New York (State).

The colonial laws of New York from the year 1664 to the Revolution : including the charters to the Duke of York, the commissions and instructions to colonial governors, the Duke's laws, the laws of the Dongan and Leisler Assemblies, the charters of Albany and New York and the acts of the colonial le online

. (page 31 of 92)
Online LibraryNew York (State)The colonial laws of New York from the year 1664 to the Revolution : including the charters to the Duke of York, the commissions and instructions to colonial governors, the Duke's laws, the laws of the Dongan and Leisler Assemblies, the charters of Albany and New York and the acts of the colonial le → online text (page 31 of 92)
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a Copy of the Summons was left at his or her House or place of
abode in Manner aforesaid and the Office endorse such Return
thereon as he is above directed, if then the Defendant doth not
appear at the Time and Place appointed in the Summons and no
Sufficient Reason be offered to the Court why he does not appear
then in such Case the Court shall issue a Warrant and proceed
in the same Manner as is above directed. PROVIDED
ALWAYS that where any Parties shall agree to enter the Cause
without any Process, the Court shall proceed to tryal in the same
Manner as if a Summons or Warrant had issued.

PROVIDED ALSO and be it enacted by the Authority afore-
said. That if any such Plaintiff or his Attorney so applying sball
upon Oath or Affirmation declare That he or she does really
and sincerely believe, that if such Process be only by summons
against such Freeholder or Inhabitant having a Family, he or she
will be in Danger of losing the Debt or Demand thereby; or doth
really and sincerely believe that such Freeholder or Inhabitant
will depart the City County or Borough or otherwise abscond
before such Time, then the Court shall issue a Warrant in such
Manner as if the Defendant had not been a Freeholder or Inhabi-
tant having a Family; and if any Defendant shall require a longer
Time than is first appointed by the Court, and will if required
give sufficient Security to appear and stand tryal on such other



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LAWS OF THE COLONY OF NEW YORK. 807

Day as shall be appointed then the Court is hereby impowered
and required to adjourn the tryal of such Cause to any Day the
Court shall judge most convenient not exceeding twelve Days,
nor less than three from that Time^ unless the Court and Parties
shall otherwise agree.

PROVIDED ALWAYS that where the Plaintiff in any Cause
or Action to be brought by virtue of this Act, shall be a non-
resident of the City County or Borough and shall give Security
to pay all Damages and Costs of Suit, in Case judgment shall
be given against him that then he may have a Warrant return-
able immediately and the Court in which such Cause ia to be
tryed shall not adjourn the same for more than three Days,
unless the Parties agree to allow a longer Time.

AND BE IT ENACTED by the Authority aforesaid That in
every Action that shall hereafter be brought in this Colony by
virtue of this Act, it shall and may be lawful for either of the
parties to the Suit, to demand of the said Justice Mayor
Recorder or Alderman, that such Action be tryed by a Jury,
and upon such Demand the said Justice, Mayor, Recorder or
Alderman is hereby required to issue a Warrant to the Constable
or other Officer of the City, Borough, Town, Manor, Precinct or
District, where the same may happen, commanding him to
return at such certain Time and place as shall be expressed In
the Warrant on the same Day in which such Cause is to be
tryed, a List or Panel of the Names of not more than eighteen
nor less than twelve good and lawful Men of the City Borough
or County respectively, being Freeholders or Freemen unless
the Parties in such suit agree to a lesser Number, and unless
they further consent that such returning Officer shall summon
fl Jury at his Discretion, then the Name of each and every Per-
son who shall be returned in such Pannel as aforesaid shall be
written in several and distinct Pieces of Paper, being all as
near as may be of equal size and Bigness, and shall be delivered
unto the Justice, Mayor, Recorder or Alderman, before whom
such Cause is to be tried by the Constable or other proper Officer
returning such Pannel or some Agent of his or theirs respect-
ively, and shall by them be rolled up all as near as may be in
one and the same Manner, and put together in a Box to be by
him or them provided for that purpose, and then unless the
Tryal be adjourned such Justice, Mayor, Recorder or Alderman,
or such indifferent Person as he shall appoint shall draw out



