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 54 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 54 of 92)
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respectively, and signed by such Judge or other OflScer as afore-
said, and provided also that such Letter or Letters of Attorney,
and the acknowledgment thereon to be Written, and also the
Execution thereof by the Husband of such Feme Covert be
acknowledged by him or proved and certified in the Manner
directed by the before recited Act, or by this Act.

AND BE IT FURTHER ENACTED by the Authority afore-
said, That all such Deeds and Letters of Attorney executed or
to be executed and acknowledged as aforesaid by Feme Coverts
living out of this Colony and Proved and certified in the Manner
directed by this Act, or in the Manner directed by the last Section
of the before recited Act, may be recorded here in any of the
Public Oflfices and such Deeds and Letters of Attorney, or the
Records thereof may be read as Evidence in any of the Courts of
Law in this Colony.

AND BE IT ENACTED by the Authority aforesaid That the
Copies of any Last Will or Testament whatsoever heretofore
made, or hereafter to be made, within any Part of the Kingdoms



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LAWS OF THE COLONY OF NEW YORK. 537

of Great Britain or Ireland by which any Lands, Tenements,
Hereditaments or other Estate within this Colony, are devised
or bequeathed, certified under the Seal of such Office where such
Will or Testament is proved and lodged, may be given and Shall
be received in Evidence before any of the Courts of Judicature
within this Colony, and be esteemed as valid and sufficient as if
the original Will or Testament was then and there produced and
proved.

[CHAPTER 1610.]

[Chapter 1610, of Van Sdiaack, where the act is printed in fuU.]

An Act for the amendment of the Law,
and the better advancement of Justice.

[Passed, March 8, 1773.]

BE IT ENACTED by his Excellency the Governor the Coun-
cil and the General Assembly, and it is hereby enacted by the
Authority of the same That from and after the passing hereof
where any Demurrer shall be joined and entered in any Action
or Suit in any Court of Record within this Colony, the Judges
shall proceed and give Judgment according as the very Kight
of the Cause and Matter in Law shall appear unto them, with-
out regarding any Imperfection Omission or Defect in any Writ,
Return Plaint, Declaration or other Pleading, Pi*ocess or Course
of Proceeding whatsoever, except those only which the party
demurring shall specially and particularly set down and ex-
press, together with his Demurrer as Causes of the same, not-
withstanding that such Imperfection Omission or Defect might
have heretofore been taken to be Matter of Substance; so as
sufficient Matter appear in the said Pleadings upon which the
Court may give Judgment according to the very Right of the
Cause, and therefore from, and after the passing hereof no Ad-
vantage or Exception shall be taken of or for an immaterial
Traverse, or of or for the Default of entering Pledges upon any
Bill or Declaration; or of or for the Default of alledging the
bringing into Court any Bond, Bill, Indenture or other Deed
whatsoever .mentioned in the Declaration or other pleading; or
of or for the Default of alledging of the bringing into Court
Letters Testamentary or Letters of Administration; or of or
for the Omission of, with force and Arms, and, against the
Peace, or either of them, or of or for the want of Averment of,
this he is ready to verify, or, this he is ready to verify by the
Record, or of or for not alledging as appears by the Record;
68



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538 LAWS OF THE COLONY OP KEW YORK.

but the Court shall give Judgment according to the very Right
of the Cause, as aforesaid, without regarding any such Imper-
fections Omissions and Defects or any other Matter of like Na-
ture, except the same shall be specially and particularly set
down and shewn for Cause of Demurrer.

AND BE IT FURTHER ENACTED by the Authority afore-
said. That from and after the passing hereof all the Statutes
of Jeofails, shall be extended to Judgments which shall at any
Time afterwards be entered upon Confession, Nihil dicit, or non
sum informatus in any Court of Record, and no such Judgment
shall be reversed, nor any Judgment upon any Writ of Inquiry
of Damages executed thereon be staid or reversed for or by
reason of any Imperfection, Omission, Defect, Matter or Thing
whatsoever which would have been aided and cured by any
of the said Statutes of Jeofails in Case a Verdict of twelve Men
had been given in the said Action or Suit, so as there be an
original Writ or Bill, and Warrants of Attorney duly filed ac-
cording to the Law as is now used.

PROVIDED ALWAYS AND BE IT ENACTED by the Au-
thority aforesaid That the Attorney for the Plaintiff or Demand-
ant in any Action or Suit, shall file his warrant of Attorney
with the proper Officer of th^ Court where the Cause is depend-
ing the same Term he declares; and the Attorney for the Oi?-
fendant, or Tenant shall file his Warrant of Attorney as afore-
said, the same Term he appears under the Penalties inflicted
upon Attornies by any former Law, for Default of filing their
Warrants of Attorney.

