..•■- >a^-v\m T te53 THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW GIFT OF ^.ffi[.(iL..^ A TREATISE xutiut a( i\t ^n^xtmt Cwttii OF THE STATE OF NEAV YORK; ADAPTED TO THE CODE OF PEOCEDURE, AS AMENDED BY THE ACT OF APRIL 11, 1849, AND THE ACT OF APRIL 16, 1852, RULES OF THE SUPREME COURT. BY CLAUDIUS L. MONELL, COUNSELLOR AT LAW. SECOND EDITION. WITH COPIOUS NOTES AND REFERENCES TO THE DECISIONS OF OLTl COUETS AND BOOKS OF PRACTICE, IN TWO VOLUMES. VOIi. I. ALBANY : GOULD, BANKS & CO. 4T5 BROADWAY. NEW YOEK: BANKS, GOULD & CO. 144 NASSAU STREET. 1853. Entered according to act of Congress, in the year one thousand eight hundred and fifty-two, By GOULD, BANKS & CO. In the clerk's office of the District Court of the Northern District of New York. T Ellis Barnes & Co. Law Printers, 144 Nassau St. N. Y. TO THE HONORABLE IRA HARRIS, WHO HAS WON THE APPROBATION OF THE BSIVCH AND THE BAR BY HIS UNIFORM COURTESY— HIS UNBENDING INTEGRITY AND EMINENT TALENTS, THIS TREATISE ON THE PRACTICE OF THE SUPREME COURT OF THIS STATE, IS ErHjirrtfiillti SnHrriklr iiif i)^t Slntjjnt (.11515 CORRECTIONS REQUIRED IN THE TEXT OF YOL. I. Page 8, line 4 of Section II., " third'' Tuesday of September should read " lasf^ Tuesday of Septemper. 293, 1 346, 1 348, I 389, 1 590, 1 114, 1 iiie 4, strike out ''four" after "twenty." ne 14, for ''were''' read "where." ne 1, for " than" readi "that." ine 6, (from bottom of text,) for "deed" read "weed" ne 6, for " aiiswer" read " comjplaint." ne 3, strike out " bill of." PEEFACE. The Constitution adopted on the ninth of August, 1846, required the Legislature at its first session after the adoption thereof, to provide for the appointment of three commissioners, whose duty it should be to revise, reform, simplify and abridge the rules and practice, pleadings, forms and proceedings of the courts of record of this State. Art. vi., §24. In conformity with this requisition, the Legislature at its session in 1847, appointed three gentlemen, (Messrs. Arphaxad Loomis, JSTich- OLAS Hill, Jr., and David Graham,) to discharge the onerous and novel duty required by the Constitution. These gentlemen entered upon and continued in the performance of their duties for several months, when one of the Commissioners ( Mr, Hill) resigned and Mr. David Dudley Field, was appointed in his place. It is understood, however, that but little was accomplished by the gentlemen first named, who disagreed essentially in the principles which should govern the projected reform. Upon the re-organization of the commission by the selection of Mr. Field, the work progressed more rapidly, and to him, mainly, the State is indebted for the larger portion of the civil branch of the new system. The result of their labors was made known to the Legislature, at its session in 1848, when the Commissioners reported "a Code of Proce- dure," which with slight alterations, was adopted late in that session. The profession were not prepared for a change so radical, comprehen- sive and entire, and looked with distrust upon the new system. That it overthrew all pre-acquired knowledge of practice, was plain ; and the older members of the bar, equally with the younger, were at once thrown upon a wide field of uncertainty and doubt, with few of the lights of past experience to aid them. That the Code was defective, not in its general scope, but in its de- tails, was not questioned by any. Indeed, it was readily admitted, that a system so novel, could not be perfected, until time and experience had Vi PREFACE. developed, and subsequent legislation had supplied what was wanting to make it complete. The experience of a few months, served to dis- close many of these defects, and the Legislature in 1849, enacted a large body of amendments, which aimed at removing many of the objection- able jjrovisions contained in the Code. One of the errors of the Code, and which rendered the working of the system less pliable in the hands of the courts, was the absence of an}^ 130 wer in the judges to prescribe rules to carry into effect its pro- visions. This error was corrected by the amendments of 1849, which required the judges to meet and adopt rules for the governance of the courts throughout the State. In accordance with this provision, the judges assembled in August, 1849, and adopted rules which effectually put in motion the machinery of the courts. It is believed, that the time has arrived when a second edition of the Treatise on the Practice under the Code, adapted to the more recent amendments and rules of this court, is much needed, more especially as all, or nearly so, of the numerous questions of difficulty, which, in- cident to a new practice, were started upon the bench or at the bar, have received judicial construction, or been removed by subsequent legislation. In many respects the amendments passed in April, 1852, are the most important, as indeed, they are the most serviceable of any that have preceded them, and they relieve us from much of the embarrass- ment which hitherto has surrounded the practicing lawyer. It is not pretended that the system is perfect : much remains to be done before it can be regarded as complete. The Code is not an embod- iment of the whole practice, but of a part only ; and in the progress of a cause we must constantly recur to the former practice of this Court, or of the Court of Chancery. The reason for this is, that the Legislature has seen fit to enact a part only of the Code, leaving a large and important portion of the report of the commissioners untouched. It certainly is to be regretted that this is so. The revision of the constitution, in 1846, was the first step towards a reform which was loudly demanded. The Courts of Chan- cery and of Common Pleas were abolished ; the Supreme Court re-or- ganized and a County Court established, embracing the powers and ju- risdiction of the late Court of Chancery and Court of Common Pleas. But the structure of these courts was essentially changed : yet we find that the revised and other statutes remaining in force, still speak of the old courts, as if now existing, and although we can apply the language to the new organizations, it renders the language inappropriate to the present system. It would therefore be well, I think, for the Legislature to adopt the PREFACE. vii balance of the Commissioners' Keport, even ivWiout a very careful ex- amination (if tliey cannot find time to examine it) postponing the time of its taking effect to a future day, and then let subsequent Legislatures correct its errors or defects, or both, as they shall be discovered. In the preparation of his second edition, the author has endeavored to bring together the whole body of the practice as applicable to the proceedings in a civil action, prefacing it with much information rela- tive to the structure and organization of the courts, and the powers and duties of the several officers thereof The second volume, which will soon succeed the issue of the first, will treat on a great variety of subjects necessarily omitted in this vol- ume — such as appeals to the Court of Appeals — proceedings for fore- closure of mortgages and partition of lands — actions for divorce — exe- cutions and proceedings supplementary thereto — costs — special motions and appeals from orders — service of papers — appointing guardians- judgment on confession- — j)roceedings against joint debtors, &c., &c. I shall also, therein, treat of special proceedings, and endeavor to em- brace all the subjects properly within the range of a treatise, covering the practice in suits and proceedings in what was heretofore denomi- nated law and equity. To a profession who so well understand the difficulties he has had to encounter, the author looks for every indulgence, and he will be satis- fied, if in any degree he has lessened the labors, or aided the researches of his brethren. New- York, December, 1852. TABLE OF CONTENTS. PART I. CHAPTER L THE COURT OF APPEALS — ITS ORGANIZATION AND FUNCTIONS, Section I. Organization of the Court. II. Powers of the Court. III. Business of the Court. CHAPTER ]L HISTORY AND ORGANIZATION OF THE SUPREME COURT, AND DISTRIBU- TION OF ITS FUNCTIONS. Section I. History and present Organization of the Court. IT. Circuit Courts and Sittings, for the Trial of Issues of Pact and of Law. III. Business of the Court at the General and Special Terms. CHAPTER IIL JUDGES AND OFFICERS OF THE COURT. Section I. The Justices. II. Commissioners authorized to take AfiSdavits. III. The Clerks. lY. The Criers. V. The Reportera VI. Sheriffs and Coroners. VII. Attorneys. VI IL Counsellors, CHAPTER IV. JURISDICTION OF THE SUPREME COURT. Section I. In respect to Actions. IL As to other Proceedings. III. Relative Jurisdiction of the Sui^reme Court. B TABLE OF CONTENTS. PAET II. OF CIVIL ACTIONS AND THEIR INCIDENTS. CHAPTER I. THE ORIGIN AND GENERAL NATURE OF ACTIONS. Section I. Civil Actions II. Criminal Actions. III. Special Proceedings. CHAPTER IL OF LIMITATION OF ACTIONS, Section I. Limitation of Actions, for the Recovery of Real Property. II. Limitation of Actions, other than for the Recovery of Real Property. CHAPTER III. OF THE PARTIES TO THE ACTION ; AND HEREIN OF PROCEEDINGS UPON THE DEATH, MARRIAGE, OR OTHER DISABILITY, OR TRANSFER OF INTEREST DURING THE PENDENCY OF THE ACTION, Section I. Party Plaintiff. II. The Non-joinder or Mis-joinder of Plaintiffs. III. Party Defendant. rV". The Non-joinder or Mis-joinder of Defendants. V. The Change of Parties. CHAPTER IV. OF THE PLACE OF TRIAL, Section I. The Venue. II. Actions which must be Tried in the Couuty where the Subject of the Ac- tion is situated. III. Actions which must be Tried in the County where the cause or some part thereof arose. IV. Actions which must be Tried in the County in which the Parties, or any of them, reside at the commencement of the Action. V. Changmg the Place of Trial. CHAPTER V. OF PLEADINGS, Section I. General Rules of Pleading. II. "What will be sufficient in a Pleading. in. Construction and Effect of Pleading. IV. Mistakes in Pleading, and Amendment of Pleading. V. The Joinder and Mis-joinder of Actions. TABLE OP CONTENTS. xi PAET III. OP THE COMMENCEMENT, PROSECUTION AND DEPENCE OP ACTIONS. CHAPTER I. OP THE COMMENCEMENT OF AN ACTION, AND THE PROCEEDINGS ON THE PART OR THE PLAINTIFF, TO THE ANSWER OR DEMURRER OF THE DEFENDANT, OR TO AND INCLUDING JUDGMENT FOR WANT OP AN" ANSWER. Section I. The Mode of Commencing an Action. II. Arrest and BaO. III, Claim and Delivery of Personal Property. IV. Injunction by Order. V. Attachment. VI. Summons. Vn. Complaint. Vin. Filing and Service of Summons and Complaint and Proof of Service. IX. Judgment upon Failure to answer. CHAPTER II. THE PROCEEDINGS ON THE PART OF THE DEFENDANT PREVIOUS TO ANSWERING OR DEMURRING. Section I. Obtaining copy Complaint. II. Ofifer of the Defendant to Compromise. III. Inspection of Writings and the Production of Books and Papers. IV. Procuring a Copy of an Account alleged in the Complaint. CHAPTER III. IRRELEVANCY AND REDUNDANCY IN A PLEADING. CHAPTER IV. OF THE DEMURRER TO THE COMPLAINT, AND HEREIN OF FRIVOLOUS DEMURRERS. Section I. Demurrers in General. II. Grounds of Demurrer. III. Drawing and Serving Demurrer. CHAPTER V. THE ANSWER OF THE DEFENDANT AND THE REPLY OF THE PLAINTIFF. Section I. The Answer and its Incidents. II. The Reply and its Incidents. ^[[ TABLE OF CONTENTS. CHAPTER VI. THE PROCEEDINGS TO TRIAL, VERDICT AND JUDGMENT. Section I. The Issue. II. The Examination of "Writings. III, The Examination of Witnesses de bene esse, and upon Commission, and of Parties before Trial. IV. The Preparation for Trial. V. Enforcing the Attendance ofWitnesses. VI. Copy of the Pleadings for the Court. VII. Entry of the Cause for Trial. VIII. The Jury Process. CHAPTER VIL PROCEEDINGS FROM THE AFFIDAVIT OF MERITS, TO THE VERDICT, IN- CLUSIVE. Section I. Affidavit of Merits. II. Trial or Inquest, at the Circuit. IIL The Jury. IV. Verdict. CHAPTER VIII. TRIAL BY THE COURT WITHOUT A JURY, TRIAL BY REFEREES, AND TRIAL OF ISSUES OF LAW. Section I Trial by the Court. II. Trial by Referees. III. Trial of Issues of Law. IV. Judgment and Manner of Entering. CHAPTER IX. EXCEPTIONS, OR CASE TO MOVE FOR A NEW~ TRIAL, OR TO SET ASIDE A NON-SUIT; AND FOR JUDGMENT ON A SPECIAL VERDICT, AND DEMURRER TO EVIDENCE. Section I. Motion for a New Trial upon Exceptions, in Cases tried by a Jury. II. Islotion for a New Trial on a Case. III. Motion for a New Trial in Cases tried by the Court without a Jury. IV. Special Verdict, and Verdict subject to the Opinion of the Court. V. Preserving Case for further Consideration. A^'I. Case to set aside Report of Referees. VII. Demurrer to Evidence. CHAPTER X. OF SUBMITTING A CONTROVERSY WITHOUT ACTION. TABLE OF CONTENTS. xiii CHAPTER XL APPEALS TO THE SUPREME COURT FROM AN INFERIOR COURT. Sectiox I. Preliminary Remarks. 11. Appeal, when and by whom taken, and from what Judgments. III. Proceedings to perfect Appeal. lY. Transmitting Judgment appealed from to Supreme Court. V. Preparing and Arguing Appeal. VI. Judgment and Procediugs thereon. CHAPTER XIL APPEALS TO THE GENERAL TERM OF THE SUPREME COURT, FROM JUDG- MENTS ENTERED UNDER THE DIRECTION OF A SINGLE JUDGE OF THE SAME COURT, OR ON REPORT OF REFEREES. Section I. Appeal, when and by whom taken, and from what Judgments or Orders. II. The Proceedings to perfect the Appeal. III. Preparing Appeal for Argument. lY. Judgment and Proceedings thereon. V. Turning a case into a Special Yerdict or Exceptions, INTRODUCTION. In entering upon the preparation of a second edition of his Treatise on the Practice of the Conrts of this State, the author has not been un- conscious of the many and serious difficulties that would beset his path at every step. The novelty of the new practice ; the slight and imper- fect trial that it has been subjected to ; the construction of the courts, giving to thirty-two judges co-ordinate powers ; the numerous decisions, at war with each other ; and the few aids that past experience could furnish, all admonished him of the difficulties he must encounter. The Code of Procedure is in itself a hook of rules, regulating the practice, pleadings and proceedings, in courts of record. What was formerly entrusted to the several courts to prescribe, has now been made the subject of legislative enactment, and is thus removed beyond the power or control of the judges. Much however, of the form and ceremony required to put and keep in motion the parts of a judicial proceeding, is still to be regulated by the courts, and hence the practi- tioner, who would conduct a suit, through its different stages, to a suc- cessful termination, is compelled to recur to ^Aree distinct sources of in- formation. First: to the practice as it existed previous to the adoption of the Code; second: to the Code itself; and third, to the rules of the court. In these he will find the different parts of a judicial proceed- ing, from its commencement to its end. The confusion which ensues from the separation of the parts, is in- cident to any system, and can in no way be remedied, except by bring- ing together in a body, the entire practice as it exists in all. Much of the former practice remains untouched by the Code, and must now, as formerly, be followed in appropriate cases. The changes occur chiefly in the construction of the courts ; in removing the dis- tinctions between law and equity, and in pleadings and the forms of proceedings. But the trial of issues, the determination of questions of law or fact, and the enforcement of judgments, remain substantially as they existed under the former practice. The alterations in these par- XVI INTRODUCTION. ticulars are simple, and easily understood. They consist in blending actions at law and suits in equity, so that each is commenced, proceeded with, tried and determined in the same manner. Pleadings are simpli- fied and made to conform truly to the nature of the action ; and the forms of proceeding are intended, and will doubtless serve to facilitate and hasten the determination of the controversy, upon the real and sub- stantial questions of difference between the parties; at the same time they afford ample protection to the rights of litigants in presenting their claims and defences for the adjudication of the courts. The subject of reviewing the judgments rendered by the direction of a single judge, or by inferior courts, is involved in more difficulty than any other brancli of the practice. In this respect the Code has wrought a more radical change. But the judges in the construction of their rules, have met and in a measure removed the difficulties and doubts which previously existed. Heretofore, the foreclosure of mortgages, and the partition of lands, were entrusted chiefly to courts of equity ; now they are made the sub- jects of an action at law, and are conducted in all respects like other actions. And the facility and expedition with which such suits were determined, where no controversy existed, continues as ample as before. In the construction of the work, an effort has been made, briefly to anahze the Code and bring together its different parts relating to the same subject matter, in such a manner, that the reader may find all the provisions relating to one topic in a connected form. The plan adopted is simple, and the work runs through an entire j udicial proceeding from its commencement to its final determination in this court. All the pro- ceedings on the part of the plaintiff and of the defendant, with the in- cidents connected therewith, are stated in detail, much after the man- ner that they usually occur, in the progress of a cause. The parts of the old practice which remain, are stated in connection with the provi- sions of the Code, each being more or less necessary in every step taken in the suit. The practice which prevailed in the courts of law and equity in this State prior to the adoption of the Code of Procedure was derived from the superior, common law and equity courts of England, and was founded upon an ancient usage, the rules and orders of the courts, leg- islative enactments and judicial decisions. Under the system as it existed from the foundation of this govern- ment down to the establishment of the Code, the courts of equitable and common law jurisdiction, were kept distinct and separate, and but few, if any of the principles and practices which appertained to the one, were recognized as belonging to the other. All their forms and proceedings, were as distinct and different as INTRODUCTION. xvii their powers and jurisdictions were separate and unlike. Each, worked in a different sphere, and although, the end to be attained, the enforce- ment or protection of rights, and the redress or prevention of wrongs, was in the main, the same, they proceeded through separate and dis- similar channels, and were governed by different rules, and orders. These dissimilar systems, which before were so widely separated, are now blended in one, and the distinctions which heretofore existed be- tween causes of action of a legal or equitahle nature, and all the forms of proceedings, and principles of practice, appertaining to the one or the other, are abolished. So that there is now but " one form of action for the enforcement or protection of private rights and the redress or pre- vention of private wrongs," and which is denominated a civil action. The proceedings, in instituting an action, and conducting it through the different stages of prosecution to trial and judgment, are, in all their essential particulars, the same, whether the cause of the action is of a legal or equitable character. The summons — the complaint, the answer, demurrers and reply (varied only so far as to contain a state- ment of the facts, constituting the cause of action — the nature of the relief sought, and the defence,) the manner of trying the issue, the judgment and the mode of enforcing it, are now the same, in what was heretofore denominated an action at law and a suit in equity. So that there is now one practice and mode of procedure, alike applicable to every species of right^ whether it be founded in the " strict rules of the common law," or based upon the more equitable principles of the " civil law." And in destroying the distinctions which existed between the several causes of actions, the Code of Procedure, has also abolished all forms of pleading, which heretofore put and kept in motion the machinery of the courts. So that there is no longer any division or denomination of actions; and the pleader need not examine whether he should bring assumpsit or debt, trespass or trover, or whether his cause of action falls within the class, ex contractu or ex dilicto. He is relieved from the doubts and difiiculties with which nice and subtle distinctions envel- oped his path, and by a simple, concise and intelligible statement of the facts constituting his cause of action, is to spread before the court, his complaint. PRACTICE SUPREME COURT STATE OF NEW YORK. PART I. CHAPTEE I. THE COURT OP APPEALS, ITS ORGANIZATION AND FUNCTIONS. Section I. organization of the court. 11. powers of the court. III. BUSINESS of the COURT. SECTION I. ORGANIZATION OF THE COURT. Prior to the adoption of the constitution of 1846, the court of der- nier resort was styled the ^' court for the trial of impeachments and the correction of errors^ This court, (whose powers and functions are now administered by the Court of Appeals,) was then constituted of the president of the senate, the senators, chancellor and judges of the Supreme Court, or a major part of them.(l) From the adoption of the first constitution in 1777 until the formation of the late constitution, the organization of this court had remained unchanged. It had passed through a period of nearly sixty years with- out alteration, and its organization would not perhaps have been changed, had not the entire system and construction of the judiciary been remodelled, and made as was supposed more in harmony with the (1) Constitution of lliTt, section 32, and Constitution of 1821, article 5, section 1. Vol. I. 1 2 ORGANIZATION OF THE COURT. progress of fhe age, and more adequate to ttie wants of the greatly enlarged and growing interests of the state. At the early period of the first organization of the court for the correction of errors, we had just ceased to be one of the colonies of Great Britain, and had become one of the free and independent states of the union. The business interests, especially those of a commercial character, were insignificant compared with the present time, and the administrative power of the court was doubtless sufficient for the then meager wants of the people. But as our population, business and wealth increased, as our commerce extended and our manufacturing, agricultural and mechanical interests became greatly enlarged, we required more power in our judiciary, and ac- cordingly the constitution adopted in 1846, has wrought an entire and radical change in the structure of all our courts. For the conve- nience of reference, I insert the article of the constitution upon the subject of the judiciary of the state, in a note below.(l) (1) Constitution of 1846. — Article VI. Section 1. The Assembly shall have the power of impeachment, by the vote of the ma- jority of all the members elected. The court for the trial of impeachments, shall be com- posed of the president of the senate, the senators, or a major part of them, and the judges of the Court of Appeals, or the major part of them. On the trial of an impeachment against the governor, the lieutenant-governer shall not act as a member of the court. No judicial ofificer shall exercise his office after he shall have been impeached, until he shall have been acquitted. Before the trial of an impeachment, the members of the court shall take an oath or affirmation, truly and impartially to try the impeachment, according to evidence ; and no person shall be convicted, without the concurrence of two-thirds of the members present. Judgment in cases of impeachment shall not extend further than to removal from ofiBce, or removal from ofQce and disqualification to hold and enjoy any office of honor, trust, or profit under this state ; but the party impeached shall be liable to indictment, and punish- ment according to law. Section. 