TITLE 5. Plea of judg meat recover ed, when not good. When sureties to be acquitted. When of a portion. Direction on' execution. Execution against bodies. Several judg bution. $12. No such suit shall be barred, nor shall the amount which the plaintiff may be entitled to recover therein be affected, by any plea or notice made by any surety in such bond, of a judgment recovered thereon, unless it be accompanied by an allegation that the sureties in such bond, some or one of them, have been obliged to pay the damages assessed in such judgment, or some part thereof, for the want of sufficient property of such sheriff whereon to levy the same, or that they will be obliged to pay the same, or some part thereof, for the same reason; nor unless such plea or notice be verified by the oath of the defendant making the same. $ 13. If it appear that the amount of any damages so recovered, which such surety has been obliged to pay, or will be obliged to pay, as specified in the last section, is equal to the amount for which such defendant shall be liable, by virtue of the bond, he shall be acquitted and discharged of all further liability, and judgment shall be rendered in his favor. $ 14. If it shall appear that the amount of any damages so recovered, and which such surety has been obliged to pay, or which he will be obliged to pay, is not equal to the amount of such surety's liability, the amount thereof shall be allowed to such defendant, in estimating the extent of his liability in any such action. S 15. Whenever a judgment shall be obtained against a sheriff and his sureties, a direction shall be endorsed on the execution issued thereon, by the attorney issuing the same, to levy the amount of such execution, in the first place, of the property of such sheriff, and if sufficient property of such sheriff cannot be found to satisfy such execution, then to levy the deficiency of the property of the sureties.34 $ 16. In every such case of a judgment against a sheriff and his sureties, no execution against the bodies of the defendants shall be issued, until an execution against their property shall have been returned unsatisfied, in whole or in part. $ 17. Whenever several judgments shall be obtained at the same ments; distri- term, upon any official bond of a sheriff, for damages amounting in the whole to more than the sums for which the sureties therein shall be liable, the supreme court shall order the monies levied upon such judgments, from the property of the sureties, to be distributed to the relators respectively in such judgments, in proportion to the amount of their respective recoveries.35 Ib. monies collected. $ 18. If executions be issued upon several judgments obtained at the same term, upon any such official bond, and sufficient monies shall not be raised to satisfy all of the said executions, the supreme court shall distribute the monies collected on such executions, to the rela (34) Laws of 1827, § 7. (35) 1 R. L. p. 422, § 6. tors respectively in such judgments, in proportion to the amount of TITLE 5. their respective recoveries.36 rogates' $ 19. Whenever the surrogate of any county shall be guilty of any Suits on surdefault or misconduct in his office, the party aggrieved thereby may bonds apply to the court of chancery for leave to prosecute the official bond of such surrogate. cution of $ 20. Such application shall be accompanied by the same proof Proof; proseherein required in proceedings on sheriff's bonds; and upon such suit. leave being granted, the applicant shall be authorised to prosecute such bond in the name of the people of this state, in the supreme court only, in the same manner, with the like effect, and subject in all respects to the provisions herein contained, in respect to suits on the of ficial bonds of sheriffs; and the supreme court shall possess the same powers in relation to such suits. of register, cory. S21. In suits upon the official bonds of the register and the assist- Suit on bond ant-register of the court of chancery, prosecuted by the order of the &c. in chanchancellor, the same proceedings shall be had, and such suit shall be prosecuted and judgments rendered therein, in the same manner herein prescribed in relation to suits on the official bonds of sheriffs, except as herein otherwise provided. of collec $ 22. If there shall have been any delinquency of such register or Distribution assistant-register, in not accounting for, or paying over, any monies tions, &c. belonging to the common fund appertaining to the court of chancery, the chancellor shall order his bond to be prosecuted in the name of the people of this state, on the relation of the successor in office of such register or assistant-register; and the same proceedings shall be had therein as in other cases, except that when there shall be a deficiency in the monies collected on such bond, to satisfy all the judgments that may have been recovered, a preference shall be given in the distribution of such monies, to judgments recovered on the relation of private parties, over the judgments recovered on the relation of the successor to such register or assistant register. chancery. $23. In suits upon the official bonds of clerks in chancery, the Clerks in same proceedings shall be had, as are above provided in suits upon the official bond of the register in chancery. of New $24. Proceedings for the prosecution of any official bond given County cleris by the clerk of the city and county of New-York, may be had in the York. manner herein directed in respect to official bonds of sheriffs, except that applications for that purpose may be made to the court of common pleas of the said city and county, and such suit may be brought in the said court, or in the superior court of law of the said city and county. (36) 1 R. L. p. 422, § 6. $25. The said courts shall proceed in such suits, in the manner herein directed, in respect to suits on sheriff's bonds; and all the powers of the supreme court in relation to such bonds, and the proceedings, judgment and executions therein, are hereby conferred on the said courts, in suits upon the official bond of the said clerk. $26. Proceedings for the prosecution of any official bond given by any marshal of any city, may be had in the manner herein directed in respect to official bonds of sheriffs, except that applications for that purpose may be made to the mayor's court of the city, and such suit may be brought in the said court. $27. The said court shall proceed in such suit, in the manner herein directed in respect to suits on sheriff's bonds; and all the powers of the supreme court in relation to such bonds, and the proceedings, judgments and executions therein, are hereby conferred upon the said court in suits upon the official bond of such marshal. What actions may be brought. How prose cuted. TITLE VI. OF ACTIONS FOR PENALTIES AND FORFEITURES; AND PROVISIONS ART. 1. Of actions for penalties and forfeitures, ART. 2.