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Cornell University Library KFN5975.W14 V.2
The law and Rractice in civil art^^^^^^
Chapter I. , General Preliminary Considerations
CHAPTER IL
JURISDICTION IN CIVIL ACTIONS. 4, P^aE.
t)efinition, '. .... 4
Its incidents, 5
Where exercised, 6
Its territorial extent, &c., 6
Jurisdiction of the person, 11
Of the property, 13
As to amount, 14
Of the subject matter, &c., 15
When void for want of jurisdiction, 15
When erroneous for want of jurisdiction, 16
What proceedings are necessary, 16
How far consent will confer it, ; 16
Errors, when waived by pleadings, 17
How far it may be lost, 20
Ought to appear on the face affirmatively, 20
Personal disqualifications, 21
Interest of the justice, or a party to the record, 22
Relationship to parties, 24
Innkeeper, &c., 28
Actions expressly excepted, ; . . '. 28
People a party, 29
Title to lands in question, 29
Assault and battery, &c., 36
Actions against executors, <fec., 38
Oath of office, 38
Nature of justice's jurisdiction, 39
Amendments, &c., 39
CHAPTER HI.
COMMENCEMENT OP ACTIONS. 39.
SECTION I. To be in name of people, 41
To be in English 41 iv CONTENTS.
FAOS.
Must be signed, . .
Must not be issued in blank,
Must be properly directed,
Process to state name of plaintiff, *^
Process to state name of defendant, **
Fictitious names, ^*
Return day, J
Time, how computed, ^^
Plea in the process, ■*"
Sunday, issuing or service of process on, *°
Election day, ^^
Town meetings, *^
Penalties, process to be indorsed, ^ '
Amount, jurisdiction as to, '*^
Deputing person to serve process, ^^
Officer, when protected, when not, < *^
Officer bound to execute process, *^
Officer cannot take reward, extra fees, &c., 50
Process amendable, ^^
Waiver of defects in process, ^^
Process, when set aside for fraud, ^1
Process served by constable in his own favor, 52
Section II. Chapter V
What necessary to authorize short summons, 80
When facts should be stated in affidavit, 80
Facts in affidavit of non-resident plaintiff and resident defendant, . . 82
Facts when plaintiff and defendant non-residents, 84
Form of bond given when both parties non-residents, 84
Depositof money, 4 ®6
J'orm of short summons, » . . . . 86
CONTENTS. V CHAPTER VI.
OF PROCESS BY WAEEANT. 81,
SECTION I.
WARRANT, 87. rtjaik
Cases in which warrant may issue, 89
Cases in which a warrant must issue, &l
Actions against freeholders, &c., &2
Non-resident defendants, , 96
Resident defendants, not freeholders,. &c., 96
Affidavit for warrant, i ..».,< 96
Fictitious name of defendant, 39
Amount of demand, , IQQ
Affidavit, by whom made .^. lOO
Original affidavits defective, 101
Quashing warrant, 101
Application, how made, 102
In what town to sue,. 1 02
What the affidavit should show, , 102
Detention of canal boats^ ,...,...» 109
SECTION II.
Arrest, what it is', 1 H
Who may arrest, Ill
When to arrest, Ill
Where to arrest, 112
Who exempt from arrest, 112
CHAPTER VII.
ATTACHMENT. 121.
SECTION I.
GENERAI, REVIEW OF THE SUBJECT. 121.
SECTION II.
LONG ATTACHMENTS. 124.
SECTION III. Must be affidavit in all cases, -. 129
Affidavits are not to be entitled, 128
Affidavit, when to be made, 129
Affidavit, how often used, 129
Where to be made, 130
Nature of plaintiff's deiAand, 130
Demand must be due from defendant personally, 132
Joint liabilities of defendants, 133
Demands against corporations, , 134
Fictitious names of defendants, , 134
Amount of demand, . ; _. 135
Affidavits, by whom made, ,.....,.. 135
Should show cause of action on contract, &c., 136
Facts should show a case affirmatively, , . , . , 136 vi CONTENTS.