2. There shall be a Court of Appeals, composed of eight judges, of whom four shall be elected by the electors of the state for eighb years, and four selected from the class of justices of the Supreme Court having the shortest time to serve. Provision shall be made by law, for designating one of the number elected, as chief judge, and for selecting such justices of the Supreme Court, from time to time, and for so classifying those elected, that one shall be elected every second year. Section 3. There shall be a Supreme Court having general jurisdiction in law and equity. Section 4. The state shall be divided into eight judicial districts, of which the city of New York shall be one ; the others to be bounded by county lines and to be compact and equal in population as nearly as may be. There shall be four justices of the Supreme Court in each "district, and as many more in the district composed of the city of New York, as may from tune to time be authorized by law, but not to exceed in the whole such number in proportion to its population, as shall be in conformity with the number of such judges in the residue of the State in proportion to its population. They shall be classified so that one of the justices of each district shall go out of office at the end of every two years. After the expiration of their terms under such classification, the term of their office shall be eight years. Section 5. The legislature shall have the same powers to alter and regulate the jurisdic- tion and proceedings in law and equity, as they have heretofore possessed. Section 6. Provision may be made by law for designating from time to time, one or more ORGANIZATION OF THE COURT. The court for the correction of errors was abolished, (retaining how- ever a court for the trial of impeachments composed of the president of the said justices, who is not a judge of tlie Court of Appeals, to preside at tlie general terms of the said court to be held in the several districts. Any three or more of the said justices, of whom one of the said justices so designated, shall always be one, may hold such general terms. And any one or more of the justices may hold special terms and circuit courts, and any one of them may preside in courts of oyer and terminer in any county. Section 7. The judges of the Court of Appeals and justices of the Supreme Court shall severally receive at stated times for their services, a compensation to be estabhshed by law, which shall not be increased or diminished during their continuance in office. Section 8. They shall not hold any other office or public trust. AU votes for either of them, for any elective office, (except that of justice of the Supreme Court, or judge of the Court of Appeals,) given by the legislature or the people, shall be void. They shall not exercise any power of appointment to public office. Any male citizen of the age of twenty- one years, of good moral character, and who possesses the requisite qualifications of learn- ing and ability, shall be entitled to admission to practice in all the courts of this State. Section 9. The classification of the justices of the Supreme Court ; the times and place of holding the terms of the Court of Appeals, and of the general and special terms of the Supreme Court within the several districts, and the circuit courts and courts of oyer and terminer within the several counties, shall be provided for by law. Section 10. The testimony in equity cases shall be taken in like manner as in cases at law. Section 11. Justices of the Supreme Court and judges of the Court of Appeals, may be removed by concurrent resolution of both houses of the legislature, if two-thirds of all the members elected to the Assembly and a majority of all the members elected to the senate, concur therein. AU judicial officers, except those mentioned in this section, and except justices of the peace, and judges and justices of inferior courts not of record, may be re- moved by the senate on the recommendation of the governor ; but no removal shall be made by virtue of this section, unless the cause thereof be entered on the journals, nor unless the party complained of, shall have been served with a copy of the complaint against him and shall have had an opportunity of being heard in his defence. On the question of re- moval, the ayes and noes shall be entered on the journals. Section 12. The judges of the Court of Appeals shaU be elected by the electors of the state, and the justices of the Supreme court by the electors of the several judicial districts, at such times as may be prescribed by law. Section 13. In case the office of any judge of the Court of Appeals, or justice of the Supreme Court, shall become vacant before the expiration of the regular term for which he was elected, the vacancy may be filled by appointment by the governor, until it shall be supplied at the next general election of judges, when it shall be fiUed by election for the residue of the unexpired term. Section 14. There shall be elected in each of the counties of this state, except the city and county of New York, one county judge, who shall hold his office for four years. He shall hold the county court, and perform the duties of the office of surrogate. The county court shall have such jurisdiction in cases arising in justices courts, and in special cases, as the legislative may prescribe; but shall have no original civil jurisdiction, except in such special cases. The county judge, with two justices of the peace to be designated according to law, may hold courts of sessions, with such criminal jurisdiction as the legislature shall prescribe, and perform such other duties as may be required by law. The county judge shall receive an annual salarj', to be fixed by the board of supervisors which shall be neither increased nor diminished during his continuance in office. The jus- tices of the peace, for services in courts of sessions, shall be paid a per diem allowance out of the county treasury. ORGANIZATION OP THE COURT. of the senate, tlie senators, or a major part of them, and the judges of the Court of Appeals, or a major part of them;) the court of chancery In counties having a population exceeding forty thousand, the legislature may provide for the election of a separate officer to perform the duties of the office of surrogate. The legislature may confer equity jurisdiction in special cases, upon the county judge. Inferior local courts, of civil and criminal jurisdiction, may be estabhshed by the legisla- ture in cities; and such courts, except for the cities of Nev? York and Buffalo, shall have an uniform organization and jurisdiction in such cities. Section 15. The legislature may, on application of the board of supervisors provide for the election of local officers, not to exceed two in any county, to discharge the duties of county judge and of surrogate, in cases of their inability or of a vacancy, and to exercise such other powers in special cases as may be provided by law. - Section 16. The legislature may reorganize the judicial districts at the first session after the return of every enumeration under this constitution, in the manner provided for in the fourth section of this article, and at no other time ; and they may, at such session, increase or diminish the number of districts, but such increase or dimunition shall not be more than one district at any one time. Each district shall have four justices of the Supreme Court ; but no dimunition of the districts shall have the effect to remove a judge from office. Section IT. The electors of the several towns, shall, at their annual town meeting, and in such manner as the legislature may direct, elect justices of the peace, whose term of office shall be four years. In case of an election to fill a vacancy occurring before the expiration of a full term, they shall hold for the residue of the unexpired term. Their number and classification may be regulated by law. Justices of the peace and judges or justices of in- ferior courts not of record, and their clerks, may be removed after due notice and an oppor- tunity of being heard in their defence by such county, city or state courts as may be pre- scribed by law, for causes to be assigned in the order of removal. Section 18. AU judicial officers of cities and villages, and all such judicial officers as may be created therein by law, shall be elected at such times and in such manner as the legisla- ture may duect. Section 19. The clerks of the several counties of this state shall be clerks of the Supreme Court, with such powers and duties as shall be prescribed by law. A clerk for the Court of Appeals, to be ex-officio clerk of the Supreme Court, and to keep his office at the seat of government, shall be chosen by the electors of the state; he shall hold his office for three years, and his compensation shall be fixed by law and paid out of the public treasury. Section 20. No judicial officer, except justices of the peace, shall receive to his own use any fees or perquisites of office. Section 21. The legislature may authorize the judgments, decrees and decisions of any local inferior court of record of original civil jurisdiction, established in a city, to be removed for review directly into the Court of Appeals. Section 22. The legislature shall provide for the speedy publication of all statute laws, and of such judicial decisions as it may deem expedient. And all laws and judicial decisions shall be free for publication by any person. Section 23. Tribunals of concUiation may be estabhshed, with such powers and duties as may be prescribed by law ; but such tribunals shall have no power to render judgm ent to be obhgatory on the parties, except they voluntarily submit their matters in difference and agree to abide the judgment, or assent thereto, in the presence of such tribunal, in such cases as shall be prescribed by law. Section 24. The legislature at its first session after the adoption of this constitution, shall provide for the appointment of three commissioners, whose duty it shall be to revise, re- form, simplify and abridge the rules and practice, pleadings, forms and proceedings of the courts of record of this state, and to report thereon to the legislature, subject to thefr adop- tion and modification from time to time. ORGANIZATION OF THE COURT. 5 and the office of cliancellor were also abolislied ; the Supreme Court was re-formed upon a new and enlarged basis, and the court of common pleas changed into a county court. With the abrogation of, or changes in these courts, fell all, or nearly all, of their incidents. Clerks and registers were abolished and their functions and duties were either annulled or other officers provided to discharge them. But while the court was abolished and its organization destroyed, its powers and jurisdiction were conferred upon another tribunal, which only differs from it in its organization. It was supposed by the framers of the constitution and by the people who ratified it, that the Court of Appeals as therein constituted would be able, with comparative ease, to dispose of the increased business of the court of last resort, and reduce the overburthened calendar of the old court to a compass that would enable litigants speedily to obtain a determination of their controversies. How far this supposition has been confirmed, it would not be difficult to de- termine ; but legislation may, and doubtless will, as occasion demands, increase the facilities of the court, and thus make it answer the end it was chiefly designed to promote. The Court of Appeals is composed of eight judges ; four of whom are elected by the electors of the state, and the remaining four are se- lected from the class of justices of the Supreme Court having the shortest time to serve. Upon the first election of judges under the new con- stitution, which took place on the seventh day of June, 1847, four judges of the Court of Appeals were elected and their respective terms of office were classified in pursuance of an act of the legislature. (1) By this classification the judges drew respectively two, four, six and eight years, so that the term of one of the judges expired on the thirty- first day of December, 1849, another two years thereafter, and so on, the last holding his office for eight years. A judge of this court is now elected every two years, who holds his office for eight years. The provisions in regard to the election and classification of the justices of the Supreme Court is the same, as will be seen hereafter. By § 6 of art. 2, of Laws of 1847, p. 320, it is provided that the four justices of the Supreme Court, to be judges of the Court of Appeals, shall every year be selected from the class of justices having the shortest time to serve; and alternately, first, from the first, third, fifth and Section 25. The legislature at its first session after the adoption of this constitution, shall provide for the organization of the Court of Appeals, and for transferring to it the business pending in the court for the correction of errors, and for the allowance of writs of error and appeals to the Court of Appeals, from the judgments and decrees of the present court of chancery and supreme court, and of the courts that may be organized under this consti- tution. (I) Sess. Laws, 1847, art. 2, sec. 4, page 320. Q ORGANIZATION OP THE COURT. seventli judicial districts, and tlien from the second, fourth, sixth, and eighth judicial districts. These justices of the Supreme Court, enter upon theu' duties as judges of the Court of Appeals, on the first day of January and serve as judges of that court one year, when they give place to the next class, so that four justices of the Supreme Court are always members of the Court of Appeals. Upon the first classification of the judges of this court who were elected by the people, Freeborn G. Jewett drew the term of two years, Greene C. Brouson drew four years, Charles H. Euggles drew six years, and Addison Gardner drew eight years. The justices of the Supreme Court who became members of the Court of Appeals were Samuel Jones from the first judicial district, William B. Wright from the third, Charles Gray from the fifth and Thomas A. Johnson from the seventh judicial district. Chief Judge.] The judge of the Court of Appeals elected by the ■electors of the state, who has the shortest time to serve, i. e. two years — is the chief judge of the court. Clerk of the Court.'] The clerk of the Court of Appeals is elected by the electors of the state and holds his ofiice for three years. The office of the clerk is required to be kept at the seat of government. All the property, books, records, documents and papers, formerly in the ofiice of the register or assistant register in chancery of the several clerks of the vice chancellors, and of the several clerks of the Supreme Court, were deposited with the clerk of the Court of Appeals, and except such as have by special order been removed to county clerks' oflices, all of such property, books, records, documents and papers, remain in the ofl&ce and are under the care and custody of the clerk of the Court of Appeals. Reporter.] The constitution provides that the legislature shall pro- vide for the speedy publication of all statute law, and of such j udicial deci- sions as it may deem expedient ; and that all laws and judicial decisions should be free for publication by any person. The state reporter receives his appointment from the governor, lieutenant governor and attorney- general. He holds his ofiice for three years. It is his duty to report every cause argued and determined in the Court of Appeals, which the ■court shall direct him to report, and such others as the public interest shall in his judgment require. The reporter has no pecuniary interest in the reports, but the same are published by contract between the re- porter, secretary of state and comiDtroller and the publisher.(l) (1) Sess. Laws, 1848, chap. 224, page 335. POWERS OF THE COURT. SECTION II. POWERS OF THE COURT. The jurisdiction and powers of tlie Court of Appeals are derived from the constitution and the acts of the legislature of the state. The court is created hy the constitution, but its organization is provided by law. The 25th section of article 6, of the constitution of 1846, re- quii"ed the legislature at its first session after the adoption of the con- stitution, to provide for the organization of the court, and for trans- ferring to it the business pending in the court for the correction of errors, and for the allowance of writs of error and appeals to the Court of Appeals, from the judgments and decrees of the late court of chan- cery and Supreme Court, and of the courts that might be organized under the constitution. This court has appellate jurisdiction only. It has no original nor common law powers whatever. Its office is to revise and correct the errors of law of inferior tribunals. Mr. Senator Sanford, in speaking of the late court for the correction of errors, says, " The jurisdiction of this court is derived from the constitution, and the right of appealing to it is given by the constitution. The court and its jurisdiction, and the right of appealing to it, are unknown to the common law. They owe their origin and existence to the constitution ; and the constitution is entirely an innovation upon the common law. Hence the jurisdiction of this court is to be determined by the consti- tution itself, and not by expositions or definitions derived by the com- mon law. I also reject from this view of the question, the statute con- cerning the court. The statute organizes the court according to the constitution, with such jurisdiction as the constitution had prescribed. The nature and extent of its jurisdiction are to be sought and found in the constitution itself, as the powers of the governor, the council of revision or any authority created by the constitution. "The constitution appears to me to provide, that the supreme judicial power of the state shall be vested in this court ; that it shall have appellate jurisdiction only ; and that it shall hear and finally determine all causes which have been determined in the other courts, and may be removed to this court for revision. These are not, indeed, the expres- sions of the constitution, but I use them as perfectly equivalent in sense and meaning to those used in the constitution. The authors of the con- stitution obviously meant that one superior tribunal should be erected to which all courts then existing or which might afterwards be created, should be subordinate ; and that the administration of justice in those courts should not be final, but should be subject to the revision of this supreme tribunal. The Supreme Court and the court of chancery 3' BUSINESS OP THE COURT. existed before ; and all their decisions of every kind and name were final. The object of those who formed the constitution evidently was, that those courts should no longer possess that final jurisdiction. They, therefore, erected this court with an appellate jurisdiction as broad and ample as the jurisdiction of all other courts. They left the Supreme Court its name, but they deprived it of that supremacy from which its name was originally derived."(l) The language of this opinion may well be applied to the Court of Appeals, which has taken the place of the court for the correction of errors. There is, however, this difference, that while the laws enacted under the constitution of 1821, were comparatively silent as to the jurisdictional powers of the latter court, the code of procedure has fully and clearly defined the jurisdiction of the former, so that we must look to the statute, in a great measure, to ascertain the powers and jurisdiction of this court. As has been said, this is a court of review ; it possesses no original jurisdiction, but can simply reverse, affirm or modify the judgment or order appealed from, in whole or in part, and as to any or all of the parties. (2) A subsequent part of this treatise, which will treat of appeals to this court from the Supreme and other courts, will fully disclose the juris- diction of this court, the cases in which appeals may be taken and the constitutional and statutory power of the court. SECTION III. BUSINESS OF THE COURT. For the purpose of disposing of the business of the court, there are four terms of the court in each year held at the capitol in the city of Albany, viz : on the first Tuesday of January, the fourth Tuesday of March, the third Tuesday of June, and the third Tuesday of Sep- tember. These terms are continued for as long a period as the pubhc interests may require. The court, however, usually sits four weeks at each term. The court has the power also to appoint and hold additional terms, and it is usual to hold a term of the court for the decision of causes only, during the last Aveek in December in each year. At this term no arguments are heard. At the regular terms the court have provided by rule that no more than ten causes shall be (1) Clason V. Shohuell, 12 John R. 61. (2) Code, § 12. BUSINESS OP THE COURT. 9 called on any one clay, wliicli rule, however, shall not continue after the court has twice adjourned for want of business. The court has the right to give preferences to causes on the calendar, and they have provided by rule that criminal cases shall have a preference, and may be moved on behalf of the people, out of their order on the calendar.(l) Upon the argument of cases, only one counsel will be heard on each side, unless the court shall otherwise direct. A calendar of the causes noticed for argument is made up by the clerk, arranged in the order in which the returns are filed, and specifying the judicial district in which the causes originated. Copies of the calendar for the use of the judges and the bar are printed under the direction of the clerk, in the same manner as cases and points are directed to be printed. The coun- sel for the appellant opens the argument ; the counsel for the respond- ent replies, and the counsel for the appellant closes the argument. It is necessary there should be a concurrence of five judges of the court to pronounce a judgment. If five do not concur, the case must be re-heard, but no more than two re-hearings shall be had, and if, on the second re-hearing, five judges do not concur, the judgment ap- pealed from will be af&rmed. An afl&rmance of a judgment produced by a division of the court after two re-hearings, has no force or effect as establishing the law. In the case of Bridge v. J'oJmso7i,{2) decided in the court for the correction of errors in 1830, the chancellor says, "The judgment of the court below must be presumed to be right until this court of dernier resort has decided otherwise. But such a formal affirmance, (a division of the court,) although it leaves the law of the Supreme Court undisturbed, cannot be considered as settling the law in this court, except so far as relates to the particular cause in which the decision is made. The maxim stare decisis, et non quieta movere, cannot be applicable to such a case, where the question never has, in fact, been decided by this court." And Mr. Senator Oliver, in the same case, says, (p. 375,) "Though the judgment in this case must be affirmed, the questions of law raised by it must be considered as re- maining open in this court."(3) A justice of the Supreme Court, sitting in this court, has the right, and it is his duty, to take part in the determination of causes brought up for review from the Supreme Court, and in the decision of which he took part in the court below. (4) In case proper and convenient rooms, both for the consultation of the judges and the holding of the courts, &c., be not provided, the court may order the sheriff of the county where by law the court may be (1) Rule 13. (2) 5 Wend. Rep. 312. (3) 11 Wheaton, 59. (4) Pierce v. Belamaier, 1 Com. Rep. 17. Vol. I. 2 10 HISTORY AND PRESENT ORGANIZATION OF THE COURT. held, to make such provision, and fumisli the necessary furniture, at- tendants, fuel, lights and stationery, suitable and sufficient for the transaction of its business. The court may also be held in other buildings than those desig- nated by law as places for holding courts, and in different places in the same city from that at which it is aj)pointed to be held. Any one or more of the judges may adjourn the court mth like effect as if all were present. CHAPTEE II. HISTORY AND ORGANIZATION OF THE SUPREME COURT, AND DISTRIBUTION OF ITS FUNCTIONS. Section I. history and present organization of the court, II. circuit courts and sittings, FOR THE TRIAL OF ISSUES OF FACT AND OF LAW, in. BUSINESS OF THE COURT, AT THE GENERAL AND SPECIAL TERMS. SECTION I. HISTORY AND PRESENT ORGANIZATION OF THE COURT. The early history of the judicial tribunals of what constituted the colony, now the state of New- York, is very loose and imperfect. An- tecedent to 1664, the period of the capitulation by the Dutch to the English, no distinct record of their existence or plan is to be found ; and even in the instrument which evidences that capitulation, there is no mention of the mode formerly adopted in the administration of justice; nor is there any allusion to it, whatever, except that con- tained in the 13th article,(l) which declares that " no judgment that has passed any judicature here, shall be called in question ; but if any conceive that he hath not had justice done him, if he apply him- self to the states general, the other party shall be bound to answer for the supposed injmy." Immediately upon the dispossession of the Dutch, Colonel Nicolls (1) Articles of CapitulatioD, 2 R. L. of 1813, Appendix, 1. HISTORY AND PRESENT ORGANIZATION OP THE COURT. H took upon himself the government, under the style of " deputy- governor, under the Duke of York, of all his territories in America," and continued to administer the government for a period of three years. One of the first acts of his administration was, to convene a general assembly at Hempstead, on Long Island, on the 1st of March, 1665, by which body, a variety of laws were adopted, for the government of the province, and courts estabhshed for the orderly administration of justice. The principal courts thus established were the town court, the court of sessions, and the court of assize. The town court was composed of the constable, and by an amendment of the original law, of two overseers, and had cognizance of all causes of debt and trespass, under five pounds ; and the justice of the peace was authorized, but not required, to preside therein. The court of sessions established in each riding, was composed of the justices of the peace of the several towns in the riding, and had jurisdiction of all criminal cases, and of all civil cases, over five pounds, arising in the riding. Civil cases, and criminal cases, not capital, were tried in this court by a jury of seven men, and the verdict was determined by a majority; but in capital cases, the jury consisted of twelve men, whose verdict was required to be unanimous. The judgments of this court, for sums under twenty pounds, were final; from those over that sum the parties might appeal to the court of assize. The mem- bers of the council, the secretary of the colony, and the high sheriff, were respectively authorized to sit with the justices of the court of sessions ; and when either of them was present, he was required to preside. The court of assize, which was in effect, though not in name, the Supreme Court of the colony, was composed of the governor, council, and magistrates of the several towns, and was held once a year in the city of New York. It heard appeals from the sessions and other inferior courts; and suits for demands above twenty pounds might be commenced therein, on the warrant of the governor ; so that it had original, as well as appellate jurisdiction, and was a court of equity as well as of common law.