—Provisions respecting the collection and remission of fiues imposed by courts, and of forfeited recognizances. ARTICLE FIRST. Of Actions for Penalties and Forfeitures. SEC. 1. Actions that may be brought for forfeitures, &c. 2. To be prosecuted like personal actions. 3. Such actions by district attorney, public officers, &c. 4. Penalties, &c. incurred on rivers, &c. where sued for. 10. Mode of declaring for penalty, &c. in action of debt. 13. General issue may be pleaded: evidence under it. 15. Actions where precise penalty is not specified. § 1. When a pecuniary penalty or forfeiture is specially granted by law to any person injured or aggrieved by any act or omission of another, the same may be sued for and recovered in an action of debt, or in an action of assumpsit; and if it be a forfeiture of any property, it may be sued for and recovered in an action of trover, or other appropriate action. S2. Every such action shall be prosecuted and conducted in the same manner as other personal actions in all respects, except as herein otherwise provided; and shall be subject to all the provisions of law concerning amendments of the process, pleadings and records ART. 1. therein, and concerning the abatement of such suits by death or otherwise, and all other provisions concerning personal actions not inconsistent with this Title. attorney $3. Actions brought by the attorney-general, or by the district at- Actions by torney of any county, or by any public officer for the recovery of any general, &c, penalty or forfeiture, shall also be conducted and prosecuted in the same manner as personal actions, and shall be subject to all the provisions of law concerning personal actions, not repugnant to the provisions of this Title. And whenever any penalty or forfeiture shall be recovered, which is not specially granted by law to the party aggrieved; or to any officer; or to, or for the use of, any county, town, or other body politic; or for the use of the poor of any place; or to any person who will prosecute; or which shall not be otherwise specially appropriated; the same shall be paid into the treasury of the state, for the use of the people thereof. curred on S4. When any penalty or forfeiture shall be imposed by law, for Penalties in any offence committed on any river, lake or other stream of water, rivers, &c. and such river, lake or stream shall be situated in two or more counties, an action for the recovery of such penalty or forfeiture, may be brought by the proper officer, in any county bordering on such river, lake or stream, and opposite to the place where such offence was committed; and a recovery in such action shall be a bar to any other suit, by any other public officer, for the same offence, common in $5. Where any penalty or forfeiture is given by law to any person Suits by who will sue for the same, such suit shall be brought in the name of formers. the person commencing the same, who may appear by attorney; and it shall be conducted and prosecuted in all respects in the same manner as personal actions, and shall be subject to the provisions of law concerning personal actions. $6. No such suit shall be deemed to be commenced, until process Iu, shall be actually delivered to an officer to be executed; which process shall not be re-delivered to the plaintiff in any case, but shall be returned to the court from which the same issued; and no such action shall be compromised or compounded, without the leave of the court in which it shall be pending.37 on process, S7. Upon every process issued for the purpose of compelling the Endorsement appearance of the defendant to any action for the recovery of any penalty or forfeiture, shall be endorsed a general reference to the statute by which such action is given, in the following form: "According to the provisions of the statute regulating the rate of interest on money," or "according to the provisions of the statute concerning sheriffs," as the case may require, or in some other general terms referring to such statute.38 TITLE & When to be brought. Jb. against public offi cers. Declaring in debt. Ib. in assumpsit. Ib. in trover. General issue; evidenco un der it. Replication in certain case. $8. Every action for a penalty or forfeiture, shall be brought in the county where the act was done, upon which such penalty or for feiture attached; and if brought in the supreme court, the venue in such action shall be laid in such county. S9. Where such penalty or forfeiture attaches in consequence of the omission of any public officer to perform any duty incident to his office, the action shall be brought for the recovery thereof, and the venue shall be laid, in the county of which such person was an officer. $10. In actions of debt brought to recover any penalty or forfeit ure given by any statute, it shall be sufficient, without setting forth the special matter, to allege in the declaration, that the defendant is indebted in the amount of such penalty or forfeiture, to the officer, person or body, for whose use the same is given; whereby an action accrued according to the provisions of such statute, naming the subject matter thereof, in the following form: "According to the provisions of the statute concerning sheriffs," naming the section, Title and Chapter of such statute, as the case may require, or in some other similar terms referring to such statute. § 11. Whenever an action of assumpsit shall be brought for the recovery of any penalty given by any statute, it shall be sufficient, without setting forth the special matter, to allege in the declaration, that the defendant being indebted in the amount of such penalty, according to the provisions of such statute, referring to the same as prescribed in the last section, undertook and promised to pay the same. § 12. If an action of trover be brought to recover any goods or other thing forfeited by the provisions of any statute, the declaration may allege that such goods or other things were forfeited according to the provisions of such statute, referring to the same as prescribed in the foregoing sections, and that the defendant converted the same to his own use, without setting forth the special matter. § 13. To every declaration for a penalty or forfeiture, the defendant may plead the general issue; that he owes nothing, or that he did not undertake and promise, as alleged in such declaration; or that he is not guilty of the premises charged; as the case may require, and may give in evidence under such plea, any special matter, which, if pleaded, would be a bar to such action, or discharge the defendant therefrom, in the same manner and with the like effect as if the same had been pleaded specially.* $ 14. In any suit for a penalty or forfeiture, brought by any person other than the party aggrieved, or other than any public officer, if a former recovery, or acquittal, or other bar to such action be pleaded, the plaintiff may reply, that such recovery, acquittal or bar, was had by covin and fraud; and if such replication be confessed or establish (39) 1 R. L. p. 100, § 3. |