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certain day, to fhew if he or she have any thing to fay why fuch matters inrolled 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 fay nothing why execution ought not to be done, the fheriff fhall be commanded to cause the thing inrolled or contained in the fine, to be executed.

XXXV. And be it further enacted by the authority aforefaid, That where a verdict hath been or fhall be found in aflife, or in any other action whatfoever, and the parties have been or fhall be adjourned upon difficulty in law upon the matter fo found, the plaintiff fhall not be non-fuited, if the verdict pass against him or her.

С НА Р. LIII.

8th fef. ch. 27. An ACT to amend an Ali, entitled, " An Ad for making Process in Courts of Equity effectual against Mortgagers who abfcond, aid cannot be ferved therewith, or who refufe to appear.

Paffed 13th March, 1787. HEREAS in and by the act, entitled, an act for making process in

not be ferved therewith, or who refufe to appear, paffed the 7th of March, 1785, it is directed, That before any decree fhall be made on any bill therein mentioned, the court fhall caufe the mortgaged premises to be appraised, on cath, by two indifferent perfons to be appointed by the court, that the value of the fame 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 cafes the caufing the mortgaged premises to be appraised in manner aforefaid, before any decrce fhall be made, is attended with delay and confiderable expence, and no valuable purpose answered thereby; Therefore,

Be it cradled 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 it fhall and may be lawful for the chancellor to decree and order a fale of any fuch mortgaged premifes, in pursuance of the faid act, without any fuch appraisement as aforefaid, except in fuch cafes where he fhall judge the fame to be neceflary; any thing in the aforefaid act to the contrary notwithftanding.

CHA P. LIV.

49th feff. ch 24. An ACT to amend an Al, entitled, ‡ An Ad for Relief againft abfconding and abfent Debtors.

Pafled 13th March, 1787.

WHEREAS doubts may arife upon the faid act, whether deeds ex

ecuted by the trustees, and proceedings carried on against fraudulent, abfconding or concealed debtors, after their decease, are valid in the law: 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 in Proceedings against all cafes, as well where any fuch debtor or debtors fhall have abfonding and abfent died, as where any fuch debtor or debtors shall die, after difiontinued by debt. the time fixed for fuch debtor or debtors appearance, by the order or notification of the judge before whom the proceedings were had, fhall have expired, the proceedings fhall not be discontinued

Webtors, not to be

or's death.

by the death of fuch debtor or debtors, but may be carried on to a final con clufion, as if the faid debtor or debtors had remained in full life; and all fuch proceedings, and all deeds executed or to be executed in pursuance thereof, are hereby declared as legal as if executed whilft the faid debtor or debtors were living.

CHA P. LVI.

An ACT for making Lands and Tenements, liable to be fold by Executions for Debt, and for the more cafy Difcovery of Judgments, and the batter Securily and Relief of Purchafers and Creditors.

1.

Paffed 19th March, 1787. E 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 all and fingular the lands tenements and real estate of every debtor, fhall be, and hereby are made liable to be fold upon executions to be iffued by virtue of any judgment heretofore had, or hereafter to be had, in any court of record, against fuch debtor, for the payment and fatisfaction of the debt or damages fo recovered, or to be recovered.

judgment to be let

of the record, &c.

II. And be it further enacted by the authority aforesaid, Time of figning That every judge or officer of any court of record, who down on the margin fhall fign any judgment, fhall, at the time of figning the fame, without any fee for doing the fame, fet down the day and year of his figning the fame judgment, upon the margin of the roll or record where the fame judgment fhall be entered; and that the clerks of the faid refpective courts fhall mark upon the back of every roll or judgment filed in their respective offices, the time of filing the fame. And further, That no judgment fhall affect lands or tenements as to purchaany hands from the time fers or mortgagees, or have any preference againt heirs, of filing records. executors or adminiftrators, in their adminiftration of their ancestors, teftators or inteftates eftates, but from the time of the actual filing of the roll or record of the fame judgment in their refpective offices, after the fame shall have been figned as aforefaid.

Judgments to affect

III And be it further enacted by the authority aforefaid, That the feveral and refpective clerks of the feveral and refpective courts of record in this state, fhall, before the last day of the term or court next after the firit day of July, in the present year of our Lord one thoufand feven hundred and eighty-feven, and fo in every term, or at every court, or within fix days thereafter, make or caufe to be made and put into an alphabetical docket, by the name or names of the party or parties, against whom any judgment shall be entered, a particular of all judgments by confeflion non fum informatus, or nihil dicit, and upon verdicts, writs of enquiry, demurrer and every other judgment, for debt or damages, entered in the faid refpective courts of the term, or at the court preceding; which fhall 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 profeffion, if any fuch be in the record of fuch judgment, and the debt, damages and cofls recovered thereby; and the faid refpective dockets fhall be fairly put into and kept in books, in the refpective offices of the faid refpective clerks, to be fearched and viewed by all perfons, at reasonable times, upon pain that every clerk of the faid refpective courts, shall respectively, for every term or cour

in which he fall omit or neglect to do his duty in the premises, forfeit the fum of one hundred pounds, the one moiety to the party aggrieved, and the other moiety to him or them who fhall fue for the fame; to be recovered; with cofls of fuit, 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 aforefaid, fhall affect any lands or tenements, as to purchasers or mortgagees, or have any preference against heirs, executors or administrators; in their adminiftration of their ancestors, teltators or inteftates eftates.

IV. Ad be it further enacted by the authority aforefaid, That the day of the month, and year of the enrollment of recognizances, fhall hereafter be fet down in the margin of the roll where the fame recognizances are enrolled; and that no recognizance fhall bind any lands, tenements or hereditaments, in the hands of any purchafer or mortgagee, bona fide, and for valuable confideration, but from the time of fuch enrollment.

writ of execution but

from the

V. And be it further enaced by the authority aforefaid, Gondsnet bound by That no writ of execution fhall, from henceforth, bind the delivery property of the goods of any perfon against whom such thereof to the theriff. writ of execution fhall be fued forth, but from the time that fuch writ fhall be delivered to the fheriff, under fheriff, coroner or other officer, to be executed: And for the better manifeftation of the said time, the fherif, under fheriff, coroners and other officers, their deputies and agents, fhall, upon the receipt of any fuch writ, without fee for doing the fame, indorfe upon the back thereof, the day of the month and year, when he or they received the fame.

execution against the

debtor, Scc.

VI. And be it further enacled by the authority aforesaid, Plaintiff may have That where any debt hath been, or shall be recovered or boly or eftate of the acknowledged, or damages adjudged or awarded, in any court of record, it fhall from henceforth be lawful for him, her or them, who fhall fue for fuch debt or damages, to have an execution against the body of fuch debtor, or a writ commanding the fheriff or other proper officer, to caufe fuch debt and damages to be made of the goods and chattels of fuch debtor, or perfon chargeable with fuch debt, in the usual form, or of the goods and chattels, lands and tenements of the debtor, or perfon chargeable with fuch debt, in the form herein after mentioned; but ho execution fhall be iffued against the body, or the proper goods and chattels, lands and tenements of any heir, devifee, executor or adminiftrator, unles he, the or they, fhall have made their eftate liable to the fame debt, by falfe pleading or otherwife. And further, That every person who hath been, or fhall hereafter be taken or arrefted, by virtue of any fuch writ of execution, against his or her body, for any fuch debt or damages, by any fheriff, or other officer to whom any fuch writ hath been or fhall be directed; and every person who hath been or fhall be committed to the cuftody of any fheriff or other officer, in execution for any fuch debt or damages, fhall be fafely kept in prifon, in clofe and fecure cuftody, without bail or mainprize, living at his or her own cofts, until he or she fhall fatisfy and pay fuch debt and damages; and if any fuch fheriff or other officer, fhall permit any fuch perfon fo taken, arrefted or committed, or hereafter to be taken, arrefted or committed, to go out of prison, or be at large, by bail, mainprize or otherwife, without the affent and agreement of the plaintiff, fuch fheriff or other officer, fhall thereby become anfwerable to the plaintiff for the debt and damages for which fuch perfon was taken, arrested or committed; and the plaintiff may recover the fame with cofts, by action of debt, bill or plaint, against fuch fheriff or other officer.

ral are bound by judg

VII. And be it further enacted by the authority aforefaid, That in every writ of execution, hereafter to be iffued against lands and tenements, the fheriff or other officer to whom fuch writ fhall be directed, fhall be commanded, that of the goods and chattels of the perfon or perfons against whom fuch execution iflues, in his county or bailiwick, he caufe to be made, the debt, damages and cofts, or fum of money in fuch execution fpecified; and if fufficient goods and chattels of fuch perfon or perfons cannot be found in his bailiwick or county, that then he caufe the faid debt, damages and cofts, or fum of money, to be made of the lands and tenements whereof fuch perfon or perfons were or was feiled, on the day when the fame lands became liable to fuch debt, damages or fum of money, fpecifying the day particularly, or at any time afterwards, in whofe hands foever the fame may then be. But when any fuch execution fhall be iffued, against any perfon or perfons, as tertenants, or as heirs or devifees of any perfon deceafed, unlefs they fhall have made their eftate liable by falfe pleading or otherwife, fuch writ fhall only command the sheriff or other officer to whom the fame fhall be directed, that of the lands and tenements, whereof the ancestor, testator or perfon deceased, was feifed on the day the fame lands became liable as aforesaid, or at any time afterwards, or at the time of his or her death, as the cafe may require, he caufe to be made, the debt, damages and colts, or fum of money in the fame writ specified. And further, That where lands or tenements, in the hands of feveral perfons, are or fhall Remedy where feve be liable to fatisfy any judgment, or debt of record, and ment, and one pays the whole, or more than a due proportion fhall be paid by, anore than his thare. or levied upon the lands of any one or more of them, the perfon or perfons fo aggrieved, his, her or their executors or adminiftrators, may have a writ out of chancery, fetting forth his, her or their grievance, directed to the juftices of the fupreme court, commanding them to hear the complaint, and to do juftice to the parties; and the juftices of the fupreme court fhall thereupon caufe the party or parties, against whom fuch complaint fhall be made, to be warned to be before them, at a certain day, to fhew, if he, fhe or they have any thing to fay, why his, her or their lands fhould not be charged with a due proportion of the monies fo paid or levied ; and if he, the or they do not come at the day, or do come and can fay nothing why his, her or their lands fhould not be charged with a due proportion of the monies fo paid or levied, then the fheriff of each county, in which fuch lands and tenements fo chargeable, are or fhall be fituated, fhall be commanded, that by the oath of twelve good and lawful men of his county or bailiwick, he diligently inquire, what was the true value of the lands and tenements in the hands of each of the parties refpectively, in his county or baiHiwick, fo chargeable, at the time they became chargeable as aforevaid and that he fend the inquifition which he fhall take thereof, before the lame jusces, at a certain day, under his feal, and the feals of thofe by whole oath: he fhall take fuch inquifition: And when the value of the whole lands and tengments fo chargeable fhall be found, the juflices fhall apportion the money fo paid or levied, together with the plaintiff's damages and cofts of fuit, among the feveral holders of the faid lands and tenements fo chargeable, according to equity and juftice; and fhall caufe fo much as each perfon ought to pay, to be levied of the faid lands and tenements, fo held by him or her, and to be paid to the plaintiff or plaintiffs. And further, If any purchafer of any Remedy where pur- lands or tenements, upon any execution heretofore iffued, or hereafter to be iffued, or his or her heirs or affigns, fhall

chafer upon execution is evicted.

Ggg

be evicted on account of any irregularity in the proceedings, or want of title in the perfon or perfons against whom fuch execution iffued, or by reafon of any prior incumbrance, then, and in every fuch cafe, the perfon or perfons fo evicted, his, her or their executors or administrators, may have a writ out of the chancery, fetting forth his, her or their grievance, directed to the justices of the fupreme court, commanding them to hear the complaint, and to do juftice to the parties, and the juftices of the fupreme court fhall thereupon caufe, as well the party or parties at whofe fuit, or for whofe benefit the fame lands and tenements were fold, as the party against whom the execution if fued, or their refpective heirs, devifees, executors or administrators, to be warned to be before them at a certain day, to fhew, if they or either of them have any thing to fay, why the plaintiff fhould not be reftored to the monies paid for the faid lands and tenements; and if they do not come at the day, or do come and can fay nothing why the plaintiff'fhould not have reflitution of the faid monies, the plaintiff fhall have judgment and execution for the fame, together with his cofts of fuit, against him, her or them, who ought to repay the fame, and the party in whofe favour fuch former judgment was had, or his heirs, devifees, executors or adminiflrators, who may be charged by fuch judgment of reftitution, fhall thereupon have fuch further judgment and execution, as juftice fhall require.

VIII. And be it further enacted by the authority aforefaid, How primers are That all prifoners, either upon contempt or mefne procefs, to be kept, &c. or in execution, who are or fhall be committed to any prifon, fhall be actually detained within fuch prifon, until they shall be from thence difcharged by due courfe of law. And if at any time the keeper or keepers of any prifon, fhall permit or fuffer any prifoner committed to his or their cuftody, either upon contempt or mefne procefs, or in execution, to go or to be at large, out of his or their respective prifons, except by virtue of fome writ of habeas corpus, or rule of court (which rule of court fhall not be granted, but on motion made, or petition read in open court) every fuch going or being out of the faid prifon, fhall be adjudged and deemed, and is hereby declared to be an escape.

IX. And be it further enacted by the authority aforefaid, Penalty on herif That if any fheriff or keeper of any prifon, fhall take any for voluntary efcapes. fum of money, reward or gratuity whatfoever, or any fecurity for the fame, to procure, affift, connive at, or permit any escape of any prifoner in his or their cuflody, and fhall be thereof lawfully convicted, every fuch fheriff or keeper, fhall, for every fuch offence, forfeit the fum of five hundred pounds, and his faid office, and be for ever after incapable of executing any fuch office.

X. And be it further enacted by the authority aforefaid, That no re-taking on frefn purfuit, fhall be given in evidence on trial of any iffue in any action of efcape, against any sheriff, or keeper of any prifon, unless the fame fhall be fpecially pleaded; nor fhall any fpecial plea be taken, received or allowed, unless oath be made in writing by fuch fheriff, or keeper of any prifon, against whom such action fhall be brought, and filed with fuch plea, that the prifoner for whofe efcape fuch action is brought, did, without his confent, privity or knowledge, make fuch efcape; and if fuch affidavit fhall at any time afterwards appear to be falfe, and fuch fheriff, or keeper of any prison fhall be convicted thereof, by due courfe of law, he fhall forfeit the fum of five hundred pounds.

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