(l) This state of things continued under the administration of Col. Love- lace, who succeeded governor Nicolls in May, 1667, and remained in of&ce until 1673, when his administration was interrupted by the re- invasion of the Dutch, which, hoAvever, was of short duration, the treaty of peace concluded between the states general and the English, on the 6th of February in the following year having expressly provided (1) Thompson's Hist, of Long Island, 110. Mr. Smith, in his history of New York, supposes the court of assize to have been., instituted by governor Lovelace (Smith's Hist, of New York, ed. of 1814, p. 50, 55, 60.) In this, he is shown, conclusively, by Mr. Thompson, to be in error. (Thompson, 113, 114.) 12 HISTORY AND PRESENT ORGANIZATION OF THE COURT. for the restoration to tlie Englisli of their former possessions in America. It remained unchanged, likewise, during the administration of Sir Ed- mond Andross, who was appointed governor, upon the conchision of that treaty, and continued in the exercise of his office until August, 1683, when the celebrated governor Dongan, who had been appointed in the previous year, entered upon the discharge of the duties of that station, ^ The administration of the new governor commenced and was con- tinued, under auspices the most favorable for the due and well ordered administration of justice, and the uncertainty and ineflB.cacy of the system hitherto pursued, in this respect, were immediately ob- viated, by the passage of an act by the governor, council and repre- sentatives in general assembly, to settle courts ofjustwe,{l) by which, after providing for the organization of courts for the trial of small causes, and of county courts, it was provided, to the end that there might be no defect of justice, but that all and every the inhabitants of the province might have and enjoy all proper ways and means, to recover and have their just rights within the same, according to law, that annually, and every year, there should be within the said province, and in each re- spective county within the same, a court of oyer and terminer and gene- ral jail delivery ; which said court should have power and jurisdiction to try, hear, and determine all matters, causes, and cases, capital, criminal, or civil, and causes and trials at common law ; in and to which the said court, all and every person whatsoever, should or might, if they saw meet, remove any action or suit, the debts or damages laid in such actions or suits being five pounds or upwards, or should, or might, by warrant, writ of error, or certiorari, remove out of any in- ferior court, any judgment, information and indictment there had and depending, and might correct errors in judgment, and reverse the same if there were just cause for it ; the members of which court should be a judge, assisted by four of the justices of the peace of the county, who should be commissioned for that purpose. It was also provided, that this court of oyer and terminer, and general jail delivery, should sit and hold court in each respective county twice a year, and that no person's right, or property, should be thereby determined, excepting where matters of fact were either acknowledged by the parties, or judg- ment was acknowledged or passed by the defendant's fault, for want of a plea or answer, unless the fact were found by a verdict of twelve men of the neighborhood, as it ought of right to be done by the law."(2) (1) This act, entire, will be found in 2 R. L. of 1813, Appendix, 8-10. (2) 2 R. L. of 1813, Appendix, 9. HISTORY AND PRESENT ORGANIZATION OP THE COURT. 13 Under this act, tlie court, thus organized, and jDreciselj the same in everything but in name and its minor details, continued to be the highest court of law in the province, and to exercise the powers with which it was invested, until 1691, when, by the act of the colonial as- sembly organizing the judiciary of the colony, (1) and which was a mere temporary provision, for two years from its passage, it was enacted, that there should be held and kept, a Supreme Court of judicature, which should be duly and constantly kept, at the city of New York, and not elsewhere, at the several and respective times thereafter men- tioned; and that there should be five justices, at least, appointed and commissioned to hold the same court, two whereof, together with one chief justice, to be a quorum : which Supreme Court was thereby fully empowered and authorized to have cognizance of all pleas, civil, criminal and mixed, as fully and amply, to all intents and pur- poses whatsoever, as the courts of king's bench, common pleas and exchequer, within their majesties' kingdom of England have, or ought to have ; in and to which Supreme Court all, and every person and per- sons whatsoever should or might, if they should so see meet, com- mence or remove any action or suit, the debt or damage laid in such action or suit being upwards of twenty pounds, and not otherwise : or should or might by warrant, writ of error or certiorari^ remove out of any of the respective courts of mayor and aldermen, sessions and common pleas, any judgment, information or indictment there had or depending, and might correct errors in judgment, or revise the same if there should be just cause; proyided always, that the judg- ment removed should be upwards of the value of twenty pounds. Upon the erection of the court in this form, a chief justice and four associate justices were appointed; and upon the expiration of this act by its own limitation, it was by an act passed on the 11th of Novem- ber, 1692, re-enacted for two years more, in the same form, with the single exception that it directed that the Supreme Court should be held in the other counties besides New York and that one of the judges should hold the circuits in those counties. It was continued in the same manner, by subsequent enactments, each limited for two years ; and finally, in 1697, it appears to have been permanently continued, with- out any limitation as to time, and as far as the statute books show no formal repeal of it can be found. In the edition of the laws by Livino-- ston and Smith, and Van Schaak, the title of the act is preserved, and constitutes the 62 nd chapter of those editions ; although in the maro-in they speak of it as lost, evidently not knowing of the existence of Bradford's edition of 1694, in which it is preserved entire. In all the (1) See Graham on Jurisdiction, T2, 136. 14 HISTORY AND PRESENT ORGANIZATION OP THE COURT. subsequent editions of fhe laws, wliicli are referred to, by the revisers of 1813, in their introduction, (1) it is preserved merely by its title; and in a note to the act, in that edition, regulating its terms and other incidents,(2) the revisers remark that, it was first established by law in 1691, and after some subsequent laws on the subject, was at length regulated and fixed by an ordinance of the governor and council, of May 15, 1699, and by an additional ordinance of April 3, 1704, and from that time till the adoption of the constitution of the state in 1777, was held under those ordinances only. Mr. Smith, in his history of New York, entertains the same impres- sion, and in speaking of the act of 1691, observes : " as this, enacted in 1691, was a temporary law, it may hereafter be disputed, as it has been already, whether the present establishment of our courts for general jurisdiction, by an ordinance, can consist even with the preceding act, or with the general rules of law."(3) And in a subsequent portion of his work, the same writer speaks of the jurisdiction of this court as if de- rived from the authority of those ordinances. The first of these, that of 1699, ordains, that there shall be held and kept, at the city of New York, a Supreme Court of judicature, which Supreme Court is hereby fully empowered to have cognizance of all pleas, civil, criminal and mixed, as fully and amply to all intents and purposes whatsoever, as the courts of king's bench, common pleas and exchequer, within his majesty's kingdom of England, have or ought to have ; in and to which Supreme Court, all any every person and persons whatsoever shall or may, if they see fit, commence any action or suit the debt or damage laid in such action or suit being upwards of twenty pounds ; and shall and may by certiorari^ habeas corpus^ or any other lawful writ, remove out of any of the respective courts of mayors and aldermen, sessions of the peace or common pleas, any information or indictment there depending, or judgment thereupon given, or to be given, in any crimi- nal matter whatsoever, cognizable before them, or any of them ; as also all actions, pleas and suits, real, personal or mixed, depending in any of the said courts, and all judgments thereupon given, or to be given : provided always, that the action or suit depending, or judg- ment given, be upwards of the value of twenty pounds, or that the action or suit there depending or determined, be concerning the right or title of any freehold ; and out of the of&ce of which Supreme Court, at New York aforesaid, all process shall issue under the teste of the chief justice of the said court, and to Avhich office all returns shall be made ; which Supreme Court shall be holden at the city of New York on the first (1) 1 R. L. of 1813, Introd. 5. (2) 1 R. L. of 1813, p. 318. (3) Smith's Hist, of New York, Ed. of 1814, p. 12Y. HISTORY AND PRESENT ORGANIZATION OP THE COURT. 15 Tuesday in April, and on the first Tuesday of October annually every year ; and each session of the said court shall only continue for the space of five days and no longer. The ordinance then goes on to provide, that one of the justices of the court shall annually or once in every year, go to the circuit, and hold and keep the court for the respective counties, on the days therein mentioned ; which justice, when he goes the circuit, shall, in each respective county, be attended with two or more of the justices of the peace, at least during the time of two days whilst the said court in the circuit, is sitting and no longer. And farther, that the judges of the court be, and they are thereby, sufiiciently empowered and authorized to make, ordain, and estabhsh, all such rules and orders for the more regular practising and proceeding in the said court, as fully and amply to all intents and purposes whatsoever, as all or any of the judges of the several courts of king's bench, common pleas, and exchequer in Eng- land, legally do. And further that no person's right or property shall be by the court determined, except where matters of fact are either acknowledged by the parties, or judgment confessed or passeth by the defendant's fault, for want of plea or answer, unless the fact be found by twelve men of the neighborhood, as it ought to be done by the law.(l) The second of these ordinances, of the third of April, 1704, after providing the times of holding the com-t, ordains, that the said SujDreme Court, and the respective judges and justices thereof, for the time being and to come, shall have, and be invested with, fall and ample powers and authorities to have and take cognizance of all pleas and causes, civil, criminal and mixed, and to hear, try and determine the same, as fully and absolutely, to all intents and purposes, as her majesty's courts of queen's bench, common pleas, and exchequer, in her majesty's king- dom of England, and every of them, and the respective judges thereof or therein, have or ought to have.(2) Whatever obscurity may hang over the subject of the sources of the authority of this court, at the time of the formation of the state govern- ment, it is entirely certain that at that period the ordinances in ques- tion, or at least the latter of them, were in full force and had not been repealed. The constitution originally adopted in 1777, assumed the existence of this court as it stood at the time of its adoption, without in any manner providing for its organization or jurisdiction, or even for the number of its judges ; the only mention of the court being in the 24th section, which provided that the judges should hold their offices during good behavior, or until they should have respectively attained the age (1) 2 R. L. of 1813, Appendix, 11. (2) 2 R. L, of 1813, Appendix, 13, 16 HISTORY AND PRESENT ORGANIZATION OP THE COURT. of sixty years ; in the 25tli section, wliicli provided that they should not at the same time hold any other office, excepting that of delegate to the general congress upon special occasion, but that if any of them should be elected or appointed to any other office, it should be at his option in which to serve ; in the 27th section, which provided for the appoint- ment of their clerks, attorneys and counsellors ; and in the 82d section which created the court for the trial of impeachments and correction of errors, and |3rescribed the powers and duties of the justices of the Supreme Court as judges of that court. In like manner, also, the legis- lature by various enactments to which it is not necessary particularly to advert, without either declaring or enacting the jurisdiction of the Supreme Court, regulated the practice and modes of proceeding therein, and from time to time conferred upon it, powers, which, as originally constituted, it did not possess. The constitution of 1821 in like manner, omitted to define its powers, but regarding it as a court of well established common law jurisdic- tion, provided only that it should consist of a chief justice and two justices, any of whom might hold the court,(l) and who, as well as the chancellor, shoald hold their offices during good behavior, or until they should attain the age of sixty years ;(2) while it materially varied the provision of the old constitution disqualifying them from holding other offices, which has been already referred to, (3) by declaring that neither the chancellor, nor justices of the Supreme Court, nor any circuit judge, should hold any other office or public trust ; and that all votes for any elective office given by the legislature or the people, for the chancellor, or a justice of the Supreme Court, or circuit judge, during his con- tinuance in his judicial office, should be void.(4) The first legislature, also, which convened after the constitution of 1821, went into effect, (January 1, 1823,) proceeded upon the same assumption as to its powers, and merely regulated its terms, and some of its incidents disconnected from its jurisdiction,(5) while subsequent legislatures have from time to time ingrafted upon it new powers and modes of proceeding, without either declaring in express terms, or undertaking in any other manner, to interfere with or remodel its powers, as they existed when it was adopted into the judicial system, under the state government. Whether or not, the original and amended constitution of the state regarded this court as falling within such parts of the common law of England, or of the acts of the legislature of the colony of New York, as together formed the law of that colony, on the 19th of April, 1775, all of which are continued in force by those instruments, excepting such as are repugnant thereto, subject to such alterations as the legislature should make con- (1) Const. Art. 5, sec. 4. (2) Ibid, sec. 3. (3) Supra. (4) Const. Art. 5, sec. 7. (5) Laws of 1823, p, 203, et seq. HISTORY AND PRESENT ORGANIZATION OF THE COURT. 17 cerning the same,(l) does not distinctly appear. Tlie ordinances, of tliemselves, clearly, have not the force of legislative enactments ; but as emanating from the crown, at that time the source and fountain of justice, both in England and in the then existing colony of New York, coupled with the fact, that they were found in actual existence and force, and that under them this .co*urt was exercising unquestioned powers, it is evident that by common consent, the authority either of common law, or of legislative enactment, was regarded as belonging to them. • The revised statutes, however, clearly treat the jurisdiction of this court, in. its general . features, as derived from, and folly estabhshed by, the colonial ordinances already quoted, and content themselves with merely declaring, that it shall possess the powers, and exercise the jurisdiction, which belonged to the Supreme Court of the colony of New York, with the exceptions, limitations and additions, created and imposed by the con^itution and laws of this state.(2) And the revisers, in introducing this provision, remark — " Some general descrip- tion of the powers of the court seemed useful. None has heretofore been given ; but the old constitution, which merely declared that there should be a Supreme Court, undoubtedl}- intended that it should pos- sess the jurisdiction of the court for which it was substituted."(3) In the main, therefore, the powers of this court are the same as they were under the colonial government; and down to the adoption of the constitution of 1821, its structure also remained the same. It continued to have five judges, each of whom travelled the circuits, for the trial of issues in fact, and Avho together constituted the court in bank, holding the terms for the despatch of that branch of the busi- ness of the court, at the places designated by law. The constitution, however, which went into effect on the first of January, 1823, while it left the general structure of the court as it found it, except in re- ducing the number of the judges to three, made a most important alteration in the character of its functions appertaining to the disposal of issues in fact. Instead of the former system, by which the circuits or sittings at nisi j^rius^ in the various counties of the state were assigned to the judges of the Supreme Court, the constitution directed the legislature to distribute the state into a convenient number of cir- cuits, not less than four nor exceeding eight, subject to alteration by the legislature from time to time, as the public good might require ; for each of which a circuit judge should be appointed, in the same manner, and to hold his office by the same tenure, as the justices of (1) Orig. Const, sec. 35 ; New Const. Art. 1, sec. 13. (2) 2 R. S. 196, sec. 1. (3) 3 R. S. 2d ed. 616. Vol. I. 3 18 HISTORY AND PRESENT ORGANIZATION OP THE COURT. the Supreme Coiirt, and wlio shoLild possess the powers of a justice of the Supreme Court, at chambers, and in the trial of issues joined in the Supreme Court, and in courts of oyer and terminer and jail deli- very ;(1) and in whom, it was farther provided, as well as in the county courts, or in such other subordinate courts as the legislature might by law direct, such equity powers might be vested, as the legis- lature might prescribe, subject to the appellate jurisdiction of the chanccllor.(2) A still more radical change took place upon the adoption of the new constitution which went into effect on the first day of January, 1847.' Not only was the structure and organization of the court totally changed, but new and. original powers were conferred upon it which theretofore had been exclusively exercised by another and different tribunal. Prior to the sitting of the convention that framed the new con- stitution, the court of chancery, composed o^ one chancellor and eight vice-chancellors, (one for each judicial district,) possessed exclusive jurisdiction in all cases of equity. The Supreme Court had no equity jurisdiction, and indeed possessed few, if any, equity powers, unless the right to exercise a sound discretion in some cases might be called " equity powers." But the right to seek and obtaiji equitable relief was confined to the court of chancery. The 8th section of article 14 of the new constitution abohshed the offices of chancellor, justices of the (then) existing Supreme Court, circuit judges, vice-chancellors, assistant vice-chancellor, judges of the (then) existing county courts of each county, supreme court com- missioners, masters and examiners in chancery and surrogates; and the 8rd section of article 6 provided that there should be a Supreme Court having general jurisdiction in law and equity.{Z) In addition, therefore, to the common law jurisdiction which formerly was possessed by and which by the new constitution was continued in the Supreme Court, it had superadded to it the important powers which theretofore had been exercised by the court of chancery alone. The causes which led to these changes, as well as to all the changes in our judicial system, are admirably summed up by Mr. Euggies, (now a judge of the Court of Appeals,) chairman of the judiciary committee of the convention, (4) in which he says, "The necessity of revising and reorganizing our judiciary system, was one of the princi- pal causes of calhng the convention. This necessity had existed for several years ; and the attempts repeatedly made to amend the con- (1) Const, art 5, sec. 5 ; 2 R. S. 201, sec. 3. (2) Const, art. 5, sec. 5. (3) See art. 6 of New Const, ante, p. 2. (4) Constitutional Debates, (Atlas ed.) p. 482. HISTORY AND PRESENT ORGANIZATION OF THE COURT. 