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assets to pay legacies, rule
in case of;
Costs, to whom awarded.
When suit may be brought;
And be it further enacted by the authority aforesaid, That the respective courts in which any such action shall be commenced or prosecuted, upon the plea of want of assets to pay all the debts and all the legacies, or when such suit is brought for a residuary part or proportion of any personal estate or goods, may appoint auditors to examine the accounts and the executors, which auditors after full hearing and examination thereof, at such time and place or times and places as by them shall be appointed, with notice to the executors and plaintiff, or their respective attornies, shall report how the accounts of the executors do stand, and how much assets will remain in their hands after payment of the whole of the debts, and what part of such remainder ought to go towards paying the demand of the plaintiff, if it is not sufficient to pay the whole; and the court shall thereupon give judgment, and award execution, for such sum as the plaintiff ought to recover. But if the plaintiff shall discontinue his suit, or become non suited, or judgment be given against him, or if nothing be found due to him, then the defendants shall have judgment to recover their costs of suit against such plaintiff. And in case the plaintiff shall recover only a part of his demand for want of assets to discharge the whole, then when such further assets come to the defendants hands, the plaintiff may have a resummons against the defendants, and recover the residue of the monies due to him or his proportion of such assets; and the court is hereby empowered upon the exception of either party, and hearing the parties, to correct and amend any mistakes or errors in such report or the accounts so reported.
And be it further enacted by the authority aforesaid, That the court in which any such action may be brought or prosecuted, shall upon consideration of the report of the auditors, and the accounts of the executors, and the nature of the action, and the proceedings therein, award the costs of the suit or of either party to be paid out of the testators estate, or by either of the parties, according to justice and equity; and in case the executors have been faulty in delaying to pay the legacy demanded, or a proportional part thereof, without sufficient excuse, then the court may award costs against the executors to be paid out of their own estate, any thing herein contained to the contrary notwithstanding. Provided always, and be it further enacted by the authority aforesaid, That no such suit shall be maintained for any such legacy or bequest, bond to until reasonable demand be made of the executor or executors who indemnify executors. ought to pay the same, and an offer of two sufficient sureties to the said executor or executors, who if they shall think proper to except thereof, shall become bound to them the said executors, in double the sum of the said legacy, with condition that if any part, or the whole thereof, shall at any time after appear to be wanting to discharge any debt or debts, legacy or legacies, which the said executors may not have other assets to pay, then and in such case the said legatee will return the said legacy, or such part thereof as may be necessary, for the payment of the said debts, or for the payment of a proportional part of the said legacies; and if the said executors shall not think proper to accept thereof, then the said legatee shall file such bond, the same, and the securities being first approved of by the court, in the office of the clerk thereof before obtaining any process against the said executors, otherwise the same process shall abate; but where there are several legatees, and a return of part of the said legacy shall afterwards appear necessary, each legatee shall only be compelled to return a proportional part of his legacy, so as to make up the whole sum wanting
One year allowed executors
And be it further enacted by the authority aforesaid, That where no time in and by any testament or last will, is or shall be limitted for the
payment of any legacy or legacies thereby given or bequeathed, then to pay legacies. and in every such case, the executors shall have the space of one year to discharge the same; any law usage or custom to the contrary notwithstanding.
And be it further enacted by the authority aforesaid, That this act shall Adminisbe construed and taken to extend to all persons to whom letters of with will administration have been or shall be granted with a will annexed, as annexed. fully to all intents constructions and purposes whatsoever, as if they were the executors named in such will.
And be it further enacted by the authority aforesaid, That all persons Actions who have or hereafter may have a right to any share or shares in the adminispersonal estate of any intestate, shall have the like remedy against the trators for administrators for the recovery of the said share or shares, as by this act personal is given to legatees, against executors, and be under the same rules and estate. regulations; any law usage or custom, to the contrary notwithstanding. And be it further enacted by the authority aforesaid, That all lawful Acts of adacts done or to be done by any administrator, before notice of a will, tor before and all sales of goods and chattels made by an administrator bona notice of fide before such notice, shall stand and remain good and shall not be impeached or altered by any executor or executors, on any will appearing afterwards.
Provided always, That such executor or executors, shall have the Remedy same remedy against the administrators, for the goods, chattels and by execu credits, remaining unadministered, as he, she, or they might have had, before the making of this act.
