereunto subscribed my name this day of , 18—. C. D. No. 191. Notice, requiring Relator to Demur or Plead. See ante, p. 311. [Same as in No. 182, with necessary alterations^ No. 192. Notice of hearing on failure of Relator to Demur or Plead. See ante, p. 311. [Same as in No. 183, ante, with necessary alterations^ No. 193. Judgment record on Prohibition. See ante, p. 812. [Same substantially as in No. 184, to the asterisk (*) and then con- tinue .■] Sent to the County Court, of the county of [or other court\, and to C. D., their writ of prohibition, close in these words, to wit : [insert the writ of prohibition i\ At which day and place named in the return of said writ before the said Supreme Court, come as well the said A. B., by L. H. N., his attorney, as the said County Court by U. G. P., their attorney. And the said County Court, now here, mates return to the said writ, and shows cause as follows, to wit : [insert returnj, and which return, if, by an instrument in writing signed by said C. D., adopted by him, — which said writing is in the words following : [insert the writing^. And hereupon the said A. B. says, that he, by reason of anything in that return alleged and set forth, ought not to be barred or precluded from having a prohibition absolute restraining the said County Court and the said C. T)., from [state whatj, because he says that, > r for costs, substantially as in No. 184.] a /^ ^_ [If judgment is rendered for the defendant, let the entry _ he thus .•] •^ Therefore, it is considered, that the said C. D. go ■3 .-I thereof without day, &o. And it is further considered, that the people's writ of consultation do issue, authorizing the said County Court and the said C. D., to proceed in, &c. [state what]. And it is further considered, i&c. [judgment for costs — see No. 184.] No. 194. Writ of Prohibition — Absolute. See ante, p. 312. [Same as in No. 189 to the (*), a7id then as follows ;] Nevertheless you, the said county court, aforesaid [or other court], and the said C. D., well knowing the premises, yet contriving the said A. B. unjustly to aggrieve and oppress, have [state the grievance], in contempt of up, against the laws and customs of our said state, and to the manifest damage, prejudice and grievance of him, the said A. B. Wherefore the said A. B. has prayed relief, and our writ of prohibition in that behalf. We, therefore, having determined that the said A. B. is entitled to the said writ of piohibition, and to the said relief prayed for, do command you, that you absolutely desist and refrain from any further proceedings in, r, one half, cfec,,] of the said purchase money in months [or, years] from the date of said sale ; and also by, <&c. [such other security as the court may direci\. And it is further ordered, that the said referee bring into court and pay to the treasurer of said county of , the portion of the 634 APPENDIX. [CH. IX- purcbase money arising. from the sale of the estate or interest of J. K., one of said defendants, in the premises aforesaid, after deducting the portion of the costs, charges, and expenses to which it shall he liable. \If portion of any other of the parties is incumbered, add a like order as to ihat.^ And it is further ordered, that the said referee forthwith, after the said sale, make report to this court of his proceedings thereon ; and that after the said report shall have been duly confirmed, then that he execute a deed or deeds of the said premises to the purchaser or pur- chasers at the said sale, on their complying with the conditions upon which the deeds were to be delivered ; and that such sale be valid and effectual forever. And it is further ordered, that the costs and expenses of the pro- ceedings in this suit, which are adjusted according to law, at the sum of dollars, he deducted from the proceeds of the said sale, and that the said referee pay the same to the said A. Bj, or to his attorney. That the said referee in like manner deduct from the said proceeds the fees and disbursements to which he is entitled on such sale. And it is further ordered, that the said referee pay to the said A. B., or bring into court for his use, the one-fifth part of the residue of the proceeds arising from said sale. And it is further ordered, that the said referee bring into court for the use of C. D., an infant defendant in this suit, and pay to the treasurer of said county [or, that the said referee pay to the general guardian of C. D., an infant, and one of the