PAOS.
Hearsay not competent, ■'^^
Should show amount of debt, &c., ^^^
Must not state facts on belief, 1^'
Facts not to be stated by way of recital, 13^
Satisfactory to the justice, 138
Facts and circumstances must be stated, 139
AiBdavit, when sufficient collaterally, 144
Revised Statutes, what is a case under, 145
About to depart from the county, 1 45
Keeps concealed, &c., 145
Non-imprisonment act, what is a case under, 146
Has disposed of property, * 146
Has assigned his property, 147
About to assign, &c., 147
Venue in affidavit, 147
Oath to affidavit, 148
Signing affidavit, 148
Joinder of classes of cases, 149
Original affidavits defective, 150
Quashing attachments for defective papers, 151
Controverting attachments, &c., 151
Long attachment, against whom issued, 152
General points as to affidavits, 153
Manner of drawing affidavits, , 153
Applications for attachments, 154
Bond for attachment, I 157
Must be bound in all cases, 159
Covenant will hot do in place of bond, '. 159
Defiosit of money will not supply place of bond, 160
Bond must describe parties correctly '. 160
Execution of the bond, 160
Who to be sureties, 161
Liabilities of sureties, 162
Penalty of the bond, 163
Condition of the bond, 163
Bond, when to be executed, , > 163
Amendment of bonds, 163
Action upon attachment bond, 164
What the attachment must contain, , 165
SECTION IV. Form of bond for short attachment, 1 YJ
Form of application for a short attachment, 171
Form of short attachment, 171
Short attachment, against whom issued, 171
SECTION V. When to serve attachment, 1 72
Where to attach, ^ 1^2
What property exempt,. " 173
How to attach, ^ . . ^ ■ ' ' j 73
Defendant may retain possession of goods, 175
Return to attachment, i " jgQ
CONTENTS. tj»
CHAPTER VIII.
Section I
EEPLETIN PROCESS. 183. PAaB.
Nature of the action, 183
Nature of the property, 183
What title or right plaintiff must have, 185
Parties to the action, 186
Value of the property, 1 86
Demand before action, 186
Time of claiming delivery of propei-ty, 186
Proceedings before process issues, 186
Must be affidavit in all cases, 186
Who to draw affidavits, 186
Who to draw copies for service, 187
Who to make affidavits, 18S
Affidavits not to be entitled, 189
Belief as to facts stated, 189
Description of property, 189-
Ownership, how stated, 1 90
Right to immediate possession, how stated, 1 90
Wrongfully withheld, &c., 191
Cause of detention, &c., 191
Not for any tax, fine, &c., 191
Actual value of property, 192
General rules as to affidavits, 192
Indorsing, direction upon affidavit 192
Controverting affidavits, 192
Defective affidavits, 1 93.
Must be security in all cases, 1 95
Must be in writing, 195
Who to execute bond, 195
Penalty of bond, 196
Condition of bond, 196
Approval of sureties in bond, 196
Delivery of bond to justice, 197
Amendment of bond, 197
Liability of the sureties, 197
Summons, when to be issued, 198
Statutory requirement of summons, 199
Must be a summons and not a warrant, 200
Notice in the summons, 201
Summons not to describe property, 201
No direction indorsed on summons, 201
Form of summons, 201
SECTION II. Where to be made, 202
When to be served, 202
How to be served, 202 viid CONTENTS.
FACE.
Serving copies on defendant,
Serving copies on defendant's agent, ~
Leaving copies at defendant's residence, ^^°
Delivery of property to plaintiff, 20b
Return of constable, when to be made, 207
What the return should show, 207
Proceedings on the part of the defendant, 210
Returning property to defendant, 212
Claim of "property by a third person, 214
Must be on affidavit, 214
CHAPTER IX.
APPEAEANCE. 217.
What it is, 217
When to appear, 217
Non-appearance of justice, 217
Non-appearance of the plaintiff, 219
Non-appearance of the defendant, 220
How the parties are to appear, 222
Appearance by a,ttorney, 224
Appearance by next friend or guardian, 229
CHAPTER* X.