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308 LAWS OP THE COLONY OF NEW YORK.

the Baid Papers one after another nntil the whole shall be drawn,
and write the Names of said Persons on a List or Panne! in the
same Order in which they shall be drawn ont of the said Box,
and the first six of the said Persons on the said List or Pannel,
shall be the Jury appointed to try the Cause unless any of
them shall be challenged, then snch further Number of them
in the same Order as they shall stand upon the said Pannel, shall
be added to them as will make up the Number six after all
Causes of challenge allowed as fair and indifferent by such
Justice, Mayor, Recorder or Alderman as aforesaid, whereupon
such Justice, Mayor, Recorder or Alderman shall issue his Pre-
cept commanding such Constable or other returning Officer to
cause such persons to come before him, at such Time and Place
as shall be expressed in such Precept, and in Case any of them
are absent, and cannot be found, then to summon such other Per-
son or Persons whose Name or Names are incerted on such Pan-
nel next after such absent Person or Persons not challenged and
set aside as aforesaid, and to proceed to summon them in the
same Manner and order until the full Number of six shall appear,
to each of whom the said Justice Mayor, Recorder or Alderman
shall administer an Oath in the following Form. " You shall
well and truly try this Matter in Difference between A. B. Plaint-
iff and C. D. Defendant, and a true Verdict shall give according
to Evidence, so help you God.'' PROVIDED ALWAYS That
upon a Jury being demanded of either of the Magistrates of the
City and County of New York the said Magistrate shall issue
a Warrant to a Constable or other Officer of the said City and
County commanding him to summon twelve Good and lawful
Men of the said City being Freeholders or Freemen of the said
City to be and appear before such Magistrate issuing
such Warrant at such certain Time and place as shall be
expressed in such Warrant to make a Jury for the Tryal of the;
@ause between the Parties mentioned in the said Warrant, which
Officer shall at the return of the said Warrant return a pannel
of the Names of the Jurors he shall so Summon by virtue thereof
when the Name of each and every Person who shall be returned
in such Pannel shall be written on several and distinct pieces
of Paper as near of one Size and bigness as may be and shall
be delivered to the Mayor Recorder or Alderman before whom
such Cause is to be tryed by the Constable or other proper
Officer retnming such Pannel or some Agent of his or theirs



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LAWS OF THE COLONY OF NEW YORK. 809

respectively and shall by them be rolled np all as near as may
be in one and the same Manner and put together in a Box or
some other convenient Thing, and when snch Cause shall be
brought on to be tryed, then such Mayor Recorder or Alderman
or such indifferent person as he shall appoint shall draw out six
of the said papers one after another, and if any of the Persons
whose Names shall be so drawn shall not appear, or be chal*
lenged and set aside, then such further Number thereof shall be
drawn as shall make up the Number six, who do appear after
all Causes of Challenge allowed, aa fair and indifferent, and the
said six Persons so first drawn and appearing, and approved as
indifferent shall be the Jury who shall try the Cause, to each
of whom the said Mayor, Recorder or Alderman shall admin-
ister the Oath above directed, and after the six Persons hav6
taken the Oath aforesaid, they shall set together and hear the
several Proofs and Allegations of the Parties which shall be
delivered in public in their presence, after which they shall be
kept together in some convenient place until they all agree upon
a Verdict which shall be given in to the said Justice Mayor,
Recorder or Alderman who is hereby required to give Judgment
agreeable to such Verdict and to award Execution in the Manner
herein after directed; The Costs of the Jury to be paid with the
other Costs by the party against whom their Verdict shall be
found. PROVIDED ALWAYS That no Oath or Affirmation of
the Parties or Exparte Affidavit of any other Person shall be
allowed or given in Evidence in any Suit to be brought by virtue
of this Act unless the Parties agree to admit of such Evidence

