against whom fuch information or informations is or are to be exhibited, with fufficient fecurity, in the penalty of twenty pounds, that he, fhe or they will effectually profecute fuch information or informations, and abide by and obferve tuch orders as the faid court fhall direct (which recognizance any one of the judges of the faid fupreme court is empowered to take) and after the taking and receipt whereof, the clerk of the faid court fhall make an entry thereof upon record, and shall file a memorandum in fome public place in his office, that all perfons may refort thereunto without fee. And in cafe any perfon or perfons, against whom any information or informations for the caufes aforefaid, or any of them, fhall be exhibited, fhall appear thereunto, and plead to iffue, and the profecutor or profecutors of fuch information or informations, fhall not, at his and their own proper cofts and charges, at or before the fecond court (in which the fame might be tried) next after iflue joined therein, procure the fame to be tried; or if upon fuch trial, a verdict pafs for the defendant or defendants, or in cafe the faid informer or informers procure a nolle profequi to be entered, then, in any of the faid cafes, the faid fupreme court is hereby authorised to award to the faid defendant or defendants, his or their cofts, unless the judge before whom fuch information or informations fhall be tried, fhall, at the trial of fuch information or informations, in open court, certify upon record, that there was a reasonable caufe for exhibiting the fame. And in cafe the faid informer or informers fhall not, within ten days next after the faid cofts fhall be taxed, and demand made thereof, pay to the faid defendant or defendants, the faid cofts, then the faid defendant or defendants fhall have the benefit of the faid recognizance, to compel them thereunto. WH CHAP. X. An ACT for the more effectual Discovery of the Death of Perfons beyond Sea, Perfons upon whose lives eftates depend, being ablen for feve years, to be deemed dead. I. Be it 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 if fuch perfon or perfons, for whofe life or lives fuch estates have been, or fhall be granted or held as aforefaid, fhall remain beyond fea, or abfent himself, herself or themselves in this flate, or elsewhere, by the space of feven years together, and no fufficient and evident proof be made of the life or lives of fuch perfon or perfons refpectively, in any action commenced or to be commenced for the recovery of fuch tenements, by the leffors or reverfioners, or other perfon or perfons entitled to the fame eftate, upon the death of fuch perfon or perfons; in every fuch cafe, the perfon or perfons, upon whofe life or lives fuch eftate depended, fhall be accounted as naturally dead; and in every action brought for the recovery of the faid tenements by the leffors or reverfioners, or other perfon or perfons entitled to the fame, upon the death of fuch perfon or perfons, and their heirs or affigns, the judges before whom fuch action fhall be brought, fhall direct the jury to give their verdict as if the perfon or perfons fo remaining beyond fea, or otherwise abfenting himself, herself or themselves, were dead. living. II. Provided always, and be it further enalled by the auPerfosevicted, may thority aforefaid, That if any perfon or perfons fhall be re-enter, on proof, that fuch abfent perfon is evicted out of any lands or tenements, by virtue of this act, and afterwards, if the perfon or perfons upon whofe life or lives fuch eftate or eftates depend, fhall return again from beyond fea, or fhall, on proof in any action to be brought for the recovery of the fame, be made appear to be living, or to have been living at the time of the eviction, that then, and from thenceforth, the tenant or leffee who was oufted of the fame, his, her or their executors, adminiftrators or affigns, fhall or may re-enter, repoffefs, have, hold and enjoy the faid lands or tenements, in his, her or their former eftate, for and during the life or lives, or fo long a term as the faid perfon or perfons upon whole life or lives the faid eftate or eftates depend, shall be living; and alfo fhall, upon an action or actions, to be brought by him, her or them, against the leffors, reverfioners or tenants in poffeffion, or other perfons refpectively, which fince the time of fuch eviction received the profits of the faid lands or tenements, recover for damages the full profits of the faid lands or tenements, respectively, for and from the time that he, the or they were oufted of the faid lands or tenements, and kept and held out of the fame, by the faid