And be it further enacted by the authority aforesaid, That no action Actions by shall be prosecuted in consequence of this act, by any infant by his or of infant. her guardian, or next friend, until such guardian or next friend shall have executed and filed in the office of the clerk of the court in which such action shall be depending, a bond to the said infant in such sum, and with such surety, as the said court shall approve, conditioned that such guardian or next friend shall only account to the said infant, when he or she comes of age; or in case of his or her death to his or her executors or administrators, for all such money as shall be received on account of such legacy.
AN ACT concerning stray cattle and sheep.
PASSED the 5th of January, 1789.
Be it enacted by the People of the State of New York, represented in Stray cattle Senate and Assembly, and it is hereby enacted by the authority of the same, notice to That every person, who at any time hereafter, between the first day of be filed November and the first day of April in any year, shall have any strayed clerk. neat cattle, or sheep, upon his or her inclosed land shall within twenty days after the coming of such strayed neat cattle or sheep into his or her inclosed land, deliver unto the clerk of the city or town, where such neat cattle or sheep shall happen to be, a note in writing containing their several ages, colours and marks, natural and artificial, as near as may be, together with his or her name, and place of abode; and such clerk shall on receipt of every such note, make a full entry thereof at large in a book, to be provided by him for that purpose; and such clerk shall have for making such entry, the sum of six pence per head for all the neat cattle, and the sum of two pence for each sheep so entered as
aforesaid, to be paid to him by the person delivering such note: And the person delivering such note shall have for doing the same, nine pence per head for all neat cattle, and two pence for every sheep, described in such note; and may detain such cattle or sheep, until the owner thereof shall appear and pay the same, together with the sum paid or due to the clerk for the said entry, and all reasonable charges, for keeping the same cattle or sheep.
And be it further enacted by the authority aforesaid, That if no owner ings where shall appear to claim the said cattle or sheep on or before the first day of May next after such entry so made, or if the owner shall refuse or neglect to pay for giving such notice and making such entry and keeping such cattle or sheep then the possessor or person who shall have kept them, and give such notice as aforesaid, is hereby authorised to sell them at vendue to the highest bidder, first giving at least twenty days notice of the time and place of such sale, by advertisements to be put up at three of the most public places in the city or town where the said neat cattle or sheep have been kept, and out of the monies arising by such sale, to retain in his or her hands for his or her own use the sums due as aforesaid for such notice, entry and keeping, of the same cattle or sheep, and shall upon demand pay the risidue after deducting the charges of such sale, to the owner of the same cattle or sheep: But if the owner of such cattle or sheep shall not appear and demand the same money within one year next after such sale, he or she shall be and hereby is forever precluded and barred from recovering any part of the money arising by such sale; and the same money after such deductions as aforesaid, shall in such case be paid to the overseers of the poor of such city or town, for the use of the poor thereof; and the receipt of the said overseers shall be a legal discharge to the possessor or person who shall have kept such cattle or sheep. And if such possessor shall not within thirty days after the expiration of the said year, pay the remaining money arising by such sale, after the deductions aforesaid, to the overseers of the poor of the place where such neat cattle or sheep were taken up and sold as aforesaid, he or she shall forfeit double the sum so remaining in his or her hands, for the use of the poor of the same place; to be recovered over and above and together with the said remaining money, with costs of suit, by the overseers of the poor of the same place, for the time being, by action of debt, bill plaint or information, in any court having cognizance thereof,
Penalty for failure to
And be it further enacted by the authority aforesaid, That every pergive notice son who shall at any time hereafter, between the first day of November, and the first day of April in any year, knowingly have any such neat cattle or sheep as aforesaid, on his or her inclosed land, or in his or her possession, and do not acquaint the owner or owners therewith, or give the notice prescribed by this act, within twenty days thereafter, shall not only lose any demand he or she might otherwise have for keeping and feeding the same neat cattle or sheep, but shall also forfeit to the owner thereof the sum of twenty shillings for every neglect, to be recovered before any justice of the peace in the county, where such neglect shall happen, with full costs of suit.
Books kept by town clerk.
And be it further enacted by the authority aforesaid, That the books to be provided and kept by the respective clerks of each city and town as aforesaid, shall always by them be kept free and open for any person to search therein, and for which search no fee shall be taken by such clerk, on penalty of forfeiting five shillings for every offence, to be recovered by the party aggrieved, with costs of suit, before any justice of the peace in the county, where the offence shall be committed.
