Original note. "Varied

[S 40, 41, 42. Same as § 42, 43, 44 R. S.] as to proof of original when used in evidence." [S 43, 44, 45. Same as § 45, 46, 47 R. S.] Original note. "This § and parts of the last §, are new, and are intended to provide for cases omitted in the act."

[S 46. Same as § 48 R. S.] Original note. "New, to provide for a case omitted in the act of 1820; vide 19 J. R. 379." [S 47. Same as § 49 R. S.] Original note. "§ 2. These and many of the subsequent sections, are drawn to conform the act to the construction it has received in 1 Cowen, 82, do. 481, and in various decisions referred to in the notes."

[S 48, 49. Same as § 50, 51 R. S.] Original note. "§ 3, varied in language so as to conform to the decision in 1 Cowen, 443, as to the description of creditors having a right to redeem; and to 2 Cowen, 518, as to the time of redemption."

[S 50, 51. Same as § 52, 53 R. S.] Original note. "New, to provide for an omitted case. It is conceived that no possible danger can arise from the provision, and it seems the only mode by which the rights of a creditor can in such case be preserved."

[$ 52. Same as § 54 R. S.] Original note. "Necessary to carry out the previous section. There may be a judgment against one tenant in common, or against one of several persons, whose lands have been sold; and to supply the omission noticed in 19 J. R. 379."

[$ 53. Same as § 55 R. S.] Original note. "Conformable to 1 Cow. R. 428; 7 Cow. R. 540."

[$ 54, 55. Same as § 56, 57 R. S.] Original note. "Declaratory, but inserted to remove doubts which have been expressed."

[$ 56. Same as § 58 R. S.] Original note. "4 Cowen, 133.” [$ 57. Same as $ 59 R. S.] Original note. "4 Cowen, 420."

[S 58. Same as enacted $60 R. S., except that in sub. 1, the words "or of the county," were added by the legislature.] Original note. "New; substantially conforming to the directions given by the supreme court in 1 Cowen, 443."

[$ 59. Same as § 61 R. S., except that the words after "time of such sale," were added by the legislature.] Original note. “20 J. R. 3.” [$ 62. Same as § 64 R. S.] Original note. "Same act, varied so as to subject such lands to a sale by order of a surrogate, &c., only."

[S 63. Same as § 65 R. S.] Original note. "1 R. L. 503; ib. 596, varied so as to confer the power on the under sheriff, instead of the executor, &c. of the sheriff, as being more properly his duty, and affording to persons injured, the security of the sheriff's bond."

[S 64. Same as § 66 R. S.] Original note. "New; to save the necessity of applications to the legislature.]

[$ 65. Same as § 67 R. S.] Original note. "New."

"ARTICLE III.-Of remedies for failure of title to real estate sold by execution, and to enforce contribution between several owners of lands subject to the same judgment."

[$ 66, 68. R. S.]

Original note. " 11, 1 R. L. 504; the second subdivision is new in form, but supposed to be contained in the existing law. Vide 1 Cow., 741. Whatever may be the general rule, there may be cases where the sale would be avoided by the reversal of the judgment. Varied

also, in confining the right of recovery so as to be only against the party in whose favor or for whose benefit the sale was made. The justice of allowing it in the first instance, by the purchaser, against the defendant in the original judgment, is not perceived."

IS 67. Same as 6 69 R. S. except that the words "in consequence of any irregularity in the proceedings concerning such sale," after "against him," were added by the legislature.] Original note. "Same section much altered, for reasons which will appear on a comparison with the above, which follows the principle of the English act, 32 Hen. VIII, ch. 5."

IS 69. Same as § 72 R. S.]

Original note. "This is in conformity to the course of the court, vide 1 J. Ch. R. 409. It extends the lien of the judgment, so as to charge the land itself with the portion of the judgment for which it was originally liable. It is presumed this could not be done without the aid of a legislative act, as a satisfaction of the judgment by any one, would necessarily be absolute; certainly, as against all purchasers without notice. The consequence would be, that he who had been compelled to pay the portion of another, would lose his lien on the land, and be obliged to resort to the personal responsibility of the party who ought to contribute, and who bought the premises subject to the judgment.

"The existing law, (§ 11, 1 R. L. 503,) is taken verbatim from the original act in 2 Jones and Varick, 115, § 7, which was passed in 1787. The provision has been found so complicated, and so wholly inadequate to the proposed object, that not an instance is to be found in our reports, nor is there one recollected by our older practitioners, in which the course directed by that statute has ever been adopted. The usual resort has been to a court of chancery; and in the opinion of the Revisers, that court only is competent to afford an adequate remedy. They have, however, prepared the subsequent sections upon the principles of the existing law, so as to provide a remedy in the courts of law."