leflors, reverfioners, tenants, or other perfons who, after the faid eviction, received the profits of the faid lands or tenements, or any of them respectively, as well in the cafe when the faid perfon or perfons upon whofe life or lives fuch eftate or eftates did depend, are or shall be dead at the time of bringing of the said action or actions, as if the faid perfon or perfons were then living. &c. after the death woman, &c. on affida. III. And whereas divers perfons, as guardians and truflees for infants, and hufbands in right of their wives, and other perfons, having estates or interefts determinable upon a life or lives, have continued to receive the rents and profits of fuch lands or tenements, after the determination of their faid particular eftates or interefts; and whereas the proof of the death of the perfons on whofe lives fuch particular eftates or interefts depended, is very difficult, and feveral perfons have been, and may be thereby defrauded; For remedy whereof, and for preventing fuch fraudulent practices in future, Be it further enacted by the authority aforefaid, That any perfon or perPer fons claiming eltates in remainder, fons who hath or have, or fhall have any claim or demand of an infant, married in or to any remainder, reverfion or expectancy in or to vit that he hath caule any eftate, after the death of any perfon within age, marto believe that fuch ried woman, or any other perfon or perfons whatfoever, infant, &c. is dead, upon affidavit made in the court of chancery in this ftate, by the perfon or perfons fo claiming fuch eftates, of his, her or their title, and that he, fhe or they hath or have caufe to believe that fuch infant, married woman, or other perfon or perfons, is or are dead, and that his, her or their death is concealed by fuch guardian, trustee, husband, or any other perfon or perfons, fhall and may once a year, if the perfon or perfonis aggrieved fhall think fit, move the chancellor for the time being, to order, and he is hereby authorised and required to order fuch guardian, truftee, hufband, or other perfon or perfons concealing or fufpected to conceal fuch perfon or perfons, on whofe life or lives fuch eftate doth, fhall or may depend, at fuch time and place as the faid court fhall direct, on perfonal or other due may apply to chancellor. Service of fuch order, to produce and fhew to fuch perfon or perfons (not ex. ceeding two) as fhall, in fuch order, be named by the party or parties profecuting fuch order, fuch infant, married woman, or other perfon or perfons aforefaid; and if fuch guardian, truftce, husband, or fuch other perfon or perfons as aforefaid, fhall refufe or neglect to produce or fhew fuch infant, married woman, or fuch other perfon or perfons, on whofe life or lives any fuch eftate doth or fhall depend, according to the directions of the faid order, that then the faid court of chancery is hereby authorised and required to order fuch guardian, truftee, hufband, or other perfon or perfons, to produce fuch infant, married woman, or other perfon or perfons fo concealed, in the faid court of chancery, or otherwife before commiffioners to be appointed by the faid court, at fuch time and place as the court fhall direct; two of which commitioners fhall be nominated by the party or parties profecuting fuch or der, at his, her or their cofts and charges; and in cafe fuch guardian, trustee, hufband, or other perfon or perfons, fhall refufe or neglect to produce fuch infant, married woman, or other perfon or perfons fo concealed, in the court of chancery, or before fuch commiffioners, whereof return fhall be made by fuch commiffioners, and that return filed in the office of the regifter of the faid court of chancery; then, in any or either of the faid cafes, the faid infant, married woman, or fuch other perfon or perfons fo concealed, fhall be taken to be dead; and it fhall and may be lawful for any perfon or perfons claiming any right, title or intereft in reverfion or remainder, or otherwife, after the death of fuch infant, married woman, or fuch other perfon or perfons fo concealed as aforefaid, to enter upon fuch lands, tenements and hereditaments, as if fuch infant, married woman, or other perfon or perfons fo concealed were actually dead. infant, &c. is beyond itate, clamant inay IV. And be it further enalled by the authority aforefaid On affidavit, that That if it fhall appear to the faid court, by affidavit, that sea, or out of this fuch infant, married woman, or other perfon or persons, fnd perfons to view for whofe life or lives, fuch eftate is holden, is or are, or fuch infant, &c. lately was or were, at some certain place or