3. Whenever it shall have forfeited its privileges or franchises, by failure to exercise its powers; or 4. Whenever it shall have done or omitted any act, which amounts to a surrender of its corporate rights, privileges, and franchises; or 5. Whenever it shall exercise a franchise or privilege, not conferred upon it by law. And it shall be the duty of the attorney-general, whenever he shall have reason to believe, that any of these acts or omissions can be established by proof, to apply for leave, and upon leave granted, to bring the action in every case of public interest, and also in every other case in which satisfactory security shall be given, to indemnify the people of this state, against the costs and expenses to be incurred thereby. 28 B., 68; 20 B., 522; 12 How. P. R., 187; 3 Ab., 134. CHAP. XI. obtained. S 431. Leave to bring the action may be granted, upon the Leave, how application of the attorney-general; and the court or judge may, at discretion, direct notice of such application to be given to the corporation or its officers, previous to granting such leave, and may hear the corporation in opposition thereto. 20 B., 523; 5 Ab., 67. S432. An action may be brought by the attorney-general Action upon infor in the name of the people of this state, upon his own infor- mation or complaint, mation, or upon the complaint of any private party, against of course." the parties offending in the following cases: 1. When any person shall usurp, intrude into, or unlawfully hold or exercise, any public office, civil or military, or any franchise within this state, or any office in a corporation created by the authority of this state; or 2. When any public officer, civil or military, shall have done or suffered an act which, by the provisions of law, shall make a forfeiture of his office; or 3. When any association, or number of persons, shall act within this state as a corporation, without being duly incorporated. 30 B., 591; 25 B., 217, 254; 20 B., 523; 12 B., 223; 19 How. P. R., 174; when and $433. An action may be brought by the attorney-general, Action, in the name of the people of this state, for the purpose of how vacating or annulling letters patent, granted by the people to vacate of this state, in the following cases: 1. When he shall have reason to believe that such letters patent were obtained by means of some fraudulent suggestion or concealment of a material fact, made by a person to whom the same were issued or made, or with his consent or knowledge; or 2. When he shall have reason to believe, that such letters patent were issued through mistake, or in ignorance of a material fact; or brought letters patent. PART III Relator, when to be joined as plaintiff. Complaint, and arrest of defend ant, in action for office. 3. When he shall have reason to believe, that the patentee, or those claiming under him, have done or omitted an act, in violation of the terms and conditions on which the letters patent were granted, or have, by any other means forfeited the interest acquired under the same. 30 B., 546; 11 B., 341; 10 B., 120. S434. When an action shall be brought by the attorneygeneral, by virtue of this chapter, on the relation or information of a person having an interest in the question, the name of such person shall be joined with the people, as plaintiff. 12 N. Y., 436; 23 B., 304; 16 B., 373; 2 Ab., 421. S 435. Whenever such action shall be brought against a person for usurping an office, the attorney-general, in addition to the statement of the cause of action, may also set usurping an forth in the complaint, the name of the person rightfully entitled to the office, with a statement of his right thereto, and in such case, upon proof by affidavit, that the defendant has received fees or emoluments belonging to the office, and by means of his usurpation thereof, an order may be granted by a judge of the supreme court, for the arrest of such defendant, and holding him to bail, and thereupon he shall be arrested and held to bail, in the manner, and with the same effect, and subject to the same rights and liabilities, as in other civil actions, where the defendant is subject to arrest. 25 B., 75; 24 B., 273; 14 B., 400; 4 Ab., 341. Judgment in such action. Assumption of office, &c. by relator, ment is in when judg his favor. Proceed defendant, to deliver $436. In every such case, judgment shall be rendered upon the right of the defendant, and also upon the right of the party, so alleged, to be entitled, or only upon the right of the defendant, as justice shall require. 16 B., 373; 6 Ab., 225. S437. If the judgment be rendered upon the right of the person so alleged to be entitled, and the same be in favor of such person, he shall be entitled, after taking the oath of office and executing such official bond as may be required by law, to take upon himself the execution of the office, and it shall be his duty, immediately thereafter, to demand of the defendant in the action, all the books and papers, in his custody or within his power, belonging to the office, from which he shall have been excluded. 