are owned by the same persons in common, no separate action for the partition of a part thereof only shall be brought, without the consent of all the parties interested therein; and if brought without such consent, the share of the plaintiff may be charged with the whole costs of the proceeding. And when infants are interested, the petition shall state whether or not the parties own any other lands in common.

RULE 78.-Reference as to title where no defence interposed.

Where the rights and interests of the several parties, as stated in the complaint, are not denied or controverted, if any of the defendants are infants, or absentees, or unknown, the plaintiff, on an affidavit of the fact, and notice to such of the parties as have appeared, may apply at a special term for an order of reference, to take proof of the plaintiff's title and interest in the premises, and of the several matters set forth in the bill or petition; and to ascertain and report the rights and interests of the several parties in the premises, and an abstract of the conveyances by which the same are held.

RULE 79.-Order for reference. Sale in partition.

Where the whole premises of which partition is sought are so circumstanced that a partition thereof cannot be made without great prejudice to the owners, due regard being had to the power of the court to decree compensation to be made for equality of partition, and to the ability of the respective parties to pay a reasonable compensation to produce such equality, or where any lot or separate parcel of the premises, which will exceed in value the share to which either of the tenants in common may be entitled, is so circumstanced, the plaintiff, upon stating the fact in the affidavit which is to be filed for the purpose of obtaining an order of reference under the next preceding rule, may have a further provision inserted in such order of reference, directing the officer or person to whom it is referred, to inquire and report whether the whole premises, or any lot or separate parcel thereof, are so circumstanced that an actual partition cannot be made; and that if he arrives at the conclusion that the sale of the whole premises, or of any lot or separate parcel thereof, will be necessary, that he specify the same in his report, together with the reasons which render a sale necessary; and, in such a case, that he also ascertain and report whether any creditor, not a party to the suit, has a specific lien, by mortgage, devise, or otherwise, upon the undivided share or interest of any of the parties in that portion of the premises which it is necessary to sell; and if he finds that there is no such specific lien in favor of any person not a party to the suit, that he further inquire and report whether the undivided share or interest of any of the parties in the premises is subject to a general lien or incumbrance, by

judgment or decree; and that he ascertain and report the amount due to any party to the suit who has either a general or specific lien on the premises to be sold, or any part thereof, and the amount due to any creditor, not a party, who has a general lien on any undivided share or interest therein, by judgment or decree, and who shall appear and establish his claim on such reference. He shall also, if requested by the parties who appear before him on such reference, ascertain and report the amount due to any creditor, not a party to the suit, which is either a specific or general lien or incumbrance upon all the shares or interests of the parties in the premises to be sold, and which would remain as an incumbrance thereon, in the hands of the purchaser; to the end that such directions may be given in relation to the same, in the decree for the sale of the premises, as shall be most beneficial to all the parties interested in the proceeds thereof on such sale.

RULE 80.-Staying sale in foreclosure or partition.

No order to stay a sale under a judgment in partition, or for the foreclosure of a mortgage, shall be granted or made by a judge out of court, except upon a notice of at least two days to the plaintiff's attorney.

RULE 81.-Moneys brought into court to be paid to county treasurer. Where deposited.

All moneys brought into court by order of this, or any other court, shall be paid to the county treasurer of the county in which the action is triable, unless the court shall otherwise direct. And all bonds, mortgages, and other securities upon real estate, heretofore required to be taken in the name of the clerk of the court of appeals, shall, except as otherwise provided by law, be taken to the treasurer of the county where such fund belongs, or such other county treasurer as this court shall direct. And all moneys received by the county treasurer, under and by virtue of any law vesting him with the funds or securities belonging to any of the suitors, in any court of this State, shall be deposited by the said county treasurer, in his name of office, in the New York Life Insurance and Trust Company, the United States Trust Company, or in such bank, or trust company, as the court for the district shall from time to time direct, as a deposit bank, unless the order or judgment under which such moneys are brought into court shall direct such moneys to be deposited in some other bank or company.

a. As to the method of investing moneys in court on bond and mortgage, and of ascertaining the sufficiency of the security, see Green v. Ward (1 Barb. 21).

b. The chamberlain of the city of New York is the county treasurer thereof (1 R. S. 370, § 29).

RULE 82.-Accounts of county treasurer. County treasurer to report annually.

The accounts of the county treasurers, with respect to moneys or securities received by them under the foregoing rule, or by virtue of any order of any court of this State, with the banks and other companies, in which moneys are directed to be deposited, shall be kept in such manner, that in the cash-books of the banks and other companies, and in the bank-books of the said treasurers, it shall appear in what particular suit, or on what account, the several items of money credited, or charged, were deposited, or paid out. The said county treasurer shall, at the first general term of this court, for the district in which such treasurer resides, in each year, make a report to said court, containing a statement of his accounts, and of the funds and securities under his control, on the first day of January, which statement shall show the amount in his hands, uninvested, and the times when received, and the suit or matter in which the same was paid in, constituting the balance in deposit in banks, and other companies; and also all stocks, bonds, and mortgages, and other investments, for the benefit of suitors or otherwise. The court to which such report shall be made, shall cause the same to be examined by some suitable and proper person, to be appointed by them. The person so appointed shall forthwith proceed to examine the account and statement, with the accounts in banks and in other companies, and with the accounts and securities in the office of such treasurer. He shall have the power to summon witnesses before him, if necessary, to be examined with respect to such accounts. He shall report whether such accounts have been correctly kept, and are truly stated; and shall, on or before the first day of the next ensuing general term in such district, deliver to the court of such district, by which he shall be appointed, or one of the justices thereof, his report upon the matters so referred.

