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L A

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OF THE

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STATE OF

Paffed in the ELEVENTH SESSION of the LEGISLATURE, held at POUGHKEEPSIE, in DUTCHESS COUNTY

CHA P. II.

An ACT to prevent Delays of Proceedings at the General Seffions of the
Peace, and bufes in fuing out Writs of Certiorari.
Paffed 6th February,

38.

the fate of New-York,

enate

it enacted the and affembly, and it is hereby enacted by the authority of the jeme, That all writs of certiorari for the removal of any indictment or prefentment, or any judgment or order, out of any court of general feffions of the peace, fhall be delivered at the feffions of the peace, in open court.

II. And be it further enacted by the authority aforefaid, That in term time, no wrt of certiorari whatsoever, at the profecution of any party indicted or prefented, be hereafter granted, awarded or directed, out of the fupreme court, to remove any indictment or prefentment, of or for any treipals, riot, forcible entry, affault and battery, fraud, nuifance, contempt or misdemeanor whatfoever, before trial had, from before any juftices in their courts of general feffions of the peace, unless fuch certiorari fhall be granted or awarded upon motion of counfel, by rule of court, made for the granting thereof, before the juftice or juftices of the fupreme court, fitting in open Parties profecuting court; and that all the parties indicted, profecuting fuch fach writs, to find certiorari, before the allowance thereof, fhall find two faffrueties to appear and profecute. ficient fureties, who fhall enter into a recognizance to the people of the ftate of New-York, before one of the juftices of the fupreme court, or before one or more juflices of the peace of the county or place, or before the juftices at their general feflions of the peace of the county or place, where fuch indictment or prefentment shall be found or made, in the fum of fifty pounds: With condition, That the party or parties fo indicted or prefented, and profecuting fuch certiorari, fhall, at the return of fuch writ, appear and plead to the faid indictment or prefentment in the faid fupreme court, and at his, her or their own cofts and charges, caule and procure the illue that fhall be joined upon the faid indictment or prefentment, or any plea relating thereto, to be tried at the next circuit court, to be held for the county wherein the faid indictment or prefentment was found or made, after fuch certiorari fhall be returnable, if not in the county where the faid fupreme court fhall fit, and if in fuch county, then to Vol. II. A

caufe or procure it to be tried the next term after fuch certiorari shall be granted, if the faid fupreme court fhall not appoint any other time for the trial thereof, and if any other time fhall be appointed by the faid fupreme court, then at fuch other time, and fhall give due notice of fuch trial to the profecutor or his attorney, and fhall appear, from day to day, in the faid fupreme court, and no depart until he, the or they fhall be difcharged by the faid court. And moreover, That in any of the vacations, writs of certiorari may be granted by any of the juftices of the fupreme court, whofe name fhall be endorsed on the faid wit, and alfo the name of such person at whofe instance the fame is granted; and that the party or parties indicted or prefented; profecuting fuch certiorari, fhall, before the allowance of fuch writ or waits of certiorari, find fuch fureties, in fuch fum, and with fuch conditions. as fe before mentioned and fpecified. And further, That every recognizance taken as aforefaid, fhall be delivered to the court or juftices to whom the certiorari is directed, together with the faid writ; and the recognizan fo taken as aforefaid, fhall be certified into the faid fupreme court, with the faid certiorari and indictment or prefentment, and there filed, and the name of the profecutor, if he be the party grieved or injured, or fome public officer, fhall be endorfed on the back of the faid indictment or prefentment; and if the perfon profecuting fuch certiorari, being the defendant, Thall not, before allowance thereof, procure fuch fureties to be bounden in a recizance as aforefaid, the juftices of the peace may and shall proceed to tri the said indictment or prefentment, at the faid general feffions of the peace, notwithflanding fuch writ of certiorari fo delivered.

