TITLE 0. Estreating re $31. Whenever any recognizance is directed by law to be estreat ed, such estreat shall be made by the entry of an order directing the cognizances. same to be prosecuted; and the same shall be prosecuted as herein directed. Monies collected, how paid over. Fines by mayor's courts. Account by district attor ney. Ib. first return. returns. $ 32. The district attorney of every county, shall pay over to the county treasurer thereof, the amount of all monies collected by him upon recognizances, or for penalties or forfeitures belonging to the county, after deducting therefrom his reasonable costs and expenses, and such reasonable counsel fee as the court of common pleas of his county shall think fit to allow, if any, by an order to be entered in their minutes. $33. But whenever any fine shall have been imposed by any mayor's court of any city, such fine, subject to the deductions specified in the last section, shall be paid into the treasury of such city. $ 34. The district attorney of any county, at the term of the court of common pleas of his county, held in the month of January, in each year, or if there be no such term, then at the first term held after the month of January, in each year, shall render to such court, on oath, an account in writing, of all suits brought by him upon recognizances, or for penalties or forfeitures belonging to the county or to the state; of his proceedings in such suits; and of all monies collected by him therein, and recovered by him of any person belonging to such county or to the state. $35. Such return shall be made at the first January term of the court of common pleas of every county which shall be held in the year next after this Title shall take effect as a law; or if there be no such January term, then at the first term which shall be held after the month of January, in such year; and shall be made annually thereafter. Contents of $36. Such first return shall embrace all suits and proceedings instituted by him, for the recovery of the penalty of any recognizance; all process issued, and proceedings had by him, for the collection of any fines; and all monies received by him, belonging to the county or to the state; since his appointment to such office of district attor ney; and every subsequent return shall include all such matters since the previous return made by him. Remitting fines and re $37. Upon the application of any person, who shall have been cognizancos. fined by any court of law sitting in any county of this state; or of any person whose recognizance shall have become forfeited, or of his surety; the court of common pleas of the county, in which such court was held, or in which such recognizance was taken, may, upon good cause shown, remit any such fine, or any such forfeiture of recogni zance, or any part of such fine, or of the penalty of such recognizance, and may discharge such recognizance, upon such terms as to such court shall appear just and equitable. If any such fine shall have been paid, the officer or county treasurer in whose hands it may be, shall pay the same, or such part as shall have been remitted, according to such order.43 ART. 2. upon power. $ 38. But the last section shall not authorise such court to remit Rescrictions any fine imposed by any court of oyer and terminer or general sessions of the peace, upon a conviction for a criminal offence; nor any fine imposed by any court upon any officer thereof, or any party therein, or upon any other person for an actual contempt of such court, or for disobedience of its orders or process; nor to remit or discharge any recognizance taken in one county, for the appearance of any person in another, but the power of remitting or discharging such recognizance, shall be exercised exclusively by the court of the county in which such person shall be bound to appear. $39. No such application shall be heard until reasonable notice Nature of apshall have been given to the district attorney of the county, and until plications. he shall have had an opportunity to examine the matter, and prepare to resist such application. concur. $40. No such application shall be granted, without the concur- Firet judge to rence of the first judge of the county courts of such county, if there be one, and he be present; and such concurrence shall be expressed in the minutes of the order granting any remission of a fine, or of the penalty of a recognizance, or of any part thereof.43 S41. Nor shall such application in any case be granted, without Costs to be payment of the costs and expenses incurred in proceedings for the collection either of such fine or the penalty of such recognizance. ed by justi $42. When any person shall have been fined by any court of spe- Fines imposcial sessions of the peace, or by any justice of the peace, upon a con- ces, &c. viction for any offence, and shall have been committed to jail, until such fine shall be paid, the court of common pleas of the county may remit such fine, or any part thereof, and may discharge such person from his imprisonment; and shall exercise such power, in the manner, and subject to the provisions herein contained, in relation to fines, and penalties of recognizances. $43. The provisions of this Title respecting the collection of fines New-York and recognizances, or the payment over of the amount thereof, shall excepted. not apply to the city and county of New-York, but the proceedings for such purpose in that county, shall be according to the laws now in force. вать 1830 4320 320 TITLE 7. 128-138 To what court widow to apply. Service of How made. TITLE VII. OF PROCEEDINGS FOR THE ADMEASUREMENT OF DOWER. SEC. 1. When and to whom widow may apply for assignment of dower. 4. Guardians to be appointed for infant heirs and owners. 9. Powers of court on application to order admeasurement. 12. Vacancies in commissioners how supplied, &c. 13. Duties to be executed by commissioners. 14. Enlarging time for report; compelling report, &c. 15. Report to be filed and entered at large. 16. Report may be set aside; or confirmed. 17. Effect of admeasurement upon being confirmed. 18. Widow may maintain ejectment; subject to taxes, &c. 19. Appeals from common pleas and surrogate, when to be made. 20. Appeal how made; bond to be given. 21. Papers to be certified to supreme court. 22. Proceedings of supreme court on the appeal. 23. Upon reversal of admeasurment, further proceedings. 27. Practice in hearing appeals; notices, &c. S1. Any widow who shall not have had her dower assigned to her, within forty days after the decease of her husband, may apply, by petition for the admeasurement of her dower, to the supreme court; or to the court of common pleas of the county in which the lands subject to dower lie; or to the surrogate of the same county; specifying therein the lands to which she claims dower. 