“TITLE VI.—Provisions concerning certain proceedings in the progress of an

action at law."

"ARTICLE I.-Of proceedings against joint debtors."

[S1, 2. Same as enacted.]

Original note. "The law on this subject seems rather unsettled, vide 16 J. R. 66; 6 Cowen, 697. The better opinion probably is, that the defendant not brought in, may contest the judgment; but this throws upon him a very onerous burthen of proving a negative. The above section seems calculated to prevent fraudulent combinations, and to give to a plaintiff all he ought to require."

[S 3. Same as enacted.] Original note. "According to practice." [S 4. Same as enacted.] Original note. "1 R. L. 521, § 13, varied so as to express the supposed intent of the statute. 2 J. R. 88." "ARTICLE III. — Of proceedings on bonds for the performance of covenants." [Enacted as Article II, R. S.]

[S 15. Same as § 5 R. Original note. "§ 7, 1 declare generally in debt,

S.]

R. L. 518. The act allows a plaintiff to and afterwards to assign breaches, to which

assignment the defendant cannot plead. Thus the real issue between the parties, frequently does not appear on the record. Notwithstanding the words of the statute, in actions on bail bonds, and bonds for the liberties of jails, the plaintiff is not at liberty to declare generally, but must assign breaches, 8 J. R. 111. Expense will be saved, the proceedings will be simplified and justice will be promoted, by requiring the breaches to be stated in the declaration as proposed in the above section.

[S 19. Same as § 9 R. S.]

Original note. "Ib. varied so as to conform the judgment to the fact, and have the record contain the evidence of the proceedings and the amount of the damages to be collected. Subsequently proceedings for further breaches are allowed, and simplicity and certainty will be attained, by having on the same record, the judgment of the court upon the first breaches assigned; and it will enable a party to bring a writ of error on the judgment, for any erroneous decision respecting the breaches."

ÉS 20, 21. Same as § 10, 11 R. S.] Original note. "Conformable to the practice."

'ARTICLE IV.—Of bail, and proceedings to charge and exonerate them." [Enacted as Article III, R. S.] [S 26. Same as § 16 R. S.] Original note. "Part of § 8, 1 R. L. 519. But this section will be wholly unnecessary, if the provisions respecting bail bonds in § 18 to 35 of Title I, of this Chapter ante p. 6, &c. are adopted; as in that case, there will be no suits on bail bonds by the plaintiff.'

[S 27, 28. Same as § 17, 18 R. S.] Original note. "Conformable to practice."

[S 32. Same as 22 R. S.] Original note. "Compiled partly from § 3, 1 R. L. 323, and the rules of the supreme court.”

[S 34, 35. Same as § 23, 24 R. S.] Original note to § 35. "Ib. varied so as to declare what is perhaps doubtful as to the power of a judge of the court in which the suit is brought.”

[S 36, 37. Same as § 25, 26 R. S.] Original note. "Varied, so as to express more definitely the object of the collusion."

IS 38, 39. Same as § 27, 28 R. S.] Original note to § 39. "Substi tuted for the proviso in § 2, Laws 1818, p. 156.

IS 40. 41. Same as § 29, 30 R. S.] Original note. "These sections are drawn to enable the bail to the sheriff to exonerate themselves, without the expense and delay of entering special bail. If the provisions in this Chapter respecting bail, are adopted, these sections are indispensable to give them effect, and they will be useful in any

event.

[S 42. Enacted with some alteration § 31 R. S.] Original note. "§6, 1 R. L. 324; § 7, ib. 502, was doubtless intended for the benefit of the bail; but by the decision of the supreme court, 13 J. R. 378; ib. 529; 16 do. 117, the objection can be made only by the defendant, and cannot be urged by the bail. The above section gives effect to the original intention."

[S 44. Same as § 33 R. S. except that the section as reported commenced as follows: "§ 44. Upon the trial of any such action against

66

bail, they may show, under their plea of the general issue, or under a plea of denying their deed, that execution," &c.]

Original note. "Part of § 6, extended to cases seeming to require provision. There is a rule of the court of King's bench, that ca. sa. must remain four days in the sheriff's office. It is believed this rule does not prevail in the supreme court, although it seems to have been adopted in the mayor's court of New York, 16 J. R. 117. It would appear most equitable, to let the sufficiency of the time be a question of fact, depending on the extent of the county, the distance of the defendant's residence," &c.

[$ 45. Same as § 34 R. S.] Original note. "Intended to provide for a case of extreme hardship, in which the bail would be fixed and charged, without any delinquency on their part. See 4 J. Rep. 407."

[S 46. Same as § 35 R. S.] Original note. "§ 7, ib. varied so as to require a personal service. Such abundant provision has been made in the previous part of this Chapter, for proceedings against defendant's neglecting to appear, that the residue of § 7 is unnecessary; and as its retention would only leave room for fraud and abuse, it is omitted."