defendants herein, for the use of such infant] the one-fifth part of the said residue. And the said treasurer [or, general guardian] is hereby directed to invest the said moneys on bond and mortgage upon unincumbered real estate of at least double the value of the moneys so invested ; which investment shall be made in the name of such infant [or, in the name of such guardian]. And it is further ordered, that the said referee bring into court and pay to the treasurer of said county, the one-fifth part of said residue for the use of the owners unknown mentioned in the petition in this cause. And the said treasurer is hereby directed to invest the said moneys in permanent securities at interest, for the benefit of such unknown owners. [If any of the parties are absentees, without legal representatives in this State, add a like order as to their share.'\ And it is further ordered that such title deeds and writings as may be in the possession or under the control of any of the parties, and as CH. IX.] APPENDIX. 635 appear to relate solely to the said premises, or any part thereof, be deliv- ered up to any person or persons who may on such sale, become the purchaser or purchasers thereof. And that all other title deeds or writings may be deposited with the clerk of the county of , for safe custody, there to remain for the benefit of all parties interested therein. And it is further ordered, that the purchaser or purchasers of said premises, or of any part thereof, at such sale, be let into possession thereof; and that any of the parties who may be in possession of said premises, or any part thereof, and any person, who, since the com- mencement of this suit, has come into the possession of the said premises, or any part thereof, deliver possession thereof to such pur- chaser or purchasers, on production of the referee's deed for such premises. And it is further ordered, that the said referee make a report of his proceedings, under this order, subsequent to the confirmation of his report of sale, to be made as above directed. No. 254. Order where a Party has a Bight of Dower, dc. See ante, pp. 352, 366. And the court having duly considered and determined that the dower interest of the defendant R. H. in the said premises, should not be excepted from said sale, but that the same should be sold, it is farther ordered, that the said referee ascertain and report whether the said defendant R. H. is willing to accept in lieu and instead of her said dower interest, a sum in gross, in satisfaction thereof, out of the net proceeds of the said premises, according to her rights as ascertained in the report of said referee, dated the day of -, 18 — ; and also what would be a reasonable satisfaction for her said interest, on the principles applicable to life .annuities. And if the saidR. H. consents to accept such gross sum, that said referee pay the same to her, upon her executing, acknowledging, and delivering to him a release to be approved of by said referee, of all her right, title, and interest, of, in, and to the said premises, and every part thereof. But if the said R. H. shall refuse to accept a gross sum in lieu of her dower interest, then it is further ordered that the said referee do bring one third of the net proceeds of the said sale into court, to be invested for her benefit, the interest or dividends thereon, or to accrue thereon, to be paid over to her during her natural life. ^''O APPENDIX. [CH. IX. No. 255. Notice of Sale. [Same as in No. 228 ante, with necessary alterations. '\ No. 256. Referee's Report of Sale. See ante, pp. 367, 354. {Title as in No. 202.] To the Supreme Court of the State of New York : In pursuance of an order of this court, made in the above cause, dated the day of , 18 — , I, the subscriber, referee, residing in the county of - — -, to whom the execution of said order was con- fided, do report : That having, <£c. [as in No. 229, ante, with the necessary chanc/es, so as to make it the report of a referee, c&c., instead of commissioners. \ No. 257. Order Confirming Referee'' s Report. See ante, pp, 354, 357, note. At, <£c. [as in No. 6]. [Title, as in No. 202.] On reading and filing the report of W. B. B., appointed referee to sell the premises described in the peti- tion in this cause, whereby it appears, cfcc. [insert the substance of the report ] Now, on motion of L. P. C, attorney for the plaintiff, it is ordered that the said sale be, and the same is hereby, ratified, approved and confirmed. And it is further ordered, that the said referee execute a conveyance for the said premises to the said S. P., pursuant to such sale. No, 258. Deed of Referee. [Same as No. 231, with the necessary alterations ; and see ante, p. 358.] No. 259. Final Report of Referee, after a Sale. See ante, pp. 357, 369. [Title as in No. 202.] To the Supreme Court of the State of New York: In pursuance of an order of this court, made in the above cause, dated the day of , 18 — , I, the subscriber, referee, do report : That in obedience to the said order, I have executed, acknowledged, CH. IX.] APPENDIX. 