4 Passed 1849. One action he may recover, by action, the damages which he shall have sustained, by reason of the usurpation by the defendant of the office, from which such defendant has been excluded. § 440. Where several persons claim to be entitled to several per- the same office or franchise, one action may be brought against sons claim franchise. ing office or against all such persons, in order to try their respective Passed rights to such office or franchise. 1849. Penalty for usurping office or franchise how Passed 1649. § 441. When a defendant, whether a natural person or a corporation, against whom such action shall have been awarded. brought, shall be adjudged guilty of usurping or intruding into, or unlawfully holding or exercising any office, franchise or privilege, judgment shall be rendered, that such defendant be excluded from such office, franchise or privilege, and also that the plaintiff recover costs against such defendant. The court may also, in its discretion, fine, such defendant a sum not exceeding two thousand dollars, which fine, when collected, shall be paid into the treasury of the state. Judgment of forfeit a corpora tion. § 442. If it shall be adjudged, that a corporation, against ure against which an action shall have been brought, pursuant to this chapter, has by neglect, abuse, or surrender, forfeited its corporate rights, privileges and franchises, judgment shall be rendered, that the corporation be excluded from such corporate rights, privileges and franchises, and that the corporation be dissolved. Passed 1849. Costs against cor persons be such, § 443. If judgment be rendered in such action, against poration or a corporation or against persons claiming to be a corporaclaiming to tion, the court may cause the costs therein to be collected, by execution against the persons claiming to be a corporation, or by attachment or process against the directors or other officers of such corporation. how col lected. Passed 1849. Restrain ing corporation and appoint ment of re ceiver. Passed 1849. § 444. When such judgment shall be rendered against a corporation, the court shall have the same power to re-. strain the corporation, to appoint a receiver of its property, and to take an account, and make distribution thereof among its creditors, as are given in article three, title four, chapter eight, of the third part of the Revised Statutes; and it shall be the duty of the attorney-general, immediately after the rendition of such judgment, to institute. proceedings for that purpose. judgment corporation where to § 445. Upon the rendition of such judgment against a Copy of corporation, or for the vacating or annulling of letters roll against patent, it shall be the duty of the attorney-general, to be filed. cause a copy of the judgment roll to be forthwith filed the office of the secretary of state. in Passed 1849. Entry of re-udgment relating to letters pat ent in re commis land office. § 446. Such secretary shall thereupon, if the record lates to letters patent, make an entry in the records of the commissioners of the land office, of the substance and effect cords of of such judgment, and of the time when the record thereof sioners of was docketed, and the real property granted by such let- Passed ters patent, may thereafter be disposed of by such com- 1649. missioners, in the same manner as if such letters patent had never been issued. Actions for of property ple. § 447. Whenever by the provisions of law, any proper-forfeiture ty, real or personal, shall be forfeited to the people of this to the peo state, or to any officer for their use, an action for the recovery of such property, alleging the grounds of the for- Passed feiture, may be brought by the proper officer, in the supreme court. 1649. CHAPTER III. Action for the partition of real property. SECTION 448. Provisions of Revised Statutes, applicable to actions for par. tition. of Revised Statutes to actions tion. § 448. The provisions of the Revised Statutes relating Provision to the partition of lands, tenements and hereditaments, applicable held or possessed by joint tenants or tenants in common for partit shall apply to actions for such partition brought under this act, so far as the same can be so applied to the substance and subject matter of the action, without regard to its form. Passed 1649. The old equity suit for the "partition of lands" may be prosecuted by summons and complaint. Myers agt. Rasback et al. 4 How. 83. Backus and wife agt. Stilwell and others, 3 How. 318. Row agt. Row and others, 4 How. 133 Proceedings in partition may be commenced by petition under the Revised Statutes as formerly. Traver and others agt. Traver and others, 3 How. 351. Reed and others agt. Child and others, 4 How. 125. Row agt. Row and others, 4 How. 133. determine real pro CHAPTER IV. Actions to determine conflicting claims to real property, and for waste and nuisance. SECTION 449, Actions to determine claims to real property, how prosecu. ted. 450. Action of waste abolished. Waste how remediable. 451. Provisions of Revised Statutes applicable to actions for waste 452. When judgment of forfeiture and eviction to be given. 