"ARTICLE V. Of consolidating and referring causes." [Enacted as Article IV, R. S.] [S 47, 48. Same as § 36, 37 R. S.] Original note. "Laws 1818, p. 280, § 7. The section referred to makes no distinction between suits in different courts, but seems to authorize their consolidation by each court. It is believed that this would be impracticable by the inferior courts, and that it could be done only by the supreme court where such a power may often be exercised with the most salutary effect." [S 51. Same as § 40 R. S.] Original note. “Somewhat varied from former law."

[$ 52. Same as § 41 R. S.] Original note. "New. By the negligence of parties, circuits are often burthened with long and protracted. suits, which are more fit for reference."

[ 53, 54. Same as § 42, 43 R. S.]

able to 2 J. C. 224."

Original note. "§ 54 conform

[$ 56, 57. Same as § 45, 46 R. S.] Original note to § 57. "New. It is often inconvenient to obtain the attendance of an officer to administer oaths to witnesses, and no reason is perceived, why the power may not be confided to the referees. The latter part of the section is in conformity to 11 J. R. 402.

66

[$ 58. Same as § 47 R. S.] Original note. "§ 2, varied so as to define more clearly the power of the court to compel a return of the proceedings and of the testimony, which is now doubtless possessed by the court. The present practice of examining the decisions of referees upon affidavits, is productive of the worst consequences. Vide 5 Cowen."

"CHAPTER VII.”

“MISCELLANEOUS PROVISIONS OF A GENERAL NATURE, APPLICABLE TO PROCEEDINGS IN CIVIL CASES."

"TITLE I.-Of the abatement of suits by death, marriage or otherwise, and of their revival."

[S1. Same as enacted.]

Original note. "1 R. L. 519, § 9, varied; after judgment there is no

necessity for suggesting the death of one of several plaintiffs, as the common law rule abated the suit only while it was pending, Tidd, 1046. As to defendants, the cause of action must survive in all cases, against those remaining, either in actions upon contract, or in those upon tort."

[S 2, 3, 4. Same as enacted, except that in § 4, the words “and after a plea of confession in a suit brought," were inserted by the legislature. Original note. "The words in the names of the original parties,' in § 4, in conformity to 1 Salk. 42-Tidd, 842.”

[S 5. Same as enacted.]

Original note. "New. By one of those fictions which were generally intended for salutary purposes, the greatest injustice is produced, in allowing a cause to be tried against a man who is dead, and who can have no personal representatives to defend his rights. The fiction is, that a term, a circuit or the assizes, is but one day in the law, so that if a defendant die after the assizes begun, though before the trial, yet it is held that he was alive when the trial was had, and the verdict is therefore good against him! The reason is as strange as the principle, viz.: that the act (17 Car. 2, ch. 8; 1 R. L., 144, § 5,) is a remedial statute, and therefore to be construed favorably !-for the plaintiff'; 1 Salk., 8, 7 Term Rep., 31; and in 7. Cowen, 283, our court was obliged to follow the English decisions. The above section is intended to restore the law to what is supposed to have been its intent, and to what justice and humanity seem to require."

[S 6. Same as enacted.] Original note. "§ 18, 1 R. L., 514, varied so as to provide a mode of continuing the suit in all cases."

[S 7 to 11. Same as enacted. Original note. "The four last sections are prepared in order to avoid the tedious, expensive and unnecessary proceeding by scire facias, in each of the cases specified, see Tidd, 1049. The notice required guards the rights of all concerned, better than two writs of scire facias returned nihil, which is often the course of proceeding."

[S 12. Same as enacted.] Original note. "Proposed to prevent the abatement of a suit in such cases, and to avoid the necessity of commencing a new action."

[S 13. Same as enacted.] Original note. "Although according to the decisions of 4 East., 521, and Cro. Ja., 323, the plaintiff may proceed against the wife alone; yet it is often expedient, and sometimes necessary, to make her husband a party.”

[S 14. Same as enacted.] Original note. "Taken from act of 1821, p. 177, and extended to all cases."

TITLE II.-" Of the removal of causes before trial or judgment, from inferior

courts."

[S 1. Same as enacted.] Original note. "1 R. L., 140, § 1. It is proposed to confine the remedy to the writ of certiorari, so as to remove the pleadings and proceedings precisely as they remain in the inferior court, and thus save the delay and expense of new pleadings."

IS 2, 3. Same as § 3, 4, R. S. Original note to § 3. "Ib. § 2, varied by omitting actions for assault and battery, and slander. It is conceived that where the damages in such actions are laid under $250, their trial had better be confined to the courts of common pleas."