covery of of defendant, TITLE 2. turned unsatisfied, in whole or in part, the party suing out such execution, may file a bill in chancery against such defendant, and any property, &c. other person, to compel the discovery of any property or thing in acand prevent tion, belonging to the defendant, and of any property, money, or thing in action, due to him, or held in trust for him; and to prevent the transfer of any such property, money or thing in action, or the payment or delivery thereof, to the defendant, except where such trust has been created by, or the fund so held in trust has proceeded from, some person other than the defendant himself. its transfer. Property not liable to ex be applied to $39. The court shall have power to compel such discovery, and to ecution, may prevent such transfer, payment or delivery, and to decree satisfaction satisfaction of the sum remaining due on such judgment, out of any personal proof judgment. perty, money or things in action belonging to the defendant, or held in trust for him, with the exception above stated, which shall be discovered by the proceedings in chancery, whether the same were originally liable to be taken in execution at law or not. Set-offs. Bills to discover frauds judgments. $40. In suits for the payment or recovery of money, set-offs shall be allowed in the same manner, and with the like effect, as in actionsat law. $ 41. A bill of discovery may be filed, and the defendant shall be in confessing compelled to answer such bill, where the defendant is charged with having given to another person a warrant of attorney to enter up a judgment, or with having confessed or suffered any judgment, purporting to be for a sum or debt due, when in fact nothing, or only a part of the sum mentioned in such warrant of attorney or judgment, is due, with intent to defraud the just creditors of such defendant, or to place the property of the defendant out of the reach of his creditors, or to hold the same on some secret trust or confidence, or for the benefit of such defendant.21 Answers, when not evidence. Purchaser of real estate, with notice of bill filed. $42. No answer made to any bill, filed under the last section, shall be read in evidence, against the defendant on the trial of any indictment for the fraud charged in the bill.21 $43. To render the filing of a bill in chancery constructive notice how charged to a purchaser of any real estate, it shall be the duty of the complainant to file with the clerk of the county in which the lands to be affected by such constructive notice are situated, a notice of the pendency of such suit in chancery, setting forth the title of the cause and the general object thereof, together with a description of the land to be affected thereby. Each county clerk shall place in an index to be kept in his office, such references to the said notices, as will enable all persons interested, to search his office for such notices, without inconvenience.2 Duty of County clerk. 22 (21) Laws of 1819, p. 119, § 13; of 1823, p. 13. (22) Laws of 1823, p. 213, § 11. ART. 3 $44. When a bill shall be filed in the court of chancery, other than for discovery only, the complainant may waive the necessity of Oath to anthe answer being made on the oath of the defendant; and in such ca- swer, may be ses, the answer may be made without oath, and shall have no other or greater force as evidence, than the bill. waived. tain issues. to establish $45. All issues upon the legality of a marriage, (except where a Trial of cermarriage is sought to be annulled on the ground of the physical incapacity of one of the parties,) shall be tried by a jury of the country; and the chancellor shall award a feigned issue for the trial thereof. 23 $46. The chancellor shall have power from time to time, by gene- Chancellor ral rules of court, to establish, modify, alter and amend the practice rules for proof the court of chancery, in the cases not provided for by any statute. And the chancellor shall, within two years after this Chapter shall commence and take effect, and at the expiration of every seven years thereafter, revise the rules of the said court, with a view to the attainment, so far as may be practicable, of the following improvements in the practice: 1. The abbreviating of bills, answers and other proceedings: 2. The expediting of the decision of causes: 3. The diminishing of costs: and, 4. The remedying of such abuses and imperfections, as may be found to exist in the practice, in any class of suits cognizable in the court of chancery. tice, &c. ed. $47. Whenever any bill, answer or other proceeding, filed in the Prolixity in court of chancery, shall satisfactorily appear to the chancellor, to have how punishproceedings been made unnecessarily prolix, for the purpose of increasing the costs, it shall be the duty of the chancellor to order the solicitor or counsel by whom such bill, answer or other proceeding, shall have been drawn, to pay the costs occasioned by such unnecessary prolixity, to the party injured thereby. ARTICLE THIRD. Of the Terms of the Court, and the Mode of proceeding therein. 49. How long to be held. 50. Stated and special terms by vice-chancellors. 51. May be held at same time with terms of chancellor. 52. Proceedings before vice-chancellors and rehearings, to be regulated by chancellor. 