issued upon such a judgment, shall not be levied upon the sole property of such a defendant; but it may be collected out of personal property owned by him, jointly with the other defendants, who were summoned, or with any of them; and out of the real and personal property of the latter, or of any of them. 2 R. S. 377, § 4. § 1936. Judgment, how docketed; effect of docketing. Where a judgment has been taken, as prescribed in section 1932 of this act, the clerk, with whom the judgment-roll is filed, must write upon the docket, opposite or under the name of each defendant, upon whom the summons was not served, the words, “not ummoned; and a like entry must be made by each county clerk, with whom the judgment is afterwards docketed. The judgment does not, by virtue of its being docketed, bind any real property, r chattel real, owned by such a defendant. But this section does ot affect the plaintiff's right of action, to charge the judgment pon any real property. § 1937. Action to charge ummoned. defendants not personally After the recovery of a judgment against joint debtors, as preribed in section 1932 of this act, an action may be maintained by he judgment creditor, against one or more of the defendants, ho were not summoned in the original action, to procure a dgment, charging his or their property with the sum remaining paid upon the original judgment. Co. Proc., § 375. § 1938. Complaint in such action. The complaint in such an action must be verified; must contain à allegation that the judgment has not been paid; and must state e sum, remaining unpaid thereupon, at the time of the verifica on. d., § 378, am'd. 1939. Answer. The defendant's answer is restricted to defences or counterims, which he might have made in the original action, if the mmons therein had been served upon him, when it was first rved upon a defendant jointly indebted with him: objections to e judgment; and defences or counterclaims, which have arisen ace it was rendered. d., § 379, am'd. See §§ 415 and 938, ante. 1940. Provisional remedies. or the purpose of obtaining an order of arrest, an injunction der, or a warrant of attachment, the action is regarded as being inded upon the contract, upon which the original judgment was -overed. 1941. Judgment. Where the judgment is in favor of the plaintiff, it must demine the sum remaining unpaid upon the original judgment; d it may be docketed, and an execution may be issued thereon, as if it was a judgment for the sum so remaining unpaid, d the costs, if any. Costs must be awarded, as if the action was brought upon the original contract, and the sum so remaining unpaid had been recovered therein. Co. Proc., § 380, am'd. § 1942. Joint debtors may compound separately. Mode and effect. A joint debtor may make a separate composition with his creditor, as prescribed in this section. Such a composition discharges the debtor making it; and him only. The creditor must execute to the compounding debtor a release of the indebtedness, or other instrument exonerating him therefrom. A member of a partnership cannot thus compound for a partnership debt, until the partnership has been dissolved by mutual consent or otherwise. In that case the instrument must release or exonerate him, from all liability, incurred by reason of his connection with the partnership. An instrument, specified in this section, does not impair the creditor's right of action against any other joint debtor, or his right to take any proceeding against the latter; unless an intent to release or exonerate him, appears affirmatively upon the face thereof. L. 1838. ch. 257, §§ 1 and 5 and part of § 2, am'd; L. 1845, ch. 348 (4 Edm. 450). § 1943. Satisfying judgment. An instrument, specified in the last section, is deemed a satis faction-piece, for the purpose of discharging, as prescribed in section 1260 of this act, the docket of a judgment, recovered upon an indebtedness released or discharged thereby, as far as the judgment affects the compounding debtor. Where the docket of a judgment is discharged thereupon, a special entry must be made upon the docket, to the effect, that the judgment is satisfied, as to the compounding debtor only. Part of id., § 2. See § 1260, ante. 1944. Rights of the debtors not released. Where a joint debtor has thus compounded, a joint debtor who has not compounded, may make any defence or counterclain or have any other relief, as against the creditor, to which he would have been entitled, if the composition had not been made. He may require the compounding debtor to contribute his ratable pre portion of the joint debt, or of the partnership debts, as the case may be, as if the latter had not been discharged. Id., §§ 3 and 4. § 1945. Action against persons engaged in transportstion. In an action brought against one or more persons, engaged s a joint-stock association, partnership, or otherwise, in the periodical transportation of passengers or property, an objection to ar of the proceedings cannot be taken, by a person properly made defendant, on the ground that the plaintiff had joined with hin as a defendant, a person not jointly engaged with him in that bus ness, or on the ground that the plaintiff has failed so to join wit a person so jointly engaged; unless the persons so engaged hav at least thirty days before the commencement of the action, files: in the clerk's office of each county, in which they transport pas sengers or property, a statement showing the names of all of them. A statement so filed, is conclusive, for the purposes specified in this section, as against the persons filing it, until thirty days after filing, in like manner, a new statement, showing a change of interest. L. 1836, ch. 385 (4 Edm. 621), am'd. § 1946. When partner not sued remains liable. Where, for any cause, one or more partners have not been joined as defendants in an action upon a partnership liability, and final judgment has been taken against the persons made defendants therein, the plaintiff, if the judgment remains unsatisfied, may maintain a separate action upon the same demand, against each omitted partner, setting forth in the complaint the facts specified n this section, as well as the facts constituting his 、ause of action upon the demand. Co. Proc., § 136, subd. 4, am'd. of partnership 1947. Continuance action for accounting, etc. business during In an action brought to dissolve a partnership, or for an