7 How. P. R., 287; 7 Ab., 175; 6 Ab., 224. $438. If the defendant shall refuse or neglect to deliver Inge against over such books or papers, pursuant to the demand, he shall on refusal be deemed guilty of a misdemeanor, and the same proceedings shall be had, and with the same effect, to compel delivery of such books and papers, as are prescribed in article five, title six, chapter six, of the first part of the Revised Statutes. 6 Ab., 224. books or papers. Damages, $439. If judgment be rendered upon the right of the perhow reco- son so alleged to be entitled, in favor of such person, he may vered. recover, by action, the damages which he shall have sustained by reason of the usurpation by the defendant of the office, from which such defendant has been excluded. 25 B., 75; 3 Ab., 238. CHAP. XI. against S440. Where several persons claim to be entitled to the One action same office or franchise, one action may be brought against several perall such persons, in order to try their respective rights to such ing office or office or franchise. 20 B., 522; 5 Ab., 180. sons claim franchise. asurping franchise, S441. When a defendant, whether a natural person or a cor- Penalty for poration, against whom such action shall have been brought, office or shall be adjudged guilty of usurping or intruding into, or how unlawfully holding or exercising any office, franchise or privi- awarded. lege, judgment shall be rendered, that such defendant be excluded from such office, franchise or privilege, and also that the plaintiff recover costs against such defendant. The court may also, in its discretion, fine such defendant a sum not exceeding two thousand dollars, which fine, when collected, shall be paid into the treasury of the state. 20 B., 522; 6 Ab., 224; 3 Ab., 238. of forfeit a corpora S 442. If it shall be adjudged, that a corporation, against Judgment which an action shall have been brought, pursuant to this ure against chapter, has by neglect, abuse, or surrender, forfeited its cor- tion porate rights, privileges and franchises, judgment shall be rendered, that the corporation be excluded from such corporate rights, privileges and franchises, and that the corporation be dissolved. 20 B., 523. against cor or persons $ 443. If judgment be rendered in such action, against a Costs corporation or against persons claiming to be a corporation, poration the court may cause the costs therein to be collected, by exe- claiming to cution against the persons claiming to be a corporation, or by he col attachment or process against the directors or other officers of lected." such corporation. 20 B., 522. be such, corporation pointment $444. When such judgment shall be rendered against a Restraining corporation, the court shall have the same power to restrain and apthe corporation, to appoint a receiver of its property, and to of receiver. take an account, and make distribution thereof among its creditors, as are given in article three, title four, chapter eight, of the third part of the Revised Statutes; and it shall be the duty of the attorney-general, immediately after the rendition of such judgment, to institute proceedings for that purpose. 24 B., 273: Ab., 341. judgment S445. Upon the rendition of such judgment against a cor- Copy of poration, or for the vacating or annulling of letters patent, it roll against shall be the duty of the attorney-general to cause a copy of corporation the judgment roll to be forthwith filed in the office of the be filled. secretary of state. 20 B., 523. where PART III. Entry of judgment relating to tent in records of commis land office. S446. Such secretary shall thereupon, if the record relates to letters patent, make an entry in the records of the commisletters pa- sioners of the land office, of the substance and effect of such judgment, and of the time when the record thereof was sioners of docketed, and the real property granted by such letters patent, may thereafter be disposed of by such commissioners, in the same manner as if such letters patent had never been issued. S 447. Whenever by the provisions of law, any property, property to real or personal, shall be forfeited to the people of this state, the people. or to any officer for their use, an action for the recovery of such property, alleging the grounds of the forfeiture, may be brought by the proper officer, in the supreme court. Actions for forfeiture of Provisions of Statutes, applicable CHAPTER III. ACTION FOR THE PARTITION OF REAL PROPERTY. SEC. 448. Provisions of Revised Statutes, applicable to actions for partition. S448. The provisions of the Revised Statutes relating to Stavised the partition of lands, tenements and hereditaments, held or possessed by joint tenants or tenants in common shall apply to actions for such partition brought under this act, so far as the same can be so applied to the substance and subject matter of the action, without regard to its form. to actions for partition. Actions to determine claims to real pro 22 B., 367; 11 Ab., 455; 2 Ab., 7, 17. CHAPTER IV. ACTIONS TO DETERMINE CONFLICTING CLAIMS TO REAL PROPERTY, AND SEC. 449. Actions to determine claims to real property, how prosecuted. 