"But if such corporation shall neglect to appear and plead to such indictment, within two terms after the return of the distringas against them, the court shall order the money levied thereby, after deducting the costs and expense of the proceedings, to be paid to the county treasurer for the use of the poor of such county." Ibid. sec. 40.

This code makes no distinction between natural persons and corporations, in respect to the manner of commencing criminal actions. They must all be commenced, either by an information before a magistrate, or by the presentment of a grand jury.

This chapter, sec. 743-748, provides for the mode of bringing the case of a corporation defendant before the grand jury, and sec. 749, for their appearance and plea. In the proceedings, as thus provided, it is believed a greater degree of simplicity has been attained, than is to be found in the practice as it now exists.

§743. Upon an information or presentment against a corporation, the magistrate must issue a summons, signed by him, with his name of office, requiring the corporation to appear before him, at a specified time and place, to answer the charge; the time to be not less than ten days after the issuing of the summons.

§ 744. The summons must be in substantially the following form:

"County of Albany, [or as the case may be.]

'In the name of the people of the state of NewYork:

"To the [naming the corporation.]

"You are hereby summoned to appear before me, at [naming the place,] on [specifying the day and hour,] to answer a charge made against you, upon the information of A. B., [or "the presentment of the grand jury

of the county of Albany," or as the case may be,] for [designating the offence, generally.]

§ 745. The summons must be served at least five days before the day of appearance fixed therein, by delivering a copy thereof and showing the original to the president, or other head of the corporation, or to the secretary, cashier, or managing agent thereof.

The mode of service prescribed in this section, is the same as in the Amended Code, sec. 134, subd. 1.

§746. At the time appointed in the summons, the magistrate must proceed to investigate the charge, in the same manner as in the case of a natural person brought before him, so far as those proceedings are applicable.

§ 747. After hearing the proofs, the magistrate must certify upon the depositions, either that there is or is not sufficient cause to believe the corporation guilty of the offence charged, and must return the depositions and certificate, in the manner prescribed in section 220.

§ 748. If the magistrate return a certificate that there is sufficient cause to believe the corporation guilty of the offence charged, the grand jury may proceed thereon, as in the case of a natural person held to answer.

749. If an indictment be found, the corporation

If they

may appear by counsel, to answer the same. do not thus appear, a plea of not guilty must be entered, and the same proceedings had thereon as in other

cases.

§ 750. When a fine is imposed upon a corporation, on conviction, it may be collected by virtue of the order imposing it, by the sheriff of the county, out of their real and personal property, in the same manner as upon an execution in a civil action.

The last section will be found to provide a more simple mode of procedure, than that now required by the Revised Statutes, which provide that "when a fine shall be imposed upon any corporation, the same may be collected by distingas against their personal estate and chattels real." 2 R. S., 3d ed., 832, sec. 41.

CHAPTER X.

ENTITLING AFFIDAVITS.

SECTION 751. Affidavits defectively entitled, valid.

§ 751. It is not necessary to entitle an affidavit or deposition, in the action, whether taken before or after indictment, or upon an appeal; but if made without a title, or with an erroneous title, it is as valid and effectual for every purpose, as if it were duly entitled, if it intelligibly refer to the proceeding, indictment or appeal in which it is made.

This section is taken from the Amended Code, sec. 406. It was there introduced, to obviate the objection, which is

sustained by abundant common law authority, that such an affidavit, whether intelligibly referring to the action or proceeding in which it is taken, or not, is a nullity; inasmuch as, if false, no indictment for perjury can be maintained upon it. Milliken v. Selye, 3 Denio, 56, and the cases there cited.

CHAPTER XI.

ERRORS AND MISTAKES, IN PLEADINGS AND OTHER PROCEEDINGS.

SECTION 752. No departure from the forms prescribed by this code, or error or mistake in a pleading or proceeding, material, unless it prejudice

or tend to prejudice a substantial right.

§ 752. Neither a departure from the form or mode prescribed by this code, in respect to any pleadings or proceedings, nor an error or mistake therein, renders it invalid, unless it have actually prejudiced the defendant, or tend to his prejudice, in respect to a substantial right.

The preceding provisions of this code, and the remarks which have been made upon them, abundantly show, that its leading object is to remove the many grounds of objection to criminal proceedings, on the ground of their departure from the literal requirements of law. The old rule, that penal statutes are to be strictly construed, which it is in another place proposed to abrogate, has led, in its practical enforcement, to the defeat of justice, upon mere form; a principle totally at variance with that by which the proceedings here prescribed are to be governed.

CHAPTER XII.

DISPOSAL OF PROPERTY, STOLEN OR EMBEzzled.

SECTION 753. When property, alleged to be stolen or embezzled, comes into custody of peace officer, he must hold it subject to order of magistrate.

754. Order for its delivery to owner.

755. When it comes into custody of magistrate, he must deliver it to owner, on proof of title and payment of expenses.

756. Court in which trial is had for stealing or embezzling it, may order
it to be delivered to owner.

757. If not claimed in six months, to be delivered to county superintend-
ent of the poor, or in New-York, to governors of alms house.
758. Receipt for money or property, taken from a person arrested for a
public offence.

759. Duties of police clerks in the city of New-York, in making entries
of property stolen or embezzled, and furnishing copy to chief of
police.

760. Police clerks in New-York, to take charge of property stolen or embezzled, how designated, and regulations respecting their duties and security.

§ 753. When property, alleged to have been stolen or embezzled, comes into the custody of a peace officer, he must hold it, subject to the order of the magistrate authorised by the next section to direct the disposal thereof.

Same in substance as 2 R. S., 3d ed., 831, sec. 34.

§ 754. On satisfactory proof of the title of the owner of the property, the magistrate before whom the information is laid, or who examines the charge against the person accused of stealing or embezzling the property, may order it to be delivered to the owner, on his paying the reasonable and necessary expenses incurred in its preservation, to be certified by the magistrate. The order entitles the owner to demand and receive the property.

Same in substance as 2 R. S., 3d ed., 831, sec. 35.