stanced that an actual partition cannot be made; and that if he arrives at the conclusion that the sale of the whole premises, or cf 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 79 of 1858.

RULE 81.

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 80 of 1858.

RULE 82.

All moneys brought into court by order of any 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 treas urer, 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 United States Trust Company, The New York Life Insurance and Trust Company, Farmers Loan and Trust Company, or Union Trust Company, or in such bank or trust company as the court 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.

Rule 81 of 1858, except italics; see note Voorhis' Code, p. 740.

RULE 83.

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 the court in 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 deposited with him by order of such court, 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 treasHe 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 in such district, by which he shall be appointed, or one of the justices thereof, his report upon the matters so referred.

urer.

Rule 82 of 1958.

RULE 84.

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, the United States Trust Company, Farmers' Loan and Trust Company, or Union 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

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. secretary of the company shall transmit to the justices holding the first general term in the first district, in January in each year, a statement of the accounts, and to the justices holding the first general term in other districts, a statement of the accounts of the county treasurer in each district, showing the amounts 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 83 of 1858, except italics.

RULE 85.

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 vested 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, but such allowances shall in no case exceeed one-half of such principal sum.

Rule 84 of 1858, except italics; see note Voorhis' Code, p. 742, and Northampton Tables, p. 752.

RULE 86.

On the execution of a commission of lunacy, etc., the commissioners, for every day they are necessarily employed in hearing the testimony and taking the inquisition, shall be entitled to an allowance, to be fixed by the court. 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 appoint

ment 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.

Rule 85 of 1858, except italics, and some omissions; see note Voorhis' Code, p. 736.

RULE 87.

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.

Rule 86 of 1858; see notes Voorhis' Code, p. 744.

RULE 88.

To obtain an order of reference, if the complaint seeks to annul a marriage on the ground that the party was under the age of legal consent, an affidavit must be produced showing that the parties thereto have not freely cohabited for any time as husband and wife after the plaintiff had attained the age of consent. If the complaint seeks to annul the marriage on the ground that the plaintiff's consent was ob tained by force or fraud, the plaintiff must show by affidavit that there has been no voluntary cohabitation between the parties as man and wife; and if it seeks to annul a marriage on the ground that the plaintiff was a lunatic, an affidavit must be produced showing that the lunacy still continues; or the plaintiff must show by his affidavit that the parties have not cohabited as husband and wife after the plaintiff was restored to his reason.

Rule 87 of 1858.

RULE 89.

On a reference to take proof of the facts charged in a complaint for separation or limited divorce, the examination of the plaintiff on oath may be taken as to any cruel or inhuman treatment, alleged in the complaint, which took place when no witnesses were present who are competent to testify to the facts on such reference.

Rule 88 of 1858; see note Voorhis' Code, p. 748.

RULE 90.

The defendant, in the answer, may set up the adultery of the plaintiff, or any other matter which would be a bar to a divorce, separation, or the annulling of a marriage contract; and if an issue is taken thereon, it shall be tried at the same time, and in the same manner, as other issues of fact in the case. Rule 89 of 1858; see note Voorhis' Code, p. 748.

RULE 91.

On a complaint filed by a husband for a divorce, if he wishes to question the legitimacy of any of the children of his wife, the allegation that they are, or that he believes them to be, illegitimate, shall be distinctly made in the complaint. If a reference is ordered, proofs shall be taken upon the question of legitimacy, as well as upon the other matters stated in the complaint; and if the issue is tried by a jury, an issue on the question of legitimacy of the children shall be awarded and tried at the same time.

Rule 90 of 1858.

RULE 92.

No judgment declaring void a marriage contract, or granting a divorce, or for a separation or limited divorce, shall be made of course by the default of the defendant; or in consequence of any neglect to appear at the hearing of the cause or by consent. And every such cause shall be heard after the trial of the issue, or upon the coming in of the proofs, at a special term of the court; but where no person appears on the part of the defendants, the details of the evidence in adultery causes shall not be read in public, but shall be submitted in open court. No officer of this court with whom the proceedings in an adultery cause are filed, or before whom the testimony is taken, nor any clerk of such officer, either before or after the termination of the suit, shall permit a copy of any of the pleadings or testimony, or of the substance of the details thereof, to be taken by any other person than a party, or the attorney or counsel of a party, who has appeared in the cause, without a special order of the court. No judgment in an action for a divorce shall be entered except upon the special direction of the

court.

