and award a writ to make partition, whereby fuch proportion, part and purpart may be fet out feverally; which writ being executed, after eight days notice given to the occupier, or tenant or tenants, of the premises, and returned, and thereupon final judgment entered, the fame fhall be good, and conclude all perfons whatsoever, after notice as aforefaid, whatever right or title they have or may at any time claim to have, in any of the manors, meffuages, lands, tenements and hereditaments, mentioned in the said judgment and writ of partition, although all perfons concerned are not named in any of the proceedings, nor the title of the tenants truly fet forth. Provided always, that if such tenant or perfon concerned, or either of them, against whom, or their right or title, fuch judgment by default is given, fhall, with in the space of one year after the firft judgment entered, or in cafe of infancy, coverture, infane memory, or abfence out of the ftate, within one year. after his, her or their return, or the determination of fuch inability, apply themselves to the court where fuch judgment is entered, by motion, and fhew good and probable matter in bar of fuch partition, or that the demandant hath not title to so much as he hath recovered; then, in such case, the court may fufpend or fet afide fuch judgment, and admit the tenant and tenants to appear and plead, and the caufe fall proceed according to due courfe of law, as if no fuch judgment had been given; and if the court upon hearing thereof, fhall adjudge for the first demandant, then the faid first judgment fhall ftand confirmed, and be good against all perfons whatsoever, except fuch other perfons as fhall be abfent or difabled as aforesaid; and the perfon or perfons fo applying, fhall be awarded thereupon, to pay cofts; or if, within fuch time or times aforefaid, the tenants or perfons concerned, admitting the demandant's title, parts and purparts, shall fhew to the court an inequality in the partition, the court may award a new partition, to be made in the prefence of all parties concerned, if they will appear, notwithstanding the return and filing upon record of the former; which faid fecond partition, returned and filed, fhall be good and firm forever against all perfons whatsoever, except as before excepted.

IV. And be it further enacted by the authority aforefaid, That no plea in abatement fhall be admitted or received in any fuit for partition; nor fhall the fame be abated by reafon of the death of any tenant.

riff to execute a writ

&c.

V. And be it further enacted by the authority aforesaid, How the under the That when the sheriff, by reafon of distance, infirmity, or of partition in the ab- any other hindrance, cannot conveniently be prefent at fence of the fheriff, the execution of any judgment in partition, in fuch cafe the under sheriff in the prefence of two juftices of the peace of the county where the lands, tenements or hereditaments to be divided, do lie, fhall and may proceed to the execution of any writ of partition, by inquifition in due form of law, as if the fheriff were then perfonally prefent; and the sheriff thereupon fhall, and is hereby enabled and required, to make the fame return as if he were perfonally prefent at fuch execution; and in cafe fuch partition be made, returned and filed, he or they that were tenant or tenants of any of the faid mefluages, lands, tenements and hereditaments, or of any part or purpart thereof, before they were divided, shall be tenant or tenants for fuch part fet out feverally to the refpective landlords or owners thereof, by and under the fame conditions, rents, covenants and refervations, where they are or fhall be fo divided; and the landlords and owners of the feveral parts and purparts fo divided and allotted as aforefaid, shall warrant and make good, to the refpective tenants, the said several

riffs, deputies and jus

tion of writs of

par.

