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mons and complaint, previous to the service thereof; but if he serves them without prepayment, he cannot retain them, and refuse to make a return because his fees are not paid (Wait v. Schoonmaker, 15 How. 460).

a. Where the coroner is the defendant in the action, a writ of attachment against the sheriff must issue to elisors in the first instance (Reg. v. Sheriff of Glamorganshire, 1 Dowl. Prac. Cas. N. S. 308).

b. The coroner may call to his aid the power of the county, in a proper case, in executing an order of arrest, in an action in which the sheriff is a party (Slater v. Wood, 9 Bosw. 16).


Accountability of Guardians.

$ 420. Guardians not to receive property until security given.

No guardian appointed for an infant shall be permitted to receive property of the infant, until he shall have given sufficient security, approved by a judge of the court or a county judge, to account for and apply the same, under the direction of the court.

See Rule 62, et seq.


Powers of Referees.

$ 421. Powers of Referees.

Every referee appointed pursuant to this act shall have power to administer oaths in any proceeding before him, and shall have generally the powers now vested in a referee by law.

See ante, note to $ 273.


Miscellaneous Provisions.

SECTION 422. Papers lost or withheld, how supplied.

423. Where undertakings to be filed.
424. Judgment on bond and warrant of attorney, executed before

July 1, 1848.
425. Time for publication of notices, how computed.
426. Laws of other States and governments, how proved.

$ 422. Papers lost or withheld, how supplied.

If an original pleading or paper be lost or withheld by any person, the court may authorize a copy thereof to be filed and used instead of the original.

See note to section 416; and Renouil v. Harris, 1 Code R. 125.

$ 423. Where undertakings to be filed.

The various undertakings required to be given by this act inust be filed with the clerk of the court, unless the court expressly provides for a different disposition thereof, except that the undertakings provided for by the chapter on the claim and delivery of personal property, shall, after the justification of the sureties, be delivered by the sheriff to the parties respectively for whose benefit they are taken. a. See note to § 222, and Rule 4, and 2 R. S. 190, $$ 149, 150, omitted

from 4th edit. R. S., said, however, to be still in force (Cook v. Dickinson, 2 Sand. 691; Wilde v. Joel, 15 How. 321).

6. In an action on an undertaking, on its production at the trial, its delivery to the party for whose benefit it was taken, pursuant to $ 423, will be presumed (Borcdoin v. Coleman, 3 Abb. 431 ; see Coleman v. Bean, 3 Keyes, 94).

c. Although the provision of the revised statutes (2 R. S. 190), which is presumed to be in force, that the chancellor shall direct the delivery of any bond, executed under the provisions of that article, to the person entitled to the benefit thereof, for prosecution, whenever the condition thereof shall be broken, or the circumstances of the case shall require such delivery, yet the court might well decline the delivery of an undertaking on file in these cases (see Code, $ 423), as an inspection to draw the complaint is all that is necessary; and upon the trial, the clerk can be subpænaed to produce it in case of dispute (Wilde v. Joel, 15 How. 320).

$ 424. Judgment on bond and warrant of attorney, executed before July 1, 1848.

Upon any bond and warrant of attorney executed and delivered before the first day of July, 1848, judgment may be entered in the manner provided by sections 382, 383, and 384, upon the plaintiff's filing such bond and warrant of attorney, and the statement, signed and verified by himself, in the form prescribed by section 382.

See Allen v. Smillie (12 How. 156; 1 Abb. 354).

$ 425. Time for publication of notices, how computed.

The time for publication of legal notices shall be computed so as to exclude the first day of publication, and include the day on which the act or event, of which notice is given, is to happen, or which completes the full period required for publication.

a. Notices or advertisements which by law are required to be published in any public newspaper published in this State, may be proved by the affidavit of the printer, or foreman of the printer of such newspaper (Laws of 1835, c. 159; and see $$ 138 and 407, ante, and Laws 1859, ch. 252).

See Rule 73, and note.

$ 426. (Amd 1869.) Laws of other States and governments, how proved.

Printed copies of statutes, code, or other written laws, and of the proclamations, edicts, decrees, and ordinances, by the executive power of any State or territory or foreign government, when printed in books or publications purporting or proved to have been published by the authority thereof, or proved to be commonly admitted as evidence of the existing law, in the courts and judicial tribunals of such State, territory, or government, shall be admitted by the courts and officers of this State on all occasions, as presumptive evidence of such laws, proclamations, edicts, decrees and ordinances. The unwritten or common law of any other State or territory or foreign government, may be proved as facts by parol evidence, and the books of reports of cases adjudged in these courts may also be admitted as presumptive evidence of such law,

b. See Laws of 1845, p. 326 ; Laws of 1846, pp. 204, 303 ; Laws of 1858, pp. 498, 500; 6 Wend. 483; 2 ib. 411; Dall. 412; 9 Cranch, 122, n; 1 Stark. Ev. (ed. 1842) 232, n, 2; 1 Phill. Ev. (Cow. & H. ed. 1843), 383; 3 ib. 1056, n, 708).

c. The charter of the city of New York may be read as evidence from a volume printed by authority of the common council, whether it was printed prior or subsequent to the act of April 17th, 1832.' The charter may be so read on a trial involving the title to lands, the statutes making no distinction in regard to the purposes for which it may be read. Such proof of the charter is prima facie only (Howell v. Ruggles, 5 N. Y. 444; see Laws 1832, p. 251). a. Foreign laws are regarded as facts, and should be alleged and proved like other facts of which the courts do not take judicial notice (Monroe v. Douglass, 5 N. Y. 447; and see 2 Laws U. S. 102, $ 1; Monroe v. Guilleaume, 3 Keyes, 30).