637 and delivered to S. P., the purchaser of the premises ordered to be sold by me, a deed of the said premises, on receiving from him the sum of dollars, the price for which the said premises were sold to him, as men- tioned in my former report of such sale, and upon his complying with all the conditions upon which the said deed was to be delivered. I further report that I have paid to the attorney for the plaintiff in this suit, the sum of dollars, for the costs and expenses of the proceedings in this suit, and have taken a receipt therefor, which is here- unto annexed ; that I have retained from the proceeds of said sale the sum of dollars, for my fees and disbursements upon said sale. And I further report, that I have paid to A. B., the plaintiff in this suit, the sum of dollars, being his share of the said proceeds, after the deductions aforesaid, and have taken a receipt therefor, which is hereto annexed. I further report, that I have brought into court, and paid to the treasurer of the county of , the sum of dollars, being the share or interest of J. K. in the residue of the said proceeds, as afore- said, and have taken a receipt for the same, which is hereto annexed. ^Add a similar order as to the shares of absentees and unknown owners^ That I have also brought into court for the use of C. D., an infant defendant in this suit, and have paid to said treasurer [or, that I have paid to the general guardian of C. D., an infant, and one of the defend- ants herein, for the use of such infant], the sum of dollars, being the share or interest of said C. D. in the residue of said proceeds, and have taken a receipt therefor, which is hereto annexed. \If a credit was given for any portion of the purchase money, on the security directed to he taken by the court, state the facts with reference thereto.^ All which is respectfully submitted. , Dated, d:c. W. B. B., Referee. TSo. 260 Report as to Widow's Right of Dower. See ante, pp. 352, 366. And I do further report, that the defendant R. H., being willing to accept, in lieu of her dower interest in the said premises, a sum in gross, m satisfaction thereof, out of the net proceeds of the said pre- mises, I computed the value of the said dower interest upon the prin- ciples of law applicable to life-annuities, and ascertained the same to be dollars. And the said R. H., having consented to accept that 638 APPENDIX. [CH. X. sum, I have paid the same to her, and have taken a release from her, duly executed and acknowledged, and approved by me, of all her right, title and interest of, in and to the said premises, and every part thereof, which release is hereto annexed. No. 261. Order confirming Final Report. See ante, p. 357. At, &c. \as in No. 6]. l^Title, as in No. 202,] On reading and filing the repoit of W. B. B., referee, duly appointed by an order of this couit, dated the day of , 18 — , by which report it appears that the said referee has executed, acknowledged, and delivered to S. P., the purchaser of the premises sold by the said referee, a deed thereof, and that he has distributed the net proceeds of the sale of the said premises in the manner directed by the order of the court, and that the said referee has annexed to his report, the receipts of the several persons to whom the said net proceeds were directed to be paid : Now, on motion of L. P. C, attorney for the plaintiff, it is ordered that the said report be , and the same is, hereby approved and confirmed. CHAPTER X. FORMS IN PROCEEDINGS AS FOR CONTEMPTS. No. 263. Affidavit of service of Order to pay Money, and of Derriand of Payment. See ante, p. $1%. Supreme Court [or other court']. A. B. aff'st C. D. County of , ss. : M. T. G., of, (fee, being duly sworn, says, that on the day of , 18 — , he served upon C. D., above named, a copy of the order hereto annexed, by delivering the same to, and leav- CH. X.] APPENDIX. 