TITLE 1. Death of one of several plaintiffs or 1288245 Death of sole CHAP. VII. Miscellaneous provisions of a general nature, applicable to proceedings in civil cases. TITLE 1. Of the abatement of suits by death, marriage, or otherwise, and of their revival. TITLE 2. Of the removal of causes before trial or judgment, from inferior courts. TITLE 5. Of amending pleadings and proceedings. Of the powers and duties of sheriffs, coroners and other officers, in the arrest and imprisonment of persons in civil actions; in the return and execution of process; and in certain other cases. TITLE I. OF THE ABATEMENT OF SUITS BY DEATH, MARRIAGE, OR OTHER- SEC. 1. Death of one of several plaintiffs or defendants, not to abate suit. 2. Death of sole plaintiff when not to abate suit. 3. Death of sole defendant, when not to abate suit. 4. Judgment when either party dies after verdict on confession. 5. Verdicts after death of defendant, absolutely void. 6 & 7. Partition not to abate by death of parties; proceedings. 8. Proceedings on marriage of female plaintiff after verdict, &c. 9. Also, on marriage after final judgment and before execution. 11. Upon what proof and notice order to be granted. 12. Proceedings on marriage while an action is pending. 13. Also, on marriage of female defendant before verdict, &c. 14. Death or removal of public officer, trustee, &c. not to abate suit. SECTION 1. If in any action there be two or more plaintiffs, and one or more of them shall die before verdict is rendered, or interlocutory or other judgment obtained; or between the time of verdict being rendered and judgment thereon; the action shall not be thereby abated, if the cause of such action survive to the surviving plaintiff or plaintiffs; and where there are two or more defendants in any action, and one or more of them shall die before final judgment, such action shall not be thereby abated; but in either of the said cases, such death shall be suggested on the record, and the action shall proceed at the suit of the surviving plaintiff, or against the surviving defendant, the case may require.1 as $ 2. Where there is but one plaintiff in an action, if he shall die after interlocutory judgment, and before a final judgment obtained thereon, such action shall not abate by reason thereof, if it might be (1) 1 R. L. p. 519, § 9. originally prosecuted by the executors or administrators of such plain- TITLE 1. tiff; and such executors or administrators may have a scire facias against the defendant, to show cause why the damages in such action should not be assessed and recovered.2 defendant. $3. In actions where there is but one defendant, if he shall die Death of sole after interlocutory judgment, and before a final judgment obtained thereon, such action shall not abate by reason of such death, if it might be originally brought against the executors of such defendant; but the plaintiff may have a scire facias against the executors or administrators of such defendant, to show cause why the damages in such action should not be assessed and recovered, and the judgment therein shall be against such executors or administrators." ther party af &c. $ 4. After a verdict shall be rendered in any action, and after a Death of eiplea of confession in a suit brought, if either party die before judg- ter verdict, ment be actually entered thereon, the court may, within two terms after such verdict or plea, enter final judgment in the names of the original parties.3 death of de $5. Nothing herein contained shall be construed to authorise the Verdicts after entry of a judgment against any party who shall have died before a fendant. verdict actually rendered against him, notwithstanding he may have died on the first or any other day of the term or sitting of the court at which such verdict shall have been taken; but such verdict shall be absolutely void. ties in parti If tion. $6. Proceedings for the partition of lands shall not be abated by Death of par the death of one or more plaintiffs, or of one or more defendants. one of several plaintiffs dies, the proceedings shall be continued in the name of the survivors, if the interest in the lands survive to them. If the interest of such deceased plaintiff in such lands, pass to other persons, they may be made defendants, by rule of court, and the same proceedings may be had against them as would be necessary to make them defendants originally. $ 7. If one or more defendants in partition die, and the interest of such deceased person shall survive to the remaining defendants, the proceedings shall be continued against them. If such interest shall pass to other persons, they may be made defendants in the same manner as in the commencement of such proceedings. female plain $8. If a female plaintiff in any action marry after verdict render- Marriage of ed, or after interlocutory judgment, and before final judgment, a sug- tiff after vorgestion of the fact of such marriage may be entered on the record, and the final judgment shall be rendered in her name and that of her husband. dict. 59. If a female plaintiff marry after final judgment, but before exe- Ib. after final cution issued, a like suggestion of the fact shall be entered on the re judgment. (2) 1 R. L. p. 312, § 10. (3) Ib. p. 144, § 5; Laws of 1814, p. 255, § 40. TITLE 2. cord, and an award of execution shall be made in her name and that of her husband. Order of judge. When to be granted. Marriage during penden $10. In the cases mentioned in the two last sections, an order of a judge of the court in which such action shall be pending, shall be necessary to enter the suggestions and award execution as therein provided. S 11. Such order shall be granted upon the application of the husband of such female plaintiff, on due proof of the marriage, and after reasonable notice to the defendant and to the female plaintiff to show cause against granting the same. S 12. If a female plaintiff marry at any time while her action is cy of action. pending, her husband may, on his application, be made a co-plaintiff with her on the order of a judge of the court in which the action is pending, to be granted on due proof of the marriage, and after notice to the female plaintiff and to the defendant; and upon an entry thereof being made on the record, such action shall proceed in the names of the husband and wife. Of defendant before ver dist, &c. Death, &c. of public officer or trustee. S 13. If a female defendant marry at any time before verdict rendered, or before interlocutory judgment, her husband may, on his own application, or on the application of the plaintiff, be made a co-defendant on the order of a judge of the court; but if such husband be made a defendant on the application of the plaintiff, he shall have the same right to contest the fact of his marriage, as if the suit had been originally brought against him as husband of such female defendant. S14. When an action is authorised or directed, by law, to be brought by or in the name of a public officer, or by any trustee appointed by virtue of any statute, his death or removal shall not abate the suit, but the same may be continued by his successor, who shall be substituted for that purpose by the court, and a suggestion of such substitution shall be entered on the record. TITLE II. OF THE REMOVAL OF CAUSES BEFORE TRIAL OR JUDGMENT, FROM SEC. 1. What causes may be removed from common pleas, &c. 2. What from the common pleas of New-York. 3. What to be deemed amount claimed, on certain bonds. 