AN ACT to prevent the odious practice of digging up and removing for the purpose of dissection, dead bodies interred in cemeteries or burial places.
PASSED the 16th of January, 1789.
WHEREAS the digging up dead bodies interred in cemeteries and Preamble. burial places within this State, and removing them for the purpose of dissection, have occasioned great discontent to many of the inhabitants of this State; and in some instances disturbed the public peace and tranquility.
To prevent such odious practices in future, Be it enacted by the Grave robPeople of the State of New York, represented in Senate and Assembly, alty for. and it is hereby enacted by the authority of the same, That any person who shall at any time hereafter, for the purpose of dissection, or with intent to dissect, dig up, remove or carry away, or be aiding or assisting, in digging up, removing or carrying away, any dead human body, which shall have been interred in any cemetery or burial place, within this State, or shall dissect, or aid abet or assist in dissecting such human body, and shall be convicted of any of the said offences, in the supreme court, or in any court of oyer and terminer, goal delivery, or court of general sessions of the peace, "shall be adjudged to stand in the pillory, or to suffer other corporal punishment (not extending to life or limb); and shall also pay such fine, and suffer such imprisonment, as the court before whom such conviction was held, shall in their discretion, think proper to direct."
And in order that science may not in this respect be injured by preventing the dissection of proper subjects.
Be it further enacted by the authority aforesaid, That the justices of Bodies of the supreme court, or of any court of oyer and terminer, or goal deliv- criminals ery, in this State, from time to time, when any offender shall be con- may be victed before them or either of them, of murder, arson or burglary, for dissection. which he or she shall be sentenced to suffer death, may at their discretion, add to the judgment, that the body of such offender shall be delivered to a surgeon for dissection; and the sheriff who is to cause such sentence to be executed, shall accordingly deliver the body of such offender, after execution done, to such surgeon as such court shall direct, for the purpose aforesaid. Provided always, that such surgeon, or some other person by him appointed for the purpose, shall attend to receive and take away the dead body, at the time of the execution of such offender.
AN ACT to authorize the justices of the supreme court, to appoint the place of holding the circuit courts, within the cities and counties of New York and Albany.
PASSED the 16th of January, 1789.
WHEREAS by an act entitled "An act for regulating trials of issues, Preamble. and returning able and sufficient jurors," passed the 19th April 1786, it
courts in New York
is made necessary for the circuit courts to be held at the court house, if any there be, of the respective counties within this State; which provision hath been found inconvenient, so far as the same respects the cities and counties of New York and Albany. Therefore.
Be it enacted by the People of the State of New York represented in Senate and Assembly and it is hereby enacted by the authority of the same, and Albany That the circuit courts which shall hereafter be appointed in pursuance of the act aforesaid, to be held in the city and county of New York, or in the city and county of Albany, shall be held at such place within the same respectively, as the supreme court at the time of appointing the said circuit courts, shall for that purpose direct, any thing in the said act to the contrary notwithstanding.
Chief justice may
AN ACT to enable the chief justice to hold the court of exchequer, during January term one thousand seven hundred and eighty-nine.
PASSED the 16th of January, 1789.
Be it enacted by the People of the State of New York, represented in hold term Senate and Assembly, and it is hereby enacted by the authority of the same, of court of That it shall and may be lawful to and for the chief justice of the supreme court of judicature for the time being, in the absence of the puisne justices of the said supreme court, in January term one thousand seven hundred and eighty nine, to hold the exchequer court, and to do and perform all the duties appertaining to the office of judge thereof, as fully and effectually to all intents and purposes, as the junior justice of the said supreme court might or could do, were he present and sitting in judgment therein.
AN ACT to empower the mayor, recorder and aldermen of the city of New York, to raise by tax the sum of thirteen thousand pounds, for the purposes therein mentioned.
PASSED the 22d of January, 1789.
WHEREAS the mayor aldermen and commonalty of the city of New York, by their humble petition to the legislature have represented, that many of the inhabitants of the said city, from a persuasion that the residence of Congress in the said city, under the new Federal constitution, would be productive of great advantage to every class of citizens, had conceived it highly important that a convenient building should be provided for the accommodation of that august body: That the said inhabitants being informed that the funds of the corporation were not equal to the attainment of so desireable an object, had chearfully lent their credit to raise money for the purpose, in expectation of being indemnified by an act of the legislature. That large sums of money had accordingly been obtained upon their credit, and applied to the erecting of a