reasonable time, not less than six months from the first publication of notice of the order as the court directs; and that the creditors who make default in so doing shall be precluded from all benefit of the judgment and from any distribution which may be made thereunder, except as hereinafter provided. Notice of the order must be given, by publication, in such newspapers and for such a length of time as the court directs. Notwithstanding such order any such creditor who shall exhibit and prove his claim in the manner directed thereby, with proof, by affidavit or otherwise, that he has had no notice or knowledge thereof in time to comply therewith, any time before an order is made directing a final distribution of the assets of such corporation, shall be entitled to have his claim received, and shall have the same rights and benefits thereon, so far as the assets of such corporation then remaining undistributed may render possible, as if his claim had been exhibited and proved within the time limited by such order.

§ 1808. Where the Attorney-General has good reason to believe, that an action can be maintained in behalf of the people of the State, as prescribed in article second, third, or fourth of this title, except section one thousand seven hundred and ninety-seven of this act, he must bring an action accordingly, or apply to a competent court for leave to bring an action, as the case requires; if, in his opinion, the public interests require that an action should be brought. In a case where the action can be brought only by the AttorneyGeneral in behalf of the people, if a creditor, stockholder, director, or trustee of the corporation, applies to the Attorney-General for that purpose, and furnishes the security required by law, the Attorney-General must bring the action, or apply for leave to bring it, if he has good reason to believe that it can be maintained. Where such an application is made, section one thousand nine hundred and eighty-six of this act applies thereto, and to the action brought in pursuance thereof.

§ 1809. An injunction order, suspending the general and ordinary business of a corporation, or of a joint-stock association, consisting of seven or more persons, or suspending from office, or restraining from the performance of his duties, a trustee, director, or other officer thereof, can be granted only by the court, upon notice of the application therefor, to the proper officer of the corporation or association, or to the trustee, director, or other officer enjoined. If such an injunction order is made, otherwise than as prescribed in this section, it is void.

1810. A receiver of the property of a corporation can be appointed only by the court, and in one of the following

cases:

1. An action, brought as prescribed in article second, third, or fourth, of this title.

2. An action brought for the foreclosure of a mortgage upon the property, of which the receiver is appointed, where the mortgage debt, or the interest thereupon, has remained unpaid, at least thirty days after it was payable, and after payment thereof was duly demanded of the proper officer of the corporation; and where either the income of the property is specifically mortgaged, or the property itself is probably insufficient to pay the mortgage debt.

3. An action brought by the Attorney-General, or by a stockholder, to preserve the assets of a corporation, having no officer empowered to hold the same.

4. A special proceeding for the voluntary dissolution of a corporation.

Where the receiver is appointed in an action, otherwise than by or pursuant to a final judgment, notice of the application for his appointment, must be given to the proper officer of the corporation.

§ 1811. A trustee, director, or other officer of a corporation shall not be suspended or removed from office, by a court or judge, otherwise than by the final judgment of a competent court, in an action brought by the Attorney-General, as prescribed in section one thousand seven hundred and eighty-one of this act.

§ 1812. The last three sections apply to an action or a special proceeding, against a corporation, or joint-stock association, created by or under the laws of the State, or a trustee, director, or other officer thereof; or against a corporation, or joint-stock association created by or under the laws of another state, government, or country, or a trustee, director, or other officer thereof, where the corporation or association does business within the State, or has, within the State, a business agency or a fiscal agency, or an agency for the transfer of its stock.

§ 1813. Where an action, authorized by a law of the State, is brought against one or more persons, as stockholders of a corporation or joint-stock association, an objection to any of the proceedings cannot be taken, by a person properly made a defendant in the action, on the ground that the plaintiff has joined with him, as a defendant in the action, a person, whose name appears on the stock-books of the corporation or association, as a stockholder thereof, by the name so appearing; but who is misnamed, or dead, or is not liable for any cause. In such a case, the court may, at any time before final judgment, upon motion of either party, amend the pleadings and other papers, without prejudice to the previous proceedings, by substituting the true name of the person intended, or by striking out the name of the person who is dead, or not liable, and, in a proper case, inserting the name of his representative or successor.

Id. 330.

105 Id. 453.

TITLE III.

Actions relating to the estate of a decedent.

ARTICLE 1. Action by or against an executor or administrator.
2. Action by a creditor against his debtor's next of kin, lega
tee, heir, or devisee.

3. Action to establish or impeach a will.
4. General and miscellaneous provisions.

18 Week. § 1814. An action or special proceeding, hereafter comDig. 124. menced by an executor or administrator, upon a cause of 22335 action, belonging to him in his representative capacity, or an action or special proceeding, hereafter commenced against him, except where it is brought to charge him personally, must be brought by or against him in his representative capacity. A judgment, in an action hereafter commenced, recovered against an executor or administrator, without describing him in his representative capacity, cannot be enforced against the property of the decedent, except by the special direction of the court, contained therein.