19 stitution in tlie mode pointed out in tliat instrument having uniformly- failed, it became indispensably necessary to assemble tlie convention." Under the present organization, therefore, of the Supreme Court, it possesses all the jurisdiction and may exercise all the powers of the late court of chancery, as well as of the former Supreme Court, vnth the exceptions, additions and limitations created and imposed by the constitution and laws since enacted. The 16th section of the "judiciary act"(l) prescribes the jurisdiction of the court, as organized by the constitution, and it declares that the court shall possess the same powers and exercise the same jurisdiction as was then possessed and exercised by the (then) present Supreme Court and court of chancery ; and that the justices of said court shall possess the powers and exercise the jurisdiction possessed and exer- cised by the justices of the old Supreme Court, chancellor, vice-chan- cellors and circuit judges, so far as the powers and jurisdiction of said courts and officers shall be consistent with the constitution and pro- visions of said act. And all laws relating to the (then) present Supreme Court, and court of chancery, or any court held by any vice- chancellor, and the jurisdiction, powers and duties of said courts, the proceedings therein, and the officers thereof, their powers and duties, shall be applicable to the Supreme Court organized by said act, the powers and duties thereof, the proceedings therein, and the officers thereof, their powers and duties, so far as the same can be so apphed, and are consistent Avith the constitution and the ^^rovisions of said act. The Supreme Court has also general power conferred upon it by statute to review the judgments of county courts, and courts of oyer and terminer, and courts of sessions. Appeals may also be brought from the decisions, decrees and orders of surrogates. (2) There is a further provision in the judiciary act(3) which directs that whenever a cause or matter shall be pending in any county court, in which the judge of such court shall have been attorney, solicitor or counsel, or shall be intrusted, or in which he would be excluded from being a juror by reason of consanguinity or affinity to either of the parties, or in the decision of which he shall have taken part when sitting as a judge in any other court, it is his duty to make a certifi- cate stating such fact, and file the same in the office of the clerk of such county ; and thereupon jurisdiction of such cause or matter shall be vested in the Supreme Court, in which such proceedings shall be had therein, according to the practice of such court, as might have (I) Laws 1847, p. 323. (2) Laws 1847, p. 324, sec. 17. (3) Laws 1847, p. 643, sec. 31, 20 HISTORY AND PRESENT ORGANIZATION OF THE COURT. been liad in sucli county court, if sucli cause or matter had remained therein. Bj the revised statutes(l) which are still in force, as respects the jurisdiction and powers of this court, (except when inconsistent with the constitution and subsequent laws,) it is provided that the Supreme Court shall possess the powers, and exercise the jurisdiction, which belonged to the colony of New York, with the exceptions, limitations and additions, created and imposed by the constitution and laws of this state. A more extended history of the jurisdiction of the Supreme Court, as at present organized, will be given in a subsequent part of this work; the object of the present reference to it being merely in connec- tion with the organization of the court. The 4th section of article 4 of the new constitution provides, that the state shall be divided into eight judicial districts, of which the city of New York shall be one ; the others to be bounded by county lines, and to be compact and equal in population as nearly as may be. It further provides that there shall be four justices of the Supreme Court in each district, and as many more in the district composed of the city of New York, as may from time to time be authorized by law. These justices are to be so classified that one of the justices of each district shall go out of of&ce at the end of every two years. After the expiration of their terms under such classification, it is further provided that their terms of of&ce shall be eight years. Upon the first election of justices under the new constitution, which took place on the seventh of June, 1847, thirty-two justices were elected by the j^eople, four for each of the eight judicial districts, and their respective terms of of&ce were classified as directed by the constitution, in the mode prescribed by an act of the legislature. (2) By this classi- fication the justices drew respectively two, four, six and eight years, so that the term of one of the justices expired on the thirty -first day of December, 1849, another two years thereafter, and so on, the last holding his ofiice for eight years. A justice of this court is now elected in each judicial district every two years, who holds his ofiice for eight years. Presiding Justice.'] The justice in each judicial district having the shortest time to serve, and who is not a judge of the Court of Appeals, is the presiding justice. No justice of the Supreme Court can hold any other office or j)ublic trust. And all votes for them for any elective office (except that of ,(1) 2 R. S. 196, sec. 1. (2) Art. 3, sec. I-i of Chap. 280, Laws, 1847, p. 323. CIRCUIT COURTS AND SITTINGS. 21 justice of tlie Supreme Court or judge of tlie Court of Appeals) given by tlie legislature or tlie people, are void.(l) The court, as thus organized, may be said to consist of eight Supreme Courts, possessing co-ordinate jurisdiction and powers, and the same justices who sit at the circuits and try causes at nisi prius are mem- bers of the court in lane, and may review their own decisions. Under the old organization, the circuit judges were not members of, nor could they sit in the apiDcUate or court of review. It is made the duty of the judges at all reasonable times, v/hen not engaged in holding court, to transact such other business, as may be done out of court. And any proceeding commenced before one of the judges, in the first judicial district, may be continued before another with the same effect as if commenced before him.(2) It is also provided by statute(3) that each of the judges shall during his term of of&ce be employed in holding the general and special terms of the Supreme Court, the circuit courts and courts of oyer and termi- ner, in each of the several judicial districts, in proportion as nearly equal as may be, to the business of said courts in such districts re- spectively, or shall be so employed in at least as many of such districts as he shall have years to serve from the commencement of his term : and the duties of such judges shall be so assigned, that each judge shall hold an equal proportion, as near as may be, of the general and special terms of the supreme and circuit courts, and courts of oyer and termi- ner. But nothing in that act shall prevent any judge from supplying the place, for the time being, of any judge who may be sick or absent, or whose office may be vacant ; and it is the duty of any judge not engaged in holding any other term of said courts, to supply the place of any judge who may be sick or absent, or whose office may be vacant. SECTION II. OF THE CIRCUIT COURTS AND SITTINGS, FOR THE TRIAL OF ISSUES OF FACT AND LAW. Upon the organization of the Supreme Court under the constitution of 1821, the legislature divided the state into eight judicial circuits, and circuit judges were appointed by the governor, by and with the (1) Art. 4 Const. 1846, sec. 8. (2) Code, sec. 27. (3) Laws 1847, p. 326, sec. 21 22 CIRCUIT COURTS AND SITTINGS. advice and consent of tlae senate, one for each judicial circuit, wliose duty it was to hold the circuit courts in the several counties, for the trial of issaes of fact, before a jury. The office of circuit judge as we have before seen(l) has been abolished, and circuit courts are now held by the justices of the Supreme Court. The code(2) provides that there shall be at least two terms of the circuit court, held annually in each of the counties of the state, and as many more terms thereof as the justices of each judical district shall appoint therein. As to the mode of the appointment of the times and places of holding these courts, it is provided that the judges of the Supreme Court of each district, should at least one month before the thirty first day of December 1849, by appointment in writing, designate the times and places of holding the circuit courts, and the judges by whom they shall be held, which appointment should con- tinue for two years, and in like manner, at least one month before the expiration of that time, re-appoint said times and places of holding said courts, and so on, for every two succeeding years. The places ap- pointed within the several counties for holding the circuit courts, shall be those designated by statute, for holding county or circuit courts. If a room for holding the court in such place shall not be provided by the supervisors, it may be held in any room provided for that purpose by the sheriff of the county. It is farther provided(3) that circuit courts may be adjourned by the justice holding the court, to be held on any future day, by an entry to be made in the minutes of the court, and juries may be drawn and summoned for an adjourned circuit, and causes may be noticed for trial thereat, in the same manner as if such court was held by original appointment. In addition to this, the governor may also appoint ex- traordinary circuit coTU'ts, whenever in his judgment, the public good shall require it. And whenever, from any cause, any circuit court duly ap2i)ointed shall be in danger of failing, it is the duty of the governor to designate some justice or justices of the Supreme Court, who shall hold said court.(4:) The circuit courts can be held for as many days as the justice holding the same may deem necessary. Every appointment of the times and places for holding circuit courts in the respective districts so made, shall be immediately transmitted to the secretary of state, who shall cause it to be pubhshed in the newspaper printed at Albany, in which legal notices are required to be inserted, at least once in each week, for three weeks, before the holding of any court in pursuance thereof. (l)Ante, p. 2. (2) Amended Code, I85I, see. 20. (3) Code, sec. 24. (4) Laws 184Y, p. 9 oh. 1. CIRCUIT COURTS AND SITTINGS. 23 The expense of tlic publication shall be paid out of the treasury of the state. In ease of the inability, for any cause, of a judge assigned for that purpose, to hold a circuit court, any other judge may do so. It is the duty of the supervisors of the several counties to provide the courts appointed to be held therein, with room, attendance, fuel, lights and stationery, suitable and sufficient for the transaction of their business. If the supervisors neglect, the courts may order the sheriff to do so, and the expense incurred by him in carrying the order into effect, when certified by the court, shall be a county charge. It is j)rovided by statute(l) that circuit courts shall possess the same powers and exercise the same jurisdiction, theretofore exercised by the circuit courts of this state, so far as the powers and jurisdiction of said courts shall be consistent with the constitution and the provisions of that act. And all laws relating to the (then) present circuit courts, and the jurisdiction, powers and duties of said courts, the proceedings therein, and the officers thereof, and their powers and duties, shall be applicable to the circuit courts organized by that act, their powers and duties, the proceedings therein, and the officers thereof, and their powers and duties, so far as the same can be applied and are consistent with the . constitution and the provisions of said act. It is made the duty of the several justices to attend at the several times and places, at which circuit courts and courts of oyer and ter- miner shall have been appointed to be held in their respective districts, to hold the said courts, and to preside in the courts of oyer and termi- ner. This provision does not, however, prevent the justices, appointed for particular circuits, from holding circuits in any part of the state. If some one of the justices of the Supreme Court shall not come to any place where the said courts are appointed to be held, before four o'clock in the afternoon of the day so appointed, the sheriff" or clerk of the county shall open the said courts, and forthwith adjourn the same until nine o'clock in the forenoon of the next day. (2) If one of the justices of the Supreme Court shall attend at such place, at any time before eight o'clock in the afternoon of such second day, the said courts shall be opened, and shall proceed in the business before them.(3) If no such justice shall attend at the said last mentioned hour, the sheriff or clerk shall adjourn the said courts without day.(4) All persons bound by recognizance or otherwise, to appear at either of the said courts, which shall have failed, shall be bound to appear at the next circuit court or court of oyer and terminer, to be held in such county, as the case may be,(5) (1) Laws. 184:1, p. 326, sec. 22. (2) 2 R. S. 203, sec. 19. (3) 2 R. S. 203, sec. 20. (4) 2 R. S. 203, sec. 21. (5) 2 R. S. 204, sec. 22. 24 BUSINESS OF THE COURT, AT THE If the justice of tlie Supreme Court, who is autliorized to preside in any court of oyer and terminer, shall attend, but if there be not present a sufficient number of county justices or other officers authorized to sit with him in the said court, to form such court, the justice or presid- ing officer shall adjourn the court, from day to day, until a sufficient number appear ; or he may, after the first adjournment, adjourn such court without day.(l) In addition to the powers thus conferred upon the justices of the Supreme Court, as it respects the circuit courts for the trial of issues joined in the Supreme Court, there are certain powers delegated to them in reference to the courts of oyer and terminer which, though not strictly within the scope of this treatise, may be adverted to in passing. It is provided, that whenever it shall become necessary, by reason of the number of prisoners confined in the jail of any county, or by reason of the importance of the offences charged upon such prisoners, to appoint a special court of oyer and terminer and jail delivery, the governor shall have power, by warrant under his hand and seal, to appoint a court of oyer and terminer and jail delivery, for such county, to be held therein, at some place provided by law, at such time as he may designate in such warrant, not less than thirty days from the date thereof. SECTION III. BUSINESS OF THE COURT, AT THE GENERAL AND SPECIAL TERMS. From the earliest existence of the court, its office, in banc, as it is termed, or in full bench, was to dispose of all the matters which were to be heard before the court itself, including trials at bar, when specially ordered ; all other trials of issues of fact being disposed of at the circuits, which, as before remarked, until the alteration already referred to, by the creation of the circuit judges, were held by the justices of the Supreme Court, singlj^ The business, in banc, thus devolved upon the court itself, (excepting trials at bar,) has always been and still is divided into enumerated and non-enumerated mo- tions. Enumerated motions as defined by the 27th rule of the court, are, 1. Motions arising on special verdict ; 2. Motions arising on issues of law, as provided by the Code ; 3. Case reserved for argument, ac- (1) 2 R. S. 204, sec. 23. GENERAL AND SPECIAL TERMS. 25 cording to § 265 of tlie Code ; 4. Case agreed between the parties without trial, according to sec. 872 of the Code; 5. Appeals to the Supreme Court from an inferior court, in pursuance of chap- ter 3 of title 11 of the Code ; and, 6. Appeals by virtue of sec. 848 of the Code, All motions to set aside a nonsuit, verdict, inqui- sition, or report, otherwise than for irregularity or surprise exclusively : (and as a general rule, a motion for a new trial on the ground of sur- prise, will be regarded as a non-enumerated motion ; and this, though a case or exceptions have been made ; though, if such motion be made, when there is also a case or exceptions, the court may, in its discretion, suspend a decision until the non-enumerated motion shall have been argued ; and where the intention is, to move on the ground of newly discovered evidence, the ground of surprise may also be added, and the whole will be heard together, as an enumerated motion, this also coming within the class of enumerated motions.) Non-enu- merated motions include all other questions submitted to the court.(l) For the purpose of disposing of the enumerated business of the court, and of such non-enumerated business as is still reserved for the full court, there are four terms of the court in each year, in each of the eight judicial districts of the state, and as many more as the jus- tices in each district shall appoint, (2) at such times and places as a majority of the judges of such district shall appoint. The times and places of holding the general and special terms are designated by the judges of the respective districts. They are re- quired(o) once in two years, and at least one month before the expira- tion of that time, to appoint the times and places of holding those courts for two years, commencing on the first day of January, and so on, for every succeeding two years, in their respective districts. In addition to these, the governor may also appoint extraordinary general and special terms, whenever, in his judgment, the pubhc good shall requu-e it. There is no limit to the duration of those terms ; they may continue as long as the justices deem proper and the business re- quires. Any of these courts may be adjourned to be held on any future day, by an entry to be made in the minutes of the court. The places for holding the general and special terms are such as are designated by statute, in the several counties for holding coanty or circuit courts If a room for holding the court in such place is not provided by the supervisors, it may be held in any room provided by the sheriff, and who is authorized to make such provision. (4) The most important portion of the business of the court, at its general (1) Rule 2t. (2) Code, sec. 18. (3) Code, sec. 22. (4) Code, sec. 28. Vol. I. 4 26 BUSINESS OP THE COURT AT THE terms, is the hearing of enumerated motious,(l) whicli are heard in the following order : 1. Cases in Avhich a preference is given by statute. Of this nature are actions against corporations, on a note or other evidence of debt for the absolute payment of money, on demand, or at a particular place ; in relation to which, it is provided by the revised statutes, that every issue of fact joined in such cause, shall have a preference at the court at which it shall be noticed for trial, to all other causes ; and every case made, special verdict rendered, bill of exceptions and demurrer to evidence taken, on such trial, and every issue of law joined on the pleadings in any such suit, shall have a preference in the argument thereof, in any court where the same may be pending.(2) A suit on the policy of insurance, against an insurance company is not, however, entitled to a preference within this provision ;(3) its object being to in- clude some instrument which, is, in itself, evidence of debt, as a note, bill of exchange or bond.(4) It has been the practice of the court, also, until recently, to allow writs of error and bills of exceptions, in criminal cases, to be taken up in anticipation of their order on the calendar, on any day in term, when both parties appear ; and with a view to prevent delay, they have al- lowed such cases to be called and defaulted out of their order, where adequate notice of such an intention has been given. A similar prac- tice has prevailed, likewise, in cases prosecuted for the benefit of the people. The inconvenience resulting from the loose practice which formerly prevailed in these cases, has, however, induced the court to provide by rule that criminal cases may be heard on any day in term. It is also now provided by statute,(5) that every issue of fact joined, or hereafter to be joined, in any action brought by the attorney general, of this state, pursuant to the joint resolution of the senate and assembly, of the tenth of April, 1848, or proceedings in the nature of a quo war- ranto^ shall have a preference at the court at which it shall be noticed for trial, over all other causes : and every case made, special verdict rendered, and bill of exceptions taken on such trial, and every issue of law joined on the pleadings in such suit or proceeding, and every ap- peal from any judgment rendered in any such suit or proceeding, shall have a preference in the argument thereof, in any court where the same may be pending. (1) As to what are eneumerated motions, see ante. ' (2) 2 R. S. 458, 459, sec. 8, 11. (3) It is taken from and is in substance the same, as the act of April 21, 1825, Laws of 1825, p. 449, sec. 4. . (4) Anonynvms, 6 Cowen, 41. (5) Laws 1850, p. 200, chap. 128, sec. 1. GENERAL AND SPECIAL TERMS. 27 Causes not entitled to a preference, are heard, according to their standing on the calendar, if the party entitled to - bring them on be ready ; otherwise, they are not called again until all the others are dis- posed of. The court have designated by rule(l) the days in term for hearing non-enumerated motions ; and such motions will be heard on the first day and Thursday of the first week, and Friday of the second week of the term, immediately after the opening of the court on those days. The powers of the general term being chiefly, if not exclusively, appel- late, there are but few special or non-enumerated motions that can be made at such terms. Such as can be made, relate to the causes on the calendar, such as motions to strike causes therefrom and for judgment because of the non-service of papers ;(2) to motions to dismiss appeals and to the hearing of appeals from orders made by a single judge. The court will sometimes hear important motions when sent to the general term from a special term, by the order of the justice holding the latter court. They will also hear such motions as are authorized by statute to be made at a general term. All other motions arising in the progress of a cause must be made at a special term. Special terms.] For the purpose of hearing special or non-enumerated motions, other than those which may be heard at a general term, it is provided that there should be as many special terms held annually in each of the counties of this state as the judges of each judicial dis- trict shall appoint therein : and at least one special term must be held annually in each of the counties. The special terms are usually ap- pointed to be held at the same time and place of holding the circuits, and in some of the districts special terms are held as often as once a month. The practice at the special terms is the same as formerly existed in the transaction of non-eneumerated business at the general terms. They hold from day to day, until the business is through : their rules are entered and certified by the clerk, and transmitted to the proper county. In addition to the ordinary non-enumerated business transacted at the special terms, it is now provided(8) that issues of law must be tried at a circuit court, or special term, and shall, unless the court otherwise direct, have preference on the calendar. As issues of law can now arise only upon demurrer^^) no other issues are embraced within the fore- going provision. (1) Rule 33. (2) Rule 28. (3) Code, sec. 255. (4) Code, see. 249. 28 THE JUSTICES. CHAPTER III. JUDGES AND OFFICERS OF THE COURT. Section I. the justices. II. COMMISSIONERS AUTHORIZED TO TAKE AFFIDAVITS. III. THE CLERKS. IV, THE CRIERS. y. THE REPORTER. YI. SHERIFFS AND CORONERS. YII. ATTORNEYS. VIII. COUNSELLORS. SECTION I. THE JUSTICES. Supreme Court Justices:] The Supreme Court, as we have seen, consists of four justices in each judicial district, any of whom may hold the court. The mode of their election and duration of office has already been stated. They are prohibited, during their continu- ance in ofl&ce, from holding any other office or public trust ; and all votes given for them, for any elective office, by the legislature or the people, except for a judge of the Court of Appeals or justice of the Supreme Court, during their continuance in office, are void. In a case which formerly came before the court, it was contended that these provisions rendered unconstitutional, the legislative enact- ments by which this court is authorized to appoint commissioners of estimate and assessment on the opening of streets, &c., in the city of New York, and the hearing and confirmation of their report, upon the ground, that the powers conferred by those and other laws of the same general nature, are not strictly judicial,— that, in carrying them.into execution, the judges do not act as a court, but as commissioners, appointed by the legislature, (1)— and that, consequently, they conferred upon the judges another office or public trust. But it was held by the court, {Beardsley, J., delivering the opinion, m which Nelson, Ch. J., concurred, Bronson, J., dissenting,) that the power in question was a (1) Stafford v. The Mayor of Albany, 1 Johns. 5-41 ; Ilaiter of Beekman street, 20 JoLns. 269; Matter of Mayor, &c. of New York, 6 Cowen, 571; Matter of Mount Morris Square, 2 Hill, 14. THE JUSTICES. 29 new power tkrown upon tlie Supreme Court, and not a new office con- ferred upon the justices^ of that court, and that it was a judicial power ; and further, that the inhibitions of the constitution above referred to, were aimed at the individuals, who, for the time being, might fill those offices, and not at the courts which they were authorized to hold. " The person," says Beardsley^ J., " who is chancellor, can hold no other office or trust, and so of the Supreme Court and circuit judges. But this, I believe, has never been supposed to restrain the legislative power, so that it could not enlarge and extend the powers of the court of chancery or of the Supreme Court, nor impair the capacity of those courts to take and exercise new and enlarged powers. Certainly, in practice, such has not been the effect of this constitutional pro- vision ; for those courts have undergone frequent changes and modifi- cations, by which their powers have, in many respects, been greatly amplified and extended."