[PART III. TITLE 17. before such damages shall have been assessed, or before judgment rendered in an action of debt, may tender to the plaintiff, or his attorney, any sum of money which such defendant shall conceive sufficient amends for the injury done, for which such action or proceeding was instituted, or sufficient to pay the plaintiff's demand, together with the costs of such action or proceeding, to the time of making such tender.

Effect, if ten

der suflicient.

Ib.

When to be deducted

from recoveTy, &c.

Testimony

on motions in supreme court.

Ib.

Discharging
Juries.

S21. If it shall appear, upon the trial of the cause, or upon the assessment of damages, that the amount so tendered, was sufficient to pay the plaintiff's demand, and the costs of the suit or proceeding up to the time of such tender, the plaintiff shall not be entitled to recover or collect any interest on such demand from the time of such tender, or any costs incurred subsequent to that time, but shall be liable to the defendant for the costs incurred by him subsequent to such time.

$ 22. If the action or proceeding be to recover damages, and it shall appear, that the sum tendered was a sufficient amends for the injury done, and for the costs, as before mentioned, the plaintiff shall not be entitled to recover any costs in any such action or proceeding, incurred after such tender, but shall be liable to the defendant for his costs incurred after that time.

$ 23. If any such tender be accepted by the plaintiff, and he shall thereafter proceed in the action, the sum so accepted shall be deducted from the whole amount of the recovery, and judgment shall be rendered only for the residue; and an entry of such tender and acceptance shall be made on the record. The plaintiff's right to recover costs, and his liability to pay costs to the defendant, shall be determined by the amount of such residue.

$ 24. When there shall be a motion or other proceeding in the supreme court, in which it shall be necessary for either party to have the deposition of any witness who shall have refused voluntarily to make his deposition, the court may direct a commission to be issued to one or more persons, inhabitants of the county in which such witness resides, to take his testimony.

$25. Such witness may be subpoenaed to attend and testify before such commissioners, in the same manner as before referees, and with the like effect; and obedience to such subpoenas shall be enforced in the same manner.

$26. When any jury shall be impannelled to try any issue, to make any inquiry, or to assess any damages, if they cannot agree, after being kept together for such time as shall be deemed reasonable by the court or officer before whom they shall have appeared and been impannelled, such court or officer may discharge them, and issue a precept for a new jury, or order another jury to be drawn, as the case

may require; and the same proceedings shall be had before such new TITLE 17. jury, as might have been had before the jury so discharged.

officers, &c.

$27. Whenever any power, authority or duty is confided by law Majority of to three or more persons, and whenever three or more persons or offi- when to act. cers are authorised or required by law to perform any act, such act may be done, and such power, authority or duty may be exercised and performed by a majority of such persons or officers, upon a meeting of all the persons or officers so entrusted or empowered, unless special provision is otherwise made.

tax sales paid

$ 28. Whenever a surplus arising from the sale of any properly surplus of distrained for taxes, paid over to the supervisor of a town, shall be to supervisor claimed by any other than the person for whose tax such property was sold, and such claim shall be contested by such person, such claimant shall be entitled to maintain an action against such person; and the person for whose tax such property was sold, may also maintain such action against such claimant, as for money had and received; in which the right of the respective parties to such surplus, shall be tried and determined.

pervisor.

p. 398.]

$29. For the purposes of such action, the defendant shall be deem- Duty of sued to be in possession of the surplus in the hands of the supervisor. Upon a certified copy of the final judgment that shall have been rendered in favor of either party, being produced to the supervisor, in whose hands such surplus shall be, he shall pay over the same to the [See vol. 1, party so recovering. And no supervisor shall be liable to any action. in favor of any claimant of such surplus, the right of which shall be contested as provided in the fourth section of the third Title of Chapter thirteen of the First Part of the Revised Statutes, until he shall have refused to pay over such surplus upon the production of a judgment as aforesaid.

and execu

tion, &c.

S30. In any action brought pursuant to the two last preceding sec- Judgment tions, no other cause of action shall be joined, nor shall any set-off be allowed; and if an execution issue on a judgment so rendered, it shall direct the costs only of such judgment to be levied thereon.

S31. It shall not be necessary to have any particular number of Process. days intervene between the teste and return day of any process, except writs of capias ad satisfaciendum, when issued for the purpose of charging bail.

against she

tain cases.

S32. Whenever any sheriff shall have neglected to return any Attachments warrant issued by a county treasurer, against any collector, or any riffs in cerwarrant issued by the comptroller, against any collector of canal tolls, or shall have made any other return than that required by law, he shall be proceeded against in the supreme court, by attachment, for his neglect, in the same manner and with the like effect, as for neglecting to return any execution in a civil suit; and the proceedings thereon shall be the same in all respects.

Certain

sufficient.

TITLE 17. $ 33. Whenever a bond is or shall be required by law to be given by any person, in order to entitle him to any right or privilege conbonds when ferred by law, or to commence any proceeding, it shall not be necessary for such bond to conform in all respects to the form thereof prescribed by any statute, but the same shall be deemed sufficient if it conform thereto substantially, and do not vary in any matter, to the prejudice of the rights of the party, to whom or for whose benefit such bond shall have been given.

Amending

defects there

in.

Judgmenta

before a division of a county.

Prisoners

when to be charged in execution.

When dis

charged.

$34. Whenever such bond shall be defective in any respect, the court, officer or body who would be authorised to receive the same, or to entertain any proceedings, in consequence of such bond, if the same had been perfect, may, on the application of all the obligors therein, amend the same in any respect; and such bond shall thereupon be deemed valid from the time of the execution thereof.