639 ing the same witli, the said C. D., at his residence in , in said county ; and that at the time he so served the said copy, he showed him the said order hereto annexed. And deponent further says, that at the time of the service of such copy of order, as aforesaid, he personally, on behalf of said A. B., demanded of said 0. D., payment of the costs [or, moneys], mentioned in said order ; but the said C. D. neglected and refused to pay the same, or any part thereof. And deponent further says, that the said demand was made on behalf of the plaintiff in this action, and that deponent was duly authorized to make such demand, as appears by the power of attorney hereto annexed. And that at the time the said demand was made, deponent stated to the said C, D. the nature of his authority, and showed him the said power of attorney. Sworn, (fee. M. T. G. [Annex order and power of attorney^ -So. 264. Order for Precept to Commit for Non-payment of Money. See ante, pp. 378, 380, 412. [Title, as in la^tform\ At, <£c. [as in No. 6]. On reading and filing the affidavit of M. T. G., dated the day of , 18 — , showing due personal service on the defendant, of a copy of the order made in the above action, on the day of , last, and also showing a demand of the payment of the costs [or, moneys], mentioned in said order, of the defendant personally, and of his neglect and refusal to pay the same or any part thereof; and the costs of this proceeding to compel such payment, having been fixed by the court at dollars; Now, on motion of L. P. C, attorney for the plaintiff, it is ordered that a precept be issued out of, and under the seal of this court, directed to the sheriff of the county of , commanding him to take the body of the said C. D., if he shall be found in his bailiwick, and commit him to the common jail of said county of , and to keep and detain him therein, under his custody, until he shall pay the sum of dollars, as required by said order, and also the further sum of . dollars for the costs and expenses of the proceeding to compel such payment, together with the sheriff's fees on such precept. 64:0 APPENDIX. [CH. X. No. 265. Precept to Commit for Non-payment of Money. See ante, pp. 378, 380. The People of the State of New Yoik. To the sheriff of the county of , greeting : [Seal]. Whereas, on the day of , 18 — , by a certain order made in our Supreme Court [or other court], in a certain- action depending in our said court, wherein A. B. is plaintiff, and C. D. is defendant, it was ordered that the said 0. D., pay to the said A. B., the sum of dollars, for, dc. [state for what the moneys were ordered, cfcc] And, wherea«, we have been informed in our said court that although the said sum of dollars has been personally demanded of the said C. D., by or in behalf of said A. B., yet the said C. D. has hitherto neglected and refused, and still neglects and refuses to pay the same ; and whereas the costs and expenses of the proceeding on the part of the said A. B., to compel payment thereuf amount to dollars ; Now, therefore, we command you to take the body of the said C. D., if he shall be found in your bailiwick, and commit him to the common jail of the county of , and keep and detain him therein under your custody, until he shall pay the said sum of dollars for the said moneys so ordered to be paid ; and also the said sum of dollars for the costs and expenses of the proceeding to compel such payment, together with your fees on this writ. And you are to make and return to our said court on the day of next, at the county clerk's oflBce in said county of , a certificate, under your hand, of the manner in which you shall have executed this our writ ; and have you then there this writ. Witness C. L. A., one of the justices of our said court, at , the day of , one thousand eight hundred and . L. P. C, Attorney. N. B. M., Clerk. {indorsed :) " By the Court." N. B. M., Clerk. Wo. 266. Notice to Sheriff to Return Process, &c. See ante, p. 894. [Title as in No. 263.] To H. R., Sheriff of the County of : Sir : You are hereby notifi^'d to return the execution in the above cause, delivered to you on the day of last, within ten days CH. X.] APPENDIX. 