(l) In addition to their powers as judges of this court, they are also, ex officio, members of the Court of Appeals, as has been seen. The incidents of their office, in this respect, has already been considered, when treating of that court. WJien disqualified from acting^ It was a well established rule, at common law, that no judge could take part in the decision of a cause in which he was a party ;(2) and this was held by Chancellor Sanford, to extend to cases of corporations, in which a judge was a stockholder.(3) Eelationship to a party, also, at common law, precluded a judge from acting ;(4:) provided it was so near, as to amount, of itself, to evidence of partiality and fraud.(5) Though it was a general principle, that a judge could not be challenged or excepted to, on the ground of consan- guinity or interest, or even of corruption ; but must be punished by indictment or impeachment.(6) To define precisely the rule on this subject, the revised statutes pro- vide, that no j udge of any court can sit as such, in any cause to which he is a party, or in which he is interested, or in which he would be excluded from being a juror, by reason of consanguinity or affinity to either of the parties :(7) nor can any judge decide, or take part in the (1) Stryker v. Kdly, Oct. term, 1844. (2) Earl of Derby's case, 12 Coke, 114; City of London v. Wood, 12 Mod. 672, 690; Rex V. Justices of Essex, 5 M. & Selw. 513 ; 1 Bl. Com. 91. (3) Washington Lis. Co. of New York v. Price, 1 Hopk. 1. (4) Revisers' notes, 3 R. S. 2d ed. 694. (5) Egglestonv. Smiley, 17 Johns. 133; see, also, Fierce v. Sheldon, 13 Johns. 191. (6) M'Bowell V. Van Deusen, 12 Johns. 356 ; 1 Inst. 294; 2 Inst. 422. (7) The subject of disqualification, arising from consanguinity or afBnity, will be discussed hereafter, under the head of challenges to jury. See also, as to this proYision, as applicable 30 THE JUSTICES. decision of, any question wliicli sliall have been argued in the court, when he was not present and sitting therein as, a judge.(l) This does not, however, take away the privilege of the judges, which existed at common law, of suing or being sued in their own court. (2) Nor can a judge practice or act as a counsellor, solicitor or attornej^, in any of the courts of this state.(3) Nor can he have a partner, prac- tising in the court of which he is a judge, nor can he be directly or indirectly interested in the costs of any suit that shall be brought in the court of which he is a judge, except those suits in which he shall be a party.(4) It may not be amiss to remark, though not exactly connected with the subject under examination, that by an act passed in 1832, it was provided, that the two sections just quoted, should not prevent the aldermen of the city of New York from practising as attorneys or counsel in the court of common pleas of the said city, (of which they are ex officio judges,)(5) nor from having partners practising in said court; provided such aldermen shall, within ten days after having taken the oath of office required by law to be taken by aldermen in said city, file in the ofiice of the clerk of the said city and county, a declaration of his refusal to act as a judge of said court of common pleas, during the term of his service as alderman :(6) and that on filing such declaration of his refusal, such alderman shall not act as judge of said court, nor be empowered to execute any of the duties of such oflicer, excejot in exercising the duties enjoined on him by the consti- tution.(7) It has been also provided by an act, passed in 1839, that the pro- vision just quoted, which prohibits a judge from having a partner practising in his court, or being interested in the costs of any suit therein, shall not apply to an ex officio judge of any court in this state, when such ex off do judge does not officiate as a judge of such court, in the trial of causes, or take part in the decision of causes ; but that such ex officio judge shall not directly or indirectly be interested in the to justices of the peace, in civil cases, Edwards v. Fussell, 21 "Wend. 63; Foot v. Morgan, 1 mil, 654 ; Carman v. Newell, 1 Denio, 25 ; Eighe v. Leonard, 1 Denio, 186, and the cases there cited. As to the rule, before the revised statutes, see Eggkston v. Smiley, 17 Johns. 133. (1) 2 R. S. 275, sec. 2. (2) Lord AndersorCs case, 3 Leon. 149. (3) 2 R. S. 275, sec. 4. (4) Ibid. sec. 5. (5) Tlie People v. The Mayor and Aldermen of New York, 25 Wend. 8 ; see also, The People V. Purdy, 3 Hill, 31 ; Purdy v. Tlie Peop)U, 4 HiU, 384. (6) Laws of 1832, p. 42, chap. 24, sec. 1. (7) Ibid, ; Const, art. 4, sec. 7, 9, 13, 14. THE JUSTICES, 31 costs of any suit that shall be brought in the court of which he is such ex officio judge. (1) And by a more recent act, passed in 1841, it is provided, that no judge shall directly or indirectly take any part in the decision of any cause or question, which shall be brought or defended in the court of which he is a judge, by any person acting as an attorney or counsellor, with whom he shall be interested or connected, as a partner, in any other court.(2) Powers of the judges^ at chambers.'] The powers of the justices of this court, singly, out of court, or, as it is termed, at chambers, are such as they exercise as conservators of the peace, and in the performance of various other duties incidentally attached to their office by statute, or such as appertain to the proceedings in suits pending in the court. The former are so various, and many of them so without the scope of the present treatise, that they will be passed over — merely referring the student to the revised and other statutes of the state, where they will be found under their appropriate heads. The latter, — those ap- pertaining to the proceedings in suits pending in the court, were origi- nally derived from the court of king's bench in England, and extended to that portion of the practice, which, in itself, was not of sufficient consequence to justify its occupying the attention of the court itself, and thus interfering with its more important functions. They were devised by the court, under the sanction of the legislature, for the pur- pose of preventing the delay, expense and inconvenience, which must inevitably ensue, if application to the court were, in all cases and under all circumstances, indispensably necessary.(3) So beneficial has this power been deemed in England, that it has been greatly extended, and forms a very distinct branch of the prac- tice of the courts in that country. In this state, it has, likewise, been placed under statutory regulation, and, in some measure, extended beyond its original object ; though, in the main, it applies only to the class of cases originally embraced within it, such as the granting of orders to hold to bail — to appoint guardians or next friends — to show cause of action — to mitigate bail-7-to extend the time for performing any act required by the rules or practice of the court, (though not where the time is prescribed by statute,) — to furnish bills of particu- lars — to discover papers — to discharge bail — to file security for costs — to stay proceedings for the purpose of moving the court — to allow writs of error, certiorari or habeas corpus^ or the like ; all of which will (1) Laws of 1839, p. 236, ch. 346, sec. 1. (2) Laws of 1841, p. 255, ch. 272, sec. 1. (3) Eagley's Cliamb. Prac. 1, (15 Law Library.) 32 THE JUSTICES. be hereafter considered in their appropriate places. In many instances, this power is exercised ex imrte^ and absohitcly, while, in others, it is done upon an order to show cause ; but in all cases, it is subordinate to the power of the court, at a special term, and even of the judge himself, to vacate, modify or suspend the order. The several judges are required, at all reasonable times, Avhen not engaged in holding court, to transact all such business as may be done out of court.(l) And every proceeding commenced before one of the judges, in the y?7-5^ judicial district, may be continued before another, with the same effect as if commenced before him. It is also to be observed, that for the performance of these cham- ber duties, the justices of the Supreme Court are not entitled to re- ceive fees. Salaries of the justices^ The salaries of the justices of the Supreme Court were fixed by the legislature, immediately after the new consti- tution went into effect, at two thousand five hundred dollars each, i^er annum.{2) The constitution provides(3) that the judges of the Court of Appeals and justices of the Supreme Court, shall severally receive, at stated times, for their services, a compensation to be established by law ; which shall not be increased or diminished during their continu- ance in office. They are prohibited, also, from demanding or receiv- ing any fees or perquisites, for anything done by either of them in virtue of their offices. (4) How removed from office^^ The justices of the Supreme Court may be removed from office, either by impeachment or by joint resolution of the legislature. The power of impeachment is vested by the constitution in the house of assembly, who may impeach all civil officers of this state for mal and corrupt conduct in of&ce, and for high crimes and misdemeanors ; but a majority of all the members elected shall concur in an im- peachment. The court for the trial of the impeachment consists of the president of the senate, the senators, or a major j^art of them, and the judges of the Court of Appeals, or the major part of them ; and when an impeachment shall be prosecuted against any justice of the Supreme Court, the person so impeached shall be suspended from exer- cising his ofl&ce, until his acquittal. Before the trial of an impeach- ment, the members of the court are required to take an oath or affirmation, truly and impartially to try and determine the charge in question, according to evidence ; and no person shall be convicted. (1) Code, sec. 27. (2) Laws of 1847, p. 312, sec. 3. (3) Const, art. 6, sec. 20. (4) Const, art. 6, sec. 1. COMMISSIONERS AUTHORIZED TO TAKE AFFIDAVITS. S3 witliout tlie concurrence of two-tliirds of tlie members present. Judg- ment in cases of impeachment, shall not extend farther than the re- moval from office, and disqualification to hold and enjoy any office of honor, trust or profit, under this state ; but the party convicted, shall be liable to indictment and punishment, according to law.(l) The power of removal by joint resolution, is created and regulated, by the jj revision of the constitution, which declares, that justices of the Supreme Court, and judges of the Court of Appeals, may be re- moved by concurrent resolution of both houses of the legislature, if two-thirds of all the members elected to the assembly, and a majority of all the members elected to the senate, concur therein.(2) But it is provided, that no judicial officer shall be removed by the joint resolution of the two houses of the legislature, or by the senate, on the recommendation of the governor, (3) unless the cause of such removal shall be entered on the journals ; and such officer, against whom the legislature or the senate may be about to proceed, shall be served with notice thereof, accompanied with a copy of the causes alleged for his removal, and shall have an opportunity to be heard in his defence, before any question shall be taken upon such removal ; and the yeas and nays shall be entered upon the journals. SECTION II. COMMISSIONERS AUTHORIZED TO TAKE AFFIDAVITS. Commissioners authorized to take affidavits to be read in this court, are of two kinds: 1. Those who are entitled to perform that service ex officio, by virtue of a general election to some other office ; and 2. Those specially appointed for that purpose. Commissioners, ex officio^ Affidavits to be read or used in this court, may be taken before any judge of any court of record, any local officer appointed to perform the duties of a county judge, commis- sioner of deeds, or clerk of any court of record.(4) In the term judges of any court of record, are comprised the mem- bers of the Court of Appeals, judges of this court, courts of oyer and terminer, county courts, and general sessions of the peace, and the (1) Const, art. 6, sec. 1. (2) Const, art. 6, sec. 11. (3) Const, art 6, sec. 11. (4) 2 R. S. 284, sec. 49. YoL. I. 5 34 COMmSSIONERS AUTHORIZED TO TAKE AFFIDAYITS. mayors' courts in tlie cities of Albany, Troy, Hudson,(l) and Eoches- ter ;(2) tlie justices of tlie superior court of tlie city of New York ;(3) the justices of the marine court of the city of New York ;(4) the jus- tices of the municipal court of the city of Brooklyn ;(5) and the justices of the justices' courts of the cities of Albany,(6) and Hudson ;(7) all of which are declared by statute, to be courts of record. As it respects commissioners of deeds, it is to be observed, that they are directed to be appointed in the following manner : for the several cities in the state, by the' common council of said cities.(8) The number in the city of New York is fixed by statute, and not ex- ceeding two hundred and twenty-five.(9) In relation to each of the other cities in the state, it is provided, that the common council of each of the cities, except New York, on or before the 1st day of Janu- ary, 1830, and once at the end of every two years thereafter, shall, by resolution of the board, determine and limit the niunber of commis- sioners of deeds, (as well as notaries pubKc,) to be next appointed in and for their respective cities ;(10) a copy of which, under the corpo- rate seal, and attested by the mayor of the city, must be transmitted to the governor, within twenty days after such determination shall have been made;(ll) and no nomination or appointment shall be made by the governor, to any of the offices so limited, unless in conformity to the limitation.(12) In relation to the several towns in the state, it was formerly provided, that the judges of the county court in each county, should, at each county court next preceding the annual meeting of the judges and supervisors, for the purpose of appointing commis- sioners of deeds, determine, by rule of court, the mmiber of commis- sioners of deeds in each town of the county, for the year next ensuing such annual meeting ;(13) and that at such annual meeting, no increase should be made in the number of such commissioners in any town, unless in conformity to such previous determination of the judges.(14) By an act passed in 1840, however, the office of commissioner of deeds is abolished in the several towns in this state ; and it is provided, that all the powers and duties of such commissioners should thereafter be executed by the justices of the peace in said towns respectively ; but the several commissioners then in office, were allowed to con- (I) 2 E. S. 163 ; ibid. 276, sec. 1. (3) Laws of 1828, p. 142, sec. 10. (5) Laws of 1827, p. 146, sec. 50. (7) Laws of 1822, p. 226, sec. 3. (9) Laws of 1851, p. 959, sec. 1. (II) 1 R. S. 101, sec. 3. (13) Ibid. sec. 5. (2) Laws of 1834, p. 333. (4) 2 R. L. of 1813, p. 332, sec. 107. (6) Laws of 1821, p. 36, sec. 3. (8) Laws of 1848, p. 84. (10) 1 R. S. 100, sec. 2. (12) 1 R. S. 101, sec. 4. (14) Ibid. sec. 6. COMMISSIONERS AUTHORIZED TO TAKE AFFIDAVITS. 35 tinue to execute the duties of said office, till the expiration of the term for which they were respectively appointed, and no longer.(l) In addition to the power conferred in this respect upon the clerks of the several courts of record, there are other provisions delegating the authority to deputy clerks, in certain cases. Thus, in case of the absence or incapacity of one of the clerks of this court, or in case of a vacancy occurring in his office, the duties appertaining to it devolve on the deputy, during such absence, inability, or vacancy ; and among others, the right of taking affidavits.(2.) In the case of county clerks, it was formerly held, that the deputy could not take an affidavit, unless in case of the death of the clerk.(3) But, by an act passed in 1831, it is provided, that the deputy of any county clerk may perform all the duties of such clerk, whenever such clerk shall be absent from his office, except that of deciding upon the sufficiency of the sureties of any officer.(4) As to the places in which the several officers who are thus autho- rized to take affidavits to be read in this court, may execute this power, it is to be remarked, that judges of courts of record may do so in any county of the state ;(5) commissioners of deeds, (6) and jus- tices of the peace in towns, (7) only within the several counties or towns for which they are appointed ; and clerks of courts of record, only m the places where their offices are located.(8) In all these cases, where the powers of the officer are purely local, the presumption from his having taken the affidavit, is, that he has done so within the place where he might legally perform the act. And accordingly, in a late case before the chancellor, where the venue of an affidavit was as follows : " State of New York, county, ss. .•" and the oath was signed " 0. 0. Comm'r of Deeds," the officer being a commissioner of deeds for the city of Albany, upon an objection that the affidavit was defective, the jurat not showing it to have been taken within the commissioner's jurisdiction, the chancellor decided that there was no validity in the objection ; and that as the officer before whom the affidavit was sworn, was only authorized to administer the oath within the city of Albany, the legal presumption was, that he had not violated his duty by doing it elsewhere.(9) (1) Laws of 1840, p. 187, sec. 1. (2) 2 R. S. 198, sec. 15. (3) Norton v. Colt, 2 Wend. 250. (4) Laws of 1831, p. 279, ch. 237, sec. 1. (5) See Hopkins v. Menderback, 5 Johns. 234. (G) 1 R. S. 101, sec. 11. (7) Laws of 1840, p. 187, sec. 1. (8) Co7iley v. Turner, 10 "Wend. 572. (9) Barnard v. Darling, (in Chan. Oct. 7, 1845,) 5 Chan. Sentinel, 43, 53. It has been held, however, in the bail court in England, that an affidavit sworn before a commissioner must show, by iYie jurat, that it was sworn within his jurisdiction. Cass v. Cass, 1 Dowl. & L. 698; S. C. 7 Lond. Jurist, 1087. In this state, the jurat never shows this fact; the 36 COMMISSIONERS AUTHORIZED TO TAKE AFFIDAVITS. When prohibited from acting.'] An affidavit cannot be sworn before a commissioner, in a cause in wliich. lie is the attorney on record.(l) Bat this rule does not extend to the counsel in the cause ;(2) nor to the clerk of the attorney on record ;(3) nor to the partner of the at- torney on record, although he is interested in the profits of his busi- ness.(4) Nor is it an objection to the affidavit, that it was sworn before the attorney in fact of the party, but who is not the attor- ney on record; (5) nor, that an attorney, before whom it had been sworn, had been the legal adviser of one of the deponents, and had told the party really interested in the cause in which the affidavit was sworn, that he intended to move the court, in that particular cause ; in which, however, he was not the attorney upon the record.(6) Nor is it an objection to an affidavit, that it is sworn before the attorney in the cause, unless it expressly appear, that he was the attorney, at the time the affidavit was sworn.(7) It seems, however, that this rule applies only to affidavts made before an attorney in a suit pending, and not to those preparatory to the commencement of a suit ; inasmuch as, in such cases, the affida- vit is not entitled, and the attorney may or may not be retained, at the time when the affidavit is made.(8) And accordingly, it was held that an affidavit of the cause of action, which was not entitled, and was regarded as a proceeding before the commencement of the suit, might be taken before a commissioner, who afterwards issued the writ as the attorney of the plainti£f.(9) So, also, the affidavit to ob- tain a certiorari^ may be taken before an attorney who afterwards com- mences the suit.(lO) In the case of a defendant's attorne}', however, it is not necessary, in order to invalidate an affidavit taken before him, that he should have actually appeared as the attorney on record. It is enough that he has acted as such attorney ; but it must be clearly shown, that he so acted, at the time of taking the affidavit : it not being sufficient to show, that he is so at the time of making the objection. (11) Although, it would only reference which is ever made to tlie place of taking the affidavit, being in the venue with which it is commenced. (1) Tayhr v. Hatch, 12 Johns. 340; Eex v. Wallace, 3 T. R. 403; Jenkins v. Mason, 3 Moore, 325 ; Hopkins v. Buckley, 8 Taunt. "74; The People v. Spalding, 2 Paige, 327. (2) Willard v. Judd, 15 Johns. 531. (3) Goodtitle v. Badtitle, 8 T. R. 638 ; Cocksedge v. Eickwood, Barnes, 45. (4) HaUenback v. Whittaker, 17 Johns. 2. (5) Bead v. Cooper, 2 Rose, 127. (6) Williams v. Hockin, 8 Taunt. 435. (7) Beaumont v. Bean, 4 Dowl. 0. S. 354. (8) Vary v. Godfrey, 6 Cowen, 587. (9) Hawardy. Nalder, Barnes, 60; Dodd v. Adcock, Ca. temp. Hardw. 211. (10) Vary v. Chdfrey, 6 Cowen, 587. (11) Kidd v. Davis, 5 Dowl. 0. S. 588. COMMISSIONERS AUTHORIZED TO TAKE AFFIDAVITS. 37 seem, tliat tlie statement of the party, that the person so acting is his at- torney, is suflEicient to support an objection to an affidavit taken before him, though it is not positively sworn that he is the attorney employ- ed,(l) The reason for this distinction between the case of a plaiatiii"'s and defendant's attorney, is, that where a defendant's attorney is in fact employed, though his name does not appear on the record, he will be regarded by the court as such attorney, to the extent of even re- covering costs from the opposite party, if he have, in point of fact, acted as such attorney.(2) Affidavits taken out of the stafe.] Previously to the adoption of the revised statutes, much confusion existed in the practice of the courts of this state, as to the mode in which affidavits taken in foreign coun- tries or in other states of the union were to be authenticated. To obviate this inconvenience, by the establishment of an uniform rule on this subject, (3) it is provided by the revised statutes, that in cases where, by law, the affidavit of any person residing in another state of the United States, or in any foreign country, is required, or may be re- ceived, in judicial proceedings in this state, to entitle the same to be read, it must be authenticated as follows : 1. It must be certified by some judge of a court having a seal, to have been subscribed and taken before him, specifying the time and place where taken : 2. The genu- ineness of the signature of such judge, the existence of the court, and the fact that such judge is a member thereof, must be certified by the clerk of the court, under the seal thereof (4) In repect to this provision, it has been held, by this court, that it is not necessary, in the authentication of affidavits taken out of the state, to follow the letter of the statute, but that a substantial compliance with its requirments is sufficient. Thus, on a motion founded on an affida- vit taken in Connecticut^ to which the name of the deponent was sub- scribed, the following certificates were appended to the affidavit : " State of Connecticut, Fairfield county, ss. : Be it remembered, that on this 14th day of August, 1834, before me, Clark Bissell, one of the judges of the Supreme Court in and for said state, personally appeared Henry Belden, the above named deponent, and made solemn oath to the truth of the foregoing affidavit, by him subscribed, sworn before me, Clark Bissell, a judge of the Supreme Court." " State of Connec- ticut, Fairfield county, ss. : I, Thomas B. Osborne, clerk of the Supreme Court of the state of Connecticut, within and for the county of Fairfield, do hereby certify, that the honorable Clark Bissell is now, (1) Haddock v. Williams, 1 Dowl. 0. S. 327. (2) Ex parte Stewart v. New York Common Pleas, 10 "Wend. 59T. (3) See Revisers' notes, 3 R. S. 2d ed. 735. (4) 2 R. S. 396, sec. 25 38 COMMISSIONERS AUTHORIZED TO TAKE APFIDAVITS. and for more tlian one year last past, has been a jndge of said Supreme Court, and that I am well acquainted with the handwriting of the said Clark Bissell, and verily believe that the signature to the foregoing certificate, annexed to the deposition of Henry Belden, purporting to be his, is genuine. In testimony whereof, I have hereto set my hand, and affixed the seal of the said Supreme Court, this 23d day of August, A. D. 1834. Thomas B. Osborne, clerk. L. S." It was objected, that the certificate of the judge was defective, in not stating that the affida- vit was subscribed before him, and in omitting to specify the 'place where the affidavit was taken ; and that the words, " state of Connecticut, Fairfield county, 55.," only gave a venue to the certificate ; but, if otherwise, that a designation of a county was not a compliance with the act. It was also objected, that the clerk did not certify to the existence of the court, otherwise than by implication, nor to the genuineness of the signature of the judge, otherwise than according to his belief. But the objections were overruled, as untenable, the statute having been substantially complied with.