accused. In such a pase, the plaintiff may recover damages, to the extent of the loss or injury sustained by him, by reason of the misconduct, together with the costs and expenses of prosecuting the special proceeding in which the warrant was issued; not exceeding the sum specified in the undertaking.

From Id., §§ 28, 29.

§ 2290. [Omitted; see Table, p. iii.] Id.; by attorney-general,

etc.

If no party is aggrieved by the misconduct of the accused, the order must, and, in any case where the court thinks proper so to direct, it may, direct the prosecution of the undertaking, by the attorney-general, or by the district-attorney of the county in which it was given, in the name of the people. In an action, brought pursuant to the order, the people are entitled to recover the entire sum, specified in the undertaking. Out of the money collected, the court, which directed the prosecution, must direct that the person, at whose instance the warrant was issued, be paid such a sum as it thinks proper, to satisfy the costs and expenses incurred by him, and to compensate him for any loss or injury sustained by him, by reason of the misconduct. The residue of the money must be paid into the treasury of the State. From Id., §§ 30, 31.

2291. [Omitted; see Table, p. iii.] Sheriff liable for taking insufficient sureties.

After the return of an execution, issued upon a judgment, rendered in an action upon the undertaking, an action, to recover the amount of the judgment, may be maintained against the sheriff, where it appears that, at the time when the undertaking was given, the sureties were insufficient, and the sheriff had reasonable grounds to doubt their sufficiency. Such an action may be maintained by the plaintiff, in whose favor the judgment was recovered. If the people were plaintiffs, the action must be prosecuted by the attorney-general or the district-attorney; and any money collected therein must be disposed of, as prescribed in the last section.

From Id., 32.

§ 2292. [Omitted; see Table, p. iii.] Punishment of misconduct at trial term.

Where a misconduct, which is punishable by fine or imprisonment, as prescribed in this title, occurs at a trial term, or with respect to a mandate returnable at such term, and was not punished at the term at which it occurred; the supreme court may inquire into and punish the misconduct, as if it had occurred at a special term of the supreme court, held in the same county, or with respect to a mandate returnable at such a special term. From Id:, § 33. Am'd by L. 1895, c. 946 (in effect Jan. 1, 1896).

626

TITLE IV.

Proceedings to collect a fine.

[N. B.-This Title (comprising §§ 2293-2301) has been transferred to the Judiciary Law of the "Consolidated Laws."]

}} 2293-2301. [Omitted; see Table, p. iii.]

TITLE V.

Proceedings to discover the death of a tenant for life.

Sec. 2302. Petition for production of tenant for life. 2303. Contents of petition.

2304. Service of petition and notice.

2305. Proceedings upon presentation of petition. 2306. Service of order; powers, etc., of referee. 2307. Habeas corpus.

2308. Report of referee.

187 1

ещ

added, in Chap 930

2309. Dismissal of petition when order complied with.

2310. When life-tenant deemed dead, and petitioner let into possession 2311. Commission to be issued if life-tenant is without the State.

2312. General provisions respecting the commission.

2313. Petitioner to give notice of its execution.

2314. Execution thereof.

2315. Proceedings on return of commission.

2316. Costs.

2317. Property; when restored.

2318. Remedy of person evicted for profits, etc. 2319. Order not conclusive in ejectment.

§ 2302. Petition for production of tenant for life. A person entitled to claim real property, after the death of another who has a prior estate therein, may, not oftener than once in each calendar year, apply by petition to the supreme court, at a special term thereof, held within the judicial district, wherein the property, or a part thereof, is situated, for an order, directing the production of the tenant for life, as prescribed in this title, by a person, named in the petition, against whom an action of ejectment to recover the real property can be maintained, if the tenant for life is dead; or, where there is no such person, by the guardian, husband, trustee, or other person, who has, or is entitled to, the custody of the person of the tenant for life, or the care of his estate.

From 2 R. S. 343 (Part 3, c. 5, tit. 8), § 1.

2303. Contents of petition.

The petition must be in writing, and verified by the affidavit of the petitioner, to the effect, that the matters of fact therein set forth are true. It must contain:

1. A description of the real property, and a statement of the petitioner's interest therein, and of such other facts as show that the case is within the provisions of the last section.

2. An averment that the petitioner believes that the person, upon whose life the prior estate depends, is dead, together with a statement of the grounds upon which the petitioner's belief is founded.

From Id., §§ 2, 3.

§ 2304. Service of petition and notice.

A copy of the petition, including the affidavit, together with notice of the time and place at which the petition will be presented, must be personally served, at least fourteen days before its presentation, upon the person required, by the prayer thereof, to produce the tenant for life.

From Id., 3.