641 after tlie service of this notice, or show cause at a special term of this court, to be held at .the village of •, in the county of , on the day of next [or, instant], vfhy an attachment should not issue against you. Dated, dx. L. P. C, Atty. for Plaintiff. No. 267. Affidavit to obtain Attachment against a Sheriff. See ante, pp. 892, 394. [Title as in No. 263.] County of , ss. : L. P. C, being duly sworn deposes and says : He is the attorney for the plaintiff in the above entitled action. That judgment was duly entered against the defendant in this action, for the sum of ■ dollars, and the judgment roll therein duly filed with the clerk of said county, on the day of , 18 — . That on the day of last, he delivered to H. E., Esquire, sheriff of said county of , an execution in this action, for dollars and inter- est from the day of , 18 — , directed to the said sheriff, by delivering the same to, and leaving the same with, the said sheriff, at hisoflBee in the village of , in said county [or, with J. R. L., under- sheriff of the said county, at his residence in the village of , in said county, or otherwise, according to the mode of delivery.^ And deponent further says. That on the day of last [or, instant], he served the said sheriff with a true copy of the notice heieto annexed, by delivering the same to, and leaving the same with, the said sheriff, at his office in the village of , in said county. And deponent further says, That he has this day searched in the oflBce of the clerk of said county for the said execution ; but the same has not been returned to said office, although sufficient time has elapsed therefor ; and that no part of said execution has been paid to deponent' or to said plaintiff. Sworn, &c. L. P. C. Ko. 268. Writ of Attachment against Sheriff. See ante, p. 392. The People of the State of New York, To the Coroners of the County of , greeting : We command you that you attach H. E., Esq., sheriff of our said county, so that you may have his body [seal.] before our Supreme Court, at a special term thereof, to be held at the Court House in , on the day of next, 41 642 APPEM5IX. [CH. X. there to answer unto us, as well touching the contempts which he, as is alleged, hath conamitted against us, as also such other matters as shall then and there be laid to his charge ; and further to perform and abide such order as our said court shall make in this behalf; and have you then there this writ, and make and return a certificate under your hand, of the manner in which you shall have executed the same. Witness, A. B. J., one of the justices of our said court, the day of , one thousand eight hundred and . L. P. C, Attorney. N. B. M., Clerk. [Endorsed ;] In Supreme Court : The People of the State of New York, ex rel. A. B. vs. H. R., sheriff of the county of ■. Attachment ; returnable the Tuesday of , 18 — . L. P. C, Attorney. Let the defendant give security for his appearance, in the sum of dollars. A. B. J., Justice of the Supreme Court. Dated, <&c. Ko. 269. Order for a Habeas Corpus to bring up the Defendant. See ante, p. 397. At, <&c. \as in No. 6.] \Tith as in No. 263.] An attachment having issued in the above entitled action against the defendant therein, for a contempt of court, directed to the sheriff of the county of ; and the said sheriff hav- ing returned to the said writ that, c&c. [set forth the return showing the defendant to be already in custody]. Now, on reading the said attach- ment, and the return thereon endorsed, and on motion of L. P. C, attorney for the plaintiff; it is ordered, that a wiif of habeas corpus do issue, directed to the said sheriff, ordering him to bring the said defendant forthwith before this court, at the village of , to answer for the said contempt. No, 270. Haheo.8 Corpus to bring up the Defendant. See ante, p. 397. The People of the State of New York, To the sheriff of the [seal.] county of , greeting : We command you that you have the body of C. D., detained in your custod}', by virtue of an execution against his body [or., under a commitment for a contempt], under safe and secure conduct, together with the day and cause of his CH. X.] APPENDIX. 643 being taken and detained, by whatsoever name be may be called in tbe same, before the special term of the Supreme Court, at the village of forthwith, to answer A. B. in a proceeding as for a contempt ; and further to do and receive all and singular those things which our said court shall then and there consider of him in this behalf; and have you then there this writ. And further, that you detain the said C. D., at the place last aforesaid, until some order is made by our said court for his disposition. Witness A. B. J., one of the justices of our said court, at , the day of , one thousand eight hundred and . L. P. C, Attorney. N. B. M., Clerk. {Endorsed .