AND BE IT FURTHER ENACTED by the Authority afore-
said, That from and after the passing hereof, it shall and may
be lawful for any Defendant or Tenant in any Action or euit,
or for any Plaintiff in Replevin in any Court of Record with the
Leave of the same Court to plead as many several Matters
thereto, as he shall think necessary for his Defence.
• PROVIDED NEVERTHELESS, That if any such Matter shall
upon a Demurrer joined, be judged insufficient, Costs shall be
given at the Discretion of the Court, or if a Verdict shall be
found upon any Issue in the said Cause for the Plaintiff or De-
mandant, Costs shall be also given in like Manner, unless the
Judge who tried the said Issue shall certify, that the said De-
fendant or Tenant, or Plaintiff In Replevin had a probable Cause
to plead such Matter, which upon the said Issue shall be found
against him.



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•LAWS OP THE COLONY OF I^EW YORK. 539

PROVIDED ALWAYS AND BE IT ENACTED by the Au-
thority aforesaid, That Nothing in this Act before contained shall
extend to any Writ Declaration or Suit of Appeal of Felony or
Murder, or to any Indictment or presentment of Treason, Felony
or Murder or other Matter, or to any .Process upon any of them,
or to any Writ, Bill, Action or laformation upon any Penal
Statute or Act

AND BE IT FURTHER ENACTED by the Authority afore-
said. That from and after the passing hereof in any Actions
brought in any Courts of Record, where it shall appear to the
Court in which such Actions are depending, that it will be proper
and necessary, that the Jurors who are to try the Issues in any
such Actions should have the yiew of the Messuages, Lands or
Place in Question in order to their better understanding the Evi-
dence that will be given upon the Trial of such Issues, in every
such Case the respective Courts in which such Actions shall be
depending, may order special Writs of Distringas or Habeas
Corpora to issue, by which the Sheriff, or such other Officer to
whom the said Writs shall be directed, shall be commanded to
have six out of the first twelve of the Jurors named in such Writs,
or some greater Number of them, at the place in Question, some
convenient Time before the Trial, who then and there shall have
the Matters in Question shewn to them by two persons in the said
Writ named to be appointed by the Court; and the said Sheriff or
other Officer, who is to execute the said Writs, shall by a special
Return upon the same, certify that the view hath been had
according to the Command of the said Writs.

AND BE IT FURTHER ENACTED by the Authority aforesaid.
That from and after the passing hereof all Grants or Conveyances
thereafter to be made by Fine or otherwise, of any Manors or
Rents, or of the Reversion or Remainder of any Messuages or
Lands shall be good and effectual to all Intents and purposes
without any Attorenment of the Tenants of any such Manors, or
of the Lands out of which such Rent shall be issuing, or of the
particular Tenants upon whose particular Estates any such Re-
versions or Remainders shall and may be expectant or depending
as if their Attorenment had been had and made.

PROVIDED NEVERTHELESS, That no such Tenant shall be
prejudiced or damaged by payment of any Rent to any such
Grantor or Conusor, or by breach of any Condition for non pay-
ment of Rent, before Notice shall be given to him of such Grant
by the Conusee or Grantee.



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640 LAWS OF THE COLONY OF NEW YORK.

' ^'AND BE IT FURTHER ENACTED by the Authority aforesaid
That from and after the pasBlng hereof no dilatory Plea shall be
received in any Conrt of Record unless the party offering such
plea do by Aflfldavit prove the Truth thereof, or shew some prob-
able Matter to the Court tp induce them to believe that the Fact
of such Dilatory plea is true. ». . ; I I i '

AND BE IT FURTHER ENACTED by the Authority afore-
said, That from and after the passing of this Act, where any
Action of Debt shall be brought upon any single Bill, or where
any Action of Debt or Scire Facias, shall be brought upon any
Judgment if the Defendant has paid the Money due upon such
Bill or Judgment such payment shall and may be pleaded in Barr
of such Action or Suit, and where an Action of Debt is brought
upon any Bond which hath a Condition or Defeazance to make
void the same upon payment of a Lesser Sum at a Day or Place
certain, if the Obligor his Heirs, Executors or Administrators
have before the Action brought paid to the Obligee his Executors
or Administrators, the principal and Interest due by the Defea-
zance or Condition of such Bond, though such payment was not
made strictly according to the Condition or Defeazance, yet it
shall and may nevertheless be pleaded in Barr of such Action,
and shall be as effectual a Barr thereof, as if the Money hadi
been paid at the Day and place according to the Condition or
Defeazance, and had been so pleaded. i ; ; i • I - i