44 $ 2. A copy of such petition, with notice of the time and place when it will be presented, shall be served, at least twenty days previous to its presentation, upon the heirs of her husband; or if they are not the owners of the lands subject to dower, then upon the owners of such lands claiming a freehold estate therein; or their guardians, when any such heirs or owners are minors. 3. Such notice may be served personally, on any party of full age; or upon the guardians of minors; or by leaving the same with any person of proper age, at the last residence of such party or guardian, in case of his temporary absence; and if any such heir or owner be a resident out of this state, the service of such notice may be upon the tenant in actual occupation of the lands, or if there be no tenant, by publishing the same for three weeks successively, in some newspaper printed in the county where such lands are situated. Guardian for S 4. Where such heirs or owners are minors, and have no guardian, the court or surrogate, on application of the widow, shall appoint infant heirs, &c. (44) 1 R. L. p. 62, § 12. some discreet and substantial freeholder a guardian of such infants, for TITLE 7. the sole purpose of appearing for and taking care of, the interest of such infants in the proceedings. served on $5. Notice of the application for the admeasurement of dower, and Notices to be all notices in the subsequent proceedings, shall be served on such them. guardian, whether the infant reside within this state or not. may require ply. S6. After the expiration of forty days from the death of any hus- Heirs, &c. band, his heirs, or any of them, or the owners of any land subject to widow to ap dower, claiming a freehold estate therein, or the guardian of any such heirs or owners, may, by notice in writing require the widow of such husband to make demand of her dower, within ninety days after the service of such notice, of the lands of her deceased husband, or of such part thereof as shall be specified in such notice.45 &c. to apply. S7. If such widow shall not make her demand of dower, within when heirs, the time specified in such notice, by commencing a suit, or by an application for admeasurement, as herein prescribed; or if such widow shall not make such demand within one year after her husband's death, although no notice to that effect shall have been given; the heirs of the husband of such widow, or any of them, or the owners of any lands subject to dower, claiming a freehold interest therein, or the guardian of any such heirs or owners, may apply, by petition, to the supreme court, or to the court of common pleas of the county where such lands are situated, or to the surrogate of the same county, for the admeasurement of the said widow's dower of the lands of her husband, or of such part thereof as shall be specified in the said petition.46 $8. A copy of such petition, with notice of the time and place of serving petipresenting the same, shall be served personally on such widow, twenty tions, &c days previous to its presentation. der admea surement. $9. Upon such application being made, either by a widow, or by court to orany heir or owner, or by the guardian of such heir or owner, the supreme court, or the court of common pleas, or the surrogate to whom the same shall be made, may upon hearing of the parties, order that admeasurement be made of such widow's dower of all the lands of her husband, or of such part thereof as shall have been specified in such application. 46 ers, &c. $10. Such court or surrogate shall thereupon appoint three re- Commission putable and disinterested freeholders, commissioners, for the purpose of making such admeasurement, by an order which shall specify the lands of which dower is to be admeasured, and the time at which the commissioners shall report.4 46 $11. The commissioners so appointed, before entering upon their Their oath. duties, shall be sworn, before the surrogate who appointed them, or before some officer authorised to take affidavits, that they will faithfully, TITLE 7 honestly and impartially discharge the duty and execute the trust reposed in them by such appointment.47 Vacancies, 2:0. Their duties. To lay off dower. Deductions for improve. ments. To report proceedings. To employ Surveyors, &c. Enlarging time for report, &c. To be filed and entered. oport may be set aside; $ 12. If the persons so appointed commissioners, or either of them, shall die, resign, or neglect or refuse to serve, others may be appointed in their places, by the court or surrogate who appointed the first commissioners, and shall take the same oath. $ 13. The commissioners so appointed, shall execute their duties as follows: 1. They shall admeasure and lay off, as speedily as possible, the onethird part of the lands embraced in the order for their appointment, as the dower of such widow, designating such part with posts, stones or other permanent monuments : 2. In making such admeasurement, they shall take into view any permanent improvements made upon the lands embraced in the said order, by any heir, guardian of minors, or other owners, since the death of the husband of such widow, or since the alienation thereof by such husband; and if practicable, shall award such improvements within that part of the lands not allotted to such widow; and if not practicable so to award the same, they shall make a deduction from the lands allotted to such widow, proportionate to the benefit she will derive from such part of the said improvements, as shall be included in the portion assigned to her: 3. They shall make a full and ample report of their proceedings, with the quantity, courses and distances of the land admeasured and allotted by them to the widow, with a description of the posts, stones and other permanent monuments thereof, and the items of their charges, to the court by which they were appointed, at the time specified in the order for their appointment: 4. They may employ a surveyor, with necessary assistants, to aid them in such admeasurement.48 $ 14. The court or surrogate appointing such commissioners, may, upon their application, or that of either party, enlarge the time for making their report; and may, by order, compel such report, or discharge the commissioners neglecting to make the same, and appoint others in their places. $ 15. Such report shall be filed and entered at large in the minutes of the court to which the same shall be made, or in a book to be provided by the surrogate for that purpose, when made to him.49 $ 16. The court or surrogate, to whom such report shall be made, or confirmed. may, at the time appointed for receiving the same, or at such other time to which the hearing shall have been adjourned, on good cause shown, set aside the said report, and appoint, as often as may be necessary, new commissioners, who shall proceed in the manner herein (47) 1 R. L. p. 60, § 3. (48) Ib. § 3, 5 & 6. (49) Ib. § 6. |