•] '• By the Court." N. B. M., Clerk. No. 271. Affidavits to obtain Attachment other than against Sheriff, or for Non-payment of Money. See ante, pp. 392, 395. [Title as in No. 263.] County of , ss. M. T. G., of, c6c., being duly sworn, says: That on the day of — , 18 — , he served upon C. D., above-named, a copy of the original injunclion order hereto annexed, by delivering the same to, and leaving the same with, the said C. D., at his residence in the village of ■ , in said county ; and that at the time of such service he showed the said C. D. the said original order annexed. \_0r. That on the day of , 18 — , he served upon C. D., above-named, a copy of the injunction order hereto annexed, duly certified by the county clerk of said county, by delivering the same to, and leaving the same with, the said C. D., at his residence in the village of , in said county.] Sworn, (fee. M. T. G. [Title as in No. 263.] County of , ss. A. B., of , in said county, being duly sworn, says : He is the plaintiff in the above enti- tled action ; that, as he is informed and believes, the injunction order hereto annexed was duly served upon the defendant, on the day of , 18 — ; that since that time the defendant has repeatedly violated said order ; that he has cut and carried away from the prem- ises described therein, within the last ten days, large quantities of tim- ber, in direct violation of the same ; that deponent is the owner of said premises, c&c, tfec. [setting forth the facts showing the interest of the plaintiff and the misconduct alleged\. A. B. Sworn, (fee. 64:-t APPENDIX. [OB. X. [Title as in No, 263.] County of , ss. J. K., of , in said county, being duly swoin, says : He is acquainted with tlie parties to the above action, and resides within half a mile of the premises described in the injunction order hereto annexed; which premises are owned by the plaintiff, but are now occupied by said defendant ; that deponent has seen said defendant, several times within ten days last past, engaged in cutting and removing the timber growing upon the said premises ; that the said defendant has cut and carried away twenty or more loads of wood and other timber from said premises, within the time afore- said, cfcc, (fee. [setting forth the facts and circumstances showing a breach of the injunction, or other contempt complained of]. No. 272. Order to show Cause why Attachment should not Issue. See ante, p. 396. At, &c. [as in No. 6]. [Title as in No. 263.] On reading and filing the affidavits of A.B., above-named, and others, showing the violation, by the defendant, of the order of injunction issued in the above action, on the day of , 18 — , [or other contempt^, and on motion of L. P. C, attorney for the plaintiff, it is ordered, that the defendant, C. D., show cause at the special term of this court now sitting at the Court House in the village of [or, at the next special term of this court to be held at the Court House in , on the day of , instant], why an attachment should not be issued against him, and why he should not be punished for his alleged misconduct. And it is further ordered, that copies of the affidavits and other papers on which this order is made, be served upon the defendant, personally, at least days previous to the said day of , 18—. No. 273. Notice of Motion for an Attachment. See ante, pp. 892, 396. [Title as in No. 263.] Sir, — Take notice' that I shall apply to the next special term of this court, to be held at the Court House in , in the county of , on the day of next, at the opening at the court, on that day, or as soon thereafter as counsel can be heard, for an order that an attachment, as for a contempt, be issued against the defendant CH. X.] APPENDIX 645 C. D., for tlie violation of the order of injunction issued in this action ; and for such other or further order or relief, as the court may think proper to grant ; which motion will be founded upon the affidavits, with copies whereof you are herewith served. Dated, C. D. ) County of , ss. A. B., of , in said county, being duly sworn, says : That on the day of ,18 — , he let and rented unto C. D., of , in said county, the house and premises, situated in the of in said county, and described as follows : \insert descripiiori], which said premises were so let and rented to the . said C. D., for the term of one year from the day of then next, and that the said term has expired. And deponent further says, that the said