accountng between partners, or affecting the continued prosecution of he business, the court may, in its discretion, by order, authorize he partnership business to be continued, during the pendency of he action by one or more of the partners, upon their executing nd filing with the clerk an undertaking, in such a sum and with uch sureties as the order prescribes, to the effect that they will bey all orders of the court, in the action, and perform all things hich the judgment therein requires them to perform. The court ay impose such other conditions as it deems proper, and it may à its discretion at any time thereafter require a new undertaking O be given. The court may also ascertain the value of the partership property, and of the interest of the respective partners a reference or otherwise, and may direct an accounting tween any of the partners; and the judgment may make such ovision for the payment to the retiring partners, for their terest, and with respect to the rights of creditors, the title to the rtnership property, and otherwise, as justice requires, with or ithout the appointment of a receiver, or a sale of the partnerip property. 523 CHAPTER XVI. Actions in Behalf of the People and Special Proceedings Instituted in Their Behalf, by State Writ. TITLE I.-Actions in Behalf of the People. TITLE II.- Special Proceedings Instituted by State Writ. TITLE I. Actions in behalf of the people. Article 1. Action against the usurper of an office or franchise. 2. Action to yacate letters-patent. 3. Action for a fine, penalty or forfeiture, or upon a forfeited recognizance. 4. Certain actions, founded upon the spoliation, or other misappro 5. Action to recover property escheated, or forfeited for treason. ARTICLE FIRST. Action against the usurper of an office or franchise. Sec. 1943. Attorney-general may maintain action. 1949. Proceedings when complaint names rightful incumbent. 1951. Assumption of office by person entitled. 1952. Proceedings to obtain books and papers. 1953. Damages; how recovered. 1954. One action against several persons. 1955. When injunction may be granted. 1956. Final judgment in action for usurping office, etc. § 1948. Attorney-general may maintain action. The attorney-general may maintain an action, upon his own information, or upon the complaint of a private person, in either of the following cases: 1. Against a person who usurps, intrudes into, or unlawfully holds or exercises within the State, a franchise or a public office, civil or military, or an office in a domestic corporation. 2. Against a public officer, civil or military, who has done or suffered an act, which by law works a forfeiture of his office. 3. Against one or more persons who act as a corporation. within the State, without being duly incorporated; or exercises within the State, any corporate rights, privileges or franchises. not granted to them by the law of the State. 4. [Added, 1896.] Against a foreign corporation which exer cises within the state any corporate rights, privileges or franchises, not granted to it by the law of this state; or which withi the state, has violated any provision of law, or, contrary to law, has done or omitted any act, or has exercised a privilege or franchise, not conferred upon it by the law of this state, where. in a similar case, a domestic corporation would, in accordance with section seventeen hundred and ninety-eight of this act, be liable to an action to vacate its charter and to annul its existence or which exercises within the state any corporate rights, privi leges or franchises in a manner contrary to the public policy of the state. Co. Proc., § 432; 2 R. S. 581, § 28 (2 Edm. 603); L. 1896, ch. 962. In effect May 28, 1896. § 1949. Proceedings ncumbent. when complaint names rightful In an action, brought as prescribed in the last section, for surping, intruding into, unlawfully holding, or exercising an ffice, the attorney-general, besides stating the cause of action n the complaint, may, in his discretion, set forth therein the ame of the person rightfully entitled to the office, and the facts howing his right thereto; and thereupon, and upon proof, by ffidavit, that the defendant, by means of his usurpation or atrusion, has received any fees or emoluments belonging to the ffice, an order to arrest the defendant may be granted by the ourt, or a judge. The provisions of title first of chapter seventh f this act apply to such an order, and the proceedings thereupon nd subsequent thereto, except where special provision is otherise made in this title. For that purpose, the order is deemed O have been made as prescribed in section 549 of this act. Judgent may be rendered upon the right of the defendant, and of e party so alleged to be entitled; or only upon the right of the efendant, as justice requires. Co. Proc., §§ 435 and 436; 2 R. S. 532, §§ 30 and 31 (2 Edm. 603), am'd. 1950. Action triable by jury. An action brought as prescribed in this article is triable, of urse and of right, by a jury, in like manner as if it was an tion specified in section 968 of this act, and without procuring order, as prescribed in, section 970 of this act. € 1951. Assumption of office by person entitled. Where final judgment is rendered, upon the right and in favor the person so alleged to be entitled, he may, after taking the th of office, and giving an official bond, as prescribed by law, ke upon himself the execution of the office. He must, immeately thereafter, demand of the defendant in the action, deery of all the books and papers in the custody, or under the ntrol, of the defendant, belonging to the office from which the fendant has been so excluded. Co. Proc., § 437; 2 R. S. 582, § 32 (2 Edm. 603). 1952. Proceedings to obtain books and papers. If the defendant refuses or neglects to deliver any of the books papers, demanded as prescribed in the last section, he is ilty of a misdemeanor; and the same proceedings must be taken compel the delivery thereof as are now or shall hereafter be escribed by law, where a person who has held an office refuses neglects to deliver the official books or papers to his successor. d., § 438, and 2 R. S. 582, § 33. See § 1323, ante. 1953. [Am'd, 1884.] Damages; how recovered. Where final judgment has been rendered, upon the right and favor of the person so alleged to be entitled, he may recover, action, against the defendant, the damages which he has |