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the plaintiff shall have his or her writ of entry upon disleisin, against the heir or heirs of the diffeisor or diffeisors, of wliat age foever sucli heir or heirs may be ; and likewise the heir or heirs of the dificisee, shall have his, her or theit writ or writs of entry, against the diffeisors, or their heirs, of what age soever they be, if the disleisee die before he liath purchased liis writ, so tirat for the non-age of the heirs of the one part or other, the writ Niall not be abated, nor the plea delayed.
XXV. And be il further enadied by the authority aforesaid, That if a child within age be holden from his or her inheritance, after the death of his or hier father, mother, brother, filter, coulin, grand-father or great-grand-father, whereby such infant is driven to his or her writ, and his or her adverfary corneth into the court, and for answer alledgeth a feollinent, or pleadeth some other thing by which the court would formerly award the age, and defer the inquest until the full age of the infant, from henceforth, in every such case, the inqueft shall not be deferred until the full age of the infant, but shall pafs as if he or she was of full age.
XXVI. Ardbe it further enačied by the authority aforesaid, Tenente in affire, That all tenants in allife of novel diileisin, may either appear or by aturaey or bai and plead in person, or make, and appear and plead by their
attornies, or plead by bailiffs at their pleasure. XXVII. And be it further enacted by the authority afurejard, That the panels of the afiles thall, in all cases, be arrayed, and a copy thereof delivered by thre sheriff, or his deputy, to the plaintiffs, tenants and defendants, if they demand the fame, at lealt six days before the circuit court, or feffion of the justices at which the same shall be returnable, upon pain that every sheriff or other officer neglecting his duty herein, fhall forfeit, for every offence, to the party grieved, the lum of twenty pounds; to be recovered, with costs of suit, in any court of record, by action of debt, bill, plaint or information.
XXVIII. And be it firther enalled by the authority asorefaid, That the plaintiff in every affise may, from henceforth, at his pleasure, fever and abridge his or her plaint of a moiety, or any other part or parts whereunto any bar is or shall be pleaded, in such like manner as he or The might do in cafe the pleas in bar had been made, and divided to any certainty or number of acres in the plaint; and that the plaint for the residue of the part of parts of the lands, not abridged, Mall be and stand good and eficAtual in the law.
XXIX. And bc it firther cnakled by the authority aforesaid, That from the time any plea fhall be moved by writ, the tenant shall not make any wafte or eftrepement of land in demand, pending the fuit ; and if he or the do, the court wherein the plea depends, shall cause the land in demand to be kept at the suit of the demandant.
XXX. Ard be it further enaded by the authority aforesaid, That all writs of fummons, and attachments, and other process in pleas of lands, snall, from henceforth, have full fifteen days at the least between the days of the test and ille days of the return thereot. And further, That in all writs of dower, after issue joined, it shall not be needful or requisite to liave above fifteen days between the test and return of the venire facias, or any other process to be sued out for the trial of the faid issue, bùt that ihe writ of venire facias, and other process after iffue joined, and until judginent be given, having only fifteen days between the test and the return thercof, shall be good and effectual. And also, That all writs of summons to the warranty, and ali other process in any real action, being tested the last day, or any other day in any term, and returnable the first day, or any other day in the next fucceeding term, shall be good and effectual.
On return ofattach
Summons in real ac XXXI. And for avoiding secret suinmons in real actions, jions to be proclained ac the church door, without convenient notice to the tenants of the freehold;
Be it further enacted by the authoriiy aforcjaid, That after every summons upon the lands in any real action, and fourteen days at the least before the day of the return thereof, the sheriff to whom such jummons shall be directed, shall make, or cause proclamation of the fame summons to. be made, at or near the most usual door of the church of the town or place where the land whereupon the summons was made, doth lie, upon a Sunday, immediately after divine service and sermon, if any there be ; and if there be more than one church in such town, then such proclamation shall be made, in form aforesaid, at or pear to the inoft usual door of the church nearest to the faid lands; and if there be no church in such town, then such proclamation shall be made, in form aforesaid, at or near to the moit usual door of the church in the fame county nearest to the said land ; and juch proclamation fo made as aforesaid, shall be returned together with the names of the fummoners; and if such summons shall not be proclaimed and returned as aforesaid, then no grand cape to be awarded, but an alias or pluries. summons, as the cause shall require, until a summons and proclamation Mail be duly made and returned as aforesaid.
XXXII. And for avoiding delays in all manner of writs and attachments ; Be it jurlher enacted by the authoriiy aforefuid, That if the tenant or defend
ant after the first attachment returned, inake default, the ment, diftrets to be great distress shall be immediately awarded, and the tenant
or defendant fhall be distrained from time to time, until lie or she do appear, or comply with the purpose of such writ. And if the sheriff do not make a sufficient return to any such writ, at the day of the return thereof, he shall be amerced.