Rule 91 of 1859; see note Voorhis' Code, p. 750.

RULE 93.

Every receiver of the property and effects of the debtor shall, unless restricted by the special order of the court, have general power and authority to sue

for and collect all the debts, demands and rents belonging to such debtor, and to compromise and settle such as are unsafe and of a doubtful character. He may also sue in the name of a debtor, where it is necessary or proper for him to do so; and he may apply for and obtain an order of course, that the tenants of any real estate belonging to the debtor, or of which he is entitled to the rents and profits, attorn to such receiver, and pay their rents to him. He shall also be permitted to make leases from time to time as may be necessary, for terms not exceeding one year, and it shall be his duty, without any unreasonable delay, to convert all the personal estate and effects into money, but he shall not sell any real estate of the debtor without the special order of the court, until after judgment in the cause. He is not to be allowed for the costs of any suit brought by him against an insolvent, from whom he is unable to collect his costs, unless such suit is brought by order of the court or by the consent of all persons interested in the funds in his hands. But he may, by leave of the court, sell such desperate debts, and all other doubtful claims to personal property, at public auction, giving at least ten days' public notice of the time and place of such sale.

Rule 92 of 1858; see note Voorhis' Code, p. 751.

RULE 94.

Whenever an injuction shall be granted, or a receiver appointed ex parte, by the order granting such injunction, or appointing such receiver, shall contain an order to show cause on some day within ten days, why such order should not be continued in force.

New.

RULE 95.

No fees or costs shall be allowed to a receiver beyond actual disbursements, unless the order appointing such receiver shall be continued. New.

RULE 96.

The various courts of record and general terms may make such further rules in regard to the transaction of business before them, respectively, not inconsistent with the foregoing rules, as they, in their discretion, may deem necessary.

New.

RULE 97.

All actions depending on the first day of July, 1848 may be conducted according to the rules of the supreme court, adopted in July, 1847, so far as the same are applicable.

In cases where no provision is made by statute, or by these rules, the proceedings shall be according to the customary practice as it has heretofore existed in the court of chancery and supreme court in cases not provided for by statute or the written rules of the

court.

Rule 93 of 1858.

RULES FOR COMPUTING THE VALUE OF THE LIFE ESTATE OR ANNUITY.

Calculate the interest at six per cent for one year, upon the sum to the income of which the person is entitled. Multiply this interest by the number of years' purchase set opposite the person's age in the table, and the product is the gross value of the life estate of such person in said sum.

EXAMPLES.

Suppose a widow's age is 37, and she is entitled to dower in real estate worth $350.75. One-third of this is $116.91%. Interest on $116.91 one year, at six per cent (as fixed by 84th rule), is $7.01. The number of years' purchase which an annuity of $1 is worth at the age of 37, as appears by the table, is 11 years and 25-1000 parts of a year, which, multiplied by $7.01, the income for one year, gives $77.35 and a fraction as the gross value of her right of dower.

Suppose a man whose age is 50 is tenant by the curtesy in The annual interest on the whole of an estate worth $9,000. the sum, at six per cent, is $540.00. The number of years' purchase which an annuity of $1 is worth, at the age of 50, as per table, is 9 417-1000 parts of a year, which, multiplied by $540, the value of one year, gives $5,085.18 as the gross value of his life estate in the premises, or the proceeds thereof.

NOTE.-The values in this table are calculated on the supposition that the annuities are payable yearly; if payable halfyearly, one-fifth of a year's purchase should be added to those

values.

For the rule to compute the present value of an inchoate or contingent right of dower, vide Jackson v. Edwards, Paige, 408: McKean's Pr. Int. Tables, 25, § 4; Hendry's Ann. Tables, 87, prob. 4.