2305. Proceedings upon presentation of petition. Upon the presentation of the petition and affidavit, with due proof, by affidavit, of service of a copy thereof, and of the notice, if sufficient cause to the contrary is not shown by the adverse

party, the court must either issue a commission, as prescribed in the following sections of this title; or make an order, directing the adverse party, at a time and place therein specified, before the court, or a referee therein designated, to produce the person upon whose life the prior estate depends, or, in default thereof, to prove that he is living.

From Id., § 4.

§ 2306. Service of order; powers, etc., of referee.

Where an order, requiring the production of the tenant for life, or proof that he is living, is made as prescribed in the last section, a certified copy thereof must be served, at least fourteen days before the time therein specified, upon the person required to make the production or proof, or upon his attorney. Upon presentation of proof of service, by affidavit, the court or the referee must, at the time and place specified in the order, or at the time and place to which the hearing may be adjourned, hear the allegations and proofs of the parties, respecting the identity of any person produced, with the person whose death is in question: or, if the latter person is not produced, respecting the reasons for the failure to produce him, and whether he is living. Where a referee is appointed, he has the same powers, and is entitled to the same compensation, as a referee appointed for the trial of an issue in an action.

From Id., § 5.

$ 2307. Habeas corpus.

If it appears, by affidavit. to the satisfaction of the court, that the person required to be produced is imprisoned within the State, for any cause, except upon a sentence for a felony. or is kept or detained, within the State, by any person. the court may, either before or after making the order for production, issue a writ of habeas corpus to bring him before it, or before the referee, as the case requires. The writ must be served and executed, and disobedience thereto may be punished, as where a writ of habeas corpus is issued, to inquire into the cause of the detention of a prisoner.

From Id., § 7.

§ 2308. Report of referee.

The referee must deliver his report to the petitioner, or file it with the clerk, within ten days after the case is closed. He must state therein, whether any person was or was not produced before him, as being the person whose death is in question. He must append thereto, in the form of depositions, the proofs, if any, respecting the identity of any person so produced, with the person whose death is in question; or, if no one is so produced, upon the question whether the latter person is living. He must also state, in his report, his conclusions upon the questions controverted before him.

From Id., § 8.

§ 2309. Dismissal of petition when order complied with. If it appears. to the satisfaction of the court, upon the referee's report, and the proofs thereto appended; or, where a referee is not appointed, upon the allegations and proofs of the parties before the court: that the party, required to produce the tenant for life, or to prove his existence, has fully complied with the order, the court must make an order, dismissing the petition. and requiring the petitioner to pay the costs of the proceedings.

From Id., § 9.

§ 2310. When life-tenant deemed dead, and petitioner let into possession.

If it appears, from the referee's report, or upon the hearing before the court, that the person, upon whose life the prior estate depends, was not produced; and if the party required to produce him, or to prove his existence, has not proved, to the satisfaction of the court, that he is living; a final order must be made, declaring that he is presumed to be dead, for the purpose of the proceedings, and directing that the petitioner be forthwith let into possession of the real property, as if that person was actually dead.

From Id., 10.

2311. Commission to be issued if life-tenant is without the State.

If before or at the time of the presentation of the referee's report to the court, or, where a referee is not appointed, at any time before the final order is made, the party, upon whom the petition and notice are served, presents to the court presumptive proof, by affidavit, that the person, whose death is in question, is, or lately was, at a place certain, without the State, the court must make an order, requiring the petitioner to take out a commission, directed to one or more persons, residing at or near that place, either designated in the order, or to be appointed upon a subsequent application for the commission, for the purpose of obtaining a view of the person, whose death is in question, and of taking such testimony, respecting his identity, as the parties produce. The order must also direct that the proceedings upon the petition be stayed, until the return of the commission; and that the petition be dismissed with costs, unless the petitioner takes out the commission, within a time specified in the order, and diligently procures it to be executed and returned, at his own expense.

From Id., § 11.

§ 2312. General provisions respecting the commission. It is not necessary, unless the court specially so directs, that the witnesses to be examined should be named in the commission, or that interrogatories should be annexed thereto. The commission must be executed and returned, and the deposition taken must be filed and used, as prescribed for those purposes in article second of title third of chapter ninth of this act, except as otherwise specially prescribed in this title.

New.

§ 2813. Petitioner to give notice of its execution.

The petitioner must give to the adverse party, or his attorney, written notice of the time when, and the place where, the commissioner or commissioners will attend, for the purpose of executing the commission, as follows:

1. If the place, where the commission is to be executed, is within the United States, or the dominion of Canada, he must give at least two months' notice.

2. If it is within either of the West India islands, he must give at least three months' notice.

3. In every other case, he must give at least four months' notice. Notice may be given, as required by this section, by serving it as prescribed in this act for the service of a paper upon an attorney, in an action in the supreme court.

From 2 R. S. 343 (Part 3, c. 5, tit. 8), § 12.