The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1855-12-16
arising upon II chiefly decided upon the provi

L -
In Bronson vs. Giaard Is Howard, $500, dem
| was slso TAKEN and the rules Of the Code applied
In Ribbe w. Gilborn (bid, 466), an objection for
OF proper parties was taken by answer Il not apes
ip the complaint. aud allowed expressly under the
section Of the Code But In the same case the aue,
whether the wife OF the plantilf was q necessary \
was decided among other grounds, upon the sectiot
/ lit and 192, however, referred to- la the
case, the learned Justice says that he is incline,
believe that in case the defendants omit to ans ver'
/ complaint, the plaintiff must exhibit proof Of his
and the ABSTRACT of the conveysnces, as required ~
| the ed section OF the act
II may useful to show application Of the prime
to the first section of The Statute, and to the second
and fourth sections, which bear upon the present cas-
The 6rst section, far as It relates TO the tenure
possepson Of the parties in force So far ~ It reqn
the applicant To be of full age IL 10 Is also In force
| suits in this Court but not In the Supreme Court
act OF April IA 1882 Session IL 1882 ch. 277 proc
pgs may be instituted IN behalf Of An infant and BY
second section next friend shall be appointed In
manner, snd shall give security in like manner, as
| Statutes.
The Supreme Court alone is mentioned in this stat
a.. Stfyservs lynch, ~ Leg OBS 49, tits shown
the PHI intii must aver act al constructive posses
OF the premises Instead Of the petitions, the action
summons and smp amt.
The second third and fourth sections are inappca,
30 FAR M they relate TO the parties to apply for g
dian dd hea, and the time and mode Of APPLYING. Il
contemplate application previous to the presentA
| Of the petition. But a. The l2sth. 10th 19Oth III
and the second subdivision % the 134th section Of
ode are applicable to a partition case, the action
/
regulate the form OF applying and the parties to ppf
while the substantial and consistent provisions
| undertaking or bond Of the guardian are Also t. be
| served.
The third section OF the act of April a. 1852 whcf
! hereafter particularly cited, implies legisss
opinion that these sections In force TO ths givnt
| bond.
The fifth section under the construction suggest
would be applicable to the contents Of the compia
tons of the 142d section Of the Code. Ripple Clio
Is Howard's RI 45S) appears II be an authority to II
The sixth seventh, eighth, ninth and ten
coDsis en-. With the 1i7th and ilsth secti
| 81 the Code. Perhaps shat y directed in til
as to parties would be s;ecsssay-aa, least propsran
| much reliance placed upon the fifth and sixth 81
tons, as requiring that the wife of plaintiff should
The eleventh and twelfth sec ions would be inappid
ble hey provioe for the service Of the petition wh
in truth, is the commencement OF the proceedings. r.
action would be commenced and the services Of the
| made az ia ordinary cases.
Justice Hoyt, in Parker Lee, 20 Howard 49l,
Justice C,ppen, in Ripple Giborn before cited
laid down The that, upon default OF the deisnaa,
judgment is not to be given under the Code for the
sought but The twentytnrd section Of the Statute
be pursued. Watson VS. Brigham Il Code Reporter, 81
appears to hold the contrary. In the first mentisn{
| case, refe drected to the clerk.
The Statute is that the default Of Of the defen
ants, whether known or unknown, shall have been
tered. the Court shall require the petitioners to exhtt
proof Of their title, and an abstract Of the conveysnc
| by which the same is bed Such proof may taken
open court or by the clerk thereof on referencef
| that purpose.
The SEVENTY seventh section Of the Judiciary acI
and The 47ist section Of the Code, which az
hereafter more particularly stated AZ to Ankhe
point sanction reference for this purpose to
other than the clerk and under the Code the
subdivision Of section 246 would warrant IT, If the Ode
20 prevail.
Without pursuing this examination Of the various sec
lions of the Statute for tae decisions further my oh
serve that series Of the provisions ocular tn
action Of partition and that nothing identical sinia
We may commence under this head l.h the 26h sec
ton. The appointment Of Commissioners, and theregu
aton Of their duties cont oiled by this and thu
sequent sections undoubtedly far AZ they relaeto
actual partition.
There is another point in this case a. to whchsom,
observations may be proper The under tn 74tt
and 10Th rules Of the Supreme Court has been par
sued-a reference hao there being infants; upor
coming ~ Of the report sale was directed under ne d
1t will be remembered that the Partition act give in
the Saith (79th section the power to the Cart
Chancery decree partition and sales gen
the common law COURTS and that the 49th sectonof the
amended act Of 1880 ch $780, section 81 Of the thd ed
tioD) provided that whenevers reference TO ascertain
and report membranes Necessary, II miht be
made to master to register, clerk thtC0urt
should think fit. The 88th section also (3d ed was
copy Of the law OF 1926 authorizing masters to mse tue
elimpary report and to conduct the sales and e the
tile.
All this machinery being abolished BY the constitution
OF lS4 the judiciary act sec. ~ provided that
before referred to cers master referee mint be
referred To clerk county judge, &c., other stable
persons with the power hsrsoGos pos
The Chancery rules III and I7s were framed upo thu
provisions of the Revised Statutes before referred aud
the rules in equity adopted BY the Supreme Cor in
1S47 rules ia aid 1879 copies Of these. They
have remained unchanged in the Rule Book since
The 44sih section appears to prescribe two, only
two series Of provisions for the conduct Of psstion
suit viz the Revise Statutes and the Code. Ie for
phrase undoubtedly ineiuoes all acts after I'D pro-
iessedy amending the Statutes But it is deulto say
it includes any thing else Of the statute Law.
The 471st section OF the Code mus aowever,t No adj
verted TO. One clause enacts that until the LegMture
shall oherwe proviie, the second part Of the Coz shall
not affect any existing statutory provision restino
tons not inconsistent with the act and in substace
plicable TO the actions provided for.
1t before observed that in 1846 the title OF e Re-
vised Statutes relating to partitions also sume-
rated in this section exempted and when secrn 4
was adopted II was omitted IN such enumeration.
The propriety Of the pursued in thi of
reference TO referee depends TO ascertain thetitle
&c. apprehend, entirely upon this clause Of thA7is t
section and the Judiciary act.
| sale and conveyance by a referee, instead COM
mssioners, depended also, until 1851 upon the III
ton OF the Judiciary act and the 47ist section the
Code. II decided that In foreclosure sails
night be made by referee well by the ieriG,
60 Pr Rep, 1907 and the Judges OF the SupremCourr
amended their rule THE 4Ith) BY adding the wos cor
| direction Of the sheriff.
The act Of 1895, (p 1867 before noticed e r. $50.
sec. $50 authorized Master in ChaDcery 10 mHkuhese
sales instead Of Conmssioners and the Judcify act
(sec I'D provided that Sberis might sell lands their
respective Counties ordered to be sold by any dse OF
Any conrt Of record in the State and to give onvey
thereof in the and with like ebct AZ
| Is DOW done by Master In Chancery.
The practice prevailed to q very great extent Of cling
under the direction Of referee partition vel y in
foreclosure suits. large amount Of property held
under such title and some Of the most
careful conveyaDcers In the city have Sanctioned H..
There does not appear to be any distinction between
cases and If the rule Of the Supreme Court la
to foreclosure the In partition vol
seem equally proper.
But, iprobably to remove questions Of this ehar~tx
by the amended Code Of 1851, the 2s7th section wsai
adudged be sold be sold in the county in witch