450. Action of waste abolished. Waste, how remediable. 451. Provisions of Revised Statutes applicable to actions for waste, under this act. 452. When judgment of forfeiture and eviction to be given. 453. Writ of nuisance abolished. 454. Remedy for injuries heretofore remediable by writ of nuisance. $449. Proceedings to compel the determination of claims to real property, pursuant to the provisions of the Revised perty, how Statutes, may be prosecuted by action under this act, without prosecuted. regard to the forms of the proceedings as they are prescribed by those statutes. Actions of waste, abolished. remediable. 24 B., 410; 18 B., 332; 5 How. P. R., 372. $450. The action of waste is abolished, but any proceeding heretofore commenced, or judgment rendered or right acquired Waste, how shall not be affected thereby. Wrongs heretofore remediable by action of waste, are subjects of action as other wrongs, in which action there may be judgment for damages, forfeiture of the estate of the party offending, and eviction from the premises. Provisions of Revised Statutes applicable to action 26 B., 413; 22 B., 367; 11 B., 598. S451. The provisions of the Revised Statutes relating to the action of waste shall apply to an action for waste, brought under this act, without regard to the form of the action, so under this far as the same can be so applied. for waste act 26 B., 413. CHAP. XI. When tion to be § 452. Judgment of forfeiture and eviction shall only be given, in favor of the person entitled to the reversion, against judgment of the tenant in possession, when the injury to the estate in and evicreversion shall be adjudged in the action to be equal to the given. value of the tenant's estate, or unexpired term, or to have been done in malice. 26 B., 413. nuisance $453. The writ of nuisance is abolished; but any proceed- Writ of ing heretofore commenced, or any judgment rendered, or abolished. right acquired, shall not be affected thereby. 24 B., 410; 22 B., 367; 16 B., 568. for injuries S 454. Injuries heretofore remediable by writ of nuisance, Remedy are subjects of action, as other injuries, and in such action heretofore there may be judgment for damages, or for the removal of the by writ of nuisance, or both. remediable nuisanco. 24 B., 410; 16 B., 565. CHAPTER V. GENERAL PROVISIONS RELATING TO ACTIONS CONCERNING REAL PROPERTY. SEC. 455. Provisions of Revised Statutes applicable thereto. of Revised § 455. The general provisions of the Revised Statutes re- Provisions lating to actions concerning real property, shall apply to Statutes actions brought under this act, according to the subject matter thereto. of the action, and without regard to its form. 23 B., 235; 22 B., 362; 21 B., 265; 18 B., 499; 14 How. P. R., 440; 13 TITLE XIV. PROVISIONS RELATING TO EXISTING SUITS. SEC. 456. Appeal from order at a special term, on a summary application, after judgment. 457. Writ of error in all cases abolished. Appeal substituted. 458. Execution when issuable on a judgment docketed before July 1, 1848. 459. Future proceedings, Code to control. 460. Appeals from final decrees, by a single judge, in supreme court, in suits in equity pending on July 1, 1847, when to be taken. applicable from order term, on 461. Issues of fact in county court or common pleas before July 1, 1848, how tried. S 456. The appeal, mentioned in section 9, of the act to Appeal facilitate the determination of existing suits in the courts of at a special this state, may also be taken, from an order, made at a spe- summary cial term, on a summary application in an action after judg- per judg ment, when such order involves the merits of the application, ment. or some part thereof. application error in all lished. Appeal sub S457. No writ of error shall be hereafter issued, in any Writ of case whatever. Wherever a right now exists to have a re- cases aboview of a judgment rendered, or order or decree made before the first day of July, 1848, such review can only be had upon stituted. an appeal taken in the manner provided by this act, and all appeals heretofore taken from such judgments, orders or decrees under the provisions of the Code of Procedure, which are still pending in an appellate court, and not dismissed, |