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FORM No. 292.

Notice to quit, given by receiver. [Title of court and cause.]

1, the undersigned A. B., as receiver in the above entitled cause, of the property of M. V., hereby give you notice to quit and deliver up to me, on the

day of [designating premises], which you now hold as tenant of the said M. N. [Date.]

[Signature of], Receiver. To [name of tenant, or, if uncertain, address merely to occupant].

, 19

56 the

FORM No. 293. Bord of guardian of infant legatee to repay in case legatee die without lawful

issue.57 [Penal clause as in Form No. 35, p. 32.] Now the condition of this obligation is such that if A. B., his executors, administrators, or successors, shall well and truly pay, or cause to be paid, unto the above named executors, the survivors or survivor of them, or to their successor or successors, the executors, administrators, or assigns of either, the just and full sum of all moneys which the said A. B., as guardian of M. N., one of the legatees of deceased, shall, from time to time, receive of said executors, their successors or survivors, or either of them as principal, in

P. 430.

Vroom (N. J.) 128. Thus, where the your tenancy originally commenced at tenancy from month to month com that time of the year; or, otherwise, menced on the first day of the month, that you quit or deliver up, at the a notice to quit, if intended for Maj, end of the year of your tenancy, which should be served on or before the first will expire next after the end of half of April. Anderson 1. Prindle, 23 a year from the time of your being Wend. 616.

served with this notice.” See, on this subject, note 49, on This is substantially the form given

in Smith on Receivers, Appendix. Where a tenant held over, after the 57 The bond to an executor, etc., termination of a lease, for a year, the before suing for a legacy or distribufollowing notice to quit (describing tive share in ordinary cases (formerly the premises), which you have held required by 2 N. Y. R. S., 114, $$ 9, under me," held not to contain an 10), is dispensed with by N. Y. Code admission that there was a tenancy Civ. Pro., $ 1827, which substitutes for such year.

Adams v. Decker, 6 an undertaking to be given before Halst. (N, J.) 84.

execution issues. A notice to quit, sufficient in all The form here given is adapted . respects except that it stated a wrong from Tyson v. Blake, 22 N, Y. 558,

reason (non-payment of rent) for ter where the court held that as by the minating the tenancy, held to be terms of the will three grandsons were effectual. Creighton 0. Sanders, 89 entitled to the fund if the legatee first Ill. 543.

named died without issue, the execu38 Where the commencement of the tors had the right to withhold the tenancy is doubtful, add "provided principal of such legatee's share of the

case the said M. N. shall die without lawful issue, together with interest from the time of such death without lawful issue [the amount of which moneys appears by the receipts of the said A. B., indorsed on this instrument], then this obligation shall be void, otherwise of full force and effect.

[Add signatures, seals, acknowledgment, affidavits of sufficiency of sureties as in Form No. 35 or 36, p. 34.]

net proceeds of the estate, unless adequate security was given or tendered to account for the same in the event of her dying without lawful issue, together with interest thereon from the time of her death. Adding, “ The

bond was precisely such a one as the executors were entitled to require upon advancing to” her, “ or her guardian, the principal of her legacy, or any part of it.”

ARTICLE VI.

EXAMINATION OF ANTICIPATED PARTY OR WITNESS, BEFORE

Action.

order for examination, and 1. Power of the court,

to suppress depositions al2. The practice.

ready taken. 3. Application to perpetuate testi (297) Order vacating order for ex: mony relating to the title to

amination, and suppressing real property.

depositions taken thereFORMs.

under. (294) Order for perpetuation of tes (298) Petition upon application to timony of a witness in an

perpetuate testimony expected action.

re

garding real property. (205) Allidavit upon application to (299) Order thereon for notice to obtain examination of

persons
adversely

interwitness in an expected ac

ested. tion.

(300) Order for taking depositions. (296) Notice of motion to vacate

1. Power of court.]— Courts of equity have inherent power to entertain bills for the perpetuation of testimony as well as to compel discovery. The codes of procedure substitute an application by motion, to be made in the action in which the evidence is wanted, or in anticipation of such an action ; 59 but this code proceeding is not entertained by the United States courts.co The application before action commenced, under the New York Statute, is limited to the perpetuation of testimony, and cannot be invoked to enable the expected plaintiff to frame his complaint, or to find out whether he has a cause of action, or the proper party defendant; the rule is the same whether the person sought to be examined is the expected adverse party, or merely a witness knowing some material fact.61

The perpetuation of testimony of witnesses, in anticipation of some future litigation (not unfrequently needed in England where land titles are rarely registered), is less frequently needed here. Applications for the examination of an intended defendant are

58 N. Y. & Baltimore Coffee Co. 1. N. Y. Coffee Co., 9 Fed. Rep. 578; 62 Jow. Pr. 485 (bill to perpetuate testimony under U. S. R. S., $$ 866, 867, extending the chancery jurisdiction to the U. S. Circuit Courts).