(l) So, also, where an objection was taken to the authentication of an affidavit taken in Pennsylvania., that the judge before whom it was taken did not, in his certificate, specify the place where the affidavit was taken, the certificate being headed " state of Pennsylvania, Luzerne county, 55.," the objection was over- ruled.(2) So, where an affidavit purported to be " subscribed and sworn before, &c., at Williamsport, Lycoming county, Pennsylvania, this 10th day of June, A. D. 1842 ; Ellis Lewis, president judge 8th dis- trict. Pa. ;" and there was then a certificate as follows : " state of Penn- sylvania, Lycoming county, ss. : I, Hepburn M'Clure, prothonotary of the court of common pleas of the county of Lycoming, within the eighth judicial district of Pennsylvania, do hereby certify that Ellis Lewis, whose name is subscribed to the within certficate, is president judge of the court of common pleas of the eighth judical district of Pennsylvania," &c., — signed, and the seal of the court affixed ; it was objected, that it did not appear that Ellis Lewis, though a judge of the eight judicial district, was a judge of the court of common pleas of Lycoming county. Another certificate of the same prothonotary, attached to a record accompanying the papers, stated, that Ellis Lewis ■" is president judge of the eighth judicial district aforesaid, and that, by virtue of his office, he is president judge of the several courts of >common pleas, within the said district?'' The objection was overruled, Bro7ison, J. observing : — " It is hardly necessary to resort to the second certificate of the prothonotary. The matter is plain enough, without it. The eighth judicial district includes several counties, in each of which (1) Belden v. Devoe, 12 Wend. 224, 225. (2) MKinstry v. Tliurstm, 12 Wend. 225, note. THE CLEEKS. 39 there is a court of common pleas, and Ellis Lewis is tlie presiding judge in each of those courts. Lycoming county is within the eighth judicial district ; and thus, it appears that the affidavit was sworn before a judge of the court of common pleas of Lycoming county. It is not necessary to follow the letter of the statute. A substantial compliance with its provisions is sufficient."(l) For the purpose of affording still greater facilities for the taking and authentication of afiidavits, out of this state, to be used in judicial proceedings within this state, an act was passed in 1840, authorizing the governor of this state to name, appoint and commission one or more commissioners, in each or such of the other states and territories of the United States, or in the district of Columbia, as he may deem expe- dient ; which commissioners shall continue in office, during the pleasure of the governor ; and each of whom, among other powers conferred, is invested with full power and authority to administer, an oath or affir- mation, to any person who shall be willing and desirous to make such oath or affirmation before him ; and such affidavit or affirmation made before such commissioners is thereby declared to be as good and effec- tual to all intents and purposes, as if taken by any officer, authorized to administer oaths, resident in this state ; provided^ that wilful false swearing, in taking any such oath or affirmation, would, by the laws of the state wherein the same shall be made, be deemed perjury.(2) It is further provided, that every commissioner, appointed under the act just referred to, before he shall proceed to perform any duty under and by virtue thereof, shall take and subscribe an oath or affirmation, before a justice of the peace in the city or county in which such com- missioner shall reside, well and faithfully to execute and perform all the duties of such commissioner, under and by virtue of the laws of New York ; which oath or affirmation shall be filed in the office of the secretary of state of this state.(3) SECTION III. THE CLERKS. Under the former constitution there were four clerks of this court ; one of whom was required to reside and keep his office in the city of (1) Manufacturers' and Mechanics' Bank of the Northern Liberties of Philadelphia v. Cowden, 3 Hill, 462, 463. (2) Laws of 1840, p. 235, sec. 1, 2. (3) Laws of 1840, p. 236, ch. 290, sec. 3. 40 THE CLERKS. Albany, one in the city of New York, one in the city of Utica, and one in the village of Geneva. They were appointed by the court and held their offices for three years, but might be sooner removed by the court. By the late constitution (1) it is provided that clerks of the several counties of this state shall be clerks of the Supreme Court, with such powers and duties as shall be prescribed by law. The clerk of the Court of Appeals is also ex officio clerk of the Supreme Court. The legislature in pursuance of this direction of the constitution passed an act in 1847, known as " an act in relation to the judiciary, "(2) the 69th section of which provided that the office of clerk of the (then) present Supreme Court (except that of the clerk to reside at Albany) should be abohshed from and after the first Monday of July, 1847, and that within twenty days thereafter, all the clerks of the (then) present Supreme Court should deliver all property, books of every kind, records, dockets, documents, and papers, deposited in or belonging to their re- spective offices, to the clerk of the Court of Appeals. The 65th section of the same act provides that the clerks of the several counties, includ- ing the city and county of New York, by virtue of their offices, shall be clerks of the circuit courts, courts of oyer and terminer, and, except in the city and county of New York, of the county courts and courts of session within their respective counties : and all laws relative to the duties of the clerks of the present Supreme Court and circuit courts, courts of oyer and terminer, general sessions of the peace, and common pleas of their respective counties, so far as the same are consistent with the constitution and the provisions of the said act, shall apply to them as clerks of the Supreme Court, circuit courts, courts of oyer and terminer, county courts and courts of sessions in their respective coun- ties. The clerks of the several counties are elected by the electors of their respective counties, and hold their offices for three years, (3) but may be removed by the governor ; a copy of the charge against him must be given and an opportunity of being heard in his defence, before any removal can be made.(4) Deputy clerks:] Each of the clerks of the several counties is required to appoint a deputy by writing under his hand and seal, to be recorded in his office, to hold his office during the pleasure of the clerk, and as often as such deputy shall die, resign, or be removed from office, or remove out of the county, or become incapable of executing the duties of the office, another shall be appointed in his place.(5) Every such (1) Art. 6, sec. 19. (2) Laws 1847, chap. 280. (3) 1 Rev. Stat. 112, sec. 4t. (4) 1 R. S. 123, sec. 4. (5) 1 Rev. Stat. 376, sec. 56. THE CLERKS. 41 deputy, sliall before lie enters on tlie duties of his office, take tlie oatli of office prescribed by the constitution of this state.(l) And whenever the county clerk shall be absent from the county, (2) or from his office, (3) or by reason of sickness or any other cause, shall be incapable of per- forming the duties of his office, his deputy may perform all the duties appertaining to the office of the clerk of the county, except that of deciding upon the sufficiency of sureties for any officer.(4) And when- ever the office of any county clerk shall become vacant, his deputy shall perform all the duties, and be entitled to all the emoluments, and be subject to all the penalties appertaining to the office of the clerk of the county, until a new clerk shall be elected [or a2opointed](5) for such county, and duly sworn. Disabilities of clerks and deputies.'] It is provided by statute that no clerk or deputy clerk of this court, shall during his continuance in office practice in this court as an attorney or counsellor.(6) Duties of the clerks.'] The general duties of the clerks, (when acting as clerks of this court,) as the term imports, is to file all papers which are legally entitled to be filed, and have and retain the custody of the records of the court. This duty they are of course to perform, subject to the control of the court itself It is also a part of the general duty of the clerks to seal all process, which is required by the practice, to issue out of the court, and when required to certify or exemplify its rules, orders, judgments, or other proceedings. It is likewise their duty to keep the minutes of the court. For this purpose the clerks of the several counties must attend each general and special term and circuit court, held in their respective counties, and officiate as clerk ; prepare all calendar of causes, enter all rules, and order and file all papers, ap- pertaining to the business of the court. Besides these general duties, there are a great variety of incidental duties cast upon the clerks by statute, as well as by the rules and practice of the court; such as the examination of the papers of applicants for admission as attornej^s and counsellors, assessing damages on judgments upon failure to answer, adjustment of costs and disbursements and entry of judgments. In most of the counties, the clerks are compensated by fees for the various services they are required to perform. In some of the counties, however, the clerks are paid a stated salary, and the fees received by them are paid into the treasury of their respective counties. (1) 1 R. S. 376, sec. 57. (2) Ibid, sec. 58. (3) Laws 1831, chap. 279, sec. 1. (4) 1 R. S. 376, sec. 58. (5) Laws 1830, chap. 320, sec. 4. (6) 1 R. S. 109, sec. 26. Vol. I. 6 ^2 THE CRIERS. Office hours:] The clerks are required to keep tkeir offices open for the transaction of business every day in the year, except Sundays and the fourth of July, in the city of New York, from 9 o'clock in the forenoon to 4 o'clock in the afternoon, and in all other parts of the state, from 9 to 12 o'clock, in the forenoon, and from 2 to 5 o'clock in the aflernoon.(l) They may, of course, keep them open at other hours ; but no paper can be filed, or rule entered, after the legal hour for closing of the office, on one day, from which any advantage in point of priority is to accrue to the party taking such step, so as to have such effect, until 9 o'clock of the following day.(2) Seal] Every county clerk is required to procure and keep a seal, on which shall be engraved the name of the county of which he is clerk, and the word " seal," which seal shall be the seal of the Supreme Court, in said county and the seal of the circuit court and the court of oyer and terminer, and, except in the city and county of New York, of the city court in said county. SECTION IV. THE CRIERS. The office of crier as it heretofore existed was abolished by the judi- ciary act, (3) and it is now made the duty of every sheriff, deputy sheriff, and constable, attending any court in this state, when the services of a crier shall be required, to act as such crier, and no fees or compensation shall hereafter be allowed to any officer or other person for acting as crier of any court in this state. In most of the counties, therefore, the sheriff or one of his deputies, or a constable in attendance at the court, now acts as crier ; but at some of the courts a constable has been spe- cially designated by his sheriff to act as crier at all the terms, and more particularly at the general terms, which are not usually attended by the sheriff in person. It is the duty of these officers, to make proclamation at the open- ing and adjournment of the court, on each day of its session, and to call parties on recognizances, attachments, and the like. For this purpose they are required to attend the general and special terms of the court, (1) Laws 1830, p. 396, sec. 29, 2 R. S. 285, sec. 54. (2) Warden v. Mason, 10 Wend. 5T3. (3) Laws 1847, p. 336, sec. 69; Ibid. 646, sec. 42. THE REPORTER. 43 and circuit courts, and courts of oyer and terminer, at the places -where thej respectively reside : in addition to which, the crier at Albany is required to attend the special terms there held, and the crier at New York is required to attend the sittings authorized to be held in the city of New York, by the judges of the first circuit, for the disposal of non-enumerated business in that city. There is also a crier for each of the circuit courts in the state. These officers were formerly compensated by fees for specific services rendered, or supposed to be rendered by them. They are now, how- ever paid as constables and receive for their services each the sum of one dollar and fifty cents for each day, during their attendance upon the court, to be certified by the clerk of the court, and to be paid by the treasurer of the county, or the chamberlain of the city, in which such court shall be held, on the production of the certificate of the clerk, specifying the number of days such constable shall have attended. SECTION V. THE REPORTER. The office of reporter of the Supreme Court was first created by an act passed April 7, 1804, for five years,(l) and was continued for five years, by an act passed in 1809,(2) and subsequently continued without limit as to its duration, by an act, providing that it should and might be lawful for the justices of the said court, from time to time, to appoint, by hcence, under the hand and seal of the chief justice of the said court, during the pleasure of the said court, a person as a reporter of the said court, whose duty it should be to report the cases decided by them and the court for the trial of impeachments and the correction of errors, or such thereof as might be deemed important to be reported, and to cause the same to be printed and published, as soon as conveniently might be, after the expiration of each term.(3) In 1814, it was made his additional duty, from time to time, to report and publish such de- cisions of the court of chancery, as the chancellor of this state should deem of sufficient importance to be rej)orted and published.(4) In 1823, the mode of the appointment of this officer was changed by statute, which, leaving his duties as they stood, directed that he should (1) 3 Webst. & Skin. 462. (2) 5 Webst. & Skin. 494. (3) 1 R. L. of 1813, p. 320, sec. 9. ' (4) Laws of 1814, p. 224, ch. 193. 44 THE REPORTER. be appointed by tbe president of tlie senate, the cliancellor and cHief justice, and hold his office during their pleasure.(l) In 1825 the legis- lature divided the office by providing for the appointment by the chan- cellor, of a reporter of the decisions of the court of chancery leaving the reporter of the Supreme Court and the court for the correction of errors a separate and independent officer. (2) By the revised statutes, these officers were continued ; it being pro- vided, that, in the class of judicial officers, there should be a reporter of the decisions of the Supreme Court, and of the decisions of the court for the trial of impeachments and the correction of errors, to be denominated the " state rej)orter ;" and a reporter of the decisions of the court of chancery, to be denominated the " chancery re- porter ;"(3) that the state reporter should be appointed by the lieuten- ant governor, the chancellor and chief justice, and hold his office during their pleasure; and the reporter in chancery should be ap- pointed by, and hold his office during the pleasure of, the chancel- lor ;(4) and that no person should be appointed a reporter, who should not be, at the time of his appointment, a counsellor at law or in chan- cery, of at least five years standing.(5) The revised statutes also fixed the salaries of these officers at five hundred dollars each, per. annum. (6) The duties of the state reporter were not defined by any existing statute, but continued the same as formerly ; in addition to which, it was made his duty, at his own expense, to deliver one copy, bound in leather, of each successive volume of the reports published by him, to the several clerks of the Supreme Court, and to the register and assistant register of the court of chancery, for the use of those courts ; and also to the secretary of state, so many copies as shall be suffi- cient to supply the several courts of common pleas in this state, with one copy each. (7) The reports of the Supreme Court were commenced, before the passage of the act of 1804, by Mr. Gohinan, in the publication of cases of practice only, commencing in July term, 1794, and ending in October term, 1800 ; the second edition of which, known as Coleman & Caines' Cases, was published in 1808, with the addition of cases of prac- tice, decided from May term, 1803, to November term, 1805, and which were also subsequently published in the reports of Mr. Caines. Mr. Caines then commenced the series of the reports of the Supreme Court, with the cases of May term, 1803 ; and soon after his thus undertaking the enterprise, the act of 1804 was passed, and he was ap- (1) Laws of 1823, p. 209, sec. 3. (3) 1 R. S. 97. (5) 1 R. S. 108, sec. 19. (T) 2 R. S. 198, sec. 18. (2) Laws of 1825, p. 385, ch. 2G3. (4) 1 R. S. 108, sec. 18. (G) 1 R. S. 191, sec. 5, subd, 10. THE REPORTER. 45 pointed reporter. In this capacity, lie continued the reports, and pub- lislied three volumes, bringing the cases down, in regular order, to November term, 1805. He also published two volumes of cases in the court for the correction of errors, — known as Games' Cases in Error ^ — commencing in February, 1801, and extending to February, 1805 ; of which he remarks, in his preface to the second edition of his reports^ that "the cases reported in 2 Games' Gases in Err or ^ were given to him by Mr. Goleman^ on his quitting the bar, and had been furnished to him by the bench, with a view to their being printed. Most of them have been since published in Mr. Johnson'' s Gases; those which were misreported, correctly ; the matter of the others, either a little added to, or the phraseology a little varied."(l) On the retirement of Mr. Gaines, Mr. Johnson became reporter, and commenced his series of reports with the cases of February term, 1806, and published twenty volumes of reports, terminating with the judi- ciary under the old constitution, — in the Supreme Court, in January term, 1823, — and in the court for the correction of errors, in February, 1823. Immediately after his appointment, also, Mr. Johnson collected the decisions of the Supreme Court and the court for the correction of errors, from January term, 1799, to January term, 1803 — bringing them down, in regular order, to the commencement of Mr, Gaines^ re- ports—and published them in three volumes, known as Johnson's Cases. The late Mr. Justice Coiven w^as appointed reporter, on the retire- ment of Mr. Johnson, and commenced his reports, on the organization of the Supreme Court, under the new constitution, with the cases of May term, 1823, which he continued in nine volumes, to and including May term, 1828, when he retired from the of&ce ; though, in his ninth volume, there are many cases, decided in August, 1828. The series was then continued by Mr. Wendell, in twenty-six volmnes, extending from May term, 1828, to and including October term, 1840. Mr. Hill was then appointed reporter, whose series commences in January term, 1840, comprising some of the cases decided during the latter portion of Mr. WendelVs term, and terminating with the cases of January term, 1845, embracing seven volumes. Upon the retirement of Mr. Hill, Mr. Denio was appointed reporter ; his reports commencing with the cases of May term, 1845, and com- pleted in five volumes. In addition to the regular series of reports, Mr. Howard has under- (1) 2 Caines' Rep. Pref. vi. 4g SHERIFFS AND CORONERS. taken tlie publication of reports of cases decided at the special terms, commencing with the October, special term, 1844. Upon the adoption of the constitution of 1846, the ofl&ce of reporter of the Supreme Court was abohshed, and, as we have seen,(l) provi- sion only made for the appointment of a state reporter, whose daty is confined to reporting the decisions of the Court of Appeals. Since that time, however, the cases decided in the several judicial districts of the state, have been with great regularity and punctuality reported and published by private enterprise. Mr. Barbour, who succeeded Mr. Paige as reporter for the court of chancery, immediately upon the or- ganization of the Supreme Court under the new constitution, com- menced their decisions, and has already issued ten volumes. He re- ceives no salary, but is compensated, or supposed to be, for his services by the sale of his books. The reports of the Supreme Court and the court for the correction of errors of this state, thus consist of eighty-five volumes, embracing the discussion of a greater variety of principles than those of any other state in the union, resulting from the diversified nature of the pursuits, character and enterprise of the population of this state — and presenting a body of legal learning, of which it is not too much to say, the bench, — the bar — and the people of this state may be justly proud. SECTION VI. SHERIFFS AjSTD COROXERS. The sheriffs of the different counties of this state are regarded as officers of the superior courts of law in the state, — namely, the Supreme Court, county and mayors' courts, and the common pleas and the su- perior court of the city of New York, — inasmuch as all process issuing out of those courts, is required by law to be directed to them, except- ing in cases which will hereafter be noticed. Thus, on orders of arrest, they are to execute the order, and to arrest and take bail from the party, as the nature of the order may require ; — when the cause comes to trial on an issue of fact, they are to summon a jury ; — on a judg- ment for want of an answer, they are, in certain cases, to ascertain the damages, through the intervention of a jury, on a writ of inquiry ; — (1) Ante, p. 2. SHERIFFS AND CORONERS. 47 and when the cause is determined, tliey must execute the judgment of the court. Beyond these general duties, appertaining to civil cases only, coupled with those, which, as an immediate officer of the court, he is bound to perform, in attending upon the court itself — embracing a very small portion of the duties devolved by law upon those officers, — it is not within the scope of the present treatise to inquire. Nor is it, for the present purpose, necessary to go beyond an examination of the general incidents of the office as connected with these duties ; it being de- signed to leave the discussion of such of their minor details as fall within the practice of the court, for consideration, under their appro- priate heads in the course of the work. The coroners are, in like manner, officers of the court, inasmuch as they are required, in certain cases, which will be referred to hereafter, to execute its process. They have therefore, by reason of the simi- larity of their duties, been coupled in the present section, with sheriifs; and the general duties and incidents of both these classes of officers, so far as they appertain to the court, will therefore be considered under the following heads : 1. Election or appointment of sheriffs^ — their qualifications, — duration of their office^ — and how rer)ioved. 2. Tinder and deputy sheriffs. 3. Duties of sheriffs. 4. Powers and duties of under and deputy sheriffs, — and liability of the sheriff] for their acts. 5. Disabilities of sheriffs and their deputies. 6. Actions against sheriffs. 7. Proceedings on the official bonds of sheriffs. 8. Coroners^ — their office^ — andpoioers and duties relating to process. 9. Process, — how directed and executed, where both sheriff and coroner are parties. 1. Election or appointment of sheriffs, — their qualifications, — duration of their office, — and how removed. Election of sheriffs.'] It is provided by the constitution of this state, that sheriffs shall be chosen by the electors of the respective counties, once in every three years, and as often as vacancies shall happen ; that they shall hold no other office, and be ineligible for the next three years after the termination of their offices; — that they may be re- quired by law to renew their security, from time to time, and, that, in default of their giving such new security, their offices shall be deemed vacant ; that the county shall never be made responsible for 48 SHERIFFS— THEIR ELECTION— QUALIFICATIONS— tlie acts of the slieriff ; and that the governor may remove any such sheriff, at any time within the three years for which he shall be elected, giving to such sheriff a copy of the charges against him, and an oppor- tunity of being heard in his defence, before any removal shall be made.