$35. Where any county has been or shall be divided, any judgment that may have been recovered previous to such division, or after such division upon any proceedings instituted previous thereto, in the court of common pleas of such county, or before any justice of the peace thereof, may be collected by execution to be issued to the sheriff of the county where such judgment shall have been rendered, or to a constable thereof, as the case may require, who shall execute the same, in the same manner as if such division had not been made; and such judgments may be revived, and the like proceedings may be had thereon, as if such county had not been divided.

$ 36. When any defendant, at the time judgment shall be rendered against him, in any court of record, shall be in the custody of a sheriff or other officer, either upon process in the suit in which such judgment shall have been rendered, or upon being surrendered in discharge of his bail in such suit, the plaintiff in such judgment shall charge such defendant in execution thereon, within three months after the last day of the term next following that at which such judgment shall have been obtained. And where any defendant shall be in custody upon a surrender in discharge of his bail, made after a judgment obtained against him, and such bail shall be thereupon exonerated, the plaintiff in such judgment shall charge such defendant in execution thereon, within three months after such surrender, or if an execution against the property of such defendant shall have been issued, within three months after the return day of such execution.24

$37. If any plaintiff shall neglect so to charge any defendant in execution, as required in the last section, such defendant may be discharged from custody by a supersedeas to be allowed by any judge of the court in which such judgment shall have been obtained, unless good cause to the contrary be shown; and after being so discharged,

(24) 1 R. L. p. 353, § 12.

such defendant shall not be liable to be arrested upon any execution TITLE 17. which shall be issued upon such judgment.25

of judgments

courts.

$ 38. It shall be the duty of the clerk of the supreme court in the Transcripts city of New-York, within six months after this Title shall take effect in U. Stato as a law, to procure from the clerk of the district court of the United States, for the southern district of New-York, a certified copy of the dockets of all judgments rendered in that court, or in the circuit court of the United States, for that district, and docketed since the first day of January one thousand eight hundred and thirty.

ed in certain

$39. The said clerk of the supreme court, shall immediately cause To be enter the same to be transcribed into proper books, in the same manner in dockets. which dockets of judgments rendered in courts of record in this state are in this act directed to be entered, leaving proper blanks in such books, to add transcripts of future judgments, in the manner herein after prescribed.

clerks at Al

Utica.

$ 40. Upon completing such transcript, and within one month af- To be sent to ter he shall have obtained such certified copy as herein directed, the bany and said clerk shall transmit such copy to the clerk of the supreme court residing at Albany, who shall immediately, in like manner as herein before directed, cause the same to be transcribed in proper books; and within one month after receiving such copy, shall transmit the same to the clerk of the supreme court in Utica, who shall in like manner transcribe the same into proper books.

from U. S.

Utica.

S41. It shall be the duty of the clerk of the supreme court in Uti- Transcripts ca, within six months after this Title shall take effect as a law, to pro- court at cure from the clerk of the district court of the United States, for the northern district of New-York, a certified copy of the docket of all judgments rendered and docketed in that court, either as a district court or as a circuit court, since the first day of January one thousand eight hundred and thirty.

scribed and

sent, &c.

$42. The said clerk shall transcribe such dockets in proper books, To be tran and in the same manner in which dockets of judgments rendered in the southern district of New-York are hereby directed to be entered; and shall within one month after obtaining such copy, transmit the same to the clerk of the supreme court in Albany, who shall in like manner transcribe such copy into proper books; and within one month after the receipt of such copy, shall transmit the same to the clerk of the supreme court in New-York, to be in like manner transcribed into proper books.

scripts here

$43. At the respective times when the clerks of the supreme court Such tranin New-York and Utica, are by law required to transmit certified co- after to be pies of dockets of judgments in the said court, they shall respectively obtained, &c. procure from the clerk of the district court of the United States of that

(25) 1 R. L. p. 353, § 12.

TITLE 17. district in which they reside, certified copies of all dockets of judgments rendered in such district court, or in the circuit court of such district, and docketed since the last certified copies of such dockets were obtained; they shall respectively transcribe such copies into the books provided as herein before specified, and shall transmit such copies to the clerk of the supreme court at Albany, to be in like manner transcribed by him, and when so entered, to be transmitted by him to the clerk of the supreme court in New-York, or to the clerk of that court in Utica, as the case may be, who shall respectively transcribe the same in the books herein before specified.

Entering dockets.

Expenses how paid.

Fees for searches, &c.

$44. The docket of judgments rendered in the southern and northern districts, shall be entered in the same books, noting in the margin of such dockets respectively, the court in which such judgments were rendered.

§ 45. The expense of procuring the certified copies of dockets of judgments, as herein required, of transcribing the first of the said certified copies which shall be so procured, of procuring the necessary books for that purpose, and of the postage of the several copies which shall be transmitted as herein required, shall be paid out of the treasury, on being audited and allowed by the comptroller.

$ 46. The clerks of the supreme court shall be entitled to the same fees for searches and for certified copies from any of the dockets so entered by them, as are allowed by law for similar services in respect to dockets of judgments rendered in the supreme court.

CHAP. IX.

Of the Writ of Habeas Corpus; of Writs of Error, Appeals, Informations, and Proceedings commenced by any Special Writ.

TITLE 1. Of the writs of habeas corpus and certiorari, in certain cases. TITLE 2. Of proceedings by scire facias, by information in certain cases, mandamus, prohibition, and ad quod damnum.

TITLE 3. Of writs of error, and appeals.

TITLE I.

OF THE WRITS OF HABEAS CORPUS AND CERTIORARI, IN CERTAIN

CASES.

ART. 1. Of the writ of habeas corpus, to bring up a person to testify, or to answer in

certain cases.

ART. 2.-Of the writs of habeas corpus and certiorari, when issued to inquire into the

cause of detention.

ART. 3.-General provisions.