454. Remedy for injuries heretofore remediable by writ of nui. sance. Actions to § 449. Proceedings to compel the determination of claims to claims to real property, pursuant to the provisions of the perty, how Revised Statutes, may be prosecuted by action under this act, without regard to the forms of the proceedings as they are prescribed by those statutes. prosecuted. Passed 1849. Action of waste abol The costs allowed are merely the fees of those officers who are required to perform the services. Attorney or counsel fees are not recoverable. Patridge agt. Ford and Norton, 5 How, 21. These proceedings cannot be prosecuted by action under this act. Crane agt. Sawyer, 5 How. 372. § 450. The action of waste is abolished, but any proished. ceeding heretofore commenced, or judgment rendered, or remedia- right acquired, shall not be affected thereby. Wrongs Waste how ble. Passed 1949. Provisions of Revised heretofore remediable by action of waste, are subjects of action as other wrongs, in which action there may be judgment for damages, forfeiture of the estate of the party offending, and eviction from the premises. Statutes § 451. The provisions of the Revised Statutes relating to the action of waste shall apply to an action for waste, applicable to action for waste act. under this brought under this act, without regard to the form of the action, so far as the same can be so applied. Passed 1849. eviction to § 452. Judgment of forfeiture and eviction shall only When judgment of forfeitbe given, in favor of the person entitled to the reversion, ure and against the tenant in possession, when the injury to the be given. estate in reversion shall be adjudged in the action to be Passed equal to the value of the tenant's estate, or unexpired term, or to have been done in malice. 1849. Writ of but any pro- nuisance § 453. The writ of nuisance is abolished; ceeding heretofore commenced, or any judgment rendered, abolished. or right acquired, shall not be affected thereby. Passed 1849. for injuries remediable § 454. Injuries heretofore remediable by writ of nui- Remedy. sance, are subjects of action, as other injuries, and in such heretofore action there may be judgment for damages, or for the re-writ of moval of the nuisance, or both. CHAPTER V. General provisions relating to actions concerning real_ property. SECTION 455. Provisions of Revised Statutes applicable thereto. nuisance. Passed 1849. Provisions Statutes applicable § 455. The general provisions of the Revised Statutes relating to actions concerning real property, shall apply of Revised to actions brought under this act, according to the sub- thereto. ject matter of the action, and without regard to its form. Passed Actions to recover real property may be brought not only against those 1849. in possession, but against all persons who have, or claim an interest in the the controversy, adverse to the plaintiff. Waldorph vs. Bortle, 4 How. 358. TITLE XIV. Provisions relating to existing suits. SECTION 456. Appeal from order at a special term, on summary applica tion, after judgment. 457. Writ of error in all cases abolished. Appeal substituted. 1, 1848. 459. Provisions to apply to future suits. Governor may appoint extra terms. 460. Appeals from final decrees, by a single judge, in supreme 461. Issues of fact in county court or common pleas before July § 456. The appeal, mentioned in section 9, of the act Appeal to facilitate the determination of existing suits in the at a special from order term, on summary after judg courts of this state, may also be taken, from an order, application made at a special term, on a summary application in an ment. action after judgment, when such order involves the merits of the application, or some part thereof. Passed 1849. ror in all ished. Appeal substituted. Passed 1849. Writ of er-457. No writ of error shall be hereafter issued, in any cases abol-case whatever. Wherever a right now exists to have a review of a judgment rendered, or order or decree made before the first day of July, 1848, such review can only be had upon an appeal taken in the manner provided by this act, and all appeals heretofore taken from such judgments, orders, or decrees under the provisions of the code of procedure, which are still pending in an appellate court, and not dismissed, shall be valid and effectual. But this section shall not extend the right of review, to any case or question to which it does not now extend, nor the time for appealing, nor shall it apply to a case where a writ of error has been already issued. Execution when issu This section refers to judgments, orders, and decrees made before the first day of July, 1848, and restricts the right of appeal to cases where a right of review existed before the Code went into operation. Dunlop vs. Edwards, 3 Com. 341. § 458. An execution may be issued without leave of able on a the court upon a judgment docketed before the first day judgment docketed before July 1, 1848. Provisions of this act of July, 1848, or now or hereafter to be rendered in an action pending on that day, at any time within five years after the rendering of the judgment. § 459. The provisions of this act apply to future proceedto apply to ings in actions or suits heretofore commenced and now pending ceedings. as follows: future pro Passed 1851. Governor 1. If there have been no pleading therein, to the pleadings and all subsequent proceedings: 2. When there is an issue of law or of fact, or any other question of fact to be tried, to the trial and all subsequent proceedings: 3. After a judgment or order, to the proceedings to enjudges and force, vacate, modify or reverse it, including the costs of an may assign other |