§ 1815. An action may be brought against an executor or administrator, personally, and also in his representative capacity, in either of the following cases:

1. Where the complaint sets forth a cause of action against him in both capacities, or states facts, which render it uncertain, in which capacity the cause of action exists against him.

2. Where the complaint sets forth two or more causes of action against the defendant, in different capacities, all of which grow out of the same transaction, or transactions connected with the same subject of action; do not require different places or modes of trial; and are not inconsistent with each other.

In a case specified in this section, a judgment for the plaintiff for a sum of money must distinctly show, whether it is awarded against the defendant personally, or in his representative capacity.

§ 1816. In a case specified in the last section, or where costs, to be collected out of the individual property of an executor or administrator, are awarded in an action by or against him in his representative capacity, so much of the judgment, as awards a sum of money against him personally, may be separately docketed, and a separate execution may be issued thereupon, as if the judgment contained no award against him in his representative capacity.

§ 1817. In an action or special proceeding against two 18 Abb. N. or more executors or administrators, representing the same C. 361. decedent, all are considered as one person; and those who are first served with process, or first appear, must answer the plaintiff. Separate answers, by different executors or administrators, cannot be required or allowed, except by direction of the court. Judgment in favor of the plaintiff may be entered, and, in a proper case, execution may be issued, against all the defendants, as if all had appeared. But this section does not affect the plaintiff's right to bring into court all the executors or administrators, who are parties.

§ 1818. One of two or more executors, to whom letters testamentary have not been issued, is not a necessary party to an action or special proceeding, in favor of or against the executors, in their representative capacity.

3 Dem. 30. 24 Week. 441lun, 394. Dig. 543. 5 Dem. 393. 22 Abb. N.

§ 1819. If, after the expiration of one year from the granting of letters testamentary or letters of administration, an executor or administrator refuses, upon demand, to pay a legacy, or distributive share, the person entitled thereto may maintain such an action against him, as the case requires. But for the purpose of computing the time, within which such an action must be commenced, the 111 N. Y.204. cause of action is deemed to accrue, when the executor's or administrator's account is judicially settled, and not before.

§ 1820. The guardian ad litem of an infant, in whose favor an action is brought, as prescribed in the last section, must, unless he is also the general guardian, execute and file with the clerk, before the commencement of the action, a bond to the infant, with at least two sufficient sureties, in a penalty fixed by a judge of the court, conditioned that the guardian will duly account to the infant, when he attains

C. 4.9.
1 Conn. 323.

4 Dem. 176.

full age, or, in case of his death, to his personal representatives, for all money or property, which the guardian may receive, by reason of the legacy or distributive share.

§ 1821. A final judgment against an heir or devisee, bars an action against the executor or administrator of the decedent, for the same cause, and every other remedy to enforce payment thereof out of the decedent's property; unless an execution against property, issued upon the judgment, has been returned wholly or partly unsatisfied, or sufficient real property to satisfy the judgment has not descended, or been devised, to the judgment debtor. But, if the judgment was recovered for a debt or legacy, expressly charged upon the estate descended or devised, the bar is absolute.

§ 1822. [Am'd 1882.] Where an executor or adminis51 Hun, 194. trator disputes or rejects a claim against the estate of the decedent, exhibited to him either before or after the commencement, of the publication of a notice requiring the presentation of claims, as prescribed by law, unless the claim is referred, as prescribed by law, the claimant must commence an action, for the recovery thereof against the executor or administrator, within six months after the dispute or rejection, or, if no part of the debt is then due, within six months after a part thereof becomes due; in default whereof, he, and all persons claiming under him, are forever barred from maintaining such an action thereupon, and from every other remedy to enforce payment thereof out of the decedent's property.

35 Hun, 637.

185.

The amendment made to section eighteen hundred and twenty-two shall not apply when letters have been issued to one or more executors or administrators before this act takes effect; nor shall any amendment, made by this act, invalidate, or impair the effect of any proceedings heretofore taken.

§ 1823. Real property, which belonged to a decedent, is 15 Civ. Pro. not bound, or in any way affected, by a judgment against his executor or administrator, and is not liable to be sold by virtue of an execution issued upon such a judgment, unless the judgment is expressly made, by its terms, a lien upon specific real property therein described, or expressly dírects the sale thereof.

1 Dem. 36.
2 Id. 242.
Conn. 362.

Y. 430.

§ 1824. In an action against an executor or administrator, in his representative capacity, wherein the complaint demands judgment for a sum of money, the existence, sufficiency, or want of assets, shall not be pleaded by either party; and the plaintiff's right of recovery is not affected thereby, except with respect to the costs to be awarded, as prescribed by law. A judgment in such an action, is not evidence of assets in the defendant's hands.

§ 1825. An execution shall not be issued, upon a judgment for a sum of money, against an executor or adminis