XXXIII. And whereas the proces by diftringas as heretofore used, is dilatory and expensive; For remedy whereof, be it further enacted by tie arthority aforcjuid, That the court out of which the writ proceeds, may order the issues levied froin time to time to be sold, and the monies ariling ihereby to be applied to pay such costs to the plaintiff as the court fall think julí, under all the circumstances to order, and the surplus to be rciained until the defendant or tenant shall have appeared, or other purpose of the writ be anfwered ; and when the purpose of the writ is aniwered, that then the said illues shall be returned, or if fold, what shall remain of the money arising by such sale, shall be repaid to the party distrained upon.
XXXIV. And because such things as be recorded before the chancellor and the judges and justices who have record, and be inrolled in their rolis, process of plea ought not to be made by fuminons, attachinent, view of land and other olemnities of the court, as hath been used to be done of bargains and covenants made out of court; Therefore, Be it further could lay the authorils aforesai, That from her.ceforth thofe things which are found inin what cafes fuire rolled before those who have record, or contained in finus,
whether they be recoveries or judgments had, or contracts, covenants, obligations, services or customs acknowledged, or other thing whatsoever inrolled, wherein the cout, withou: ofence of the low and custom, may execute their authority, shall have such force that the party, at any time within the year after the same are or mall he had, levied or ac. knowledged, shall have a wiit of execution of the same; and when the fwe, judgment, recovery or recognizance be levied, had or made, of a further ime passed, the sheriff all be commanded that he inake known to the party of whom it is complained, that he e le le lefore the juicts or couri ai a
facias to fue.
certain day, to snew if he or she have any thing to say why such matters isiTolled or contained in the fine, ought not to have execution'; and if he or she do not come at the day, or do come and can say nothing why execution ought not to be done, the sherift shall be commanded to cause the thing inrolled or contained in the fine, to be executed.
XXXV. And be it further enaĉied by the authority aforesaid, That where a verdiet hath been or shall be found in altise, or in any other action whatroever, and the parties have been or shall be adjourned upon difficulty in law upon the matter so found, the plaintiff shall not be non-suited, if the verdict pass against him or her.
CH A P. LIII. + 8th fell. ch. 27. An ACT to amend an Aēl, entitled, f“ An fa for mak
ing Process in Courts of Equity effetual again't Mortgagers who abscond, ad cannot be served therevith, or who refuse to appear.
Passed 13th March, 1787. THEREAS in and by the act, entitled, an act for making process in
courts of cquity effectual againit mortgagers who abscond, and can. not be served therewith, or who refuse to appear, passed the 7th of March, 1785, it is directed, That before any decree shall be made on any bill therein mentioned, the court shall cause the mortgaged premises to be appraised, on cath, by two indifferent persons to be appointed by the court, that the value of the same may be known by the court, as nearly as may be, before the decree be made : And whereas it is found by experience, that in moft cases the caufing the mortgaged premises to be appraised in manner aforesaid, be fore any decrcę Mall be made, is attended with delay and considerable expence, and no valuable purpose answered thereby; Therefore,
Be it cračied by the people of the stale of Ne-York, represented in fenate and asembly, and it is hercby enacted by the authorily of the fame, That it Mall and may be lawful for the chancellor to decree and order a sale of any such mortgaged premises, in pursuance of the said act, without any fuch appraisement as a torelaid, except in such cases where he thall judge the fame to be necessary; any thing in the aforesaid ad to the contrary notwithstanding.
CH A P. LIV. qui fefi. ch 27. An ACT to amend a! Ait, cititled, i An AX for Relief
againt absconding and absent Debtors.
Palled 13th March, 1787. HEREAS doubts may arise upon the said act, whether deeds erabíconding or concealed debtors, after their decease, are valid in the law :
De it ended by the people of the fate of New-York, represented in fenate and afembly, and it is hereby enacted by the authority of the fame, That in
all cases, as well where any such debtor or debtors shall have abfconding and absent died, as where any such debtor or debtors shall die, after difcontinued by debt the time fixed for such debtor or debtors appearance, by the
order or notification of the judge before whom the proceedings were had, shall have expired, the proceedings shall not be discontinued
by the death of such debtor or debtors, but may be carried on to a final conclusion, as if the faid debtor or debtors had remained in full life ; and all such proceedings, and all deeds executed or to be executed in pursuance thereof, are hereby declared as legal as if executed whilst the faid debior or debiors were living.
CH A P. LVI. An ACT for making Lands and Tenements, liable to be fold by Executions t
for Debt, and for the more ealy Discovery of Judymei.is, and the bunter Secule
Palled 19th March, 1787.
and assembly, and it is hereby enaĉicd by the authority of the Jane, That all and singular the lands tenements and real estate of every debtor, shall be, and hereby are made liable to be sold upon executions to be issued by virtue of any judgment heretofore had, or hereafter to be had, in any court of re- , cord, against such debtor, for the payment and fatisfiction of the debt or damages fo recovered, or to be recovered.