parts feverally, after fuch partition, as they are or were bound to do, by. any agreement, leafes or grants of their refpective parts, before any partition made; and in cafe any demandant be tenant in actual poffeffion to the tenant to the action, for his part and proportion or any part thereof, in the metiuages, lands, tenements and hereditaments, to be divided by virtue of a writ of partition as aforefaid, for any term of life, lives or years, or uncertain intereft, the faid tenant fo in actual poffeffion, fhall ftand and be poffeffed of the faid purparts and proportions for the like term, and under the fame conditions and covenants, when it is fet out feverally in pursuance of this act. VI. And be it further enacted by the authority aforesaid, Sheriffs, under the That the refpective sheriffs, their under fheriffs and deputies, tices, to attend execu- and in cafe of fickness or difability of the fheriff, all juftices tition, or pay cofts and of the peace within their refpective counties fhall give due damages, not exceed attendance to the executing fuch writ of partition, unless reaing sl. fonable cause be shewn to the court, upon oath, and there allowed of, or other wife be liable, every of them, to pay unto the demandant, fuch cofts and damages as fhall be awarded by the court not exceeding five pounds, for which the demandant or plaintiff may bring his action in any court having cognizance thereof, and recover the fame with cofts; and in cafe the demandant shall not agree to pay to the fheriff or under fheriff, juftices and ju rors, fuch fees as they fhall refpectively demand for their pains and attendance, in the execution of the fame, and the returning thereof, then the court fhall award what each perfon fhall receive, having refpect to the dif tance of the place from their respective habitations, and the time they must neceffarily spend about the fame, for which they may feverally bring their actions as aforefaid,

I.

С НА Р. IX.

An ACT to redress Disorders by common Informers, and to prevent malicious Informations. Paffed 6th February, 1788. Eit 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, Informers on penal That every informer, upon any penal statute, made or to be ftatutes, to commence made, fhall exhibit or commence his fuit in proper person, their fuits in perion, and profecute in per and pursue the fame only by himself, or by his attorney in fon or by attorney. court, and that no perfon fhall be admitted or received to purfue against any perfon or perfons, upon any penal ftatute, but by action of debt, bill, plaint or information, and not otherwife, nor fhall have, nor use any deputy or deputies at all; and that upon every fuch information which fhall be exhibited, a special note be made of the very day, month and year of the exhibiting thereof, into any office, or to any officer who lawfully may receive the fame, without any manner of antidate thereof to be made, and that the fame information shall be accounted and taken to be of record from that time forward, and not before; and that no procefs be fued out upon fuch information, until the information be exhibited in form aforefaid. And further, That upon every process to be fued out upon any fuch action, bill, plaint or information, to compel the appearance of any defendant, shall be endorfed, as well the name of the party who purfueth the fame procefs, as alfo the title of the ftatute upon which the action or information, in that

behalf had or made, is grounded; and that every clerk, maki ing process, contrary to the tenor and provifion of this act, fha lofe three pounds for every fuch offence; the one half to the use ple of this ftate of New-York, and the other half to the party agai any fuch defective procefs fhall be awarded; to be recovered, with its, in any court having cognizance thereof, by action of debt, bill, plaint or information,

to be laid in the coun

where.

II. And be it further enacted by the authority aforefaid, In all informations, That in all informations to be exhibited, and in all bills, bills, plaints and de clarations, the offence plaints and declarations in any action or fuit, to be comty where it was com- menced against any perfon or perfons, either by or on bemitted, and not elfe- half of the people of the ftate of New-York, or by any other, or on the behalf of the people of the state of NewYork, and any other, for or concerning any offence committed or to be committed against any penal ftatute, made or to be made, the offence fhall be laid and alledged to have been committed in the county where fuch offence was in truth committed, and not elsewhere; and if the defendant to any fuch information, action or fuit, pleadeth that he oweth nothing, or that he is not guilty, and the plaintiff or informer in fuch information, action or fuit, upon evidence to the jury that fhall try fuch iffue, fhall not both prove the offence laid in the faid information, action or fuit, and that the fame offence was committed in that county, then the defendant and defend, ants fhall be found not guilty. Provided always, That this act, or any thing herein contained, fhall not extend to the laying or alledging of any offence in any declaration, bill, plaint or information, for or concerning any maintenance, champerty, buying of titles, imbracery or extortion, or for or concerning any matter of corrupt ufury, or for or concerning any custom, duty or impoft, upon any goods, wares or merchandize, imported or to be imported into this ftate; but that every fuch offence shall or may be laid in any county, at the pleasure of any fuch informers,

