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STATE OF NE W-YOR K, Passed in the ÉLEVENTH SESSION of the LEGISLATURE,
held at POUGHKEEPS1B, in Dutchess County
сн А Р. ІІ. An ACT to prevent Delays of Proceedings at the General Sefions of the . ::Peace, and Abuses in fuing out Writs of Certiorari.
Paffed 6th February, 28. 1. R Eit enacted by the people of the ftatc of New-York, represenied tnate
D and offembly, and it is hereby enalled by the authorily of me feme, That all writs of certiorari for the removal of any indictinent or presentment, or any judgment or order, out of any court of general fellions of the peace, shall be delivered at the fessions of the peace, in open court.
II. And be it further enacted by the authority aforesaid, That in term time, no wilt of certiorari whatsoever, at the prosecution of any party indicted or presented, be hereafter granted, awarded or directed, out of the fupreme court, to remove any indictment or prefentiment, of or for any treipais, riot, forcible entry, assault and battery, fraud, nuisance, contempt or misdemeanor whatsoever, before trial had, from before any justices in their courts of general sessions of the peace, unless such certiorari llall be granted or awarded upon motion of countel, by rule of court, made for the granting thereof, before the justice or justices of the supreme court, fitting in open Parties profecnting count; and
nting court; and that all the parties indicted, profecuting luch fich writs, to find certiorari, before the allowance thereof, shall find two fufIrueties to appear and appear and ficient fureties, who shall enter into a recognizance to the
people of the state of New York, before one of the justices of the supreme court, or before one or more justices of the peace of the county or place, or before the justices at their general fellions of the peace of the county or place, where such indictment or presentment shall be found or made, in the sum of fifty pounds: With condition, That the party or parties so indicted or presented, and prosecuting such certiorari, shall, at the return of such writ, appear and plead to the faid indictment or presentment in the said supreme court, and at his, her or their own costs and charges, Cause and procure the itsue that shall be joined upon the said indictment or prefeniment, or any plea relating thereto, to be tried at the next circut court, to be held for the county wherein the said indictment or presentment was found or made, after such certiorari shall be returnable, if not in the county where the faid fupreme court shall fit, and if in such county, then to
cause or procure it to be tried the next terin after such certiorari shall be granted, if the said fupreme Court shall not appoint any other time for the trial thereof, and if any other time shall be appointed by the said supreme court, then at such other, time, and shall give due notice of such trial to the prosecutor or his attorney, and shall appears from day to day, in the faid supreme court, and.nói depart until he, se or they Mall be discharged by the said court. And moreover, That in any of the vacations, writs of certiorari may be granted by any of the justices of the supreme court, whose name shall be emreorsed on the said wiit, and also the name of such person at whose ir imce the fame is granted; and that the party or parties indicted or presented; prosecuting such certiorari, shall, before the allowance of such writ or waits of certiorari, find such sureties, in such sum, and with such conditions. a9 pre before mentioned and specified. And further, That every recognizance taken as aforesaid, shall be delivered to the court or justices to wirons de certiorari is directed, together with the said writ; and the recognizani so taken as aforesaid, shall be certified into the said supreme court,
With the said certiorari and indictment or presentment, and there filed, and ..the name of the prosecutor, if he be the party, grieved or injured, or some
public officer, shall be endorsed on the back of the said indictment or prefentment; and if the person prosecuting such certiorari, being the defendant, Thall not, tefore allowance thereof, procure such sureties to be bounden in a rec nizance as aforesaid, the justices of the peace may and shall proceed to tria the said indictment or presentment, at the faid general sellions of the peaa, notwithstanding such writ of certiorari so delivered.
III. And be it further enačied by the authority aforesaid, 0 conviction of That if the defendant profecuting such writ of certiorari, be the defendant protecuring doch writ, the convicted of the offence for which he was indicted or preprofecutur, if the
ed or un sented, that then the said supreme court Inall give reasonar officer, to have cofts. ble costs to the prosecutor, if he be the party grieved or in
jured, or be a justice of the peace, mayor, recorder, alderman, conftable or overseer of the poor, or any other civil officer, who shall profecute upon the account of any fact committed or done, or any thing omnitted that concerned him or them as officer or officers, to prosecute or present; which cols shall be ta xed according to the course of the said supreme court; and that the prosecutor for the recovery of the said costs, Inall, at any time after the expiration of ten days afier demand made of the defendant, and refusal or neglect of payment, proof thereof being made on oath, have an attachment granted against the faid defendant by the said court, for such his contempt; and that the said recognizance fhall not be discharged until the costs fo ta xed shall be paid.