RULE 83-Orders for paying money out of court. Accounts with Trust Companies.

Orders upon the banks or other companies for the payment of moneys out of court, shall be made payable to the order of the person entitled thereto, or of his attorney duly authorized, and shall specify in what particular suit or on what account the money is to be paid out, and the time when the order authorizing such payment was made. When moneys are deposited in the New York Life Insurance and Trust Company, or the United States Trust Company, to the credit of the county treasurer, the entry of such deposit, both in the books of the company and in the accounts of the county treasurer with the company, shall contain a short reference to the title of the cause or matter in which such deposit is directed to be made; and specifying also the time from which the interest or accumulation on such deposit is to commence, where it does not commence

from the date of such deposit. The secretary of the company shall transmit to the justices holding the first general term for the first district, in January in each year, a statement of the accounts of the said county treasurer; and to the justices holding the first general term in the other districts, a statement of the accounts of the county treasurer in each district, showing the amount standing to his credit on the first day of January, including the interest or accumulation on the sums deposited to the credit of each cause or matter. In every draft upon the Trust Company by the county treasurer for moneys deposited with the said company, or for the interest or accumulation on such moneys, the title of the cause or matter on account of which the draft is made, and the date of the order authorizing such draft, shall be stated; and the draft shall be made payable to the order of the person or persons entitled to the money, or of his or their attorney, who is named in the order of the court authorizing such draft. And to authorize the payee or indorsee of such draft to receive the money thereon from the Trust Company, the same shall be accompanied by a certified copy of the order of the court, authorizing such draft, countersigned by the justice by whom such order was made. But where periodical payments are directed to be made out of a fund deposited with such company, the delivery to the secretary of the company of one copy of the order authorizing the several payments, shall be sufficient to authorize the payment of subsequent drafts in pursuance of such order.

RULE 84.-Gross sum, in payment of life-estates, how ascertained.

Whenever a party, as a tenant for life, or by the curtesy, or in dower, is entitled to the annual interest or income of any sum paid into court and invested in permanent securities, such party shall be charged with the expense of investing such sum, and of receiving and paying over the interest or income thereof; but if such party is willing and consents to accept a gross sum in lieu of such annual interest or income for life, the same shall be estimated according to the then value of an annuity of six per cent. on the principal sum, during the probable life of such person, according to the Portsmouth or Northampton Tables.

See Matthews v. Duryea, 17 Abb. 257.

RULE 85.-Fees on executing commission of lunacy. Committee may pay taxed costs.

On the excution of a commission of lunacy, &c., the commissioners, for every day they are necessarily employed in hearing the testimony and taking the inquisition, shall be entitled to the same allowance which is made by law to commissioners to make partition or admeasure dower. And for drawing the inquisition

and process and serving notices, when no attorney is employed, they shall have the fees to which an attorney would be entitled for the same services. The committee of a lunatic, idiot, or drunkard, may pay to the petitioner on whose application the commission was issued, or to his attorney, the costs and expenses of the application and of the subsequent proceedings thereon, including the appointment of the committee, and without an order of the court for the payment thereof, when the bill of such costs and expenses has been duly taxed and filed with the clerk in whose office the appointment of such committee is entered; provided the whole amount of such costs and expenses does not exceed fifty dollars. But where the costs and expenses exceed fifty dollars, the committee shall not be at liberty to pay the same out of the estate in his hands, without a special order of the court directing such payment.

a. If an action is brought against the committee of a lunatic, for a cause of action which might have been settled on a summary application, the plaintiff will not be allowed his costs (Outrin v. Graves, 1 Barb. Ch. R. 49; and Code, §§ 306, 308).

b. The court has no jurisdiction to appoint a committee of a lunatic, or order a sale of his property, upon petition of his friends and relatives, before a commission of lunacy has been issued and returned (Re Payn, 8 How. 220).

c. As to the form of the finding (Re Mason, 1 Barb. 436). The inquisition is only presumptive evidence of incapacity as respects transactions prior to the taking such inquisition (Re Patterson, 4 How. 34).

d. New trial on writ de lunatico inquirendo (Tebout's Case, 9 Abb. 211).

e. The inquisition will not be set aside for mere irregularity if there is no doubt of the lunacy (Lamoree's Case, 32 Barb. 122; 11 Abb. 315). Who may be committee (id.)

f. Effect upon his acts and contracts of finding a party a lunatic (Re Patterson, 4 How. 34).

g. As to the costs and proceedings generally, see Re Clapp, 20 How. 385.

RULE 86.-Action for divorce or separation. Complaint for divorce.

When an action is brought to obtain a divorce or separation, or to declare a marriage contract void, if the defendant fail to answer the complaint, or if the facts charged in the complaint are not denied in the answer, the court to which application is made for judgment shall order a reference, to take proof of all the material facts charged in the complaint.

The court shall in no case order the reference to a referee nominated by either party.

And when the action is for a divorce on the ground of adultery, unless it be averred in the complaint that the adultery charged was committed without the consent, connivance, privity or procurement of the plaintiff-that five years have not elapsed since the discovery of the fact that such adultery had been committed-and that the plaintiff has not voluntarily cohabited with the defendant since such discovery-and also where, at the time