C. D., [or, that E. F., the assignee, or, under-tenant, of the said C. D.], holds over and continues in the possession of the said premises, without the permission of this deponent, his landlord. A. B. Sworn, cfcc. 672 'appendix. [ch. xiii. So. 398. Like Affidavit, in Case of Tenancy at Will. See ante, p. 469. l^Title as in last form.] County of , ss. A. B., of , in said county, being duly sworn says : That on or about the day of last, he let and rented unto C. D., of the same place, during the will and pleasure of deponent, the house and premises situated in the of in said county, and described as follows : [insert description]. And deponent further says : That the said C. D., has held and occupied the said building and premises, as the tenant at will of this deponent, from the day of aforesaid, until the expiration of such tenancy as hereinafter mentioned. And deponent further says, That he caused a notice in writing to be served upon the said C. D., in due form of law, on the day of , 18 — , requiring the said C. D. to remove from the said premises on or before the day of , 18 — . That the time within which the said C. D. was so required to remove, has expired ; and that the said C. D. holds over and continues in possession of the said premises, . after the expiration of such time, without permission of this deponent, his landlord. A. B. Sworn, &c. No. 309. Like Affidavit, in case of JVon-payment of Rent. See ante, p. 459. [Title as in No. 307] County of ss.: A. B., of , in said county, being duly sworn, says: That on the day of , 18 — , he let and rented unto C. D., of the same place, for the term of two years, from the day of last, at an annual rent of dollars, payable quarterly, the house and premises situated in the -. of , in said county, and described as follows : [insert description]. That the said C. D. is BOW justly indebted to deponent in the sum of dollars, and interest thereon, from the day of last, for the rent of said premises, pursuant to the agreement under which said premises are held, as aforesaid, to wit, for the quarter's rent due by the terms of said agreement, on the day of last. And deponent further says. That he caused a notice, in writing, to be served upon the said C. D., in due form of law, on the day of , 18 — , requiring payment of said rent, so due, as aforesaid, on CH. XIII.] APPENDIX. 673 or before the day of last, or the possession of said premises • but which rent has not been paid, or any part thereof. And deponent further says. That the said C. D. holds over and con- tinues in possession of the said premises, after default in the payment of such rent, as aforesaid, and without the permission of this deponent, his landlord. A. B. Sworn to, &c. No. 310. Affidavit hy Agent of Landlord. See ante, pp. 459, 461. [ Title as in No. SOV.] County of , ss. : G. H., being duly sworn, says : He is the agent of A. B., hereinafter mentioned, and is authorized to institute proceedings for the removal of C. D. from the premises hereinafter de3cribed. That, t(< Landlord in possession, where Tenant does no t appear. See ante, p. 464. The People of the State of New York, to the sheriff of the county of [or, to any one of the constables of the town of ■ , or, marshals of the city of , in the county of ], Greeting : Whereas, A. B., of , in said county, has made oatb, in writing, and presented the same to me, that, &c. [recite the facts contained in the landlord'' s affidavits infullj. Wheieupon I issued a summons, requiring the said C. D., and any other person in the possession, or claiming the possession, of the pre- mises above described, forthwith to remove from the said premises, or show cause before me at my ofiioe, in , on the day of instant, at o'clock — M., why the possession of the said premises should not be-delivered to the landlord; and no sufficient cause having been shown to the contrary, and I being satisfied, by due proof, of the service of said summons, do therefore command you to remove all per- sons from the said premises, and to put the landlord, the said A. B., into the full possession thereof. "Witness my hand, this day of , ) A. D. 18—. j A. D. W., County Judge. [or, J. H. F., Just. Peace.] CH. XIII.] APPENDIX. 675 No. 314. Affidavit of Tenant denying Landlord's Allegations. See ante, p. 464. {Title as in No. 307.] County of ss. : C. D., of in said county, being duly sworn, says : He is the defendant above-named. That, <£c. \deny specifically the facts intended to be controvertedi\ Sworn, ^ 313. «s , PROCEEDINGS AS FOR CONTEMPTS. Contempts, strictly so called, 8'76. I. In what cases party is in contempt. 