laws, defendants may

matter in evidence,

III. And be it further enacted by the authority aforefaid, In actions on penal That if any information, fuit or action, shall be brought or plead the general iffe, exhibited against any perfon or perfons, for any offence and give the special committed or to be committed against the form of any penal law made or to be made, either by or on behalf of the people of the ftate of New-York, or by any other, or on the behalf of the people of the ftate of New-York, and any other, it fhall be lawful for fuch defendants to plead the general iffue, that they are not guilty, or that they owe nothing, and to give fuch fpecial matter in evidence to the jury that shall try the fame, as if pleaded, would have been a good and fufficient matter in law to have discharged fuch defendant or defendants, against the faid information, fuit or action, and the faid matter fhall be as available to him or them, to all intents and purposes, as if he or they had fufficiently pleaded, fet forth or alledged the fame matter in bar or discharge of such information, fuit or action.

IV. And be it further enacted by the authority aforefaid, That the like procefs in any action, bill, plaint, information or fuit, to be commenced, fued or profecuted upon any penal ftatute, made or to be made, fhall be had and awarded, to all intents and purpofes, as in an action of trespass with force and arms at the common law.

N. And be it further enacted by the authority aforesaid, or of the United States, That if any citizen of this ftate, or of any of the United

Citizens of this state,

Vol. II.

Court, or court of ex

bail.

fued in the fupreme States of America, fhall be fued or informed against in the chequer, upon any pe- fupreme court, or in the court of exchequer, upon any penal pil law, inay appear law, made or to be made, where fuch perfon is bailable by by attorney, without law, or where by the leave or favour of the court fuch perfon may appear by attorney, then, in all and every fuch cafe, the perfon so impleaded or fued, fhall and may, at the day and time contained in the firft procefs, ferved for his or her appearance, appear by attorney of the fame court where the process is returnable, to answer and defend the fame, and thall not be urged to a perfonal appearance, or to put in bail for the antwering of fuch fuit. VI. And be it further ended by the authority aforefaid, When the trial of That no jury fhall be compelled to appear in the fupreme any iffe upon a penal Statute, may be at Court, or court of exchequer, for the trial of any iffue in any action, information or fuit, upon any penal ftatute, for any offence committed above thirty miles from the place where the fame court fhall fit, except in cafe where the attorney-general for the time being, for fome reasonable caufe in that behalf to be fhewed, fhall require the fame to be tried at the bar in either of the faid courts, which request shall be noted on the back of the writ of diftringas thereupon awarded, to the end the fheriff, or his bailiff, may and shall fignify the fame to the jury that are in fuch cafe impanelled.

bar.

Covin, in a popular

faith.

VII. And be it further enacted by the authority aforesaid, Recovery or bar by That if any perfon or perfons fhall fue with good faith, any action, no plea in an action popular, and the defendant or defendants in the fame aft on fed with good action, plead any manner of recovery in any action popu lar, in bar of the faid action, or elfe that the fame defendant or defendants plead, that he or they, before that time, barred any plaintiff or plaintiffs in any fuch action popular, that then the plaintiff or plaintiffs, in the action taken with good faith, may aver that the faid recovery in the faid action popular was had by covin, or elfe aver, that the faid plaintiff or plaintiffs fo barred, was or were barred in the faid action popular, by covin; and then, if after fuch averment, the faid collufion or covin fo averred, be lawfully found, the plaintiff or plaintiffs in the action fued with good faith, fhall recover, according to the nature of the action, and have execution upon the fame, in like manner as if no fuch action or recovery had been before had. And further, That in every fuch action popular, wherein the defendant or defendants fhall be lawfully condemned, or attainted of covin or collufion as aforesaid, every fuch defendant fhall have imprisonment of two years, by process of capias, to be fued within the year after fuch judgment had, or at any time after, until the faid defendant or defendants fhall be had and imprisoned as aforefaid, and that as well at the fuit of the people of the state of New-York, as of every other that will fue in that behalf, and fuch process fhall and may be pursued to outlawry. And moreover, no releafe of any common perfon made or to be made to any fuch defendant or defendants, whether be fore or after any action popular, or indictment of the fame had or commenced, or made or pending the fame action, fhall be in any wife available or effectual to let, furceafe or bar the faid action, indictment, process or execution. Provided always, That no plaintiff or plaintiffs be, in any wife, received to aver any covin in an action popular, where the point of the fame action, or else the covin or collufion, have been once tried, or lawfully found with the plaintiff or plaintiffs, or against them, by the verdict of twelve men, and not otherwife.