b. As to the proper method of proving public records of other States (see Markoe v. Aldrich, 1 Abb. 55; and see Laws 1858, pp. 498, 500; 24 N. Y. 394 ; Toulandou v. Lachenmeyer, 6 Abb. N. S. 215.)

c. Books offered in evidence as the “printed statute book” of a sister State, must purport“ to be printed under the authority of such ” State (Bright v. White, 8 Mo. R. 421 ; and see Bailey v. Lincoln Academy, 12 id. 177).

d. A land patent may be proved by a constut or exemplification of the record (McKineron v. Bliss, 31 Barb. 180).

e. As to proving incorporation of foreign corporation (see Waterville Manuf. Co. v. Brown, 9 How. 27 ; Persee Paper Works v. Willett, 1 Rob. 131; 19 Abb. 416; see Laws 1863, ch. 206; 1869, ch. 589); records of courts in Canada (see Lazier v. Westcott, 26 N. Y. 146); records of inferior courts (see Simons v. De Bare, 4 Bosw. 547; 6 Abb. 188); corporation ordinances (see 7 How. 81 ; Logue v. Gillick, 1 E. D. Smith, 398); records in supervisors' office (Laws 1855, ch. 249, p. 383); records in office of collectors of customs (Laws 1862, ch. 251, p. 450); judgment of foreign state (Black's Case, 4 Abb. 162).


Actions in Particular Cases.

II. ACTIONS IN PLACE OF scire facias, quo warranto, AND OF IN-





Actions against Foreign Corporations.

$427. Where and by whom brought.

An action against a corporation created by or under the laws of any other State, government, or country, may be brought in the supreme court, the superior court of the city of New York, or the court of common pleas for the city and county of New York, in the following cases :

1. By a resident of this State, for any cause of action.

2. By a plaintiff not a resident of this State, when the cause of action shall have arisen, or the subject of the action shall be situated within this State.

a. The Law of 1849, p. 142, is not repealed by the code, and the courts, therefore, have jurisdiction against foreign corporations for the recovery of any debt or damages, whether liquidated or not, arising upon contract made, executed or delivered within this State, or upon any cause of action arising therein (Jones v. Norwich Trans. Co. 50 Barb. 194; Dart v. Farmers' B'k, 27 Barb. 337).

b. Although it is essential to the jurisdiction of a court of this State over a foreign corporation, that either the plaintiff should be a resident of this State, or the cause of action should have arisen, or the subject of the action should be situated within it, yet it is not necessary to the validity of proceedings against a foreign corporation that proof of either of these facts should be made prior to the commencement of proceedings. It is sufficient if a state of facts which sustains the jurisdiction is made to appear, upon motion to set the proceedings aside (Bates v. N. 0. Jackson and Gr. North. R. R. Co. 4 Abb. 72 ; 13 How. 516; and see Elizabethport Manufac. Co. v. Campbell, 13 Abb. 86).

c. The act (ch. 234, of 1845) in relation to suits against foreign corporations does not undertake to establish any new liability on the part of stockholders or debtors of such corporations, but only provides for subrogating creditors of the corporation, proceeding against it by attachment in this State, to such rights as the corporation itself under the local law or lex loci contractus might have enforced against the stockholder or debtor (Seymour v. Sturgis, 26 N. Y. 134).

d. The service of a summons upon the president of a foreign corporation who happens to be temporarily in this State, and who does not voluntarily appear, does not give the court jurisdiction of the defendant (the corporation) for the purpose of renduring a personal judgment upon contracts made in this State, or for debts due to residents of this State. Such a service must be regarded, for all practical purposes, as simply a statutory notice that proceedings are about to be instituted against the defendant's property (Hulbert v. Hope Mut. Ins. Co. 4 How. 275; ib. 415; Brewster v. Michigan Cent. R. R. Co. 5 How. 183).

e. A foreign corporation has the same right to sue in the courts of this State as any other nonresident, if the nature of the claim is such as should be enforced by a corporation; and as to suits against a foreign corporation, ex· cept $ 427, the code and the revised statutes make no distinction between a resident and nonresident plaintiff (Bank of Commerce v. Rutland and Wash. R. R. Co. 10 How. 7); but a foreign corporation is not authorized either by the revised statutes or the code, to sue another foreign corporation in the courts of this State by attachment, unless the cause of action has arisen, or the subject of the action is situated, within this State (Western Bank v. City Bank of Columbus, 7 id. 238).

f. In an action against a foreign corporation, it must appear, in order to give the court jurisdiction, either that the cause of action arose, or that the subject of the action is situate, within this State, or that the plaintiff is a res. ident of this State and the defendant has property within it (Harriott v. N. Jersey R. R. CO. 8 Abb. 284; 2 Hilton, 262; Cumberland Coal Co. v. Hoffman Steam Coal Co. 30 Barb. 159 ; 20 How. 62; Campbell v. Proprietor of Chumplain, &c. R. R. 18 How. 412). It seems that if the cause of action arose, or the subject of the action is situated within this State, the question of the defendant's having property becomes immaterial, whether the plaintiff is a resident or not (Cumberland Coal Co. v. Sherman, 8 Abb. 243).

g. That act of 1855 (Laws 1855, ch. 279), requiring foreign corporations, doing business within this State, to designate a person to receive service of


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