53. When terms of vice-chancellor may be held by another, &c. 54. Bills to whom to be addressed; certain bills, &c. to be presented to vice-chancellors; where filed. 55. All other bills, &c. to be filed with register or assistant. 56. When pleadings subsequent to bills, &c. to be filed. 57. Powers of vice-chancellors in cases that may be heard by them. 58. Orders and decrees how to be entitled and entered. 59. Appeals when to be made from decrees, &c. of vice-chancellors. 60. Appeal how made. 61. Effect of decrees and proceedings on appeal, to be prescribed by chancellor. 62. Powers of chancellor on hearing appeal. (23) 1 R. L. 326, § 5. TITLE 2. SEC. 63. Causes before vice-chancellors may be set down for hearing before chancellor. Stated terms of chancery. 64. Appeals from vice-chancellors not to be made to court of errors. 65. Forms of process issued out of chancery. 66. To be sealed; when to be directed to sheriffs of counties. 67. Present seals retained, where deposited. 68. Four new seals to be made; where to be deposited. 69. Register, &c. to furnish certain blank process to solicitors. 70 & 71. Subpœnas and injunctions not to issue, until bill is filed. 72. Copy, &c. of bill need not be annexed to commissions to take answer. 73. Appearance to be entered, of defendant refusing to appear, &c. 74. Bills how to be taken as confessed and defaults how entered. 75 to 77. Copies of pleadings to be served by parties on each other, or on solicitors. 78. Commissions to take testimony, may be issued. 79. May be issued by register, clerks, &c. 80 & 81. Proceedings to obtain commission. 82. Commissioners authorised to administer oaths. 83. Witnesses to be examined orally, in presence of parties. 81. Vice-chancellors may order witnesses to be examined before them. 85. Such examination may be ordered by chancellor. 86. When so ordered, witness not to be examined by examiner, &c. 87. Rules to be prescribed limiting time for examining witnesses. 88. Also, regulating examinations before commissioners, &c. 89. Testimony, to be written, when to be signed, where filed. 90. Causes how brought to a hearing. 91. When pleadings and decree to be attached, by whom to be signed. 92. Where to be filed; filing deemed enrolment. 93. Docket of certain decrees to be kept by register, clerks, &c. 94. Contents of docket; how entered. 95. Transcripts of dockets to be sent to clerks of supreme court. 96. Certain decrees to bind real estate, from time of docketing. 97. Charge to cease, in certain cases, after ten years. 98. Decrees how discharged on certificate of party. 99. Court may order docket of decrees, to be discharged. 100. Discharge, reversal, &c. of decrees to be certified to supreme court clerks. 102. Minutes of court to be entered in books. 103. Effect of such transcripts as evidence. 104. Executions against person and property, allowed, on decrees. 105. Personal property purchased, not bound by execution until levy, 106. Notices in certain suits, to creditors, &c. generally, how published. 107. Certain causes not to abate by death of parties. 108. Other causes to abate only as to party dying. 109. Suits against representatives, may be revived by order of court. 110. Order to be served; time for appearance, &c. allowed. 111 & 112. Proceedings upon default in appearing, &c. 113 & 114. Proceedings when further answer required. 115 & 116. Suit how revived on death of complainant; proceedings. 117, 118 & 119. Representatives of deceased complainants, how compelled to proceed. 120 & 121. Revival by defendant, against representatives of deceased co-defendant. $48. The stated terms of the court of chancery shall be appointed by the chancellor, and may be altered by him, from time to time, as the public convenience may require; but two terms, at least, shall be held in the city of Albany, and two in the city of New-York in every year.24 How long to S49. Every stated term shall be held eight days, at least, and longer, if necessary.24 be held. Stated terms by vice-chan $50. The vice-chancellors of the several circuits, shall hold four cellors. stated terms in each year, at such times and in such counties in their (24) 1 R. L. p. 486, § 1. Special terma circuits, as they shall respectively appoint, at the usual places of hold- ART. 3. ing courts therein; and when so appointed, the said terms shall remain unaltered for two years. They may also hold so many special terms, and at such times and places, as they shall deem proper. $51. A stated or special term may be held by a vice-chancellor, t. at the same time that any such term shall be held by the chancellor. regulate pro fore vice $52. The chancellor shall, by general rules of court, prescribe the Chancellor to time and manner in which proceedings may be had, and causes be cedings bebrought to a hearing, before the vice-chancellors, pursuant to the pro- chancellors, visions of this Title, and the cases in which a rehearing may be granted by them. &e. vice-chancel be held by $53. Whenever a vice-chancellor shall be unable to hold any Terms of stated term in his circuit, or shall be interested in the event of any lor,when may cause or matter to be heard at such term, or shall have been solicitor another; or counsel in any such cause, any other vice-chancellor may hold the same, or may hear and decide any such cause or