should be stated. They cannot sue and be sued by their firm-name. A corporation may sue and be sued by its corporate name. When the time is immaterial, the party is not confined in his allegations to the true time, nor in his proof to the time alleged. He is not bound, in such case, to show the precise day on which the alleged fact took place. When the day is not material in evidence, it is not material in the pleadings. It is necessary, in point of form, to allege a day for the occurrence of every traversable fact, whether the day is material or immaterial. The cause of action must always appear by the plaintiff's complaint to have occurred before the commencement of the action. The precise day on which a material fact alleged in the pleadings took place, is generally immaterial. In the date of a record, however, or other writing, or date of some other fact, the time of which must be proved by a written document, the time is material. If a tort is stated to have been committed on a particular day, the plaintiff is not confined in his proof to the time alleged. He may support the allegation by proving that the tort was committed on another day; but the day alleged in the complaint, and that proved on the trial, must both be prior to the commencement of the action. If time enters into the terms of the contract, the true time must be stated. In pleading any written instrument, the day on which it is alleged to bear date is material, and must be correctly stated; otherwise there will be a variance between the writing itself, and the description of the writing in the pleadings.

are partners? Can they sue and be sued in their firm-name? How must a corporation sue? If the time is immaterial? What is he not bound, in such case, to show? If the day is not material in evidence? What is necessary in point of form to allege? When must the cause of action appear in the complaint to have occurred? What is generally immaterial? If the time be the date of a record or other writing, the date of which must be proved? If a tort is stated to have been committed on a particular day? By what proof may he support his allegation? Prior to what must both the time alleged and the time proved be? If the time enters into the terms of the contract? In pleading any written instrument, what is material? How must it be stated? If otherwise, what will be the effect?

9. The place of every traversable fact stated in the pleadings must be distinctly alleged. This is done by designating the town and county in which the fact is alleged to have occurred. Where the place is material, it must be proved as alleged. In local actions, the place is material, and must be stated according to the fact. A local action is one that must be tried in the county in which the cause of action actually arose. All actions in which the thing to be recovered is in its nature local, are local actions. In this class is included all real actions, waste, ejectment, and replevin. If the place be misstated, the plaintiff will be liable to a nonsuit, because the place enters into a description of the action. All criminal proceedings are local. All offences are considered as public wrongs. A public offence must be alleged to have been committed in the county where such offence was actually committed, and in no other. If the proof does not show that the offence was committed as alleged, the verdict must be, not guilty. All facts essential to the right of action or defence must be expressly and substantially alleged. Each party tacitly admits the allegations of the opposite party, which he does not deny in some form. The omission to deny, is justly considered as an admission of the fact. What has been admitted by both parties, cannot be denied. Neither party can retract what he has conceded in his pleadings; and the jury have no authority to find any facts, except those at issue. It is incumbent on cach party, in stating the grounds of his action or defence, to state them fully and

9. When must the place be distinctly alleged? How is this done? If the place is material? In what actions is the place material? What is a local action? What may be included in this class? If the place be misstated? Are criminal actions local? How are offences considered? Where must a public offence be alleged to have been committed? If the proof does not show that the offence was committed as alleged? What facts must be expressly and substantially stated? What does each party tacitly admit? How is the omission to deny justly considered? If admissions have been made by both parties? What can neither party retract? What have the jury no authority to do? What is incumbent on each party, in stating the grounds of his action or de

clearly. A pleading should be according to its legal effect. When a bill of exchange is payable, in its terms, to the order of a fictitious payee, the holder, in an action upon it, must describe it as payable to bearer. When the form and legal effect differ, the party may, at his option, instead of stating the legal effect, recite the instrument in his pleadings, word for word, and refer its legal operation to the court.

CHAPTER LXXXII.

ACTIONS.

1. AN action is a judicial proceeding which, if conducted to its final determination, will result in a judg ment. A judgment is the final determination of the rights of the parties in the action. A special proceeding is one which does not terminate in a judgment. Actions are civil or criminal. A criminal action is prosecuted by the people of the State or nation, as a party, against a person charged with an offence against the State or nation. Every other is a civil action. When the same wrong act exposes a person to a civil action and to a criminal action, the prosecution of one action does not release him from liability on the other. If one person assaults and beats another, the State may maintain a criminal action against such person for the public offence; and the person injured may maintain an action for personal injury. The prosecution of one action does not affect the right to prosecute the other.

fence? How should a pleading be made? If a bill of exchange is payable, in its terms, to the order of a fictitious person? When the form and legal effect differ, what may the party do?

