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it does not appear that the sheriff has the delinquent in custody, the district-attorney must, if he has good rea son to believe that the sheriff might, with due diligence, have collected the fine, or arrested and detained the delinquent, commence an action against the sheriff, in the name of the people. Otherwise he must direct the clerk to issue a new warrant, or to include the fine in the schedule, annexed to the next warrant, to be issued by him. A new warrant may, from time to time, be issued, or the fine may be included in the schedule annexed to a subsequent warrant, until it is collected.
§ 2299. Who to be included in schedule.-Where the clerk issues a warrant, as prescribed in this title, he must include in the schedule thereto annexed, the name of each person who has been fined, prior to the issuing thereof, and whose fine remains then wholly or partly unpaid, and not remitted by the court.
$2300. Liability of sheriff. An action may be maintained, in behalf of the people, against a sheriff, to whom a warrant is directed and delivered, as prescribed in this title, to recover damages for any omission of duty with respect to the same, in a case where a judg ment creditor might maintain an action against a sheriff, to whom an execution issued out of the supreme court is directed and delivered. In such an action, the people are entitled to recover the same damages, which a judgment creditor would be entitled to recover, if the order imposing the fine was a judgment of the supreme
§ 2301. Applications of this title. This title does not apply to a case, where special provision for the col. lection of a fine is otherwise made by law.
Proceedings to discover the death of a tenant for life.
Bro. 2302. Petition for production of tenant for life. 2303. Contents of petition.
SEO. 2304. Service of petition and notice.
2305. Proceedings upon presentation of petition.
2308. Report of referee.
2309. Dismissal of petition when order complied with.
2310. When life-tenant deemed dead, and petitioner let into posses sion.
2311. Commission to be issued if life-tenant is without the State.
2312. General provisions respecting the commission.
2313. Petitioner to give notice of its execution.
2315. Proceedings on return of commission.
2317. Property; when restored.
2318. Remedy of person evicted for profits, etc.
§2302. Petition for production of tenant for life.A person entitled to claim real property, after the death of another who has a prior estate therein, may, not oftener than once in each calendar year, apply by petition to the supreme court, at a special term thereof, held within the judicial district, wherein the property, or a part thereof, is situated, for an order, directing the production of the tenant for life, as prescribed in this title, by a person, named in the petition, against whom an action of ejectment to recover the real property can be maintained, if the tenant for life is dead; or, where there is no such person, by the guardian, husband, trustee, or other person, who has, or is entitled to, the custody of the person of the tenant for life, or the care of his estate.
2 R. S. 343, 1 (2 Edm. 354).
§ 2303. Contents of petition.-The petition must be in writing, and verified by the affidavit of the petitioner, to the effect, that the matters of fact therein set forth are true. It must contain:
1. A description of the real property, and a statement of the petitioner's interest therein, and of such other facts as show that the case is within the provisions of the last section.
2. An averment that the petitioner believes that the person, upon whose life the prior estate depends, is dead, together with a statement of the grounds upon which the petitioner's belief is founded.
Id., 2 and part of 3.
§ 2304. Service of petition and notice. A copy of
the petition, including the affidavit, together with notice of the time and place at which the petition will be presented, must be personally served, at least fourteen days before its presentation, upon the person required, by the prayer thereof, to produce the tenant for life.
Remainder of 3.
§ 2305. Proceedings upon presentation of petition. -Upon the presentation of the petition and affidavit, with due proof, by affidavit, of service of a copy thereof, and of the notice, if sufficient cause to the contrary is not shown by the adverse party, the court must either issue a commission, as prescribed in the following sections of this title; or make an order, directing the adverse party, at a time and place therein specified, before the court, or a referee therein designated, to produce the person upon whose life the prior estate depends, or, in default thereof, to prove that he is living.
