§ 2295. 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.

S2296. 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 thereupon.

§ 2297. The sheriff must return the warrant, with his proceedings thereupon, at the term of the court; or, where the fine was imposed, in any county except New York, by the supreme court, the circuit court, the court of oyer and terminer, or the court of sessions, at the term of the county court; held next after the expiration of sixty days from the receipt thereof. If he fails so to do, 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.

§ 2298. Where it appears, by the return, that a fine remains uncollected, and it does not appear that the sheriff has the delinquent in custody, the district attorney must, if he has good reason to believe that the sheriff might, with due diligence, have collected the fine, or arrested and detained the delinquent, 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.

§ 2299. 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.

§ 2300. An action may be maintained, in behalf of the 11 Civ. Pro. people, against a sheriff, to whom a warrant is directed and 227. delivered, as prescribed in this title, to recover damages for any omission of duty with respect to the same, in a case where a judgment creditor might maintain an action against a sheriff, to whom 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.

§ 2301. This title does not apply to a case, where special provision for the collection of a fine is otherwise made by law.

TITLE V.

Proceedings to discover the death of a tenant for life.

§ 2302. Petition for production of
tenant for life.

2303. Contents of petition.
2304. Service of petition and

notice.

2305. Proceedings upon presentation of petition.

2306. Service of order; powers,
etc., of referee.

2307. Habeas corpus.
2308. Report of referee.
2309. Dismissal of petition when
order complied with.
2310. When life-tenant deemed
dead, and petitioner let
into possession.

§ 2211. Commission to be issued if life-tenant is without the State.

2312. General provisions

re

specting the commis

fion

2313. Petitioner to give notice
of its execution.

2314. Execution thereof.
2315. Proceedings on return of
commission.

2316. Costs.

2317. Property; when restored. 2318. Remedy of person evicted for profits, etc.

2319. Order not conclusive in ejectment.

§ 2302. 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 petition 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 action 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.

§ 2303. 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 to gether with a statement of the grounds upon which the petitioner's belief is founded.

§ 2304. 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, a least fourteen days before its presentation, upon the person required, by the prayer thereof, to produce the tenant for life.

$2305. 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.

§ 2306. 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 specified, upon the person required to make the production or 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 reasons 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.

§ 2307. 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.

§ 2308. The referee must deliver 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 controverted before him.

§ 2309. 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 the costs of the proceedings.

§ 2310. If it appears, from the referee'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, has 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 forthwith let into possession of the real property, as if that person was actually dead.

§ 2311. If, before or at the time of the presentation of the referee's report to the court, or, where a referee is not appointed, at any time before the final order is made, the party, upon whom the petition and notice are served, presents to the court presumptive proof, by affidavit, that the person, whose death is in question, is, or lately was at a place certain, without the State, the court must make an order, requiring the petitioner to take out a commission, directed to one or more persons, residing at or near that place, either designated in the order, or to be appointed upon a subsequent application for the commission, for the purpose of obtaining a view of the person, whose death is in question, and of taking such testimony, respecting his identity, as the parties produce. The order must also direct that the proceedings upon the petition be stayed, until the return of the commission; and that the petition be dismissed with costs, unless the petitioner takes out the commission, within a time specified in the order, and diligently procures it to be executed and returned, at his own expense.

§ 2312. It is not necessary, unless the court specially so directs, that the witnesses to be examined should be named in the commission, or that interrogatories should be annexed thereto. The commission must be executed and returned, and the deposition taken must be filed and used, as prescribed for those purposes in article second of title third of chapter ninth of this act, except as otherwise specially prescribed in this title.

§ 2313. The petitioner must give to the adverse party, or his attorney, written notice of the time when, and the place where, the commissioner or commissioners will attend, for the purpose of executing the commission, as follows:

1. If the place, where the commission is to be executed, is within the United States, or the dominion of Canada, he must give at least two months' notice.

2. If it is within either of the West India islands, he must give at least three months' notice,

3. In every other case, he must give at least four months' notice.

Notice may be given, as required by this section, by serving it as prescribed in this act for the service of a paper upon an attorney, in an action in the supreme court.

§ 2314. The commissioner or commissioners possess the same powers, and must proceed in the same manner, as a referee, appointed by an order requiring the production of the tenant for life, or proof of his existence; except that they cannot proceed, unless a person is produced before them, as being the person whose death is in question. The return to the commission must expressly state whether any person was or was not so produced. The testimony, respecting the identity of a person so produced, must be taken, unless otherwise specially directed by the court, as prescribed in chapter ninth of this act, for taking the depositition of a witness upon oral interrogatories; except that it is not necessary to give any other notice of the time and place of examination, than that prescribed in the last section.

§ 2315. Upon the return of the commission, the proceedings are the same as upon the report of a referee, as prescribed in sections two thousand three hundred and nine and two thousand three hundred and ten of this act; but the court may, in its discretion, receive additional proofs from either party.

§ 2316. Where costs of a special proceeding, taken as prescribed in this title, are awarded, they must be fixed by the court at a gross sum, not exceeding fifty dollars, in addition to disbursements. Where provision is not specially made in this title for the award of costs, they may be denied, or awarded to or against either party, as justice requires

§ 2317. The possession of real property, which has been awarded to the petitioner, as prescribed in this title, upon the presumption of the death of the person, upon whose life the prior estate depends, must be restored, by the order of the court, to the person evicted, or to his heirs or legal representatives, upon the petition of the latter, and proof, to the satisfaction of the court, that the person presumed to be dead is living. The proceedings upon such an application are the same, as prescribed in this title, upon the application of the person to whom possession is awarded.

$2318. A person evicted, as prescribed in this title, may, if the presumption, upon which he is evicted, is erroneous, maintain an action against the person who has occupied the property, or his executor or administrator, to recover the rents and profits of the property, during the occupation, while the person, upon whose life the prior estate depends, is or was living.

§ 2319. A final order, made as prescribed in this title, awarding to the petitioner the possession of real property, is presumptive evidence only, in an action of ejectment,