JUSTICE'S MANUAL directly opposite consequences would follow. In truth, the whole doctrine of the common law, respecting the effect of a release to one joint debtor, was very artificial, and inconsistent with the prevailing theory of jurisprudence. It is safe to say, that, in ninety-nine cases out of one hundred, where all the joint debtors have been released, in consequence of a release to one of them, the result has been attained through the creditor's ignorance of the law, and against his intention. Where the creditor means to release all the debtors, the instrument plainly expresses that intention; where he releases but one, he means to reserve his claim against the others. This section conforms the rule of law to this plain common sense proposition. The phrase at the commencement of § 3 of the act of 1838, apparently indicates, that the legislature had the same object in view, when that act was passed, but if so, their intention was inadequately expressed in the other sections.] Satisfying judgment. Rights of the debtors not released. Action against § 1943. An instrument, specified in the last section, is deemed a satisfaction-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. [The remainder of id., § 2, remodelled as required by the regulations respecting satisfaction pieces, contained in § 1260 of this act.] § 1944. Where a joint debtor has thus compounded, a joint debtor, who has not compounded, may make any defence or counterclaim, 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 proportion of the joint debt, or of the partnership debts, as the case may be, as if the latter had not been discharged. [The substance of §§ 3 and 4 of the same statute.] 1945. In an action brought against one or more persons enpersons gaged, as a joint-stock association, partnership, or otherwise, in the transpor- periodical transportation of passengers or property, an objection to any of the proceedings cannot be taken, by a person properly made a defendant, on the ground that the plaintiff has joined with him, as a defendant, a person not jointly engaged with him in that business, or on the ground that the plaintiff has failed so to join with him a person so jointly engaged; unless the persons so engaged have, at least thirty days before the commencement of the action, filed in the clerk's office of each county, in which they transport passengers 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 (3 R. S., 5th ed., 778; 4 Edm., 621), condensed into one section, and remodelled in general conformity to § 1813 of this act.] PART II. partner remains liable. § 1946. Where, for any cause, one or more partners have not when been joined as defendants in an action upon a partnership liability, not sued 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 in this section, as well as the facts constituting his cause of action upon the demand. [Co. Proc., § 136, subd. 4, omitting the last clause.] 317 JUSTICE'S When action cannot be maintained. Action for forfeiture, etc. CHAPTER XVI. (EXTRACTS.) ACTIONS IN BEHALF OF THE PEOPLE, AND SPECIAL TITLE I. Actions in behalf of the people. ARTICLE THIRD. ACTION FOR A FINE, PENALTY, OR FORFEITURE, OR UPON A FORFEITED § 1961. Whenever, by the decision of the general term of the supreme court, or of a superior city court, a construction is given to a statute, an act done, in good faith, and in conformity to that construction, after the decision was made, and before a reversal thereof by the court of appeals, is so far valid, that the party doing it is not liable to any penalty or forfeiture, for an act that was adjudged lawful by the decision of the court below. But this section does not control or affect the decision of the court of appeals, upon an appeal actually taken before the reversal. [2 R. S., 602, Part 3, ch. 9, tit. 3, § 66 (2 Edm., 624).] § 1962. Where real or personal property has been forfeited, or a penalty incurred, to the people of the State, or to an officer, for their use, pursuant to a provision of law, the attorney-general, or the district-attorney of the county in which the action is triable, must bring an action to recover the property or penalty, in a court having jurisdiction thereof. Where the supreme court and a justice's court have concurrent jurisdiction of the action, it may be brought in either, at the election of the attorney-general or district-attorney. A recovery in such an action bars a recovery, in any other action, brought for the same cause. [Co. Proc., § 447; 2 R. S.,481, Part 3, ch. 8, tit. 6, § 3, first sentence (2 Edm., 503).] § 1963. Money recovered in such an action, which is not other wise specially granted or appropriated by law, must, when collected, be paid into the treasury of the State. [Remainder of § 3 of the R. S.] Money posed of. recovered; how dis § 1964. Sections 1897 and 1898 of this act apply to an action, Certain brought as prescribed in the last two sections. [Substituted for §§ 17 and 15 of the R. S.] proceedings in the action regulated. ance: how forfeited. § 1965. Where the condition of a recognizance is broken, an Recognizorder of the court, directing the prosecution of the recognizance, is a sufficient forfeiture thereof. [Id., § 31.] on recog § 1966. Where a recognizance to the people is forfeited, the Action district-attorney of the county in which it was taken, must, unless nizance. the court otherwise directs, forthwith bring an action to recover the penalty thereof. It is not necessary, in such an action, to allege or prove any damages, by reason of the breach of the condition; but where the people are entitled to judgment therein, they must have judgment absolute, for the penalty of the recognizance. [Id., § 29.] received by attorney; how dis posed of. 1967. Within thirty days after a district-attorney receives or Money collects money upon a recognizance, or for a penalty or forfeiture, districtbelonging to the county, he must pay it to the county treasurer of his county, deducting only his necessary disbursements; except that, where he does not receive, as his compensation, a salary fixed pursuant to law, the county court may, by an order entered in its minutes, allow him to retain also a sum, specified in the order, for his reasonable costs and expenses, and a reasonable counsel fee. [Id., § 32. Sec L. 1852, ch. 304, §§ 1 and 6 (3 Edm., 336), and L. 1870, ch. 752, § 1 (7 Edm., 777).] attorney § 1968. Each district-attorney must render to the first term of the Districtcounty court of his county, held in each calendar year, a written to render account. JUSTICE'S MANUAL. account, verified by his affidavit, of all actions brought by him upon recognizances, or for penalties or forfeitures belonging to the county, or to the State; of all his proceedings therein; of all judgments recovered by him therein; and of all money, collected by him from any person, belonging to the county or the State. This section applies to a district-attorney who has gone out of office during the preceding calendar year. Actions to be brought in the name of the people. Judgment for costs may be taken against the meanla Relator; when to be joined as plaintiff; tion of [Id., §§ 34, 35, 36.] ARTICLE SIXTH. MISCELLANEOUS PROVISIONS, RELATING TO ACTIONS, ETC., IN BEHALF OF THE 1984. An action, brought as prescribed in this title, except an 1985. Where judgment is rendered, or a final order is made, against the people, in a civil action brought, or special proceeding instituted, in their name, by a public officer, pursuant to a provision of law, it must be to the same effect, and in the same form, as against a private individual, who brings a like action, or institutes a like special proceeding, except as otherwise specially prescribed by law. But an execution shall not be issued against the people. [2 R. S., 552, Part 3, ch. 8, tit. 17, § 13 (2 Edm., 573).] 1986. Where an action is brought by the attorney-general, as prescribed in this title, on the relation or information of a person, compensa having an interest in the question, the complaint must allege, and attorney- the title of the action must show, that the action is brought upon the relation of that person. In such a case, the attorney-general must, as a condition of bringing the action, require the relator to give satisfactory security to indemnify the people, against the costs general. |