No informer, or plaintiff, to compound

without confent of gourt.

VIII. And be it further enadied by the authority aforefaid, with any offender, That no informer or plaintiff, in any action popular, fhall or may compound or agree with any perfon or perfons, who shall offend, or fhall be furmised to have o tended againft any penal statute, made or to be made for fuch of fence committed, or pretended to have been committed, but after anfwer made in court to the information or fuit in that behalf exhibited or profecuted, nor after answer, but by the order or confent of the court in which the fame information or fuit is or fhall be depending. And further, That if any fuch informer or plaintiff as aforefaid, fhall willingly delay his fuit, or fhall difcontinue or become nonfuit in the fame, or fhall have the trial or matter paffed against him therein, by verdict or judgment of law; that then, and in every fuch cafe, the fame informer or plaintiff fhall yield, fatisfy and pay unto the party defendant, his cofts, charges and damages, to be affigned by the court in which the fame fuit is or fhall be attempted. For the recovery whereof, every fuch defendant fhall, immediately upon the fame cofts, charges and damages affigned, have his execution for the fame, to be awarded unto him out of the fame court in which the fame fhall be fo affigned as aforefaid, as in other cafes of execution.

IX. And be it further enafied by the authority aforefaid, That if any perfon or perfons (except the clerks of the court only for making out of process other wife than is above appointed) fhall offend in fuing out of procefs, making of compofition, or other misdemeanor, contrary to the true intent and meaning of this act, or fall, by colour or pretence of procefs, or without process, upon colour or pretence of any matter of offence, against any penal law, make any compofition or take any money, reward, or promife of reward, for himself, or to the ufe of any other, without the order or confent of fome court of record; that then, he or they fo offending, being thereof lawfully convicted, shall for ever be difabled to purfue, or be plaintiff or informer, in any fuit or information upon any ftatute popular or penal, and fhall alfo, for every fuch offence, forfeit and lofe the fum of forty pounds; the one half thereof to the people of the ftate of New-York, and the other half to the party grieved thereby, to be recovered, with cofts, in any court of record, by action of debt, bill, plaint or information; and that juftices of oyer and terminer, juflices of gaol delivery, and juftices of the peace, in their feffions, fhall have full power and authority to hear and determine all offences to be committed or done, contrary to the true intent and meaning of this act.

X. Provided always, and be it further enalled by the authority aforefaid. That this act hall not extend to reftrain any certain perfon, body politic or corporate, to whom or to whofe ufe any forfeiture, penalty or fuit, is or fhall be fpecially limited or granted, by virtue of any ftatute, and not generally to any person who will fue, but that every fuch certain perfon, body politic or corporate, may, in fuch cafe, fue, inform and purfue, as he or they might have done, if this act had never been made.

XI. And to prevent malicious informations in the fupreme court of judicature of this flate, for trefpafies, batteries and other misdemeanors; Be it further enacted by the authority afore fuid, That the clerk of the fupreme court for the time being, fhall not, without exprefs order to be given by the faid court, receive or file any information, for any trespass, battery or other mifdemeanor, or feal any procefs thereupon, before he fhall have delivered to him, a recognizance from the perfon or perfons procuring fuch information or informations to be exhibited, to be entered into, to the perfon or perfons.