AND BE IT FURTHER ENACTED by the Authority afore-
said, That if at any Time, pending an Action upon any such
Bond with a Penalty, the Defendant shall bring into the Court
where the Action shall be depending all the principal Money,
and Interest due on such Bond, and also all such Costs as have
been expended in any Suit or Suits in Law or Equity upon such
Bond, the said Money so brought In shall be deemed and taken
to be in full Satisfaction and discharge of the said Bond, and the
Court shall and may give Judgment to discharge every such De-
fei-dant of and from the same accordingly. ' •

AND BE IT FURTHER ENACTED by the Authority afore-
said, That all Suits and Actions in the Court of Admiralty for
Seamen's Wages which shall become due shall be commenced
and sued within six Years next after the Cause of such Suit or
Suits shall accrue and not after; PROVIDED NEVERTHE-
FjESS and be it further Enacted That if any Person or Persons
who is or shall be entitled to any such Suit or Action for Sea-



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jLAWS OF THE COLONY OF NEW YORK. 541

m«n's Wages be or shall be at the Time of any such Cause of suit
or Action accrued fallen op come, within the Age of twenty one
Years, Feme Covert, non Composmentis, imprisoned or beyond
the Seas, that then such Person or Persons shall be at liberty to
bring the same Actions so as they take the same within six years
next after their coming to or being of full age, discovert, of sane
Memory, at large, and returned from beyond the Seas.

AND BE IT FURTHER ENACTED by the Authority afore-
said, That if any Person or Persons against whom there is or
shall be any such Cause of suit or Action for Seamen's Wages, or
against whom there shall be any Cause of Action of Trespass
Detinue, Action sur Trover, or Replevin for taking away any
Goods or Chattels, or of Action of Account, or upon the Case,
OP of Debt grounded upon any lending op Contract without
specialty or Debt for Arrearages of Rent, or Assault, Menace,
Battery, Wounding and imprisonment or any of them, be or shall
be, at the Time of any such Cause of suit or Action given or ac-
crued, fallen, op come, beyond the Seas, That then such Person
or Persons who is or shall be entitled to any such Suit or Action,
shall be at Liberty to bring the said Actions against such Person
or Persons after their Return from beyond the seas, so as they
take the same after their return from beyond the Seas within such
Times as are respectively limited for the bringing of the eaid
Actions before by this Act*

AND BE IT ENACTED by the Authority aforesaid. That if
any Person op Persons shall be arrested from and after the
passing hereof by any Writ, Bill or Process issuing out of any
Court of Record, at the Suit of any common Person, and the
SheriH or othep Officer taketh Bail from such Person against
whom such Writ Bill or Process is taken out, the Sheriff or other
Officer at the Request and Costs of the Plaintiff in such Action
OP suit, OP his lawful Attorney, shall assign to the Plaintiff in
such Action the Bail Bond, or other Security taken from such
Bail by indorsing the same and attesting it under his Hand and
Seal in the presence of two or more credible Witnesses; And if
the said Bail Bond or Assignment or other Security taken for
Bail be forfeited, the plaintiff in such Action after such Assign-
ment ma(!e may bring an Action and Suit thereupon in his own
Name, and the Court where the Action is brought may by Rule or
Rules of the same Court give such Relief to the Plaintiff and De-
fendant in the original Action, and to the Bail upon the said
Bond or other Security taken from such Bail as is agreeable to



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542 LAWS OP THE COLONY OF NEW YORK.

Justice and Beason, and that such Rule or Rules of the said
Court shall have the Nature and Effect of a Defeazance of such
Ball Bond or other Security for Bail.

AND BE IT FURTHER ENACTED by the Authority afore-
said, That all Warranties which shall be made after the passing
hereof by any Tenant for Life of any Lands Tenements or
Hereditaments, the same descending or coming to any person
in Reversion or Remainder, shall be void and of none Effect,
and likewise all Collateral Warranties which shall be made
after the passing of this Act, of any Lands, Tenements or
Hereditaments by any Ancestor who has no Estate of Inheritance
in possession in the same, shall be yoid against his Heir.

AND BE IT FURTHER ENACTED by the Authority afore-
said, That no Subpoena or any other process for Appearance
do issue out of any Court of Equity till after the Bill is filed
with the proper Oflftcer in such Court, except in Cases of Bills
for Injunctions to stay Wastes, or stay Suits at Law commenced.