IV. And whereas in many cases where juftices of the peace are empowered by law to give or make judgments or orders, writs of certiorari have been procured to remove such judgments or orders into the supreme court, in the hope thereby to discourage and weary out the parties concerned in such judgments or orders, by great delays and expences: For remedy whereof, Be it further enacted by the authority aforesaid, That no certiorari
shall be allowed to remove any such judgment or order der to be removed by from before any justice or justices of the peace, or general
feffions of the peace, other than judgments given or to be dins, witluut lure given in fuits or actions for debts or demands, between ties given to prof.
party and party, made or to be made cognizable before justices of the peace, or any of them, unless the party or
No judgmertor os.
certiotari fron before a justice, or the fef.
parties prosecuting such certiorari, before the allowanie thereof, shall find fufficient fureties, who shall enter into a recognizance to the people of the Nate of New York, before one of the justices of the supreme court, or ber fore one or more justices of the peace of the county or place, or before the justices at their general sessions of the peace of the county or place, where such judgment or order shall have been given or made, in the sum of fifty pounds: With condition, That the party or parties prosecuting such certiorari, shall profecute the fame, at his, her or their own costs and charges, to effect, without any wilful or affected delay, and perform fuch judginent or order, as the same supreme court shall give or make against him or them in the premises, and pay the party or parties in whose favour or for whose benefit such judgment or order fo to be removed was given or inade, within one month after the said judgment or order shall be confirmed, his, her or their full costs and charges, to be taxed according to the course of the faid supreme court; and in case the party or parties profecuting such certiorari shall not procure such furetics, to be bound in such recognizance as aforefaid, it shall and may be lawful for the said justice or justices, or court of general sessions of the peace, to proceed and make such further order or ora ders, for the benefit of the party or parties for whom suclı 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 aforesaid, shall be delivered, together with the writ of certiorari, toe juftice or justices, or court to whom such writ shall be directed, and the said recognizance shall be certified into the said supreme court, with the faid certiorari, and the judgment or order removed thereby, and there filed; and if the faid judgment or order shall be confirmed by the said court, the person or persons entitled to such costs, for the recovery thereof, at any time after the expiration of ten days afier demand made, of the person or persons who ought to pay the said costs, upon oath made of the making fuch demand, and refusal or neglect of the payment thereof, Mall have an attachment against hiin, her or them,granted by the faid court for such contempt; and the said recognizance so given upon the allowing of such certiorari, nall not be discharged until the costs shall be paid, and the judgment or order fo confirmed shall be complied with and obeyed.
V. And be it further enaĉied by the authority aforesaid, That no writ of certiorari shall be hereafter granted to remove any indictment, presentment, judgment, order, recognizance or other process or proceeding, unless the fame writ be signed with the proper hand of one of the juflices of the fupreme court, and in default thereof such writ shall be void and of none effect.
CH A P. III,
Pafled 6th February, 1788.
That no execution shall be stayed or delayed, upon or by No execution to be Ilayed by writ of er ally
be any writ of error or supersedeas thereupon to be sued for Tor on judgments, for the reversing of any judgment, given or to be given, in any ient,or upon contrae, action of debt upon any single bond. for debt, or upon any Without tarcties given obligation, with condition for the payment of money one the debt and cofls. in ly, or upon any action of debt for rent, or upon any conJuigovent,
tract sued in any court of record in this state, unlets fuck
debt on bond, or for
to profecute and pay
rafo of athrmance of
person or persons in whose name or names such writoferror Mall be brought, with two fufficient sureties, such as the court, wherein such judgment is or snall be given, shall allow of, mall first, before such stay made, or supersedeas awarded, be bound unto the party for whom any such judgment is or shall be given, by recognizance, to be acknowledged in the same court, in double the sum adjudged to be recovered by the said former judgment, to profecute. the said writ of error with effect, and also to satisfy and pay, if the said judgment shall be affirmed, all and singular the debts, damages and costs, adjudged or to be adjudged upon the former judgment, and all costs and damages to be awarded for the delay of execution. And further, That no execution shall be stayed or delayed in any of the courts aforesaid, by any writ or writs of error, or supersedeas thereupon, after any verdict and judginent thereupon obtained, in any personal action whatsoever, unless such recognizance, and in such manner as is above directed, shall be firft acknowledged in the faid court where such judgment is or shall be given.
11. rind be il further enacted by the authority aforesaid, 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 shall be thereupon or hereby stayed, unless the plaintiff or plaintiffs in such writ of error, shall be bound unto the plaintiff in such writ of dower, or action of ejectment, in such reafonable Tum, as the courts to which such writ of error Iball be directed, shall think : With condition, That if the judgment shall 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 said plaintiff or plaintiffs be nonsuit in such writ of error, that then the said plaintiff or plaintiffs shall pay such costs, damages, and sum and sums of money, as shall be awarded upon or after such judgment affirmed, discontinuance or nonfuit. And to the end that the same lum and sums of money, and damages may be ascertained, thie court wherein such execution ought to be granted, upon such affirmation, discontinuance or non suit, shall islue a writ to enquire as well of the mese profits, as of the damages, by any waste committed after the first judgment in dower, or in ejectment; and upon the return thereof, judgment shall be given, and execution awarded for such mesne profits and damages, and also for the costs of suit. Provided always, that this act, or any thing therein contained, shall not extend to any writ of error to be brought by any execu- . tor or adininistrator, nor to any action popular, nor to any action upon any penal statute, nor to any indictment, presentinent, inquisition, information or appeal.
CH A P. IV.
Passed 6th February, 1788. 1. R E it enacted by the people of the fate of New-York, represented in fenate
D. and assembly, and it is hereby enacled by the authority of ihe jane, That where any person is or shall be bound or liable to account, as guardian, bailiff, receiver or otherwise, to any other, and will not give account willingly, and the party to whom such account ought to be made, shall fue out a writ of account, if the person against whom such writ is iflued, being summoned, do not appear at the return of the writ, or if it be returned, that the defendant hath nothing, then the defendant Mall be attached by his or her body, to come and make his or her account ; and if it be returned, that