« SebelumnyaLanjutkan »
STATE OF NEW-YO: R K, Passed in the E LEVENTH SESSION of the LEGISLATURE,
, held at PoUGH KEEPSIE, in Dutchess County
CH A P. II. ÅN ACT to prevent Delays of Proceedings at the General Sesiums of the Pence, and Jbufes in suing out Writs of Certiorari.
Paffed 6th February,
18. 1. E
and asembly, and it is hereby enačied by the aui horily of ine lame, That all writs of certiorari for the removal of any indictment or presentment, or any judgment or order, out of any court of general fillions of the peace, shall be delivered at the fessions of the peace, in open court.
II. And be it further enacted by the authority aforefaid, That in term time, no writ of certiorari whatfoever, at the prosecution of any party indicted or presented, be hereafter granted, awarded or directed, out of the supreme court, to remove any indi&tment or prefentinent, of or for any treipais, riot, forcible entry, aflault and battery, fraud, nuisancè, contempt or mildemeanor whatsoever, before trial had, from before any justices in their courts of general sessions of the peace, unless such certiorari Diall be granted or awarded upon motion of countėl, by rule of court, made for the granting thereof, before the justice or justices of the supreme court, fitting in open Parties profeenting court; and that all the parties indicted, profecuting such fach writs, to find certiorari, before the allowance thereof, shall find two fufIrueties to appear and profecute.
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 juslices 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 prefentment shall be found or made, in the sum of fifty pounds: With condition, That the party or parties fo indicted or presented, and prosecuting such certiorari, shail, at the return of such writ, appear and plead to the said indictment or presentment in the said supreme court, and at his, her or their own costs and charges, caule and procure the issue that shall be joined upon the said indiétment or presenunent, 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 said fupreme court shail tit, and if in fuch county, then to Vol. 11.
cause or procure it to be tried the next term after such certiorari shall ba granted, if the faid fupreme court shall not appoint any other time for the trial thereof, and if any other time shall be appointed by the said fupreme court, then at such other, time, and shall give due notice of such trial to the prosecutor or bis asterney, and shall appear, from day to day, in the faid fupreme court, and no depart until he, she or they shall be discharged by the faid court. And moreover, That in any of the vacations, writs of certiorari may be granted by any of the justices of the supreme court, whole name shall be emersed on the said wit, and also the name of such person at whofe irtance 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. as 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 faid writ; and the recogniz oca 1o taken as aforesaid, Mall be certified into the said supreme court,
with the said certiorari and indictment or presentment, and there filed, and ::the name of the profecutor, if he be the party grieved or injured, or some public oficer, shall be endorsed on the back of the said indictment or prefintment; and if the person profecuting such certiorari, being the defendant, Thall not, tefore allowance thereof, procure such sureties to be bounden in a rec izance as aforesaid, the justices of the peace may and shall proceed to tri the said indictinent or presentment, at the faid general fellions of the peace, notwithstanding such writ of certiorari so delivered.
III. And be il further enaced by the authority aforeluid, On conviction of That if the defendant prosecuting such writ of certiorari
, be cucing tech writ
, the convicted of the offence for which he was indicted or preparty grieved, or an fented, that then the faid supreme court fall give reasonas oficer, to have costs. ble costs to the profecutor, if he be the party grieved or in
jured, or be a justice of the peace, mayor, recorder, alderman, constable 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 profecute or present; which colts shall be ta xed according to the course of the faid fupreme court; and that the prosecutor for the recovery of the faid costs, inall, at any time after the expiration of ten days afer demand made of the defendant, and refusal or neglect of payment, proof thereof being made on oath, have an attachment granted againit the faid defendant by the faid court, for such his contempt; and that the said recognizance shall not be discharged until the costs fo ta xed shall be paid.
IV. And whereas in many cases where justices 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 firther enatied by the authority aforesaid, That no certiorari
shall be allowed to remove any such judgment or order
party and party, made or to be made cognizable before
parties prosecuting such certiorari, before the allowanie thereof, shall find sufficient fureties, who shall enter into a recognizance to the people of the ftate of New York, before one of the justices of the supreme court, or be fore one or more justices of the peace of the county or place, or before the justices at their general sellions 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 certiofari, shall profecute the same, at luis, her or their own costs and charges, to effect, without any wilful or affected delay, and perform such 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 whole favour or for whose benefit such judgment or order so to be removed was given or inade, within one month after the said judgment or order shall be confirmed, liis, her or their full costs and charges, to be taxed according to the course of the faid supreme court; and in case the party cr parties profecuting such certiorari shall not procure such fureties, to be bound in such recognizance as aforefaid, it shall and may be lawful for the said juslice or justices, or court of general sessions of the peace, to proceed and make such further order or orders, for the benefit of the party or parties for whom such judgment or or-. der shall be made or given, in such 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, to be juftice or justices, or court to whom such writ shall be directed, and the iaid 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 said judgment or order shall be confirmed by the said court, the perfon 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, Thall 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 luch certiorari, all 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 enaĉed 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 juslices of the fue preme court, and in default thereof such writ shall be void and of none effect.
CH A P. III.
Palled 6th February, 1788.
That no execution shall be stayed or delayed, upon or by tayed by writ offers any writ of error or supersedeas thereupon to be sued for more on julgaments, for the reversing of any judgment, given or to be given, in any lentorupun central, action of debt upon any single bond, for debt, or upon any without iureties 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 conjungosenic. tract fuel in any court of record in this fate, unlets fucked
No execution to be
person or persons in whose name or names such writoferror shall be brought, with two sufficient sureries, such as the court, wherein such judgment is or shall be given, shall allow of, shall first
, before such stay made, or fuperfedeas 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 faid former judgment, to profecute. the said writ of error with eflect, and also to satisfy and pay, if the laid judgment shall be afiirmed, all and singular the debts, damages and costs, 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 shall be stayed or delayed in any of the courts aforesaid, by any writ or writs. of error, or luperfedeas thereupon, after any verdict and juiginent thereupon obtained, in any personal action whatsoever, unless such recognizance, and in such manner as is above directed, shall be firt acknowledged in the faid court where such judgment is or shall be given.
11. rind be it further chafied 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 ftayed, unless the plainti? or plaintifis in such writ of error, shall be bound unto the plaintiff in such writ of dower, or action of ejectment, in such reasonable lum, as the courts to which such writ of error Iball be directed, shall think: With condition, That if the judgment Mhall 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 fum and sums of money, as shall be awarded upon or after such judginent affirmed, discontinuance or nonsuit. And to the end that the same ium and sums of money, and damages may be ascertained, thie court wherein such execution ought to be granted, upon such affirmation, discontinuance or nonsuit, shall illue a writ to enquire as well of the mese prosts, 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, Mall not extend to any writ of error to be brought by any executor or adininistrator, nor to any action popular, nor to any action upon any penal statute, nor to any indictment, presentment, inquifition, information or appeal.
CH A P.
Passed 6th February, 1788. 1. IB
E it ena led by the people of the fate of New-York, represented in fenate
and assembly, and it is hereby enaĉled by the authority of ihe jarre, 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, Ihall sue 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 shall be attached by his or her body, to come and make his or her account; and if it be returned, that