AND for the better preventing Vexatious Suits in Courts of
Equity, BE IT FURTHER ENACTED, That upon the Plain-
tiffs dismissing his own Bill, or the Defendants dismissing the
same for want of prosecution, the Plaintiff in such Suit shall
pay to the Defendant or Defendants his or. their full Costs to
be taxed by a Master, and that no Copy Abstract or Tenor of
any Bill in Equity do go with the Dedimus or commission for
taking the Defendants Answer.

AND JBE IT FURTHER ENACTED by the Authority afore-
said That this Act and all the Statutes of Jeofails shall ex-
tend to all Suits in any Court of Record for recovery of any
Debt immediately owing or any Revenue belonging to His Ma-
jesty his Heirs and Successors, and shall also extend to all
Courts of Record within this Colony.

AND for preventing great Vexation from suing out defective
Writs of Error, BE IT ENACTED by the Authority aforesaid,
That upon the quashing any Writ of Error to be sued out after
the passing hereof for Variance from the Original Record or
other Defect, the Defendant in such Writ of Error shall recover
against the Plaintiff or Plaintiffs issuing out such Writ, his
Costs as he should have had if the Judgment had been affirmed,
and to be recovered in the same Manner.

AND BE IT ENACTED by the Authority aforesaid, That
from and after the passing hereof, Actions of Account shall and
may be brought and maintained against the Executors and Ad-
ministrators of every Ouardian Bailiff and Receiver; and also



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LAWS OP THE COLONY OP NEW YORK. 643

by one Joint Tenant and Tenant in Common his Executors and
Administrators against the other as Bailiff for receiving more
than comes to his just Share or Proportion and against the
Executor and Administrator of such Joint Tenant, or Tenant
in common, and the Auditors appointed by the Court where such
Action shall be depending shall be and are hereby impowered
to administer an Oath, and examine the Parties touching the
Matters in Question, and for their Pains and trouble in Auditing
and taking such Account, have such Allowance as the Court
shall adjudge to be reasonable, to be paid by the Party on whose
Ade the Ballance of the Account shall appear to be.

[CHAPTER 1611.]
[Chapter 1611, of Van Bchaack, where the act Is printed !n full.]

An Act for punishing Accessories to
Pelonies and Receivers of Stolen Goods.

[Passed. March 8, 1778.1

WHEREAS Thieves and Robbers are much encouraged to
commit Pelonies because a great Nupber of Persons make it their
Trade and Business to deal in buying Stolen Goods. AND
WHEREAS the Counsellors and contrivers of Theft and other
Felonies, and Receivers of Goods that have been stolen, are the
principal Cause of the Commission of such Felonies, and as no
Accessory can be convicted or suffer Punishment, where the
Principal is not attainted, or hath the Benefit of his Clergy; for
Remedy whereof.

BE IT ENACTED by his Excellency the Governor the Council
and the General Assembly, and it is hereby Enacted by the Au-
thority of the same. That from and after the Publication of this
Act, if jany Person or Persons shall buy or receive any Goods or
Chattels that shall be feloniously taken or stolen from any other
Person, knowing the same to be stolen, he she or they shall be
taken and deemed an Accessory or Accessories to such Felony
after the Fact and shall incur the same Punishment as an Ac-
cessory or Accessories to the Felony, after the Felony committed.

AND BE IT ENACTED by the Authority aforesaid, That if
any Principal Offender shall be convicted of any Felony, or shall
stand mute or peremptorily challenge above the Number of
twenty Persons returned to serve of the Jury, it shall and may
be lawful to proceed against any Accessory either before or
after the Fact, in the same manner as if such Principal Felon
had been attainted thereof, notwithstanding any such Principal



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U4 LAWb OF Xli£ iXiljU^l OF SEW YUtt^



Fekw ftLall be admlued to tbe Besefit «f kis dcfsy,

•r cKLfrnrue delirered before Aitaiiider, aad ev«7 an

florj ftfaall suffer the mne PunisLment if he or she be eoaTieted,

or ftLall stand Mote or petemptonij rbaikfiee abore the Xum-

ber of tweDtj Penooa retomed to aerre oi the Jorj, aa he or

abe ahoold hare anffered if the Principal had beea attainted.

ASD BE IT FUBTHER ENACTED bj the Aathority afore-
aaJd, That it Aall and maj be lawful to prooecote and poniah
ererj anch Peraon and Peraona bojing or receiTing anj stolen
Goods knowing the aame to be stolen aa for a Miademeanor to
be ponlshed bj Fine and Lnpriaonment, althooi^ the prineipal
Felon be not before ccmTicted of the aaid Fd<Mij, which shall
exempt tbe Offender from bong pnniahed aa Acoeasoiy, if the
Principal shall be afterwarda eonyicted.