PPvOCEEDINGS BEFGEE PLEADING. 234.
CHAPTER XI.
JUSTICE A MATEEIAL V7ITNESS. 237.
When to make the application, 237
Who to make the application, 239
How to apply, 239
In what actions, 242
Judgment of discontinuance, 244
Errors of the justice, how corrected, 244
CHAPTER XII.
In what actions title may be interposed, 245
When the defense must be pleaded, 245
Who may interpose this defense, 246
How to plead title, 247
Action in supreme court, , . . , . 250
Title on plaintiff's own showing, 251
CHAPTER XIII.
In what actions, 255
Who may make the offer, 256
At what time, 258
How to make the offer, 256
CONTENTS. ix CHAPTER XIV.
SECTION I.
SECTION II.
WHO TO BE PLAINTIFFS OB DEFENDANTS. 264. PAQS.
Plaintiffs in actions arising on contracts, 264
Principals, actions by, 265
Agents, actions by, 267
Assignees, actions by, '. 268
Executors and adminiatra.tors, actions by, 270
Trustees of an express trust, actions by, 271
Pei'sons authorized by statute, &c., 272
Lunatics, &c., actions by, , 273
Infants, actions by, 273
Married women, actions by, 273
Joinder of plaintiffs, 274
Misjoinder and non-joinder of plaintiffs in actions on contract, 275
Misjoinder of plaintiffs, 276
Non-joinder of plaintiffs, 276
Defendants in actions on contracts, 277
Who to be defendants under § 119 of the Code, 277
Partners, actions- against, 278
Joint stock companies, actions against, 279
Corporations, actions against, 279
Infants, actions against, 279
Married women, actions against, 280
» Principal and surety, actions against, 280
Joint debtors, actions against, 281
Counties, towns and public officers, actions against, 281
Change of parties, &c., 282
Misjoinder of defendants, 282
Non-joinder of defendants, 282
Plaintiffs in actions for wrongs, 283
Action by assignee, 283
Actions by executors and administrators, 283
Husband and wife, 283
Partners, actions by, 283
Corporations, actions by, 283
Joint stock companies or associations, 283
Town and county officers, 283
Infants, actions by, 283
Lunatics, actions by, 283
Tenants in common, and joint tenants, 284
Penalties, actions for, 284
Misjoinder of plaintiffs, in actions for torts, 284
Non-joinder of plaintiffs, in actions for torts, 284
Defendants in actions for torts 284
Infants, lunatics, 285
Married women, 285
Prior authority, or subsequent ratification of torts, 285
Executors and administrators, 285
CONTENTS,
Corporations, ^^^
Penalties, 286
Cannot be both plaintiff and defendant, 280
Joinder of defendants, 286
Misjoinder and non-joinder of defendants, 286
CHAPTER XV.
JOINDER OF CAUSES OF ACTI03S'. 287.
Splitting single causes of action, 287
Several causes of action on contract, 288
Trespasses may be joined, 289
Penalties, 289
Contracts and torts cannot be joined, 289
Causes of action must be in same right, 289
Action must affect all the defendants in the same right, . . , 290
Misjoinder of causes of action, how corrected, 290
Appeal does not lie, 290
Election as to kind of action, 291
CHAPTER XVI.
GENEKAI, EULES OF PLEADING. 292.
SECTION I.
Form of pleadings, 293
Must be pleadings and issue, 294
Facts are to be stated, 294
State enough to show cause of action or ground of defense, 295
Questions of fact, 296
Questions of law, 296
Questions of law and fact, 297
Statement of evidence, 298
Legal presumptions, 298
Fictions in pleadings, 299
Positively, 299
Hypothetical allegations, 299
Duplicity, 300
Certainty as to time, place, quantity and value, 301
Facts necessarily implied need not be stated, 302
Judicial notice, 303
Negativing defense, , 304
Surplusage, 305
Repugnant, inconsistent, &c., 305
How facts ought to be stated, .306
Recitals, 307
Facts not denied are admitted, 307
What are material allegations, 308
Facts not alleged cannot be proved, 309
Matters in aggravation, &c., 310
Special damages, 310
Scienter, 3jq
Profert, &c., 3U
Construction of pleadings, 3H
CONTENTS. xl
SECTION II. ;
COMPLAINTS. 312. PAGE.