places, beyond fea, or elsewhere out of this ftate, in the faid affidavit to be mentioned, it shall and may be lawful for the party or parties profecuting fuch order as aforefaid, at his, her or their cofts and charges, to fend one or both the faid perfons, appointed by the faid order, to view fuch infant, married woman, or other perfon or perfons, for whofe life or lives any fuch eftate is or fhall be holden; and in cafe fuch guardian, truffee, hufband, or other perfon or perfons, concealing or fufpected to conceal fuch perfon or perfons as aforefaid, on whofe life or lives any fuch eftate doth or fhall depend, fhall refufe or neglect to produce, or procure to be produced, to fuch perfon or perfons appointed by the faid order, a perfonal view of fuch infant, married woman, or other perfon or perfons, for whofe life any fuch estate is or fhall be holden; that then, and in fuch cafe, the perfon or perfons appointed by fuch order, are hereby required to make a true return of fuch refufal or neglect to the faid court, which return fhall be filed in the office of the regifter of the faid court, and thereupon fuch infant, married woman, or other perfon or perfons, for whofe life or lives any fuch eftate is or fhall be holden, fhall be taken to be dead; and it fhall and may be lawful for any perfon or perfons claiming any right, title or intereft in reverfion, remainder or otherwife, after the death of fuch infant, married woman, or other perfon or perfons, for whofe life or lives any fuch eftate is or fhall be holden, to enter upon fuch lands, tenements and hereditaments, as if fuch infant, married woman, or other per fon or perfons, for whofe life or lives any fuch estate is or shall be holden, were actually dead. V. Provided always, and be it further enacled by the authority aforefaid, That if it shall afterwards appear, upon proof in any action to be brought, that fuch infant, married woman, or other perfon or perfons, for whofe life or lives any fuch eftate is or fhall be holden, were alive at the time of fuch order made, that then it fhall be lawful for fuch infant, married woman, guardian, truftee, or other perfon or perfons, having any eftate or interell determinable upon fuch life or lives, to re-enter upon the faid lands, tenements or hereditaments, and for such infant, married woman, or other perfon or perfons, having any eftate or intereft determinable upon fuch life or lives, his, her or their executors, adminiftrators or affigns, to maintain any action or actions against those who, fince the faid order, received the profits of fuch lands, tenements or hereditaments, or their executors or adminiflrators, and therein to recover full damages for the profits of the fame received, from the time that fuch infant, married woman, or other perfon or perfons, having any estate or intereft determinable upon fuch life or lives, were ouited of the poffeffion of fuch lands, tenements or hereditaments. VI. Provided alfo, and be it further enacted by the authority aforesaid, That if any fuch guardian, truftee, hufband, or other perfon or pertons, holding or having any eftate or intereft determinable upon the life or lives of any other perfon or perfons, fhall, by affidavit, or otherwife, to the fatisfaction of the faid court, make appear, that he, fhe or they hath or have used his, her or their utmost endeavours to procure fuch infant, married woman, or other perfon or perfons, on whofe life or lives fuch eftate or intereft doth or fhall depend, to appear in the faid court of chancery, or elsewhere, according to the order of the faid court in that behalf made, and that he, fhe or they cannot procure or compel fuch infant, married woman, or other perfon or perfons, fo to appear, and that fuch infant, married woman, or other perfon or perfons, on whofe life or lives fuch eftate or intereft doth or fhall depend, is, are or were living at the time of fuch return made and filed as aforefaid; then it fhall be lawful for fuch perfon or perfons to continue in the poffeffion of fuch eftate, and receive the rents and profits thereof for and during the infancy of fuch infant, and the life or lives of fuch married woman, or other perfon or perfons, on whofe life or lives fuch eftate or intereft doth or fhall depend, as fully as he, fhe or they might have done if this act had not been made. VII. And be it further enacted by the authority aforefaid, Guardians, &c. hold- That every perfon, who, as guardian or truftee for an intermination of life of fant, and every husband feifed in right of his wife only, and infant, &c. adjudged trespaffers; every other perfon having an eftate determinable upon any life or