III. And be it further enacled by the authority aforesaid, On conviction of That if the defendant profecuting fuch writ of certiorari, be

the defendant profe

chicer, to have cofts.

cuting fach writ, the Convicted of the offence for which he was indicted or preprofecutor, if the party grieved, or an fented, that then the faid fupreme court fhall give reafona ble cofts to the profecutor, if he be the party grieved or injured, or be a juftice of the peace, mayor, recorder, alderman, conftable or overfeer of the poor, or any other civil officer, who shall profecute upon the account of any fact committed or done, or any thing omitted that concerned him or them as officer or officers, to profecute or prefent; which colls fhall be taxed according to the course of the faid fupreme court; and that the profecutor for the recovery of the faid cofts, inall, at any time after the expiration of ten days after demand made of the defendant, and refufal or neglect of payment, proof thereof being made on oath, have an attachment granted against the faid defendant by the faid court, for fuch his contempt; and that the faid recognizance fhall not be discharged until the cofts fo taxed shall be paid.

IV. And whereas in many cafes where juftices of the peace are empowered by law to give or make judgments or orders, writs of certiorari have bcen procured to remove fuch judgments or orders into the fupreme court, in the hope thereby to difcourage and weary out the parties concerned in fuch judgments or orders, by great delays and expences: For remedy whereof, Be it further enacted by the authority aforefaid, That no certiorari fhall be allowed to remove any fuch judgment or order from before any juftice or juftices of the peace, or general feffions of the peace, other than judgments given or to be given in fuits or actions for debts or demands, between party and party, made or to be made cognizable before juftices of the peace, or any of them, unless the party or

No

der to be removed by certinari froin for Itms, without fure ties given to prof

a juftice, or the fef

cute.

parties profecuting fuch certiorari, before the allowance thereof, fhall find fufficient fureties, who fhall enter into a recognizance to the people of the ftate of New-York, before one of the juftices of the fupreme court, or be fore one or more juftices of the peace of the county or place, or before the juftices at their general fellions of the peace of the county or place, where fuch judgment or order fhall have been given or made, in the fum of fifty pounds: With condition, That the party or parties profecuting fuch certiorari, fhall profecute the fame, at his, her or their own cofts and charges, to effect, without any wilful or affected delay, and perform fuch judgment or order, as the fame fupreme court fhall give or make against him or them in the premifes, and pay the party or parties in whofe favour or for whofe benefit fuch judgment or order fo to be removed was given or made, within one month after the faid judgment or order fhall be confirmed, his, her or their full cofts and charges, to be taxed according to the courfe of the faid fupreme court; and in cafe the party or parties profecuting fuch certiorari fhall not procure fuch furetics, to be bound in fuch recognizance as aforefaid, it fhall and may be lawful for the faid juftice or juftices, or court of general feffions of the peace, to proceed and make fuch further order or orders, for the benefit of the party or parties for whom fuch judgment or or der shall be made or given, in fuch manner as if no certiorari had been granted or delivered: And further, That every recognizance to be taken as aforefaid, shall be delivered, together with the writ of certiorari, toe juf tice or juftices, or court to whom fuch writ fhall be directed, and the faid recognizance shall be certified into the faid fupreme court, with the faid certiorari, and the judgment or order removed thereby, and there filed; and if the faid judgment or order fhall be confirmed by the faid court, the perfon or perfons entitled to fuch cofts, for the recovery thereof, at any time after the expiration of ten days after demand made, of the perfon or perfons who ought to pay the faid cofts, upon oath made of the making fuch demand, and refufal or neglect of the payment thereof, fhall have an attachment against him, her or them,granted by the faid court for fuch contempt; and the faid recognizance fo given upon the allowing of fuch certiorari, fall not be discharged until the cofts fhall be paid, and the judgment or order fo confirmed fhall be complied with and obeyed.

V. And be it further enacted by the authority aforefaid, That no writ of certiorari fhall be hereafter granted to remove any indictment, prefentment, judgment, order, recognizance or other process or proceeding, unless the fame writ be figned with the proper hand of one of the juflices of the fu preme court, and in default thereof fuch writ fhall be void and of none effect.