1. Statutory provisions, 375 to 378, and notes. 2. Contempts in not paying money ordered to be paid, 378 to 382. In respect to the non-payment of costs, 378, 379. Cases which the act of 1847 does not affect, 378, 379. Execution to collect costs, 879. A demand, &e., not necessary before issuing it, 379. Otherwise to bring a party into contempt, 379, 880. The order or preeept to commit, — what to contain, 3S PROCEEDINGS AS FOR CONTEMPTS. Affidavit of service of order to pay money and of demand of pay- ment ... .638 Order for precept to commit for non-payment of money . 6S9 Precept to commit for non-payment of money . 640 Notice to sheriff to return process . , H4'i Aifidavit to obtain attachment against a sheriff . 641 Writ of attachment against a sheriff ... 641 Order for a habeas corpus to bring up the defendant . 642 Habeas corpus to bring up the defendant . . 642 Affidavits to obtain attachment other than against sheriff, or for non-payment of money .... 643 Order to show cause why attachment should not issue . 644 Notice of motion for an attachment . . . 644 Order for an attachment . . . 646 "Writ of attachment; endorsement; and officei's return . . 645 Bond on attachment . ... 646 Order for alias attachment, where defendant fails to appear . 647 Order directing prosecution of bond .... 64*7 Order on appearance of defendant, and directing interrogatories to be filed .... B48 Interrogatories to be administered to defendant 649 Interrogatories to be administered to sheriff . 649 Answer to interrogatories . 650 Order discharging attachment ... . 650 INDEX TO FORMS. 793 PA8I PROCEEDINGS AS FOR CONTEMPTS.— Continued. Order convicting defendant of contempt . , 661 Another form . ..... 651 Warrant of commitment ... . 652 PROHIBITION. Notice of motion for writ of prohibition . . 593 Affidavit on application for writ of prohibition . 593 Order that a writ of prohibition issue . . 593 Writ of prohibition . . 594 Return to alternative writ of prohibition . .59.5 Notice requiring relator to demur or plead . . 595 Notice of hearing on failure of relator to demur or plead . . 596 Judgment record on prohibition . . 596 Writ of prohibition — absolute . . 596 Writ of consultation ..... . 596 RELIGIOUS CORPORATIONS, see post, SALE OF THE REAL ESTATE OF RELIGIOUS CORPORATIONS. SALES OF INFANTS' ESTATES. Petition for order to sell in behalf of infants 653 Affidavit of disinterested persons . 665 Order of reference, and for appointment uf guardian 6,=)6 Bond of special guardian . . 66'7 Certificate of clerk . 658 Referee's report .... 659 Order authorizing guardian to contract . 660 Report of special guardian, of agreement to sell 661 Order confirming report of guardian, and directing a conveyance 662 Deed by special guardian . . . , 663 Petition to compel specific performance of contract of ancestor 665 Notice of motion to compel specific performance . . 666 Petition to compel infant trustees to convey 667 Notice of motion to compel infant trustees to convey 66*7 SALE OF THE REAL ESTATE OF RELIGIOUS CORPORATIONS. Petition for leave to sell ..... 668 Order directing sale, and application of proceeds . 669 SUMMARY PROCEEDINGS TO REMOVE TENANTS. Notice to pay rent, or to surrender possession . . 670 Notice to quit . . . 670 Affidavit of service of notice ... 671 Affidavit of demand of possession . . 671 Affidavit of landlord to remove tenant — expiration of term 671 Like affidavit in case of tenancy at will . 672 Like affidavit in case of non-payment of rent . . 672 724 INDEX TO FORMS. Pagk. SUMMARY PROCEEDINGS TO REMOVE TENA?fTR.— Continued. Affidavit by agent of landlord . . B*?? Summons . . .673 Affidavit of service of summons . . . . 673 Warrant to put landlord in possession, where tenant does not appear 674 Affidavit of tenant, denying landlord's allegations . . 675 Venire, or precept for jury . . . 678 Warrant to put landlord in possession after trial . 675 Security to pay rent in ten days . ... 676 Security to pay rent where tenant has taken the benefit of any insol- vent act . ... 677 Affidavit of title in tenant subsequently acquired . 677 Bond to stay the proceedings . . . 677 Notice of appeal from justice's court to county court 678 Undertaking on appeal . . . 679 Certiorari . . 679 Return to writ of certiorari . 680 Judgment record on certiorari 680 Writ of restitution . 681 %- ^''''_*J ^^: