jury shall personally examine the premises, and hear any reasons that TTTLE 16 may be offered, in regard to the question submitted to them; and they may, if they think proper, vary the plan or dimensions of any ditch so proposed to be opened; but in such case, they shall designate on the said map, the alterations made by them.10 sition. S 6. If, after taking all the circumstances into consideration, the Their inquijury shall be satisfied that the opening of such ditch or ditches is necessary and proper, they shall so certify by inquisition in writing; and if so satisfied, they shall further certify by such inquisition, that the benefits which will accrue to the owner of the lands, from the opening of such ditch or ditches, will or will not be equal to any damages that he will sustain thereby; and if such benefits shall be certified not to be equal to the damages, the jury shall assess the damages, which, in their judgment, will be sustained therefrom by such owner, and certify the same, in like manner. Every such inquisition shall be signed by all the jurors, and delivered to the justice.10 when to enter $7. Upon payment of the damages assessed by the jury, and the Applicant costs of such assessment, or if no damages shall have been found by on landa. them, upon payment of the costs of the proceedings, and the delivery of the certificate of the jury to the justice, it shall be lawful for the person applying for such summons, to enter, with his servants, teams, carriages, and other necessary implements, upon such lands, and then and there to cut and open such ditch or ditches as were designated on the said map, according to the plan and dimensions therein specified and adopted by the jury, not deviating materially from such dimensions.17 ditch. $8. After such ditch or ditches shall have been opened, it shall Ib. to clear be lawful for the said applicant, his heirs and assigns forever thereafter, from time to time, as it shall become necessary, to enter upon the lands through which such ditch or ditches shall have been opened, for the purpose of clearing out and scouring the same; and then and there to clear out and scour such ditch or ditches, in such manner as to preserve the original length, depth, and width thereof. 18 injuring $ 9. Any person who shall dam up, obstruct, or in any way injure Penalty for any ditch or ditches so opened, shall be liable to pay to the person ditch." owning or possessing the swamp, bog, meadow, or other low land, for the draining of which such ditch or ditches shall have been opened, double the damages that shall be assessed by the jury for such injury; and in case of a second offence by the same person, treble such damages. 19 be filed. $10. The justice before whom any proceedings shall be had under Map, &c. to this Title, shall cause the map delivered by the applicant, and the inquisition of the jury which he shall certify to have been taken before (16) Laws of 1816, p. 158, § 2. (17) Ib. § 3. (18) Ib. § 4. (19) Ib. § 5. TITLE 17. him, to be filed in the clerk's office of the town wherein the premises shall be situated, to be kept in the said office as a record of the proceedings between the parties.20 Suing, &c. in name of another. TITLE XVII. GENERAL MISCELLANEOUS PROVISIONS CONCERNING SUITS AND SEC. 1. Penalty for suing in name of another without consent. 2. Jurors and officers not to be disqualified in certain cases. 3. Fine on sheriffs, &c. for not executing process in special proceedings. 4. When fines may be imposed on jurors for default. 5. Sheriffs and other officers to attend certain juries, &c.; fine for neglect. 6. Notice of fine to be given to person fined. 7. When delinquency and fine to be certified to common pleas. 8. Proceedings to collect fine. 9. Officers empowered to take bail, &c. may administer oaths. 15. Detinue and outlawry in civil cases, abolished. 16. Trespass on the case may be brought for certain trespasses. 17. Copy of certain suggestions to be served on adverse party. 18. Truth of suggestion how to be tried, &c. 19. Party making suggestion may be non-suited, &c. 20. Cases when defendant may tender debt or damages. 21 & 22. Effect of tender, if found sufficient. 23. Tender when accepted, to be deducted from recovery, &c. 24 & 25. Proceedings to compel testimony on motions in supremecourt. 26. Discharging juries of inquiry, &c. in special cases, &c. 27. Majority of officers, &c. may act upon meeting of all. 28, 29 & 30. Proceedings to collect surplus arising from sale of taxes, paid to supervisor. 81. Particular number of days between teste and return of process. 32. Attachments against sheriffs neglecting to return certain warrants. 83. Bonds required by law, when deemed sufficient. 34. When defects therein may be amended. 35. Judgments rendered before division of a county, how executed. 86. When defendants imprisoned to be charged in execution. 87. When and how to be discharged; effect thereof. 38. Certain transcripts to be obtained from United States court in New-York. 89. To be entered in his docket by clerk of supreme court in New-York. 40. To be sent to clerks at Albany and Utica; and entered by them. 41. Transcripts from United States court at Utica, to be obtained. 42. To be transcribed and sent to Albany and New-York. 43. Such transcripts to be obtained hereafter and sent, &c. 44. Dockets in what books to be entered. 45. Expense of procuring transcripts, &c. how paid. 46. Fees for searches and copies of such transcripts. $1. Every person who shall, for vexation and trouble, or maliciously, cause or procure any other to be arrested, attached, or in any way proceeded against, by any process or proceeding at law or in equity, or in any other manner prescribed by law, to answer to the suit or prosecution of any person, without the consent of such person, or where there is no such person known, shall forfeit to the person 80 (20) Laws of 1816, p. 158, § 6. arrested, attached or proceeded against, treble the damages and ex- TITLE 17. penses, which, by any verdict, shall be found to have been sustained and incurred by him; and shall forfeit to the person in whose name such arrest or proceeding was had, two hundred and fifty dollars; and shall be deemed guilty of a misdemeanor, punishable, on conviction, by imprisonment, for a time not exceeding six months.21 when not dis riffs, &c. in $ 2. No inhabitant of any town, city or county, shall be disqualifi- Jurora, &ce. ed as a juror or witness in any cause brought to recover any penalty qualified. or forfeiture, on the ground that such penalty or forfeiture is to be applied for the benefit of such town, city or county, or for the benefit of the poor thereof; nor shall any officer, on such ground, be disqualified from serving any process for the summoning of a jury in such cause.21 S3. Every sheriff, constable, marshal or other officer, to whom Fines on sho shall be directed' and delivered any attachment, summons, precept to special cases. summon a jury, warrant to apprehend a witness or any other person, or any other process authorised by law to be issued by a circuit judge, supreme court commissioner, judge of county courts, or justice of the peace, in any special proceeding or matter before such judge, commissioner or justice, except civil suits before justices of the peace, shall execute such process, as therein commanded, and for any wilful neglect so to do, may be fined by the officer issuing the same, in a sum not exceeding twenty-five dollars." $4. When any person shall have been personally summoned to On jurors for attend as a juror, to inquire into any matter or thing, or to hear and try any controversy, in any special proceeding or matter specified in the last section, and shall wilfully neglect to attend in obedience to such summons, he may be fined by the officer issuing the same, in a sum not exceeding twenty-five dollars. But this section shall not extend to any case where special provision is made by law, for punishing the default of any juror.29 23 defaults. to attend cer $5. When any sheriff, constable or other officer, who shall have Sheriffs, &e. summoned any jury, in the cases mentioned in the two last sections, tain juries. shall be required by the officer issuing such summons, to attend such jury and take charge of them, he shall be bound to do so; and for any wilful neglect to obey such order, or for any misconduct while attending such jury, by which the rights or remedies of any party to such proceeding may be impaired or prejudiced, such sheriff, constable or other officer shall be liable to be fined by the officer before whom such jury shall have appeared, in a sum not exceeding twenty-five dollars. $6. Upon such fine being imposed in any of the cases herein before Notice of specified, notice thereof shall be given to the person fined, to the end fine. that he may render any excuse to the officer imposing the same, or show cause why such fine should be remitted. (21) 1 R. L. p. 174, § 10. (22) Laws of 1827, p. 29. TITLE 17. $7. If no such excuse be rendered, or cause shown, within thirty days after the service of such notice, and such fine shall not have been be certified to remitted by the officer imposing the same, such officer shall make a Fines, &c. to common pleas. How collect od. Oaths in certain cases. Notices in newspapers. by public offi cers. special return of the delinquency or misconduct for which such fine was imposed, with the amount thereof, to the next court of common pleas of the county in which such delinquent shall reside.23 $ 8. The clerk of the court to which such return shall be made, shall deliver a copy thereof to the district attorney of the county, with copies of the minutes of fines imposed by such court, and in the same manner; which shall be collected, and may be remitted or mitigated, in the same manner as fines imposed by courts of record, upon defaulting jurors. $ 9. Whenever any officer is authorised or required by law to take any sureties or bail, or to approve any sureties or bail, he shall be authorised to administer an oath to every person who shall be offered as such bail or surety, to ascertain his sufficiency. $10. Whenever a notice or other proceeding is required by any statute to be published in a newspaper of any particular county, if there be no newspaper published in such county, such notice or proceeding may be published in a newspaper of an adjoining county. Certain oath $11. Whenever application shall be made to the commissioners of the land-office, the canal board, canal commissioners, or any of them, or to any other public officer, to do any act in an official capacity, and such board or officer shall require information or proof, to enable them or him to decide on the propriety of doing such act, such information or proof may be required to be given by affidavit, and any member of such board, or such officer, may administer all necessary oaths for that purpose. Certain offi. cial certifi donco. $ 12. Whenever any officer to whom the legal custody of any docucates; evi- ment or paper shall belong, shall certify, under his official seal, that he has made diligent examination in his office for such paper, and that it cannot be found, such certificate shall be presumptive evidence of the facts so certified, in all causes, matters and proceedings, in the same manner and with the like effect, as if such officer had personally testified to the same in the court or before the officer, before whom such cause, matter or proceeding may be pending. Suits by the people. S13. Every suit or proceeding in a civil case, instituted in the name of the people of this state, by any public officer duly authorised for that purpose, shall be subject to all the provisions of law respecting similar suits or proceedings, when instituted by or in the name of any citizen, except where provision is or shall be otherwise expressly made by statute; and in all such suits and proceedings, the people of this state shall be liable to be non-suited, and to have judgments of (23) Laws of 1827, p. 29. non-pros or of discontinuance entered against them, in the same ca- TITLE 17. ses, in like manner and with the same effect, as in suits brought by citizens, except that no execution shall issue thereon. how paid. $14. Whenever costs shall be adjudged against the people of this Costs therein state, in any civil suit or proceeding instituted by any officer duly authorised for that purpose, it shall be the duty of the comptroller to draw on the treasurer for the amount thereof, upon the production of an authenticated copy of the record of judgment, or of the order adjudging such costs, with a taxed bill thereof, and upon a certificate of the attorney-general, that such suit or proceeding was duly instituted, as by law required. outlawry. $15. The action of detinue is hereby abolished; and all process Detinue and and proceedings to outlaw any defendant in a civil action, are also hereby abolished. the case. $ 16. Where by the wrongful act of any person, an injury is pro- Trespass on duced either to the person, personal property, or rights of another, or to his servant, child or wife, for which an action of trespass may by law be brought, an action of trespass on the case may be brought to recover damages for such injury, whether it was wilful, or accompanied by force or not; and whether such injury was a direct and immediate consequence from such wrongful act, or whether it was consequential and indirect. gestions to be served. $ 17. Whenever a suggestion shall be made upon the record, or in Certain sugany stage of the proceedings, in any cause, which the adverse party shall have a right to controvert, a copy of such suggestion shall be served upon such adverse party, or his attorney, in the same manner as other pleadings, and such party may plead thereto, according to the practice of the court, in the same manner and within the same time, as to declarations. on, &c. $ 18. If an issue of fact be joined upon any such suggestion, the Trial theresame shall be tried and judgment rendered thereon, as on other issues; and if a default be taken against the party who ought to have pleaded to the same, or if judgment upon demurrer or otherwise, be rendered against such party, a writ of inquiry shall issue to ascertain the truth of such suggestion, unless otherwise ordered by the court; upon which the same proceedings and judgment shall be had, as upon writs of inquiry in personal actions to assess damages. ceedings. $ 19. The party making such suggestion may be non-suited, and Other promay have judgment of non-pros or discontinuance entered against him, for the same causes and in the same cases, as in suits at law. der of debt or $20. When any action at law shall be commenced, for the reco- Cases for tenvery of a sum certain, or which may be reduced to certainty by cal- damage. culation, or for a casual or involuntary trespass or injury, the defendant, in any stage of the proceedings, before trial in such causes, or |