AND BE IT FURTHER ENACTED, That every Person or Per-
sons whose Name or Names shall be so drawn and summoned
tts aforesaid, or supoened as a Witness, and who shall not appear,
or appearing .shall refuse to serve or give Evidence upon Oath
made by some credible Person, that such Person so making
Default or refusing to give Evidence had been lawfully sum-
moned as aforesaid shall forfeit and pay for Every such Default,
unless some reasonable Cause of his Absence shall be proved by
Oath Affidavit or Affirmation to the Satisfaction of the Court,
such Fine or Fines not exceediog the Sum of forty Shillings not
less than ten Shillings, as the said Court shall think reasonable
to inflict or assess, and to issue his Warrant to levy the same.

AND BE IT ENACTED by the Authority aforesaid. That H
the Plaintiff in any such Suit or Action shall be nonsuited, or dia-



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810 LAWS OP THE COLONY OP NEW YOBK.

continue or withdraw his suit, without the Leave of the Defend-
ant, then Judgment shall be given against him for the Costs
accrued, or If he shall appear to be indebted to the Defendant,
then Judgment shall be given against him for the Debt or
Demand and Costs as the Case may require, and whenever judg-
ment shall be given against either Plaintiff or Defendant in any
of the beforementioned Cases, the Justice, Mayor, Recorder or
Alderman that pronounced the said Judgment, shall grant Exe-
cufion thereupon, directed to one of the Constables op other
proper Officer of the said City Borough Town Manor Precinct
or District commanding him to levy the debt or Demand and
Costs on the Goods and Chattels of the Person against whom
such Execution shall be granted, and for want of sufficient
Effects whereon to levy the Execution, to take the Body of the
Person against whom such Execution shall be granted, and him
or her convey and deliver to the keeper of the Common Goal
of the City Borough or County, which said Constable or other
proper Officer after his taking such Goods and Chattels into his
Custody by virtue of such Execution shall immediately give
Public Notice by an Advertisement put up at the most public
place of the City, Borough Town, Manor, Precinct or District
where such Goods shall be taken of the Sorts of the Goods, and
the Time and Place where and when they shall be exposed to
Sale, at last five Days before the Time appointed for selling
them, and at the Time and place so appointed for selling them,
shall expose them to sale by Public Vendue to the highest Bid-
der and pay the Money according as shall be directed in the
Warrant or Writ of Execution, and return the Overplus if any
be, to the Owner, and that not exceeding twenty Days after
the Receipt of such Execution. AND for want of sufficient
Goods and Chattels whereon to levy the Execution, the Con-
stable or other proper Officer to whom any such Execution shall
be directed, shall accordingly to the Tenor of the said Execution,
take the Body of the Person against whom any such Execution
shall be granted, and convey and deliver him or her to the
keeper of the common Goal of that City, Borough or County,
which said Goal-keeper is hereby Commanded to keep such Priso-
ner in his safe Custody in the Common Goal until the Debt or
Demand with the Costs shall be fully paid or until he or she shall
be from thence delivered by due Course of Law. PROVIDED
NEVERTHELESS that no Execution of any Judgment given by



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LAWS OP THE COLONY OP NEW YOBBu 811

virtue of this Act shall issue against any Freeholder op Inhabi-
tant having a Family in less than two Months after giving the
said Judgment, unless the Party in whose favour judgment shall
be given, shall make it appear to the said Court on Oath op
Affirmation that he or she is in danger of losing their Debt op
Demand if such Delay be allowed in which Case the Justice
Mayor Recorder or Alderman shall issue his Warrant of Execu-
tion immediately as herein before directed, unless the Party
against whom such Judgment shall be given, shall thereupon
give security to the Party in whose favour Judgment went to pay
the full of the Debt op Demand and Costs at or before the expira-
tion of two Months. PROVIDED ALSO, That where any Judg-
ment shall be given for any Debt or Demand that does not exceed
forty shillings Execution may issue after fourteen Days.