(l) Under the first clause of this section in the late constitution, and of which this is identical, it has been held, that even where a sheriff has been elected to supply a vacancy, he holds his ofiice for three years.(2) Their official honds?^ Under that branch of the section, which relates to the renewal of bonds, (clearly recognizing, though it does not ex- pressly create the obligation to give bonds on their first appointment,) it has been provided, by statute, that every person hereafter elected to the office of sheriff of any county within this state, shall, within twenty days after he shall receive notice of his election, and before he shall enter upon the execution of the duties of his ofiice, execute, with sure- ties, who shall be freeholders, a joint and several bond to the people of this state, conditioned, (the form being given in the act,) well and faith- fully in all things, to perform and execute the ofiice of such sheriff during his continuance in the said office, by virtue of the said election, without fraud, deceit or oppression ;(3) and that the bond to be execut- ed by the sheriff of the city and county of New York, shall be in the penal sum of twenty thousand dollars, with two sureties ; and the bond to be executed by the sheriff of every other county in this state, shall be in the penal sum of ten thousand dollars, with two or more sureties.(4) Every such bond shall be filed in the clerk's office of the county for which the sheriff executing it shall have been elected ; and the clerk shall, at the time of filing the same, administer an oath to each of the sureties therein, that he is a freeholder within this state, and worth, if in the city and county of New-York, the sum of twenty thous- and dollars, and if in any other count}^, such sum as shall be proportion- ate to the number of sureties bound in such bond, and to the amount of the bond required in such county, over and above all debts whatso- ever, owing by him ; which oath shall be endorsed on the bond, and subscribed by each of the sureties, in the presence of the clerk, who shall, notwithstanding, judge and determine the competency of such sureties.(5) The sheriff must also take and subscribe the oath of office, and deposit it in the county clerk's office, within fifteen days after (1) Const, art. 10, sec. 1. (2) Tlie People v. dxen, 2 Wend. 2T2 ; Tlie People v. Coutant, 11 Wend. 132 ; Coutant v. The People, 11 Wend. 511. (3) 1 R. S. 378, sec. 67. (4) Ibid. sec. 68. (5) 1 R. S. 379, sec. G9. DURATION OF OFFICE, AND REMOYAL. 49 he shall be notified of his election, or within fifteen days after the com- mencement of his term of office. (1) Under these several provisions, it has been held, that a sheriff does not lose his oflSice, by neglecting to give his official bond within twenty days after receiving notice of his election, provided he execute and file it within fifteen days after the commencement of his term of office ; the provision, that he shall file the bond within twenty days after notice of his election, being regarded by the court as directory merely.(2) Superseding of former sheriffs and its incidents^ It is moreover pro- vided by statute, that when any new sheriff shall be elected or appoint- ed, in the place of any other, or upon the expiration of the term of any sheriff's office, and shall have qualified and given the security re- quired by law, the clerk of the county shall grant a certificate, under his official seal, that the person so appointed or elected has qualified and given such security.(3) And upon the service of such certificate on the former sheriff, his powers, as such sheriff, except when other- wise expressly provided by law,shall ceasc.(4:) Under these provisions, it has been held, that a sheriff, although his term of office has expired, is authorized to act as such, until served with a certificate of the clerk of the county, that his successor has quahfied and given security.(5) "Within ten days after the service of such certificate, upon such for- mer sheriff, he shall deliver to his successor, 1. The jail or jails, if there be more than one, of the county, with all their appurtenances, and the property of the county therein : 2. All the prisoners then confined in such jail. 3. All process, orders, rules, .commitments, and all other papers or documents, in his custody, authorizing or relating to the confinement of such prisoners; and if any such process shall have been returned, a statement in writing of the contents, thereof, and when returned : 4. Ail writs of capias ad respondendiim and other mes7ie process, and all precepts and other documents, for the summon- ing of a gi-and or a petit jury, then in his hands, which shall not have been fully executed by him : 5. All executions, attachments and final process, then in his hands, except such as the former sheriff shall have executed, or shall have begun to execute, by the collection of money thereon, or by a levy on property, in pursuance thereof. (6) At the time of such delivery, the said former slieriff shall execute an instrument, reciting the property, process, documents and prisoners de- livered, specifying particularly, the process or other authority, by which (1) 1 R. S. 119, sec. 21 ; Ibid. 120, sec. 24, subd. 6. (2) Tlie Peoples. Holley, 12 Wend. 481; Rail v. Luther, 13 Wend. 491. (3) 2 R. S. 438, sec. 67. (4) Ibid. sec. 68. (5) Curtis v. EimhaU, 12 Wend (6) 2 R. S. 438, sec. 69. Vol. I. 7 60 SHERIFFS— THEIR ELECTION— QUALIFICATIONS— eacli prisoner was committed and is detained, and whetlier the same be returned, or delivered to sucli new sheriff; which instrument shall be delivered to such new sheriff, who shall acknowledge, in writing, upon a duplicate thereof, the receipt of the property, j)rocess, documents and prisoners therein specified, and shall deliver such duplicate and ac- knowledgment to the said former sheriff.(l) The provisions of these last two sections have altered the law, as it existed before the adoption of the revised statutes. Formerly a writ of discharge was delivered to the old sheriff, commanding him, that, by indenture, he deliver to his successor, " the county, with the appurte- nances, together with the rolls, writs, memorandums, and all other things touching that office which are in his custody;" and thereupon the office of the old sheriff was at an end.(2) Notwithstanding the im- perative language of the writ, it was held, that the right of the old sheriff to turn over his prisoners on civil executions, to his successor, was for his own safety and security ; that the rule was introduced for his benefit, and he might, if he pleased, waive the advantage of it ; and, accordingly, that the old sheriff was not chargeable with an escape, when, on going out of office, he had, by mistake, neglected to asssign to his successor, one of the prisoners on the jail limits; but that the prisoner still remained in his custody ; on the principle, that when the sheriff has commenced the execution of final process, he might complete it after his office was at an end.(3) In a case, however, arising under the provisions just quoted, it was decided that a prisoner on the jail limits, who had not been assigned to the new sheriff, was not in the custody of the new sheriff, and consequently that he was not chargeable for an escape of the prisoner, although it happened in his time ; but that the remedy of the creditor was against the old sheriff, who could not plead his failure to perform his duty, as an excuse ; and in this case, Savage^ Ch. J. expressed the opinion, that the turning over of prison- ers was no longer a privilege, which the old sheriff could waive, but that it was now his duty to assign them. (4) And in a still later case, it was held, that on the election or appointment of a new sheriff, and the service of a certificate of the county clerk, that the new sherift" has qualified and given the security rec|uired by law, the powers of the old sheriff cease, at the expiration of ten days after the service of such cer- tificate ; and all prisoners who are not assigned within that term, are at liberty to go at large ; that the new sheriff has no control over them, and the powers of the old sheriff are at an end ; and that the latter can- not, in such case, even maintain an action on a bond for the hmits, given by a j^risoner not assigned.(5) (1) 2 R. S. 439, sec. 10. (2) 1 R. L. of 1813, p. 418, sec. 1, 4, 5. (3) Hempstead v. Weed, 20 .lobns. 64. (4) Partridge v. Westervelt, 13 Wend. 500. (5) Hinds v. Doubkday, 21 Wend. 223. DURATION OF OFFICE AND REMOVAL. 51 As to tlie form of tlie assignment of prisoners, it was lield, where an indenture of assignment from the old to the new sheriff, specified a suit, by the title of A. B. & Go. v. G, that this was sufiiciently certain, with • out giving the names of all the plaintiffs at large ; it was a sufficient notice to the new sheriff, of the execution against the prisoner,(l) It is further provided, by statute, that notwithstanding the election or appointment of a new sheriff, the former sheriff shall return, in his own name, all process, all attachments, and all executions which he shall have fully executed, and shall proceed and complete the execu- tion of all final process and attachments, which he shall have begun to execute, by a collection of money thereon, or by levy on property in pursuance thereof (2) This section, it will be observed, so far as exe- cutions are concerned, relates to executions against property only, and not to those against iho, person ;(3) and under it, it has been held, where a re-sale of land to satisfy an execution, was had, after a redemption by the debtor on an original sale for less than the judgment, that it was lawfully made by the sheriff who received the execution in the first instance, though he had gone out of of&ce before the debtor re- deemed.(4) It has been held, also, that where the plaintiff, in a suit commenced against a foreign corporation by attachment, obtaiils judg- ment, inasmuch as his lien dates from the time the property was at- tached, and not merely from the rendition of the judgment, the execution on such judgment must be directed to, and executed by, the sheriff who served the attachment, notwithstanding he has since gone out of oflELce.(5) When a sheriff shall have arrested any person, upon an order of arrest, by virtue of which such person shall be confined either in jail or on the liberties thereof, at the time of assigning and delivering such jail to the new sheriif, if such order be not then returnable, the same shall be delivered to the new sheriff, and shall be returned by him, at the return day thereof, with the proceedings of the former and of the new sheriff thereon. (6) If any former sheriff shall neglect or refuse to deliver to his suc- cessor, the jail, process, documents and prisoners in his charge, as above required, such successor may, notwithstanding, take possession of such jail, and take the custody of the prisoners therein confined, and may compel the delivery of such process and documents, in the man- (1) Tallniadge v. Richmond, 9 Johns. 85. (2) 2 R. S 439, sec. 71. (3) Hinds V. Doubkday, 21 Wend. 227. (4) Wood v. Colvin, 5 Hill, 228. (5) TJie American Exchange Bank v. Tlie Morris Canal and Banking Company, 6 Hill, 362, 367, 368. (6) 2 R. S. 439, sec. 72 ; see also, Richards v. Porter, 7 Johns. 137. 52 SHERIFFS— THEIR ELECTION— QUALIFICATIONS— ner prescribed in the revised statutes,(l) providing for the compulsory delivery of books and papers by public officers to their successors.(2) If, at the time when any new sheriff shall have qualified and given the security required by law, the office of the former sheriff shall have been executed by his under sheriff, or by a coroner of the county, or by any other person especially authorized for that purpose, such under sheriff, coroner or other person shall, in all things comply with the preceding provisions, and shall perform the duties required of such former sheriff. (3) How removed^ and proceedings tliereforT^ As to the removal of sheriffs, by the governor, under the constitutional provision above referred to, (4) and to carry the same into effect, the revised statutes have pro- vided, that the governor may remove the sheriff of any county, at any time within the term, for which he shall have been elected, giving such officer a copy of the charge against him, and an opportunity of being heard in his defence, before any removal shall be made.(5) The gov- ernor may direct the district attorney of the county in which such officer shall be, to conduct an inquiry into the truth of the charges made ; *who shall give at least eight days' notice to the officer accused, of the time and place when he will proceed to the examination of wit- nesses, before some judge of the county courts. (6) The district attor- ney may issue process of subpoena, in his own name, and with the like effect, as in cases of complaints before grand juries, to compel the at- tendance of any witness whom he shall deem material, before the county judge ; and such judge shall have the same power to enforce obedience to such subpoenas, by attachment, and to commit any person who shall refuse to be sworn or to answer, as the court of common pleas would have in a civil cause pending therein. (7) On the applica- tion of the officer accused, to the district attorney, or to any justice of the peace, he shall be entitled to the like process of subpoena, which may be enforced in the same manner, by the judge before whom the inquiry shall be conducted.(8) At the time and place specified in such notice, the county judge, before whom the inquiry shall be conducted, shall proceed to take the testimony of the witnesses ]3roduced before him, by the district attorney or by the accused officer ; the witnesses shall be sworn by such judge; every answer given by them to any question, which either party shall require to be reduced to writing, shall be "^Titten; their testimony (1) 1 R. S. 124-126. (2) R. S. 439, sec. T3. (3) 2 R. S. 439, sec. 74. (4) Ante, 48. (5) 1 R. S. 123, sec. 44. (6) 1 R. S. 123, sec. 45. (7) Ibid. sec. 46. (8) 1 R S. 124, sec. 47. DURATION OF OFFICE, AND REMOVAL. 5g shall be read to and subscribed by tliem, and sliall be certified by tbe judge taking the same, and delivered to the district attorney, to be by liim transmitted to the governor.(l) Appointment^ to fill vacancy^ It was also provided by the revised statutes, that in every case where a vacancy should occur in the office of sheriff, except where such v icancy shall arise from the death of the incumbent, (but which, by a subsequent statute, has been also ex- tended to vacancies arising from the death of the incumbent, excepting that this latter provision shall not affect the power of sheriffs to ap- point under sheriffs or deputies, nor the powers of such under sheriffs or deputies, as now declared by law,)(2) the governor shall appoint some fit person, who was eligible to the office, to execute the duties thereof, until it shall be supplied by an election. The person so ap- pointed, after taking the oath of office, and executing a bond, shall possess all the rights and powers of the officer so removed. (3) It is further provided, by statute, that whenever the sheriff of any county shall be committed to the custody of any other sheriff, or to the custody of any coroner or coroners, by virtue of any execution or attachment, founded on the non-payment of moneys received by him by virtue of his office, and shall remain so committed, for the space of thirty days successively, such facts shall be represented to the gover- nor, by the officer in whose custody such sheriff may be, to the end that such sheriff may be removed from office. (4) "Where a sheriff elected by the people is removed, and a person ap- pointed to discharge the duties of the office, pursuant to the provisions just cited, the governor may, at any time before a new sheriff is elected, remove the person so appointed, though no charges are pre- ferred against him, (the removal upon charges being confined to offi- cers elected by the people,) and appoint another in his place.(5) Office^ how filled^ ivliere new counties are created.'] Another act, which has the effect, sub onodo, of removing the sheriff as well as all other county officers, is the erection of new counties, under the authority contained in the constitution, virtually conferring upon the legislatm-e the power to do so.(6) By the exercise of this power, the office of the sheriff and of the other county officers, becomes vacant, as to the (1) 1 R. S. 124, sec. 48. (2) Laws of 1830, p. 64, sec. 2, 3; 1 R. S. 2ded. 114, sec. 53, 54. (3) 1 R. S. 124, sec. 49. (4) 1 R. S. 380, sec. 77. (5) The People v. Parker, 6 Hill, 49; see 1 R. S. 122, sec. 38. (6) Const, art. 3, sec. 5. 54 UNDER AND DEPUTY SHERIFFS. portion taken from tlie original county, unless the legislature should, as it seems they may, continue the office for a time.(l) And it is therefore provided by statute, that the sheriffs, clerks, and coroners, first chosen in every county that may hereafter be erected, shall be elected at the general election, next succeeding the erection of the county, or at such other time as the legislature shall direct.(2) It is usual for the legislature, in acts creating new counties, to fix an early day for the election of county officers, and to provide, that until the new officers can be chosen and qualified, the officers of the old county shall continue to act. This was done in the act passed to divide the county of Genesee, and to erect, from a portion of it, the county of "Wyoming ; by which it was provided that the election for county officers of the new county, should be held on the third Tuesday of June, next after the passage of the act ; they to hold their offices for the same term as if they had been chosen at the last preceding general election, (3) and, in the meantime, that the existing county officers of Genesee should continue to' exercise the daties of their offices, in both counties, until the nineteenth of June then next, inclusive.(-i) 2. Under and deputy sheriffs. Appointment of under sheriffs and their powers and duties.'] It is pro- vided by statute, that the sheriff of each county in this state, shall, as soon as may be, after he takes upon himself the execution of his office, appoint some proper person under sheriff" of the same county, to hold during the pleasure of such sheriff; and as often as a vacancy shall occur in the office of such under sheriff, or he become incapable of exe- cuting the same, another shall in like manner be appointed in his place.(5) The under sheriff', so appointed, must of course reside in the county ;(6) and his removal therefrom is a virtual resignation of his office, which disqualifies him from even completing an execution begun by him previously to his removal. (7) While the sheriff is in the exercise of his office, the under sheriff has no more power than any other general deputy.(8) But whenever a vacancy shall occur in the office of sheriff of any county, the under sheriff of such county shall, in all things, execute the office of sheriff of the county, until a sheriff shall be elected or appointed, and duly qualified ; and any default or misfeasance in office, of such under sheriff, in the meantime, as well as before, shall be deemed to be a breach of (1) Tlie Peoph v. Morrell, 21 Wend. 579-582. (2) 1 R. S. 113, sec. 50. (3) Laws of 1841, p. 172, sec. 15. (4) Laws of 1841, p. 170, sec. 5. (5) Ferguson v. Lee, 9 "Wend. 258. (6) TilMson v. Cheetham, 2 John. 63, 73. (7) 1 R. S. 379, sec. 71. (8) 1 R. S. 122, sec. 34, subd. 4. UNDER AND DEPUTY SHERIFFS. 55 the condition of the bond given by the slicriff who appointed him, and also a breach of the condition of the bond executed by such under sheriff to the sheriff by whom he was appointed.(l) Under this pro- vision, coupled with those before considered, authorizing the governor to appoint a person to perform the duties of the ofl&ce, during the exist- ence of a vacancy in the office itself, occasioned whether by death or otherwise, (2) it seems, that the authority of an under sheriff, who dis- charges the duties of the office, during such vacancy, ceases, on the appointment, by the governor, of another person, to execute the duties of the office until the vacancy in the office of sheriff be supplied by an election.(3) Deputy sheriffs.'] It is also provided by statute, that every sheriff may appoint such and so many deputies, as he may think proper ; and persons may also be deputed by any sheriff or under sheriff, by an in- strument in writing, to do particular acts.(4) The deputy spoken of in the last clause of the section just cited, is known as a special deputy ; and he is, moreover, distinguished from a general deputy, in this, that, as will presently be seen, the latter may execute all the ministerial duties of the sheriff, while the former can perform only the particular service for which he is deputed. The latter, also, becomes, by his ap- pointment, a public officer, and need not, in any case, exhibit his au- thority to act ; while the former is bound to show his warrant if reques- ted to do so ; and if he omit, the party, against whom the warrant is directed, may resist an arrest ; and the warrant, under such circum- stances, is no protection against an action for an assault and battery and false imprisonment. (5) Form of ajjpomtment.] Every appointment of an under sheriff, or of a deputy sheriff, shall be in writing, imder the hand and seal of the sheriff", and shall be filed and recorded in the office of the clerk of the county ; and every such under sheriff or deputy sheriff shall, before he enters on the execution of the duties of his office, take the oath of office prescribed in the constitution. But this section shall not extend to any person, who may be deputed by any sheriff" or under sheriff, to do a particular act only.(6) Dejmties of the under sheriffs when he becomes sheriff.'] Where the office of sheriff devolves upon his under sheriff, by the death, resignation, or removal of the sheriff, the general deputies of the sheriff are not autho- (1) 1 R. S. 379, sect. 12. (2) Ante, 53. (3) The People v. Fisher, 24 "Wend. 215. (4) 1 R. S. 310, sec. 13. (5) Frost V. Thomas, 24 "Wend. 418. (6) 1 R. S. 319, sec. 1 4 ; Himt v. Burrel, 5 .Johns. Ul. 56 DUTIES OP SHEEIFFS. rized to discliarge the duties of general deputies of tlie under slierii% upon whom the office has thus devolved, without a new appointment from him. And such new appointment must be in writing, and must be recorded in the office of the county clerk ; and the deputy must take the oath of ofl&ce, in the same manner as upon his original appointment by the sheriff. And when the office of sheriff devolves upon the under sheriff, and such under sheriff is in the discharge of the duties of the ofl&ce, a deputy, de facto^ of the former sheriff, cannot, as such, do any official act which would be valid as to third persons. To make the acts of a deputy sheriff, de facto valid, as to third persons, it must ap- pear, that he was in fact in the exercise of deputy to the then sheriff*, and who was exercising the office of such sheriff. But where the office . of sheriff devolves upon the under sheriff, and the general deputies of the former sheriff continue to act as the deputies of such under sheriff, and with his knowledge and assent, but without a new appointment, it seems they will be considered as deputies de facto of such under sheriff, so as to make their acts, as such deputies valid as to third persons. In such a case, a parol appointment by the under sheriff may be inferred, so as to constitute them deputies, de facto^ of such under sheriff,(l) 3. Duties of Sheriffs. The duties of a sheriff are twofold — first^ such as he is required to perform in executing the process of the court ; and second, such as are incident to his oflfice as a general ofl&cer of the court itself. Duties in executing the process of the couji.l These will, at present, be very cursorily noticed ; their particular examination being reserved for the various heads of the practice to which they appropriately belong, and which will be discussed in the course of the work, "With the ex- ception of cases in which the sheriff himself is a party, (2) all executions against persons or property, all orders of arrest, orders for the delivery of personal property, warrants of attachment, and generally all orders in the nature of process, must be directed to the sheriff of the proper county. In performing these duties, it is incumbent on him to use every degree of diligence to render the service effectual. Where the order, attachment, &c,, is regular on its face, he must execute it, not- withstanding any latent irregularity in the proceedings on which it is based. He must do so, without collusion, and in such a manner as not unnecessarily to oppress the party. If the paper be an order to arrest the person, he must take bail for the appearance of the party ; if it be an execution against the person and it be offered, he must take bail for the (1) Boardman v. Hallklay, 10 Taige, 223, (2) 2 R. S. 4.11—443, DUTIES OF SHERIFFS. 