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manding him to collect from each of the persons, named in the schedule annexed to the warrant, the sum therein set opposite that person's name ; and to pay over the sum collected, to the treasurer of the county. The warrant is the process of the court, by which the fines were imposed. Id., & 23.
§ 2295. Id.; when delinquent resides in another county.-If a delinquent resides in another county, a separate warrant, for the collection of the fine imposed upon him, with an appropriate schedule annexed thereto, must be issued, in like manner, to the sheriff of the county where he resides. New.
$ 2296. Execution of warrant. The sheriff, to whom a warrant is issued, must collect each fine out of the personal property of the person fined, as prescribed in chapter thirteenth of this act, for the collection, by levy upon and sale of personal property, of an execution issued out of a court of record ; and he is entitled to like fees thereupon. If sufficient personal property of a delinquent cannot be found to pay the fine and the fees, the sheriff must arrest the delinquent, and detain him in custody until he pays the same, as upon an execution against the person, issued in an action, out of the supreme court; and he is entitled to like fees there. uron. Id., & 25.
$ 2297. [Amended, 1895.] Return thereof. The sheriff must return the warrant, with his proceeding thereupon, at the term of the court; or, where the fine was imposed, in any county except New York, by the supreme court, or the county court at the term of the county court; held next after the expiration of sixty days from the receipt thereof. If he fails to do so, the district attorney must take the same proceedings to compel a return, as may be taken by a judgment creditor,' where a sheriff omits to return an execution, issued out of the supreme court. In effect Jan. 1, 1896; L. 1895, ch. 946.
$ 2298. Proceedings if fine not collected.- Where it appears, by return, that a fine remains uncollected, and
Id., & 26.
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 de. linquent, 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. Id., & 27.
$ 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. Id., 28.
$ 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 sher. iff, to whoin 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 court. New.
§ 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. New.
TITLE V. Proceedings to discover the death of a tenant for lifa Bro. 2302. Petition for production of tenant for itfe.
2303. Contents of petition.
SEC. 2304. Service of petition and notice.
2305. Proceedings upon presentation of petition.
$ 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 peti. tion 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 ac. tion 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 83. $ 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. Id., % 4.
$ 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 spécified, 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. Id., 85.
$ 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 de. liver 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 depositions, 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. Id., 88.
$ 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 tho costs of the proceeaings. Id., 89.
$ 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, bas 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 forth with let into possession of the real property, as if that person was actually dead.
Id., 10. Lettsv. Brooks, Lalor, 36; O'Gara v. Eisenlohr, 38 N. Y 296 Dake of Cumberland v. Graves, 9 Barb, 595 ; see Eagle v. Emmett,