II. And be it further enaclcd by the authority afire lid, Time of boning. That every judge or officer of any court of record, who down on the margin shall fign any judgment, shall, at the time of ligning the of the recurd, &c.
fame, without any fee for doing the same, set down the day and year of his signing the same judgment, upon the margin of the rell or record where the same judgment shall be entered ; and that the clerks of the laid respective courts shall mark upon the back of every roll or judgment filed in their respective offices, the time of filing the same. And further, That no
Judginents to affect judgment shall affect any lands or tenements as to purchadards frora the time sers or mortgagees, or have any preference againlt heirs, of filing records.
executors or administrators, in their administration of their ancestors, testarors or inteftates estates, but from the time of the actual filing of the roll or record of the fame judgment in their respective offices, after the same shall have been signed as aforesaid.
III. And be it further enacted by the authority afurefaid, That the icveral and respective clerks of the several and respective courts of record in this itale, shall, before the latt day of the term or court next after the firit day of July, in the present year of our Lord one thousand seven hundred and eighty-seven, and so in every term, or at every court, or within fix days thereafer, make or cause to be made and put into an alphabetical docket, by the name or names of the party or parties, against whom any judgment Mall be entered, a particular of all judgments by confeflion non fum injorinatus, or nihil dicit, and upon verdicts, writs of enquiry, demurrer and every other judgment, for debt or damages, entered in the said respective courts of the term, or ar the court preceding; which shall contain the name and names of the plaintiff and plaintiffs, and the name and names of the defendant and defendants, his, her or their place or places of abode, and title, trade or profesion, if any such be in the record of such judgment, and the debt, damages and colls ré. covered thereby; and the faid respective dockets friall be fairly put into and kept in books, in the respective offices of the said respective clerks, to be searched and viewed by all persons, at reasonable tiines, upon pain dhat every clerk of the said respective courts, shall respectively, for every term or cour
in which he shall omit or neglect to do his duty in the premises, for feit the Sum of one hundred pounds, the one moiety to the party
aggrieved, and the other moiety to him or them who shall sue for the same; to be recovered; with coils of suit, in any court of record, by action of debt, bill, plaint or information. And further, That no judgment, not docketed and entered in the books as a foresaid, shall affect any lands or tenenients, as to purchasers or mortgagees, or have any preference against heirs, executors or adininiftrators; in their administration of their ancestors, teftators or intestates estates.
IV. A d bc il further enabled by the authority aforefirid, That the day of the month, and year of the enrollment of recognizances, shall hereafter be fit down in the margin of the roll where the saine recognizances are enroiled; and that no recognizance shall bind any lands; tenements or heredi: taments, in the hands of any purchaser or mortgagee, bona fide, and for valuable consideration, but from the time of such enrollinent.
V. And be il further enacted by the authority aforesaid, Goodsnet hound by That no writ of execution shall, from henceforth, bind the From the delivery property of the goods of any person againft whom such thereof to the theriff.
writ of execution Thall be sued forth, but from the time that such writ Mall be delivered to the sheriff, under Theriff, coroner or other officer, to be executed: And for the better manifestation of the said time, the Therif, under sheriff, coroners and other officers, their deputies and agents; Ihall, upon the receipt of any such writ, without fee for doing the fame, indorse upon the back thereof, the day of the month and year, when he or they received the fame.
VI. And be it firther enaclcd by the authority aforefaid, Plaintiff inay bave That where any debt hath been, or shall be recovered or Boty or state of t'ie acknowledged, or damages adjudged or awarded, in any debtor, Sc.
court of record, it Mall from henceforth be lawful for him, her or them, who shall fue for such debt or damages, to have an execuion against the body of such debtor, or a writ coinmanding the sheriff or other proper officer, to cause fuch debt and damages to be made of the goods and chatiels of such debtor, or person chargeable with such debt, in the usual form, or of the goods and chattels, lands and tenements of thie debtor, or perfon chargeable with such debt, in the form herein after mentioned; but no execution (hall be issued against the body, or the proper goods and chatsels, lands and tenements of any heir, devisées executor or administrator, unless he, she or they, shall have inade their estate liable to the same debt, by false pleading or otherwise. And further, That every person who hath been, or shall hereafter be taken or arrested, by virtue of any such writ of execution, against his or her body, for any such debt or damages, by any sheriff, or other officer to whom any such writ hath been or shall be directed; and every person who hath been or shall be committed to the custody of any sheriff or other officer, in execution for any such debt or damages, shall be safely kept in prisoni, in close and secure custody, without bail or mainprize, living at his or her own costs, until he or she shall satisfy and pay fuch debt and damages; and if any such sheriff or other officer, Inall permit any such person so taken, arrested or committed, or hereafter to be taken; arrested or committed, to go out of prison, or be at large, by bail, mainprize or otherwise, without the assent and agreement of the plaintiff, such sheriff or other officer, sall thereby become answerable to the plaintiff for the debt and damages for which such person was taken, arrested or committed ; and the plaintiff may recover the same with costs, by action of debt, bill or plain; against such sheriff or other officer.