69 Merch. Nat. Bank v. Sheehan, 101 N. Y. 176.
60 Fogg v. Fisk, 7 Civ. Pro. Rep. 169. rev'g, in effect, 4 id. 344.

61 Matter of Schlatterer, 105 App. Div. 115, 93 N. Y. Supp. 895; Matter of Ellet 1. Young, 95 App. Div. 417, 88 N. Y. Supp. 661; Matter of White, 44 Ann. Div. 119. 60 N. Y. Supp. 702; Matter of Schoeller, 74 App. Div. 347, 77 N. Y. Supr. 614; Matter of Anthony, 42 App. Div. 66, 58 N. Y. Supp. 907; Long Island Bottlers' Union v. Bottling Brewers, 65 App. Div. 459, 72 N. Y. Supp. 976.

62

not encouraged; for the applicant should ordinarily be left to bring his action and proceed therein.

2. The practice.]— Under N. Y. Code Civ. Pro., § 873, apply not to the court, but to a judge out of court. A judge of the Supreme Court, or a county judge, can make the order. It is not necessary to give notice unless the judge requires it. For the general practice upon these applications, see, in more detail, Vol. II, EXAMINATION BEFORE TRIAL.

3. Application to perpetuate testimony relating to the title to real property.] — A recent addition to the New York Code of Civil Procedure (L. 1901, chap. 303, adding S$ 1688a-1688i) confers power upon the Supreme Court to provide for the taking of the deposition of any person whenever necessary for the protection of the applicant's rights in specified real property. The practice upon the application is closely analogous to the practice under the more general provisions of § 870 et seq.; differences that may advantageously be noted are, that the application under

1688a must be made upon petition (instead of affidavit), that it may be presented to a Supreme Court judge only, and that the depositions of the witnesses must be recorded in the office of the register of deeds (or county clerk where there is no register).

FORM No. 294. Order for perpetuation of testimony of a witness in expected action.63 New York SUPREME COURT. NEW YORK County.

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It appearing to my satisfaction from the annexed affidavit of M. S. T., president of the above named company, verified on the day of

19 that an action will be brought as

62 See Merch. Nat. Bank v. Sheehan, 101 N. Y. 176.

63 This must be a judge's order under Code Civ. Pro., & 873. Heishon v. Knickerbocker, etc., Co., 77 N. Y. 278.

64 The application should not be

entitled in the action as expected to be brought. Matter of Bryan, 3 Abb. N, C. 289.

stated in said affidavit, that the witnesses to be examined herein are to leave the State of New York, on the

day of 19 and will be out of the State at the time of the trial herein, that they are residents of the Kingdom of Norway, and that this application is made in good faith to preserve their testimony; it is

On motion of W. C. & II., attorneys for the petitioner,

ORDERED, that said [uitnesses] appear before the justice of this court holding Special Term, [Part II] at the [County Court IIouse in the Borough of Manhattan, County of New York,] on the day of

19 , at ten-thirty o'clock in the forenoon of that day, to be examined as witnesses on behalf of the Tweedie Trading Company in the actions expected to be brought.

[Insert any desired limitations on scope of order.]“7

And special circumstances being shown in said affidavit making a shorter time of service necessary, it is hereby further

ORDERED, that a service of a copy of this order on the said witnesses, and on the S. C. Company,69 [cxpected adversary] on or before the

1

day of

19 , together with a copy of the annexed affidavit, shall be sufficient. [Date.]

[Signature], Justice of the Supreme Court of

the State of New York.

>

FORM No. 295. Affidavit upon application to obtain examination of witnesses in expected

action 70 [Title as in previous Form.] [Venue.]

M. S. T., being duly storn, deposes and says: I am the president of the above named T. Trading Company. Said company is

65 Although the literal reading of 68 The party must be personally the Code makes the order returnable served to bring him in contempt. only before the judge granting it, or Tebo v. Baker, 77 N. Y. 33. a referee, the practise is as indicated No subpæna is necessary, Pake o. in the Form, and is supported by Proal, 2 Abb. N. C. 418, except, perSweeney v. Sturgis, 24 Hun, 162. haps, in case of a non-resident witGO A resident of the state cannot be

Code Civ. Pro., § 886, last required to attend in any county other clause. than that in which he resides or has 69 Unless this service be made also an office for the regular transaction on the expected adversary, the witof business in person. If not a resi ness is not obliged to appear. Cowen dent, he cannot be required to attend v. Ferguson, 7 N. Y. St. Rep. 403, in any other county than that in aff'g 18 Abb. N. C. 241. which he is served with a subpæna, 70 Adapted from Matter of Tweedie unless otherwise directed by the or Trading Co., 105 App. Div. 426, 94 der. Code Civ. Pro., & 886.

N. Y. Supp. 167, 35 Civ. Pro. 6. 67 Applies only to case of an expected party. Code Civ. Pro., $ 873.

ness..

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