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the commencement of the action, he tendered to the plaintiff, the full amount to which he was entitled, and thereupon deposits in court for the plaintiff, the amount so tendered, and the allegation be found true, the plaintiff cannot recover costs, but must pay costs to the defendant.

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§ 881. In an action prosecuted or defended by an executor, administrator, trustee of an express trust, or a person expressly authorized by statute, costs may be recovered, as in an action by and against a person prosecuting or defending in his own right, but such costs must by the judgment be made chargeable only upon the estate, fund, or party represented, unless the court direct the same to be paid by the plaintiff or defendant, personally, for mismanagement or bad faith in the action or defence. But no costs are recoverable in such action, if brought without leave of the surrogate, against an executor or administrator within one year after the death of the person whom he represents, nor after that time, unles it appear that the demand was first presented to the executor or administrator, verified by oath, and payment demanded.

Amended Code, § 317.

§ 882. When the decision of a court of inferior jurisdiction in a special proceeding, is brought before the supreme court for review, such proceeding is for all purposes of costs, to be deemed an action at issue, on a question of law, from the time the same is brought into

the supreme court, and costs thereon may be awarded and collected in such manner as the court may direct, according to the nature of the case.

Amended Code, § 318.

§ 883. In all civil actions prosecuted in the name of the people of this state, by an officer duly authorized for that purpose, the people are liable for costs in the same cases, and to the same extent, as private parties. If a private person be joined with the people as plaintiff, he is liable in the first instance for the defendant's costs; which can not be recovered of the people, till after execution issued therefor against such private party and returned unsatisfied. And when costs are awarded, and recoverable, against the people, payment thereof must be made by the comptroller, upon the production of proper evidence thereof.

Amended Code, §319.

§ 884. In an action prosecuted in the name of the people of this state for the recovery of money or property, or to establish a right or claim, for the benefit of any county, city, town, village, corporation or person, costs awarded against the plaintiff, must by the judgment be made a charge against the party for whose benefit the action was prosecuted, and not against the people.

Amended Code, § 320.

§ 885. In an action in which the cause of action, after the commencement of the action, by assignment, or in any other manner, becomes the property of a person not a party to the action, and the prosecution or defence is thereafter continued, such person is liable for the costs, in the same manner as if he were a party, and payment thereof may be enforced by order.

Amended Code, § 321.

§ 886. Upon the settlement, before judgment, of any action mentioned in section 867, no greater sum can be demanded from the defendant as costs, than at the rates prescribed by section 872.

Amended Code, § 322.

§ 987. The attorney of a plaintiff, who resides out of the state, or is a foreign corporation, against whom costs are awarded to a defendant, is responsible to such defendant therefor, to an amount not exceeding two hundred dollars. And the attorney, neglecting to pay the same, after due proceedings against him, may be removed by the court. But he may relieve himself from responsibility, at any time before judgment, by filing an undertaking, for the payment to the defendant of the costs, and charges, executed by a sufficient surety.

2 R. S., 620, §. 1, 2, 3, 4, 5, 6, 7, and 8.

TITLE XI.

ACTIONS IN PARTICULAR CASES.

GHAPT R I. Actions to determine conflicting claims to real property and other provisions relating to actions concerning real property.

II. Actions for the foreclosure of mortgages.

III. Actions for waste, nuisance, trespass on Indian lands, and wilful trespass on other real property.

IV. Actions for the partition of real property.

V. Actions respecting corporations.

VI. Actions by and against executors, administrators, legatees, heirs, and devisees.

VII. Actions on official securities, and for fines and forfeitures.

VIII. Actions by and against certain public officers, and public bodies.
IX. Actions to vacate charters, letters patent, and to prevent the usurpa-
tion of an office or franchise.

X. Actions in justices eourts.

The form of civil actions under the code, is in its nature adapted to almost every case requiring the interposition of judicial authority. In making provisions for proceedings in special cases, it has been deemed wise to conform as far as practicable, to the system already adopted in civil actions, and to make provision for the points of difference only. By this means the advantage is afforded of following the beaten track already enlightened by the judicial consideration to which the code has been subjected. The length and number of statutory enactments, are by the same ineans greatly abridged. This remark is applicable not only to most of the provisions under this title, but also to the special proceedings for which rules are prescribed in part 3.

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By comparing the provisions with those of the revised stattute on the san e subject, it will be found that the volume of matter has been greatly reduced, while it contains, as we believe, a more certain, safe and simple mode of procedure in every case.

CHAPTER I.

ACTIONS TO DETERMINE

CONFLICTING CLAIMS TO REAL PROPERTY, AND OTHER PROVISIONS RELATING TO ACTIONS CONCERNING REAL

PROPERTY.

SECTION 888. An action allowed to determine an adverse claim to real property. 889. If the defendant disclaim no costs allowed.

890. In an action by one tenant in common against another, a denial o the right must be shown.

891. When the light has terminated during the pendency of the action. 892. New trial may be had in actions to recover ieal property.

893. After a second trial court may allow a third.

894. How jndgment entered after new trial.

895. May recover profits only for six years.

896. A survey of property in dispute allowed.
897. Order for the survey.

898.

mortgage not a conveyance.

899. Injunction to prevent waste after sale.

900. Purchaser of land on execution, may recover for injury after sale.

901. A sale of land pending an action does not affect rights.

902. An action for possession of land equivalent to re-entry, but tenant may redeem.

§ 888. An action may be brought by any person in possession, by himself, or his tenant, of real property, against any person, who claims an estate or interest therein, adverse to him, for the purpose of determining such adverse claim, estate, or interest.

§ 889. If the defendant, in such action, disclaim in his answer any interest or estate in the property, or suffer judgment to be taken against him without answer, the plaintiff cannot recover costs.

R. S., part 3, chap. 5, title 2.

The salutary provisions of this entire title are secured in the two preceding sections. The form of action under the code being adapted to these cases, it only requires a provision declaring them the subject of an action, and regulating the judgment, when the defen lart disclaims, or makes no defence.

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