matter, in the same manner and with the like effect, as if he was the vice-chancellor for such circuit: or such term may be held by the chancellor. or by the chancellor. addressed to to be present 354. All bills and petitions in the court of chancery, shall be ad- Bills to be dressed to the chancellor : such as relate to a cause or matter in equi- chancellor. ty, which, according to the provisions of this Title, may be heard by a vice-chancellor, shall be presented to such vice-chancellor, and shall Certain bills be filed with the clerk of the court residing in such circuit: or if pre-ed to vicesented to the vice-chancellor of the third circuit, shall be filed with where to be the register; and if presented to the vice-chancellor of the first circuit, shall be filed with the assistant register. chancellors. filed. &c. to be filed &c. $55. In all other cases than those provided for in the preceding Other bills, section, all bills and petitions shall be filed in the office of the regis- with register, ter or assistant register of the court, who shall also respectively perform all the duties heretofore attached to the office of clerk of the court of chancery. ings, where $56. Answers, pleas, demurrers, replications, and all other plead- Other pleadings and proceedings in any cause, which, according to the provisions of this Title may be heard by a vice-chancellor, shall be filed in the office of the register, assistant register or clerk, with whom the bill or petition in the cause was filed; in other cases, such pleadings and proceedings may be filed in the office of the register, assistant register, or any clerk, or in such of them as the chancellor may by general rules direct. by and pow chancellors. $57. In the cases in which the vice-chancellors have jurisdiction, Proceedings according to the provisions of this Title, they shall respectively pro- ers of viceceed upon the bills and petitions presented to them, and shall possess all the powers and authority of the court of chancery, except where different provisions have been or shall be made by law; subject in all cases to the appellate jurisdiction of the chancellor. 23 VOL. II. TITLE 2. $58. All orders and decrees in the court of chancery, shall be entitled as made before the chancellor, or vice-chancellor, according to decrees, how the fact. All orders in a cause shall be entered with the clerk of the Orders and to be entitled and entered. court, or with the register or assistant register officiating as clerk of the court which entertains jurisdiction of such cause, in the same manner as if made by the chancellor. Time of appealing from of vice-chan cellors. $59. Any party complaining of any interlocutory or other order, decrees, &c. previous to a final decree made by any vice-chancellor, may, within fifteen days after notice of such order, appeal therefrom to the chancellor. And any party complaining of any final decree made by a vicechancellor, may appeal therefrom to the chancellor, within six months after such decree shall have been entered in the minutes of the court; and such appeal may be made, notwithstanding the decree may have been enrolled. How made. prescribe of $60. Every such appeal shall be made, by serving notice thereof on the solicitor of the adverse party, and on the register, assistant register or clerk, with whom the order or decree appealed from was entered. $61. The chancellor shall, by general rules, to be varied as occaChancellor to sion may require, prescribe the effect of all orders and decrees made fect of de- by a vice-chancellor, either before or after notice of an appeal shall be ceedings on given; in what cases, to what extent, and on what terms, any such order or decree shall be suspended or affected by an appeal; the manner in which appeals shall be brought to a hearing before him; and the papers and documents which shall be transmitted therewith, and by whom. erees and pro appeals. Powers of chancellor on hearing ap peal. causes before $62. On the hearing of any such appeal, the chancellor shall annul, affirm, modify or alter the order or decree appealed from, or make any other order in the cause, as justice may require; and may remit the cause to the vice-chancellor who made the order appealed from, for further proceedings, or may direct the same to be had before himself, as the circumstances of the case may require. $63. Whenever a cause, which might be heard by a vice-chanHe may hear cellor, shall be ready to be set down for hearing, either party may vice chancel- apply to the chancellor for leave to set down the same for hearing before the chancellor; and he may direct the same to be set down accordingly, whenever from the difficulty of the case, or for any other reason, he shall think proper. lors. court of er yors. $ 64. An appeal shall not be made from any order or decree made Appeals to by a vice-chancellor, to the court for the correction of errors, until such order or decree shall have been brought before the chancellor for review, and shall have been by him reversed, modified or affirmed; except in cases where the chancellor is a party, or interested. Forms of process. $ 65. Process issued out of the court of chancery, shall be in such form, expressive of the intent, as the chancellor shall from time to time establish.25 (25) 1 R. L. 487, § 2. |