lives, who, after the determination of fuch particular eftates or interefts, without the exprefs confent of him, her or them, who are or shall be next and immediately entitled upon and after the determination of fuch particular eftates or interefts, fhall hold over and continue in poffeffion of any meffuages, lands, tenements or hereditaments, fhall be, and are hereby And perfon entitled adjudged to be trefpaffers; and that all and every perfon to recover damages. and perfons, his, her and their executors and adminiftrators, who are or fhall be entitled to fuch mefluages, lands, tenements or hereditaments, upon or after the determination of fuch particular eftates or interefts, fhall and may recover in damages against every fuch perfon or perfons fo holding over as aforefaid, and againft his, her or their executors or adminiftrators, the full value of the profits received during fuch wrongful poffeffion as aforefaid. ing eftates after de CHAP. XI. An ACT for rendering the Proceedings upon Whits of Mandamus and Informations, in the nature of Quo Warranto, more fpeedy and effectual. Pafled 6th February, 1788. New-York, 1. BE it enacted by the people of the flate of New York, represented in senate and affemily, and it is hereby enacted by the authority of the fame, That if any mandamus fhall iffue out of the fupreme court, directed and delivered to any perfon or perfons, who, by the laws of this ftate, are required to make a return to fuch writ of mandamus, fuch perfon or perfons fhall make his or their return to the firft writ of mandamus. 11. And be it further enacted by the authority aforefaid, That from and after the paffing of this act, as often as any writ of mandamus fhall iffue out of the faid fupreme court, and a return fhall be made thereunto, it fhall and may be lawful to and for the perfon or perfons fuing or profecuting fuch writ of mandamus, to plead to or traverfe all or any the material facts contained within the faid return, to which the perfon or perfons making fuch return fhall reply, take iffue or demur; and fuch further proceedings, and in fuch manner, fhall be had therein for the determination thereof, as might have been had if the perfon or perfons fuing fuch writ, had brought his or their action on the cafe for a falfe return; and if any iffue fhall be joined on fuch proceedings, the perfon or perfons fuing fuch writ, fhall and may try the fame in fuch place as an iffue joined in fuch action on the cafe fhould or might have been tried: and in cafe a verdict fhall be found for the perfon or perfons fuing fuch writ, or judgment given for him or them upon a demurrer, or by nil dicit, or for want of a replication or other pleading, he or they fhall recover his or their damages and cofts, in fuch manner as he or they might have done in fuch action on the cafe as aforefaid; and fuch damages and cofts fhall and may be levied by fieri facias, or capias ad fatisfaciendum, as in other cafes, and a peremptory mandamus fhall be granted without delay, for him or them for whom judgment fhall be given, as might have been, if fuch return had been adjudged infufficient; and in cafe judgment fhall be given for the perfon or perfons making fuch return to fuch writ, he or they fhall recover his or their cofts of fuit, to be levied in manner aforefaid. III. Provided always, and be it further enacted by the authority aforefaid, That if any damages fhall be recovered by virtue of this act, against any fuch perfon or perfons making fuch return to fuch writ as aforefaid, he or they fhall not be liable to be fued in any other action or fuit, for the making fuch return; any law, ufage or cuftom to the contrary thereof notwithftanding. IV. And be it further enacted by the authority aforefaid, That in cafe any perfon or perfons fhall ufurp, intrude into, or unlawfully hold and execute any office or franchife within this ftate, it fhall and may be lawful to and for the attorney-general, with the leave of the faid fupreme court, to exhibit one or more information or informations, in the nature of a quo warranto, at the relation of any perfon or perfons defiring to fue or profecute the fame, who fhall be mentioned in fuch information or informations, to be the relator or relators, against fuch perfon or perfons fo ufurping, intruding into, or unlawfully holding and executing, any fuch office or franchife, and to proceed therein in fuch manner as is ufual in cafes of informations, in the nature of a quo warranto; and if it fhall appear to the faid fupreme court, that the feveral rights of divers perfons to the fame office or franchife, may properly be determined on one information, it fhall and may |