CHA P. III.

An ACT to avoid unnecessary Delays of Executions,
Pafled 6th February, 1788.

L

No execution to be

BE Ei enacted by the people of the fate of New-York, reprefented in fenate and affembly, and it is hereby enacted by the authority of the fame, That no execution fhall be stayed or delayed, upon or by flaved by writ of er any writ of error or fuperfedeas thereupon to be fued for ror on judgments, for the reverfing of any judgment, given or to be given, in any sent, or upon contract, action of debt upon any fingle bond for debt, or upon any without fureties given obligation, with condition for the payment of money onthe debt and cols, in ly, or upon any action of debt for rent, or upon any con tract fued in any court of record in this ftate, unlets fuck

debt on or for

to profecute

caf of athrmance of

judgment.

perfon or perfons in whofe name or names fuch writ of error shall be brought, with two fufficient fureties, fuch as the court, wherein fuch judgment is or fhall be given, fhall allow of, fhall firft, before fuch ftay made, or fuperfedeas awarded, be bound unto the party for whom any fuch judgment is or fhall be given, by recognizance, to be acknowledged in the fame court, in double the fum adjudged to be recovered by the faid former judgment, to profecute. the faid writ of error with eflect, and alfo to fatisfy and pay, if the faid judgment shall be affirmed, all and fingular the debts, damages and cofts, adjudged or to be adjudged upon the former judgment, and all cofts and damages to. be awarded for the delay of execution. And further, That no execution fhall be flayed or delayed in any of the courts aforefaid, by any wrir or writs of error, or fuperfedeas thereupon, after any verdict and judgment thereupon obtained, in any perfonal action whatfoever, unless fuch recognizance, and in fuch manner as is above directed, fhall be first acknowledged in the faid court where fuch judgment is or fhall be given.

1. And be it further enacted by the authority aforefaid, That in writs of error to be brought upon any judgment after verdict, in any writ of dower, or in any action of ejectment, no execution fhall be thereupon or hereby ftayed, unless the plainti or plaintifis in fuch writ of error, fhall be bound unto the plaintiff in fuch writ of dower, or action of ejectment, in fuch reafonable fum, as the courts to which fuch writ of error thall be directed, shall think: With condition, That if the judgment fhall be affirmed in the faid writ of error, or if the said writ of error be discontinued in default of the plaintiff or plaintiffs therein, or if the faid plaintiff or plaintiffs be nonfuit in fuch writ of error, that then the faid plaintiff or plaintiffs fhall pay fuch cofts, damages, and fum and fums of money, as fhall be awarded upon or after fuch judgment affirmed, difcontinuance or nonfuit. And to the end that the fame fum and fums of money, and damages may be ascertained, the court wherein fuch execution ought to be granted, upon fuch affirmation, difcontinuance or nonfuit, fhall iflue a writ to enquire as well of the mesne profits, as of the damages, by any wafte committed after the firft judgment in dower, or in ejectment; and upon the return thereof, judgment fhall be given, and execution awarded for fuch mefne profits and damages, and alfo for the cofts of fuit. Provided always, that this act, or any thing therein contained, fhall not extend to any writ of error to be brought by any executor or adminiftrator, nor to any action popular, nor to any action upon any. penal flatute, nor to any indictment, prefentiment, inquifition, information or appeal.

CHAP.

IV.

1.

An ACT for giving further Remedy by Action of Account. Paffed 6th February, 1788. E it enacted by the people of the state of New-York, reprefented in fenate That where any perfon is or fhall be bound or liable to account, as guardian, bailiff, receiver or otherwife, to any other, and will not give account willingly, and the party to whom fuch account ought to be made, fhall fue out a writ of account, if the perfon against whom fuch writ is iflued, being fummoned, do not appear at the return of the writ, or if it be returned, that the defendant hath nothing, then the defendant fhall be attached by his or her body, to come and make his or her account; and if it be returned, that

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