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GENERAL STATUTES

OF THE

STATE OF NEW YORK; &C.

PART III.

ADMINISTRATION OF CIVIL JUSTICE.

CHAPTER I.

Courts of General Jurisdiction.

CHAP. 128.

AN ACT relating to the Supreme and Circuit Courts.
PASSED April 13, 1832.

The People of the State of New York, represented in Senate and Assembly, do enact as follows:

ings on bill

tions and

S1. Where, in any personal action, any bill of exceptions Proceed shall be taken, demurrer to evidence put in, case made, or of excep notice of motion given for new trial on newly discovered evi- demurrer dence, and the proceedings shall not be stayed, the party in in personal whose favor the verdict is rendered, may perfect his judgment action. and issue execution; but it shall nevertheless be lawful for the other party to proceed to obtain a hearing before the supreme court upon the matters in question, in the manner hereinafter mentioned; and in case their judgment shall be in his favor, they may set aside the proceedings with the verdict, and order restitution, which may be enforced by such writs of restitution as are used in cases of reversal in error, or by

PART II

motion and attachment, according to the practice of the court in cases of attachment.

14 W., 244; 12 W., 242, 255.

Hearing be

$ 2. The cases mentioned in the first section of this act, fore circuit shall in the first instance be heard and decided by the circuit

His powers in such

cases.

Hearing before

supreme court on appeal.

Circuit judge

hold court every three

months.

judge of the circuit in which the cause was tried, or by such other circuit judge as shall hold the courts mentioned in the fifth section of this act,

Rules.

S3. Upon such hearing, the circuit judge who holds said court, shall have and exercise the same power in the cases mentioned in the first section, as is now possessed by the justices of the supreme court.

S 4. In the cases herein before mentioned, either party may bring the cause to a hearing thereon before the supreme court, by appeal, after the circuit judge shall have decided the same; but no such cause shall be so brought before the supreme court for hearing, unless a bond, with sufficient sureties, to be approved by the circuit judge, or the first judge of the county in which the venue is laid, whose approval shall be endorsed thereon, shall be executed to the other party, in the manner and of the effect mentioned in the seventh section of this act, or unless he obtain an order from the said circuit judge, or one of the justices of the supreme court, staying the proceedings in the suit.

12 W., 242.

S 5. Every circuit judge shall hold a court once at least every three months, for hearing arguments of the matters hereby committed to his decision, at such times and places within his circuit as he shall appoint; notice of which shall be given by the circuit judge, as is by law required in relation to chancery courts in the several circuits.

[Section 6 obsolete.]

Security

given,

S 7. The security to be given as above provided, shall be a how to be bond by two sureties, with or without the party, and shall be in the penalty of two hundred dollars; and the condition of it shall be, that the party appealing shall pay all such costs as shall accrue and be adjudged against him upon such appeal. The bond shall be filed in the office of one of the clerks of the supreme court; and the proceedings shall not be stayed until such bond be filed, and notice thereof given.

12 W., 242; 13 W., 656.

S8. It shall be lawful for the supreme court to make rules for the practice, in cases provided for in this act.

CHAP. 14.

AN ACT to compel defendants in the court of chancery to answer in certain cases.

PASSED January 30, 1833.

The People of the State of New York, represented in Senate and Assembly, do enact as follows:

CHAP. 159.

AN ACT relative to the court of errors and the supreme

court.

which do

must an

S 1. A defendant shall be compelled to answer any bill in Cases in chancery, where by law a bill may now be filed, charging fendant the defendant with being a party to any conveyance or assign- swer. ment of any estate or interest in lands, goods or things in action, or of any rents or profits arising therefrom, or to any charge on any such estate, interest, rents or profits, made or created with intent to defraud prior or subsequent purchasers, · or to hinder, delay or defraud creditors or other persons, or where the defendant shall be charged with any fraud whatever, affecting the right or property of others.

$ 2. No such answer shall be read in evidence against any Answer not party thereto on any complaint, or on the trial of any indict- in evidence ment for the fraud charged in such bill.

PASSED April 17, 1833.

The People of the State of New York, represented in Senate and Assembly, do enact as follows:

CHAP. L

place for

courts.

S 1. The governor may, at any time during the vacation of Governor the court for the trial of impeachments and correction of may alter errors, or the supreme court, if he shall deem it requisite, by holding reason of war, pestilence, or other public calamity, or the danger thereof, that the next ensuing term or session of any such court shall be held at a different place from that where such term or session is required to be held by law, appoint such different place for the holding of such court or session as he shall deem expedient. And at any time thereafter he may revoke such appointment and appoint a new, or leave such term or session to be held at the place where it would have been held by law.

tion to bo

S2. Every such appointment or revocation shall be by Proclamawriting, under the hand of the governor, and shall be recorded recorded. in the office of the secretary of this state; it shall also be published in such and so many newspapers as the governor shall direct, and the expense of such publication shall be paid out of the treasury.