AND BE IT ENACTED by the Authority aforesaid That If
any Person or Persons whatsoever shall commence, sue or prose-
cute any Suit or Suits for any Debt or Demand made Cognizable
as aforesaid, in any other Manner than is directed by this Act,
and shall obtain a Verdict or Judgment thereon for a Debt op
Damages which without Costs of Suit shall not amount to more
than five Pounds (not having Caused an Oath or Affirmation to
be made before the obtaining a Writ, and filed the same in the
Clerks Office, that he she or they so making Oath or Affirmation
did truly believe the Debt due or Damages sustained exceeded
the sum of five Pounds) he she or they so prosecuting shall not
recover, nor have any Costs in such Suit, any Law usage or Cus-
tom to the contrary in any wise notwithstanding. PROVIDED
ALWAYS that neither this Act nor any Thing herein contained
shall be deemed* construed or understood to extend to such
Actions wherein his Majesty his Heirs or Successors may be con-
cerned, or where the Title of Lands shall any wise come in ques-
tion, or any Action or Actions of Defamation or Slander. PRO-
VIDED ALSO that Nothing in this Act shall extend to Matters
of Account where the Sum Total of such Account shall exceed
in the Amount of value thereof the sum of twenty Pounds, ai»d
that Account proved to the satisfaction of the said Court, and
that no Justice of the Peace being a Tavernkeeper shall try any
Cause by virtue of this Act, neither shall the Mayor Recorder
or Aldermen of the Citv and County of New York try any (;ause
In any Tavern whatsoever, any Thing herein to the contrary
notHithstfihding.



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312 LAWS OP THE COLONY OP NEW YORK,

AND BE IT PURTHER ENACTED That when in any Action
of Trespass to be brought by virtue of this Act, the Defendant
shall justify, upon Plea of Title, that he shall then enter into a
Recognizance to make good his Title in Manner as is directed,
in and by an Act of this Colony for preventing of Trespasses,
passed in the eleventh Year of the Reign of his late Majesty King
William the third otherwise the Justice Mayor, Recorder or
Alderman shall proceed to hear try and determine the Cause, as
if no such Plea had been made.

AND BE IT PURTHER ENACTED by the Authority afore-
said That all and every the Sum and Sums of Money under the
Value of five Pounds to be sued for and recovered in any Court
of Record, by virtue of any Law of this Colony, shall and hereby
are made cognizable before any one Justice, Mayor, Recorder or
Alderman in Manner as aforesaid, any Thing in the said Acts
mentioned to the contrary in any wise notwithstanding, AND
ALSO That where in any Precinct District or other exempt Juris-
diction; no such Constable or other proper Officer shall be chosen
and appointed, that then and in such Case, the Justice Mayor
Recorder or Alderman (upon Application made to them) or any
of them for any Precept to be served therein, are hereby author-
ized and Impowered to depute and order the next Constable to
the Defendant of such District Precinct or exempt Jurisdiction
who is hereby required to execute the same unless some other
Person shall voluntarily consent to be deputed for that purpose.

AND BE IT ENACTED by the Authority aforesaid That no
greater or other Pees shall be allowed taxed or taken in Actions
brought in the Manner by this Act directed than as in this Act
is appointed to be taken Vizt: JUSTICES FEES — a Summons
ninepence, a Warrant one shilling, a Judgment one Shilling,
Administring every Oath or Affirmation six pence, every Execu-
tion one Shilling and six pence, a Summons for Evidence six
pence, issuing the Venire Pacias to summon a Jury one Shilling,
swearing the Jury one Shilling and six Pence. EVIDENCES.
Attending on Summons or otherwise two Shillings per Day, and
so in proportion for a longer or shorter Time. CONSTABLE^ or
other proper Officer for serving every Warrant Summons or Exe-
cution for one Miles Travel or under one Shilling, for every
Mile more six pence, serving every Execution, for every Pound
one Shilling, summoning every Jury three Shillings. JURIES,
for all Causes tried one Shilling per Man, when summoned and