4. Certain actions may be removed of course. 5. Certiorari by what officers to be allowed. 6. Affidavit to be made; who to apply for certiorari. 7. In what stage of cause certiorari to be filed. 8. When to be filed where an issue of fact has been joined. 9. Filing to be of no force until notice given. 10. Clerk to make return to certiorari. 11. Return how compelled; proceedings in supreme court. 12. Liability of bail given in court below. 13. Evidence taken before removal, to be used in court above. 14. Civil actions not to be removed, except by certiorari. 15 & 16. Certain proceedings not to be removed before final judgment. $1. All personal actions which may be pending in any court of TITLE 2. common pleas, except in the city and county of New-York, or in any Causes that mayor's court; where the debt or damages claimed, or the matter or may be rething in demand, shall exceed the sum of two hundred and fifty dollars, may be removed into the supreme court, by a writ of certiorari, at the instance of the defendants in such actions.* moved. pleas in New § 2. All such actions, which may be pending in the court of com- Ib. from com. mon pleas of the city and county of New-York, in which the debt or York. damages claimed, or the matter or thing in demand, shall exceed the sum of five hundred dollars, may in like manner be removed into the supreme court.5 bonds. $3. If such action be brought upon a bond or other instrument, Actions on with a condition for the payment of money, the actual sum due, with the interest thereon, shall be deemed to be the amount of the debt claimed.4 claimed im. S4. The following actions may be removed by certiorari, at the Amount instance of the defendants therein, whatever may be the amount of material in the debt or damages claimed, or the value of the matter or thing in tions. demand, viz: 1. Actions in which the people of this state shall be interested: 2. Actions by or against the corporation of any city: 3. Actions of ejectment, and all other actions in which the title to real estate shall come in question: 4. Actions of replevin, and for false imprisonment. certain ac low certiora S5. A certiorari to remove such actions shall be allowed by a Who to aljustice of the supreme court, or by some circuit judge, or supreme ri. court commissioner, or other officer authorised to perform the duties of a justice of the supreme court in vacation. application, $6. No such allowance shall be made, without an affidavit speci- Upon whose fying the nature and amount of the plaintiff's demand or cause of ac- &c. tion; nor unless application there for be made by all the defendants, who shall have appeared in the action, if there be more than one. $7. Such writ shall not be effectual to remove any cause, unless When cerit be filed in the office of the clerk of the court in which such ac- filed. tiorari to be $61j sue of fact is $8. If such writ shall be allowed in an action wherein an issue of ib. when is fact has been joined, it shall be filed in the office of the clerk of the joined. court at least eight days before the first day of the term at which (4) 1 R. L. p. 140, § 1. (5) Laws of 1823, p. 255. (6) 1 R. L. p. 140, § 2. (7) Ib. § 3. tion is pending, after the defendants shall have duly appeared in such (Wendell action, by entering and perfecting special bail therein, if such bail shall have been required, nor unless the same be so filed before inter-/2 locutory or other judgment entered in such action, and before any ofide 420 the jury summoned to try any issue joined therein, shall have been sworn." 548194 [PART III. TITLE 2 such issue of fact might be tried, according to the practice of the court; and if the same be not filed within that time, such writ shall not be effectual to remove such cause, unless the defendant shall pay to the plaintiff, all costs incurred by him in noticing such cause for trial, if the same shall have been noticed; which costs shall be taxed by the court in which the action is pending. Evidence taken before removals. Habeas cor pus. &c. abolished. Certain cases not to be re $9. Upon a certiorari being filed, notice thereof shall be immediately given to the adverse party; and until such notice be given, such filing shall be of no force or validity. $10. The clerk of the court to which any such certiorari shall be directed, shall return the same, and annex thereto a copy of all the pleadings and proceedings in such action, and shall be entitled to demand and receive his fees for such copies and for filing such writ. $ 11. Such return may be compelled by the supreme court, and upon the same being made, the like proceedings shall be had in such cause as if the same had been commenced in the supreme court. If it be removed before a declaration filed, the plaintiff shall declare, and the defendant shall plead thereto; if it be removed after a declaration filed, and before any plea, the defendant shall plead within the same time in which he was required to plead in the court from which the cause was removed, unless such time be enlarged by the supreme court, or a justice thereof; if the defendant's default shall have been entered, the plaintiff shall be entitled to interlocutory judgment, and to have his damages assessed, unless such default be set aside by the supreme court; and all the said proceedings shall be had in the same manner as if such cause had been originally commenced in the supreme court. S 12. The bail given in such action, shall be responsible, and may be relieved, exonerated and discharged, in the same manner, and in the same cases, as if such action had been commenced in the supreme court. $ 13. Evidence taken by virtue of any commission, or conditionally, in any cause, before the removal thereof, shall be used on the trial of such cause in any circuit court, or in the supreme court, in the same manner and with the like effect, as the same might have been used in the court from which such cause shall be removed. $ 14. No civil action in any court of common pleas, or mayor's court, shall be removed before judgment, by any writ of habeas corpus, or by any other writ, or in any other manner, than as herein prescribed. S 15. No writ of certiorari, habeas corpus, or other writ or promoved until ceeding, shall issue or be allowed, to remove into the supreme court, any proceeding before any justice of the peace, or any court of general sessions of the peace, in relation to apprentices or servants, or in final judg ment. |