Number of parties, ; ; 312
Names of parties, i 312
Character or right in which action is brought, 313
Assignee for benefit of creditors, 313
Administrator or executor, 313
Complaint by infant and next friend, 314
Receivers, 314
Public officers, ; 814
General rules, ; 314
Cause of action stated in process, 314
Within jurisdiction, 314
Contract, complaint on, 315
Complaint, when to be special, 315
Inducement, 316
Plaintiff's interest in the subject matter of the action, 316
Consideration, 316
Promise by the defendant, '; 317
Profert, 317
Averments of performance by plaintiif, 317
Request, notice, demand, &c., 318
Breach of the agreement, &c., 318
Conclusion of complaint, 319
Several counts," '. '. 319
Common counts, 319
Bill of particulars, » 320
Complaints in actions for torts, 322
Plaintiff's interest in thing injured, 323
Motives, intent, or negligence of the defendant, 323
Statement of wrongful acts of defendant, 324
Time and place, 325
Scienter, , 325
Demand, 326
Penalties, 327
Assignment of demand or right of action 327
Conclusion, 327
Section III
. SECTION IV. ■
DJSMUBREBS. 330. ,
What a demurrer is, 330
In what cases a demurrer may be interposed, 331
Decision or judgment on demurrer, 332
CHAPTER XVII.
On whose motion ; on motion of the justice, 335^
On motion of the plaintiff, 336
On motion of the defendant, 338- xii CONTENTS.
PASS
Second or further adjournment, 339
When to apply, 343
Where to apply, 345
How to apply, 345
Form of oath, : 349
Statutory requirements, 350
What is a ground of adjournment, 355
How long adjournment should be granted, 356
Adjournment in warrant cases, 357
When adjournment may be refused, 358
When an adjournment is a discontinuance of the action 35S
PAET VI.
EVIDENCE. 361.
CHAPTER I.
GENERAL PKINCIPLBS. 361.
SECTION XVIII. Must be matter of book account, 439
Not evidence of a single charge, 440
Must prove some of the items chai'ged, 440
Manner of keeping books, • 441
Common to all classes of business,. 442
Entries, by whom made, 444
No clerk, 444
Number of witnesses to prove dealings, 444
Credit for jury, /' 444
Credit, how impeached, 445
Existence of common law proof does not invalidate, 446
Evidence of value, 446
Entries, when made, 446
Ordinary book in daily use, 447
Original entries, 448
Ledger and daybook, 448
Entire set of books must be introduced, 449
Charges in gross, 449
Witness testifying from books, 449
Copy of books not competent evidence, 450
Books introduced cannot be withdrawn, 450
Must be received generally, 450
Whole contents evidence, 450
May waive books and resort to common law proofs, 451
License by person rendering service, 452
SECTION II. CHAPTER n
CHAPTER m.
TBIAL WITHOUT A JUBT. 583.
CHAPTER IV.
TEIAL BY JUBT. 589.
SECTION I.
Of challenges, 598
Challenge to the array, 599
Challenge to the polls, 600
Time of making challenge, 602
Defense stated, and evidence, 608
Charging the jury, • 612
The verdict, 623
Questions of fact for the jury, 627
Questions of law for the court, 630
Objections, exceptions, &c., 631
Of the justice's discretion, 637
SECTION II.
PROCEEDINCS AGAINST A JUROR FOR NON-ATTENDANCE. 640.
Section III
xvi CONTENTS.
SECTION IT.
CHAPTER V.
CAMAGES. 648.
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You’ve reached the end of The law and practice in civil actions and proceedings in justices' courts and on appeals to the county courts in the state of New York : including the principles of law relating to actions or defenses; the rules of practice, of pleading, and of evidence; together with practical forms and precedents.