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LAWS OF THE COLONY OP NEW YOBBu 813

the Cause not tried six pence.' per Man, provided that the whole
Costs to be recovered or allowed in any one Cause or Action,
shall not exceed the Sum of forty shillings, and no more than
one shilling to be allowed for summoning each Witness and
PROVIDED that Nothing herein contained shall extend to
oblige any Member of his Majesty's Council, any Judge of the
County Courts, the Mayors and Recorders of the Cities of New
York and Albany or any Justice of the Peace who shall be a
Member of the General Assembly to take Cognizance of any
Causes Matters or Things as are by this Act provided for, but
that they shall be at liberty at all Times to act therein or not,
as to them shall seem fitting, any Thing herein contained to the
contrary notwithstanding.

AND BE IT ENACTED by the Authority aforesaid That one
certain Act entitled "An Act for establishing and regulating
'* Courts to determine Causes of forty Shillings and under in this
** Colony/' passed in the eleventh Year of his late Majesty's
Reign, shall be immediately after the commencement of this Act
suspended, and every Clause Article, Matter and Thing in the
said Act contained hereby made null and void during the con-
tinuance of this Act. PROVIDED ALWAYS and be it enacted
by the Authority aforesaid, that all suits already commenced
before any Mayor Recorder Alderman or Justice of the Peace
within this Colony by virtue of or under the said Act last above-
mentioned, and also all suits which have been commenced in
any of the Inferior Courts of Common Pleas, or Mayor's Court
within this Colony, tho' the Sum or Thing sued for be under the
Value of five Pounds, shall and may be proceeded into Judgment
and Execution in the same Manner as fully and effectually as if
this Act never had passed, any Thing herein contained to the
contrary thereof in any wise notwithstanding.

AND BE IT FURTHER ENACTED That from and after the
Publication hereof no Writ of Certiorari, or writ of Error shall
be issued out of the Supreme Court of this Colony in any suit
wherein a final Judgment shall be given by any Justice, Mayor,
Recorder or Alderman in a civil Matter cognizable before them
or any of them, unless one of the Parties in such Suit shall within
one Month after such final Judgment shall be given, make AfiOl-
davit before one of the Judges of the Supreme Court, or one of
the Judges of the Inferior Court of Common Pleas of the County,
or Commissioner for taking affidavits to be read in the Supreme
40



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814 LAWS OP THE COLONY OP NEW YORK.

Court where snch Judgment shall be given, and In Case such
Affidavit shall be made before one of the Judges of the County
or such Commissioner, such Affidavit shall be transmitted to one
of the Judges of the Supreme Court, satisfying such Judge that
there is reasonable Cause for granting a Writ of Certiorari or
Writ of Error, to remove such Judgment, either for Error therein,
or some unfair Practice in the Justice, Mayor, Recorder or Alder-
man who shall have tried the same, which shall be particularly
specified therein, and the Judge or Commissioner before whom
such Affidavit shall be made, shall keep a true Copy thereof, to
be delivered to the adverse party, when he shall be thereunto
required.

AND BE IT FURTHER ENACTED, That in Case any Person
being a Party in such Suit, shall procure any Writ of Certiorari,
or Writ of Error, otherwise than is herein above directed shall
forfeit the Sum of five Pounds to be recovered with Costs of
Suit, before any one Justice of the Peace, Mayor, Recorder, or
Alderman within this Colony, by the adverse party, Plaintiff or
Defendant in such original Suit for his own use, and if such
Judgment shall be confirmed, then the Party procuring such
Writ of Certiorari or Writ of Error, shall pay all Costs of
defending such Suit in the Court above, to be taxed by one of
the Judges of the said Court, and if the Judgment shall be
reversed, the Person in whose favour such Judgment shall be
reversed shall in like Manner have his Costs to be taxed as afore-
said, and recovered by Certificate from such Judge, before any
one Justice of the Peace, Mayor, Recorder or Alderman in the
County or City in which such Cause shall have been tried.