1. What is an action? What is a judgment? What is a special pro ceeding? Into what two classes are actions divided? What is a criminal action? What is every other action? If the same act exposes a person to a civil and a criminal action, does the prosecution of one affect the

2. The following are the courts established in the State of New York: 1. Court for the trial of impeachments; 2. Court of Appeals; 3. The Supreme Court; 4. County courts; 5. Surrogate's courts; 6. Justices' courts. In the city of New York, the duties of justices are performed by two classes of justices. One class attends to the criminal duties, and are called police justices. The other class attend to the civil duties, and are called district justices. The Marine Court in the city of New York performs the duties of justices' courts in civil actions, with a more extended jurisdiction. The court which occupies the place of the County Court, in the city of New York, is known as the Court of Common Pleas. There is a court in the city of New York, and another in the city of Buffalo, known as the Superior Court, which have nearly the same jurisdiction as the Supreme Court in those counties.

3. The court for the trial of impeachments is composed of the Senate and Court of Appeals, sitting together. They take an oath to try the impeachment according to evidence. Two-thirds of the members of the court are necessary to a conviction. A majority of the Senate and a majority of the Court of Appeals compose the court. The president of the Senate presides; in his absence, the chief-justice of the Court of Appeals presides. None but public officers are tried in this court. The Assembly first impeaches such officer, and the impeachment is then tried by this court. If found guilty, the penalty is the

other? If one person assaults and beats another, what two actions may be sustained against him?

2. What are the courts in the State of New York? By whom are the duties of justices performed in the city of New York? To what does the first class attend? What are they called? To what does the second class attend? What are they called? What duties are performed by the Marine Court in the city of New York? What court occupies the place of the county courts in the city of New York? Where are Superior Courts established? What is their jurisdiction?

3. Of what is the court for the trial of impeachments composed? What oath do they take? What number of the court is necessary to convict? What number of each body is necessary to form a quorum? Who presides in the court? In his absence, who presides? Who only are tried in this court? Who impeach such officers? If found guilty

The court has

removal from office or disqualification to hold office, or both. The Court of Appeals is composed of eight judges, four of whom are elected by the electors of the whole State, and four are selected from the class of justices of the Supreme Court having the shortest time to serve. The judges of the Court of Appeals hold their office for eight years. One of the four is elected every two years. The four judges of the Supreme Court sit in the Court of Appeals but one year. Four others then take their places. Six judges are necessary to form a quorum. Only questions of law are argued before this court. the power to affirm, reverse, or modify the decision of the general term of the Supreme Court, Superior Court, and Court of Common Pleas, on questions of law. It holds four sessions annually at the capital of the State. Five judges are necessary to pronounce a judgment. If five do not concur, the case must be reheard. If, after two rehearings, five judges do not concur, the judgment of the court below is affirmed. Where five judges agree, the decision is binding on all the courts of the State. If five do not agree, the question involved is still open for consideration in any future case.

4. For the purpose of electing judges of the Supreme Court, the State is divided into eight judicial districts. Four judges of the Supreme Court are elected in each district. They hold their office for eight years. One is elected in each district every two years. Certain duties

of the charge by this court, what is the sentence? Of what is the Court of Appeals composed? How many are elected by a general vote? From what court are the other four selected? For what time do the judges elected at large hold office? How often is one elected? How long do the four judges of the Supreme Court sit in the Court of Appeals? Who then take their places? How many judges are necessary to form a quorum in this court? What questions are argued and decided in this court? What power has this court? How many sessions does it hold annually? Where? How many judges are necessary to pronounce a judgment? If five do not concur? If, after two rehearings, five judges do not concur? When is the decisions of this court binding on the other courts? If five do not agree?

4. Into how many judicial districts is the State divided, for the purpose of electing judges of the Supreme Court? How many judges are