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§3. Whenever such term or session shall be held at any place so appointed by the governor, all process shall be returned and all persons held to appear at such place, as if such term or session was held at the place where by law the same was to have been held.

§ 4. In case any court shall not be formed at the place so appointed, by five o'clock in the afternoon of the first day of the term or session, the same may be adjourned to the next day by the same officer, and in like manner and with the same effect as provided by law, in case the place of holding such court had not been altered.

§ 5. If at any time during any session or term of the aforesaid court, or either of them, it shall be deemed by the said court improper or inexpedient by reason of war, pestilence or other public calamity, or the danger thereof, that the said term or session should be continued. at the place where the same is then holding, the said court may, by order entered in their minutes, adjourn the session of said court, to be holden at such other times and places as they may direct; and the said adjourned sessions shall be taken as a part and continuauce of the said term; and all proceedings in the said court may be continued at said adjourned times and places, and be of the force and effect as if said court had continued its session at the place it was holden before said adjournment.

CHAP. 187.

AN ACT in relation to taking the testimony of witnesses conditionally.
PASSED April 20, 1833.

The People of the State of New York, represented in Senate and Assembly, do enact as follows:

§ 1. In all actions pending in the supreme court, supreme court commissioners shall have the like power as is given to the judges of courts of record by article one, of title three, of chapter seven of the third part of the Revised Statutes, to be exercised on the like terms and conditions, and with the like effect as is specified in said article.

5 How. P. R., 211; 2 Bos., 268, 281.

CHAP. 193.

AN ACT to authorize the appointment of Circuit Courts. PASSED May 17, 1841. The People of the State of New York, represented in Senate and Assembly, do enact as follows:

Circuit

time of

§ 1. Whenever any circuit court appointed for any county shall have Judge may failed after the opening of the court, and before the same shall have been adjourned without day, by reason of the sickness or inability of court when the circuit judge to continue the court, the circuit judge shall have the regular power to appoint a time and place for holding the said court in said county, which time shall be at a day as early as may be practicable, and shall without delay cause notice of such appointment of such cir cuit court to be published in the state paper, the expense of which publication shall be paid out of the treasury as in other cases, and causes may be noticed for trial and tried at such circuit in like manner as at a state circuit.

omitted.

CHAP. 277.

AN ACT in relation to proceedings in the Court of Chancery against absent, concealed, or non-resident defendants, unknown owners in partition, and to the foreclosure of mortgages by advertisement.

PASSED April 12, 1842.

The People of the State of New York, represented in Senate and Assembly, do enact as follows:

S1. The one hundred and twenty-second section of the second title of the first chapter of the third part of the Revised Statutes is hereby amended, by adding thereto the following subdivision:

3. When the last known place of residence was within this Residenco. state, but his residence at the time cannot, on due inquiry, be ascertained by the complainant or his solicitor.

3. If he be a resident of any other state or country not before mentioned, within six months from its date.

9 B, 482. Ante, vol. 2, p. 193.

S2. The one hundred and twenty-third section of the said title is hereby so amended as to read as follows:

The order shall require the defendant to appear and answer Defendant, the bill as follows:

when to

appear.

1. If he be a resident of the state within two months from its date.

2. If his last known place of residence was in this state, but his present place of residence cannot on due inquiry be ascertained; or if he be a resident of some other of the United States, or of one of the territories thereof, or of either of the British Provinces in North America, or the Republic of Texas, within three months from its date.

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CHAP. L

Ante, vol. 2, p. 193.

$3. The one hundred and twenty-fourth section of the said title is hereby so amended as to read as follows:

inserted in

Within twenty days from the date of such order, a notice Notice to be thereof shall be inserted in the state paper, and in such other newspapers public newspaper printed in this state, as the court shall direct; such publication shall be continued in each of such papers once at least in each week, for three weeks in succession, which notice shall be substantially in the following form: "Before the chancellor," or "Before the vice-chancellor of the circuit," as the case may be, "A. B. vs. C. D. and others." "Bill for foreclosure of mortgage," or "Bill for partition of lands," or, as the case may be, "E. F. of complainant's solicitor."

"G. H. one of the defendants in this cause, whose place of residence is in or, whose place of residence is unknown, is required to appear in this cause, by the day of next, or the bill filed therein will be taken as confessed by

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