AND BE IT FURTHER ENACTED by the same Authority
That if it shall appear that any Justice, Mayor, Recorder or
Alderman having tried a Cause and given Judgment thereon and
that he has wilfully been guilty of unjust Practices that in such
Case, the Justices of the Supreme Court shall direct the Attorney
General to prosecute such Justices Mayor Recorder or Alderman
so offending by Information on behalf of the Crown according to
the ordinary Course of Law.

AND BE IT FURTHER ENACTED by the Authority afore-
said. That this Act be of force from the Publication hereof, until
the first Day of February which will be in the Year of our Lord
one thousand seven hundred and eighty.



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LA.WS OP THE COLONY OF HEW YOBK. 815



[CHAPTER 1533.]
[Ohapter 1683, of Van Schaack, where the act ia printed in fnlL Beyired
b7 chapter 1789.]

An Act the better to ascertain the Qnal-
lt7 of Pot and Pearl Ashes.

[Passed, March 12, 1772.]

BE IT ENACTED by Us Excellency the Governor the Council
and the General Assembly, and it is hereby enacted by the
Authority of the same, that no Person or Persons whatsoever
shall ship any Pot or Pearl Ashes for Exportation, before he
shall first submit the same to the view and Examination of the
OflBcer hereinafter named, who shall try the same by starting it
out of the Casks, and then carefully examine, inspect, and sort
the same, in three different Sorts, if necessary; that he shall put
each Sort by itself into tight Casks, well hooped and coopered
which he shall distinguish by the Words. " first Sort,'' " Second
Sort," or " third Sort," with the Word " Pot " or " Pearl " as the
same may be, branded in plain legible letters, together with the
initial Letter of his Christian Name and his Sirname and the
Words "New York." in full length on each of the Casks, for
which Trouble, and also for the additional Service of repacking
the said Pot and Pearl Ashes, and putting the Casks in such Con-
dition as they may be in when they shall be brought to him for
inspection and for weighing the same, and delivering to the pro-
prietor an Invoice or Weigh Note under his Hand of the Weight
of each Cask; the said Officer shall have and receive four Pence
for every hundred weight; one half to be paid by the purchasor,
and the other half by the Vender. Provided that if the said
Casks shall be incapable of being rendered fit for shipping, such
further Cooperage, or such new Casks if necessary, shall be at
the Expence of the Vender.

AND BE IT ENACTED by the Authority aforesaid, that the
said Officer at the Time of starting the said Pot or Pearl Ashes
out of the Cask or Casks to inspect the same, shall weigh the
said Cask or Casks, and mark the just and true Weight with a
Marking Iron on each Head thereof. PROVIDED ALWAYS,
and be it enacted by the Authority aforesaid, that if any Dispute
should happen to arise between the said Officer and possessor of
such Pot or Pearl Ashes concerning the Quality thereof, upon



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3ia LAWS OF THE COLOUY OF NEW YORK.

application to one of the Magistrates of the City of New York
he shall and hereby is reqaired to issue his Warrant to three
indifferent judicious Persons of Skill and Integrity to view and
search the said Pot or Pearl Ashes^ one of them to be named by
the possessor of snch Pot or Pearl Ashes^ the second to be named
by the OflScer, and the third Person to be named by the said
Magistrate^ which three Persons shall be duly sworn carefully to
examine the said Pot or Pearl Ashes, and make Report forthwith



Online LibraryNew York (State)The colonial laws of New York from the year 1664 to the Revolution : including the charters to the Duke of York, the commissions and instructions to colonial governors, the Duke's laws, the laws of the Dongan and Leisler Assemblies, the charters of Albany and New York and the acts of the colonial le → online text (page 31 of 92)