[CHAPTER 1612.]
(Chapter 1912, of Tan Behaad^, where the act Is printed fai folL]

An Act for giving Belief t« Promissory

KoteSL

[Paused, March a 177S.]

BE IT ENACTED bj hla Excellency the Governor the Council
and the General Assembly, and it is hereby enacted by the Aa-
thority of the same, That all Notes in writing already made or
hereafter to be made and signed by any Person or Persons, or by
the Factor or Agent of any Merchant or Trader who is nsoally
intrusted by him her or them to sign such prcnnissory Notes for
him ber or them, whereby such person or persons, his her or
their Factor or Agent as aforesaid doth or shall promise to pay
to any other person or persons, Body Politick or Corporate, his
her or tlieir Order, or unto Bearer any sum of Money mentioned
in such Note shall be taken and construed to be by virtue thereof
due and payable to any such person or persons. Body Politick or
Corporate to whom the same is made payable, and also every
such Note payable to any person or persons, Body Politick or
Corporate, his her or their Order shall be assignable or in-
dorsable over to any other person or persons Body Politick or
Corporate; and that the person or persons Body Politick or Cor-
porate to whom such sum of Money is or shall be by such Note
made payable, shall and may maintain an Action for and re-
cover the Money made payable by such Note against the Person
or Persons who, or whose Factor or Agent as aforesaid signed
the same, and that any Person or persons. Body Politick or Cor



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LAWS OF THE COLONY OP NEW YORK. 545

porate to whom such Note that is payable to any person or
persons, Body Politick or Corporate, his her or their Order is
or shall be indorsed or assigned or the Money therein mentioned
ordered to be paid by Indorsement thereon shall and may main-
tain his her or their Action for snch sum of Money either
against the person or persons, who or whose Factor or Agent as
aforesaid signed such Note or against any of the Persons who
indorsed the same, and in every such Action the Plaintiff or
Plaintiffs shall recover his her or their Damages and Costs of
suit, and if such Plaintiff or Plaintiffs shall be nonsuited or a
Verdict be given against him her or them, the Defendant or
Defendants shall recover his her or their Costs against the Plain-
tiff or Plaintiffs, and every such plaintiff or plaintiffs. Defendant
or Defendants respectively recovering, may sue out Execution
for such Damages and Costs by Capias or Fieri Facias, as is
usual in other Cases.

AND BE IT FURTHER ENACTED by the Authority afore-
said That all and every snch Action upon any such Note already
made shall be commenced sued and brought within six years
next after the End of this present Session and not after, and
that all and every such Action upon any such Note hereafter
to be made shall be commenced sued and brought within six
Years next after the Cause of such Action and not after.

PROVIDED NEVERTHELESS, and it is hereby enacted by
the Authority aforesaid. That if any person that is or shall
be entitled to any such Action, be or shall be at the Time of
such Action accrued within the Age of one and twenty Years,
Feme Covert, non Compos mentis, imprisoned or beyond the
Seas, that then such person or persons shall be at liberty to
bring the same Actions, so as they take the same within such
Time as is before limited after their coming to, or being of full
Age, discovered of sane Memory, at large and returned from
beyond the seas, as other persons having no such Impediment
should have done.

[CHAPTER 1613.]
[Chapter 1613, of Van Schaack, where the act is printed in fulL B^
vived by chapter 1705.]

An Act to prevent Frauds in the Sale of

Bread.

[Passed, March % 1773.]

WHEREAS great Complaints are made of Frauds committed
In the City of New York by the Sale of Bread made of un-

VoL V. 69



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646 LAWS OF THE COLONY OF NEW YORK.

merchantable Flour, tho' the Assize of Bread be regulated by
the Price of Flour of the Quality of such as ought to pass the
Inspection as good and Merchantable.

BE IT THEREFORE ENACTED by the Goyemor the Coun-
cil and the General Assembly, and it is hereby enacted by the
Authority of the same, that from and after the tenth Day of
April next, no Baker in the said City shall directly or indirectly
sell any Loaf of Bread at the Price and Weight at which white
Bread of the best or finest Flour is or may be assized by the
Corporation of the said City, unless the same be wholly made
of Flour that has duely pass'd the Inspection as good and mer-
chantable Flour agreeable to the Laws for that Purpose made
and now in Force, to prevent the Exportation of unmerchant-
able Flour under the Penalty of Four Shillings for every Of-
fence to be recovered by him who will sue for the same before
any Justice of the Peace in a summary Way with Costs of Suit.
And whenever the Proof shall upon a View of the Bread or
otherwise appear to the Magistrate, before whom any Suit may
be brought against any Baker for the Penalty aforesaid to be



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 54 of 92)