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

of the offense charged, the defendant was living in adulterous intercourse with the person with whom the offense is alleged to have been committed-that five years have not elapsed since the commencement of such adulterous intercourse was discovered by the plaintiff; and the complaint containing such averments be verified by the oath of the plaintiff in the manner prescribed by the 157th section of the code, judgment shall not be rendered for the relief demanded until the plaintiff's affidavit be produced stating the above facts.

a. Divorce.-The fact that a man represented himself as a widower, he being in fact a divorced husband, is not a ground for a divorce (Clarke v. Clarke, 11 Abb. 228).

b. As to proceedings in action for divorce, see opinion of Hon. Murray Hoffman, as referee, published 17 Abb. 48. Venue of action, see Vence v. Vence, 15 How. 497; id. 576, note. After a decree for a limited divorce in a court of a foreign State, which remains in force, the plaintiff in that action cannot maintain an action for an absolute divorce in a court in this State (Coddington v. Coddington, 10 Abb. 450). A decree for divorce in a foreign State, where the foreign court is shown not to have had jurisdiction of the defendant, is not a bar to an action for a divorce in a court in this State (McGiffert v. McGiffert, 31 Barb. 69).

c. Pleadings.-In an action for divorce on the ground of adultery the charge should be stated in the complaint with such definiteness and certainty as will be sufficient to enable the defendant to know what he will be required to meet by proof on the trial. Hence the name of the person with whom, the place where, and the time when the adultery was committed, should be set forth in the complaint. This rule, however, though general, is not universal. It is subject to modification to any extent to meet the exigences of each particular case, provided the above principle is not infringed (Pramagiori v. Pramagiori, 7 Rob. 302).

d. Where a complaint alleged that the defendant had committed several acts of adultery with one S. R., which acts were committed at the plaintiff's residence in Broome street, and at a house of ill fame in Spring street, and at divers other times and places in said city,-held, that the allegation "at divers other times and places in said city" was insufficient to enable the defendant to prepare to meet it at the trial; and that with respect to the allegation of adulteries in Spring street, there was no reason why the general rule should not be complied with and the number of the house or at least the block on which it was situated, be given (id.)

e In an action for a divorce on the ground of adultery, an order of refer ence on the default of the defendant to answer will not be made where the complaint contains no specification of the person with whom, or the place where, the offense was committed (Hyde v. Hyde, 4 Sand: 622). An allegation that the defendant in November, 1851, committed the offense in the city of New York, with a female whose name is unknown to the plaintiff, and the particular circumstances of which are unknown to the plaintiff, will not suffice (ib.) If the person be unknown, the complaint should state particularly the place where the offense occurred, as at a house specified, or the like (b.)

f. Where the complaint in an action for divorce demands judgment for a separation from bed and board forever, without asking any other relief or for relief generally, and the allegations of the complaint are not such as entitle the plaintiff to the relief demanded, but are such as would entitle the plaintiff on a proper prayer to a judgment declaring the marriage contract void; on demurrer that the complaint did not state facts sufficient to constitute a cause of action, held that the complaint was sufficient (Walton v. Walton, 27 How. 600; rev'g 32 Barb. 203).