§ 2306. Service of order; powers, etc., of referee. Where an order, requiring the production of the tenant for life, or proof that he is living, is made as prescribed in the last section, a certified copy thereof must be served, at least fourteen days before the time therein specified, upon the person required to make the production of the proof, or upon his attorney. Upon presentation of proof of service, by affidavit, the court or the referee, must, at the time and place specified in the order, or at the time and place to which the hearing may be adjourned, hear the allegations and proofs of the parties, respecting the identity of any person produced, with the person whose death is in question; or, if the latter person is not produced, respecting the rea sons for the failure to produce him, and whether he is living. Where a referee is appointed, he has the same powers, and is entitled to the same compensation, as a referee appointed for the trial of an issue in an action,
§ 2307. Habeas corpus.-If it appears, by affidavit, to the satisfaction of the court, that the person required to be produced is imprisoned within the State, for any cause, except upon a sentence for a felony, or is kept or detained, within the State, by any person, the court may, either before or after making the order for production,
issue a writ of habeas corpus to bring him before it, or before the referee, as the case requires. The writ must be served and executed, and disobedience thereto may be punished, as where a writ of habeas corpus is issued, to inquire into the cause of the detention of a prisoner. Id., 87.
§ 2308. Report of referee.-The referee must deliver his report to the petitioner, or file it with the clerk, within ten days after the case is closed. He must state therein, whether any person was or was not produced before him, as being the person whose death is in question. He must append thereto, in the form of deposi tions, the proofs, if any, respecting the identity of any person so produced, with the person whose death is in question; or if no one is so produced, upon the question whether the latter person is living. He must also state, in his report, his conclusions upon the questions contro. verted before him.
§ 2309. Dismissal of petition when order complied with. If it appears, to the satisfaction of the court, upon the referee's report, and the proofs thereto appended; or, where a referee is not appointed, upon the allegations and proofs of the parties before the court; that the party, required to produce the tenant for life, or to prove his existence, has fully complied with the order, the court must make an order dismissing the petition, and requiring the petitioner to pay the costs of the proceedings.
§ 2310. When life-tenant deemed dead, and petitioner let into possession.-If it appears, from the ref eree's report, or upon the hearing before the court, that the person, upon whose life the prior estate depends, was not produced; and if the party required to produce him, or to prove his existence, has not proved, to the satisfaction of the court, that he is living; a final order must be made, declaring that he is presumed to be dead, for the purpose of the proceedings, and directing that the petitioner be forthwith let into possession of the real property, as if that person was actually dead.
Id., 10 Letts v. Brooks, Lalor, 36; O'Gara v. Eisenlohr, 38 N. Y. 296 Dake of Cumberland v. Graves, 9 Barb. 595; see Eagle v. Emmett,
Brad. 117: s. c. 3 Abb. Pr. 318; see Clark v. Owens, 18 N. Y. 434; Gary v. Post, 13 How. 118.
S2311. Commission to be issued if life-tenant is without the State. If before or at the time of the presentation of the referee's report to the court, or, where a referee is not appointed, at any time before the final order is made, the party, upon whom the petition and notice are served, presents to the court presumptive proof, by affidavit, that the person, whose death was in question, is, or lately was, at a place certain, without the State, the court must make an order, requiring the petitioner to take out a commission, directed to one of more persons, residing at or near that place, either de signated in the order, or to be appointed upon a subse quent application for the commission for the purpose of obtaining a view of the person, whose death is in ques tion, and of taking such testimony respecting his identity, as the parties produce. The order must also direct that the proceedings upon the petition be stayed, unti the return of the commission; and that the petition be dismissed with costs, unless the petitioner takes out the commission within a time specified in the order, and diligently procures it to be executed and returned, at his own expense.
§ 2312. General provisions respecting the commission. It is not necessary, unless the court specially so directs, that the witnesses to be examined should be named in the commission, or that interrogatories should be annexed thereto. The commission must be executed and returned, and the deposition taken must be filed and used, as prescribed for those purposes in article second of title third of chapter ninth of this act, except as otherwise specially prescribed in this title.
§ 2313. Petitioner to give notice of its execution.The petitioner must give to the adverse party, or his attorney, written notice of the time when, and the place where, the commissioner or commissioners will attend, for the purpose of executing the commission, as follows:
1. If the place, where the commission is to be exe