57 liberties of the jail. In taking sucli bail, be must exercise a sound discretion, and must not oppress tbe party, by refusing sufiicient bail. Being constituted, by law, the keeper of the jail of his county,(l) he must, if no sufficient bail be offered, arrest the party and detain him, until he be legally discharged. If the execution be against property, — while, on the one hand, he is bound to exert the utmost diligence, he is not, on the other, permitted wantonly or oppressively, to sacrifice the property of a party. He should take all necessary and lawful measures, to secure the sum he is directed to levy ; but as to the time, place, and manner of sale, he is vested with a sound discretion ; and although the law will make the most liberal intendment, in favor of its ministerial officers, it will not permit them to resort to extreme measures, when the legitimate objects, which it is their duty to effect, can be accom- plished by milder means.(2) He is also bound promptly to return all writs according to their command, and when he has collected money, immediately to pay it over to the party for whom it has been collected. And for an omission or violation of duty, in any of these respects, he is, as will be seen hereafter, amenable to the party injured, by the in- terposition of the summary authority of the court, as well as by action. For the performance of all these duties, he is held to the most rigid responsibility. In the case of process against the property of a party, he is not liable for any loss caused by theft, robbery, fire or other acci- dent, unless it be connected with his own negligence, or that of others entrusted by him with their custody ;(3) but in the case of process against the person, nothing but the act of God or the enemies of the country, will excuse him for a failure safely to keep a party Avho has been taken into his custody.(4) He is, at common law, ex officio, a conservator of the peace ; and it is not only his right, but his duty, to arrest all persons, with their abettors, who oppose the execution of process. He may take the power of the county, if necessary, after resistance, to execute process ; and every man is bound to be aiding and assisting, upon order or summons, in preserving the peace, appre- hending offenders, and enforcing the due execution of legal process, and is punishable if he refuse. And where a sheriff is endeavoring to make an arrest, or preserve the peace, and has commanded others to assist him, he is, although absent in some other place, if such absence be for the purpose of furthering the design, to be deemed constructively present, so as to justify his assistants. (5) (1) 1 R. S. 380, sec. tS. (2) M' Donald v. Neilson, 2 Cowen, 139. (3) Browning v. Hanford, 5 Hill, 588. (4) Fairchild v. Case, 24 "Wend. 381 ; Browning v. Hanford, 5 Hill, [i92, 593, (5) Coylesv. Hurtin, 10 Johns. 85. Vol. I. 8 58 DUTIES OF SHERIFFS. To effectuate his power, in this respect, and as declaratory of the common law on the subject, (1) it is provided, by the revised statutes, that whenever a sheriff or other public officer, authorized to execute any process delivered to him, shall find, or have reason to apprehend, that resistance will be made to the execution of such process, he shall be authorized to command every male inhabitant of his county, or as many as he shall think proper, to assist him in overcoming such resist- ance, and if necessary, in seizing, arresting and confining the resistors, their aiders and abettors, to be dealt with according to law.(2) Such sheriff or other ofl&cer shall certify to the court from which such pro- cess issued, the names of the resistors, their aiders and abettors, to the end that they may be proceeded against, for their contempt of such court.(3) And every person, commanded by a sheriff or other ofiicer, to assist him in the execution of process, as herein provided, who shall refuse, or without lawfid cause, neglect to obey such command, shall be deemed guilty of a misdemeanor, and subject to fine and imprison- ment.(4:) Under these provisions, it has been held, by this court, that a person acting in aid of an oflfi.cer, and by his command, in overcom- ing resistance to the execution of process, is a trespasser, if the ofi&cer himself be not justified by the process ; as where, on an execution against A., property is attempted to be taken from the possession of B., who resists the ofiicer, and a by-stander, commanded to assist, forci- bl}^ lays hands upon B., to overcome his resistance ; if it turn out that the property is, in point of fact, the property of B., and not of A., the by-stander is liable for an assault and battery. The by-stander obeys, at his peril. If the ofiicer have authority to do the act, for the doing of which aid is required, the by-stander is bound to obey and is justified ; and if he refuse or neglect to do so, is guilty of misdemeanor, and subject to fine and imprisonment ; but on the other hand, if the ofiicer have no legal authority to do the act, the by-stander is not bound to obey, and if he yield obedience, is a trespasser. " The only hardship in the case," says Savage^ Ch, J,, " is, that they are bound to know the law. But that obligation is universal; ignorance is no excuse for any one."(5) It is further provided by statute, on this subject, that, in case it shall appear to the governor, that the power of any county will not be sufii- cient to enable the sheriff thereof to execute process delivered to him, he shall, on the application of such sheriff, order such a military force, fi-om any other county or counties of this state, as shall be neces- sary.(6) (1) Revisers' notes, 3 R. S. 2d ed. 748. (2) 2 R. S. 441, sec. 80. (3) 2 R. S. 441, sec. 81. (4) Ibid. sec. 82. (5) Elder v. Morrison, 10 Wend. 128, 139. (6) 2 R, S. 441, sec. 83. DUTIES OF SHERIFFS, 59 Similar provisions are contained in the Code in relation to arrests,(l) and the taking of property concealed in a building or enclosure ;(2) in both of which cases the sheriff is authorized to summon to his aid the power of his county. Jails, and keeping thereof.'] It has been already remarked, that the sheriff is, by law, the keeper of the jail of his county. The provision of the statute, on this subject, is, that the sheriff of the city and county of New York, shall have the custody of the jail in that cit}^, used for the confinement of persons committed on civil process only, and of the prisoners in the same ; and the sheriff of every other city and county of this state, shall have the custody of the jails and of the prisons thereof, and the prisoners in the same. And the sheriffs, respectively, may appoint keepers of such jails and prisons, for whose acts they shall severally be responsible.(3) These jails are also designated by law ; and regulations are made respecting the substitution of temporary jails, when rendered necessary ; to which, as well as to the general duties of the sheriffs respecting the same, reference will now be made. As it respects the city and county of New York, it was provided, by the revised statutes, that the building now used as a jail in the city of New York, for the confinement of persons on civil process, shall be and continue the jail of the city and county of New York, for the con- finement of such persons ; and the sheriff of the city and county of New York shall have the custody thereof, and of the prisoners in the same.(4) But, by a more recent act, passed in 1830, it was enacted, that the common council of that city may, by ordinance, from time to time, designate any building or buildings within the said city and county, for all the purposes, for which common jails may, by law, be used ; and such building or buildings so designated, shall be such common jails, until changed by an ordiance of tlie said common coun- cil.(5) As to the other counties in the state, it is provided, that the build- ings now used as jails and prisons in the respective counties of this state, shall be and continue the jails of the said counties res|)ectively, until other buildings shall be designated or erected for that purpose, according to law ; and the sheriffs of the said counties, respectively, shall have the custody of such jails and prisons, and of the persons confined in the same.(6) If, in any county, there shall not be a jail, or the jail erected shall become unfit or unsafe for the confinement of prisoners, or shall be (1) Code, sec. 185. (2) Code, sec. 214. (3) 1 R. S. 380, sec. 75. (4) 2 R. S. 428, sec. 12. (5) Laws of 1830, p. 31, sec. 8. (6) 2 R. S. 428, sec. 13. Q(j DUTIES OF SHERIFFS. destroyed by fire or otherwise, the judge of the county courts of such county shall, by an instrument in writing, to be filed with the clerk of the county, designate the jail of some contiguous county, for the con- finement of any one or more of such prisoners ; which shall, thereupon, to all intents and purposes, except as herein otherwise provided, be- come the jail of the county for which it shall have been so designated, and for the purposes expressed in such instrument.(l) Such designa- tion may be modified or annulled by the county judge of the county, by whom the same was made, on the application of the sheriff thereof, by an order, to be entered in the minutes of such court.(2) A copy of such instrument of designation, duly certified by the clerk of the county, under his ofiicial seal, shall be served on the sheriff and keeper of the jail so designated ; whose duty it shall be, from thenceforth, to receive into such jail, and there safely keep, all persons who may be lawfully confined therein, pursuant to the foregoing provisions.(3) And such sherifi" shall be responsible for the safe-keeping of the persons so com- mitted to such jail, in the same manner and to the same extent, as if he were sheriff of the county for whose use such jail shall have been designated ; and with respect to the persons so committed, shall be deemed the sheriff of such county.(4) If any of the prisoners, confined on civil process, shall have been admitted to the liberties of the jail of the county for which such de- signation shall have been made, previous to such designation, they shall, notwithstanding, be entitled to remain within such liberties ; but maybe removed to the jail so designated, and confined therein, by the sheriff to whom they shall have given bonds for such liberties, in the same cases, and in the same manner, as such sheriff might, by law, confine them in the jail of his own county.(5) If any persons shall be in the custody of the sheriff of the county for which such designation shall have been made, subject to such designation, and shall be entitled, according to law, to the liberties of the jail thereof, they shall be confined within the liber- ties of such jail, in the same manner, and in the same cases, as if no such designation had been made ; but may be removed by such sheriff to the jail so designated, and confined therein, in the same cases, and in the same manner, as such sheriff" might, by law, confine them in the jail of his own county.(6) If any persons confined in the jail so de- signated, on civil process, or removed there, as hereinbefore provided, shall by law be entitled to the liberties of the jail, the sheriff of the county in which the jail so designated shall be, shall admit them to the liberties of such jail, in the same manner, and in the same cases, as if (1) 2 R. S. 428, sec. 14. (2) Ibid. sec. 15. (3) 2 R. S. 429, see. 16. (4) 2 R. S. 429, sec. 17. (5) Ibid. sec. 18. (6) Ibid. sec. 19. DUTIES OF SHERIFFS. 61 they had been originally arrested by such sheriff, on process directed to him,(l) Whenever a jail shall be erected for the county for whose use such designation shall have been made, or its jail shall have been rendered fit and safe for the confinement of prisoners, the judge of the county courts of the county, shall, by an instrument in writing, to be filed with the clerk of the county, declare that the necessity for such designation has ceased, and that the same is thereby revoked and annulled.(2) The clerk of the county shall immediately serve a copy of such revocation upon the sherifi" thereof ; whose duty it shall be, to remove the prison- ers belonging to his custody, and so confined Avithout his county, to his proper jail : and if any prisoners shall have been admitted to the liber- ties of the jail in such other county, they shall also be removed, and shall be entitled to the liberties of the jail of the county to which they shall be removed, in the same manner as if they had been originally arrested in such county.(3) The sheriffs of any of the counties of this state, in which there are or shall be established more than one jail, may confine their respective prisoners in either of such jails, and may remove them from one jail to another within the county, whenever such sheriff" shall deem it neces- sary for their safe keeping, or whenever it shall be necessary for their appearance at any court. (4) Whenever, by reason of any jail being on fire, or any building con- tiguous or near to a jail, being on fire, there shall be reason to appre- hend, that the prisoners confined in such jail may be injured or en- dangered by such fire, the sheriff or keeper of such jail may, in his dis- cretion, remove such prisoners to some safe and convenient place, and there confine them, so long as may be necessary to avoid such danger ; and such removal and confinement shall not be deemed an escape of such prisoners.(5) Whenever any pestilence or contagious disease shall break out in any jail, or in the vicinity of any jail, and the physician to such jail shall certify that such pestilence or disease is likely to en- danger the health of the prisoners confined in such jail, a judge of the county courts of the county in which such jail is situated, or, in the city and county of New York, the mayor or recorder, and any alder- man of that city, and in the city and county of Albany, the mayor or recorder, and any alderman of the city of Albany, shall, in writino-, designate some safe and convenient place within such count}-, or the jail of some contiguous county, as a place of confinement for such pri- soners ; which designation shall be filed in the office of the clerk of the (1) 2 R. S. 429, sec. 20. (2) Ibid. sec. 21. (3) 2 R. S. 429, sec. 22. (4) 2 R. S. 430, sec. 24. (5) 2 R. S. 430, sec. 25. Q2 DUTIES OF SHERIFFS. county, and shall autliorize the sheriff to remove such prisoners to the place or jail so designated, and there confine them, until they can be safely returned to the jail from which they were taken.(l) And any place, to which the prisoners in any jail shall be removed, pursuant to the preceding provisions, shall, during the time of the confinement of such prisoners therein, be deemed the jail of the county. (2) As it respects the duty of the sheriff, in keeping the prisoners with- in the jail, it is to be observed, that the revised statutes, after provid- ing for the appointment, in the city of New York, by the common council, and in the other counties, by the boards of supervisors, of a physician to the jail, to hold his office during the pleasure of the ap- pointing po\ver,(3) have prohibited the introduction into any jail, of any spirituous, fermented or other liquor, except cider and table beer, unless upon the permit of the physician, and then, only upon its satis- factorily appearing to such physician, that it is absolutely necessary for the health of a prisoner ; and that every person violating such prohibi- tion, and every sheriff, keeper of a jail, assistant to such keeper, or other officer employed in or about any jail, who shall knowingly suffer any spirituous or other liquor to be sold or used in a jail, contrary to such provision, shall be deemed guilty of a misdemeanor, and on con- viction thereof, shall be subject to imprisonment not exceeding one year, or to a fine, not exceeding two hundred and fifty dollars, or both, in the discretion of the court ; and every sheriff or other officer so con- victed, shall forfeit his office.(4) It is mereover provided, on this subject, that when a sheriff or other officer shall arrest any person, by virtue of any final process, or by virtue of any other civil process, he shall not charge such prisoner with any sum of money, or any valuable thing, for any drink, victuals or other thing whatsoever, furnished or provided for such officer, or for such prisoner, at any tavern, alehouse, or public victualling or drink- ing house.(5) And no sheriff or other officer, who shall have arrested any person, shall, while such person is in his custody, demand or re- ceive any gratuity or reward, upon any pretence whatever, for keeping such prisoner out of jail, or for waiting for such prisoner to find bail or agree with his adversary, or for waiting for any other purpose.(6) Kany person be arrested and kept in any house other than the jail of the county, neither the officer arresting him, nor the person in whose custody such prisoner may be, shall demand or receive from such pri- soner, any other or greater sum for lodging, drink, victuals or other (1) R. S. 430, sec. 2G. (2) Ibid. sec. 27. (3) 2 R. S. 431, sec. 23. (4) 2 R. S. 431, sec. 29, 30, 31. (5) 2 R. S. 426, sec. 1. (6) Ibid. sec. 2. See Hatch v. Mann, 15 "Wend. 44. DUTIES OF SHERIFFS. 63 necessary tilings, than shall have been prescribed by the court of gene- ral sessions of the county ; or if no rate shall have been prescribed by such court, such officer or person shall not receive any other or gi-eater sum, than shall be allowed by a justice of the peace of the same town, upon proof that the lodgings or other things, furnished, were so fur- nished at the request of such prisoner ; and in no case, shall such officer or person demand or receive any pay or compensation, for any spiritu- ous liquors, sold or delivered to such prisoner.(l) And a prisoner, so kept in any house, may send for and have any beer, ale, cider, victuals and other necessary food, and such bedding, linen, and other necessary things, as such prisoner shall think fit, where and from whom he pleases, without any detaining or paying for the same, or any part thereof, to the officer arresting him, or to the person in whose custody such prisoner may be.(2) And no sheriff, jailer or other officer, shall demand or receive any money or valuable thing whatsoever, for the chamber rent of any prison, or any fees, compensation or reward, for the commitment, detaining in custody, release or discharge of any pri- soner, other than such fees as are expressly allowed by law.(3) And further, — prisoners arrested on civil process, shall be kept in rooms separate and distinct from those in which prisoners detained on a criminal charge or conviction, shall be confined ; and on no pretence whatever, shall prisoners on civil and criminal process, be put or kept in the same room.(4) And male and female prisoners, unless they be husband and wife, shall not be put, kept or confined in the same room in any prison. (5) And every sheriff, or other officer, offending against these provisions, shall forfeit to the party aggrieved, three times the damages found by the jury; and shall be liable to an indictment for a misdemeanor, and upon conviction thereof, in addition to any other punishment, shall forfeit his office or place.(6) Jail liberties.'] The statutes have also established, in the several coun- ties, liberties of the jails, or, as they are usually termed, jail limits, to the particular description or designation of which, it is not necessary here to refer ;(7) and have provided, that every person who shall be in the custody of the sheriff of any county, by virtue, 1., of any capais ad 7'espondendu7n : (now order of arrest) or, 2., of any execution in a civil action : or, 8., by virtue of any attachment for the non-payment of costs in a civil action, (a party can no longer be arrested for non-payment of costs :) (8) or, 4., in consequence of a surrender in exoneration of his bail, (1) 2 R. S. 426, sec. 3. (2) 2 R. S. 427, sec. 4. (3) 2 R. S. 427, sec. 5. (4) 2 R. S. 428, sec. 8. (5) 2 R. S. 428, sec. 10. (6) Ibid. sec. 11. (7) 2 R. S. 2d. ed. 351. 352, sec. 36-42. (8) Laws of 1847, ch. 300, p. 491. g4 DUTIES OF SHERIFFS. — sliall be entitled to be admitted to tHe liberties of tbe jail which shall have been established in such county, according to law, upon execu- ting a bond to such sheriff and his assigns, (1) the nature, form and in- cidents of which will be hereafter discussed. But, although, in the cases just enumerated, the sheriff is bound to admit the party to the jail liberties, on giving such bond, yet, this provision being for the benefit of the sheriff, the revised statutes, in accordance with the rule as it formerly existed, (2) have in effect provided, that in these cases the sheriff" may allow the party the liberties of the jail; while they have required him to detain in close custody, all prisoners committed upon process for contempt, or committed for misconduct, in the cases pre- scribed by law.(3) Delivering copy ofprocessP^ It is also provided, by statute, in relation to the duties of sheriffs in the execution and return of process, that when process of any description shall be delivered to a sheriff, to be executed, he shall give to the person delivering the same, if required by him, and on payment of the fee allowed by law, a minute in wri- ting, signed by such sheriff, specifying the names of the parties in such process, the general nature thereof, and the day of receiving the same,(4) And further, that every sheriff or other of&cer serving process, shall, upon the request of the party served, and without charging or receiv- ing any compensation therefor, deliver to such party, a copy thereof.(5) Beturn ofijrocess^ Every sheriff or other of&cer, to whom any pro- cess shall be delivered, shall execute the same, according to the com- mand thereof, and shall make due return of his proceedings thereon, which return shall be signed by him. For any violation of this provi- sion, such sheriff or other officer shall be liable to an action, at the suit of any party aggrieved, for the damages sustained by him, in addition to any other fine, punishment or proceeding, which may be authorized by law.(6) Such returns, except attachments and writs of haheas corpus^ must be made to the clerks' ofiices respectively designated in the process. No return of process made to any other ofl&ce than as directed in the process, shall excuse any sheriff or other ofiicer, from the liabilities, penalties, fines or proceedings prescribed by law, or by the rules and practice of the Supreme Court, for a neglect to make a return according (1) 2 R. S. 433, sec. 40. (2) Holmes Y. Lansing, 3 Johns. Cas. '73 ; Peters v. Henry, G Johns. 121. (3) 2 R. S. 437, sec. 61-64. (4) 2 R. S. 440, sec. 75. (5) 2 R. S. 440, sec. 76. (6) Ibid. sec. 77. DUTIES OF SHERIFFS. 65 to law.(l) But tlie return of process to another office tlian tliat di- rected, is not an irregularity, for wliicli the court will set aside the pro- ceedings ; the statute being merely directory to the sheriff, and intended to contemplate the convenience, not of the defendant, but of the plain- tiff.(2) Writs ofinqiury, and trial of claims to 'property^ What has thus far been said as to the duties of sheriffs, as connected with the execution of the process of this court, relates only to process against the person or property of a party*. There are other duties, however, involved in the relation of sheriffs to the process of the court, to which a mere pass- ing allusion will be made, leaving their full discussion to subsequent stages of the work. I refer to the execution of writs of inquiry, to as- certain and assess damages upon failure of a defendant to answer, or other writs specially directed to them; and the summoning a jur}^, for their own protection, to try the title to personal property levied on by virtue of an execution, to which a claim has been interposed ; it being provided by statute, that no sheriff shall be authorized to hold any court, for any purpose whatsoever, except to execute writs of inquiry, and such special writs as may be directed to him, pursuant to any stat- ute ; and, in the cases provided by law, to inquire into any claim to property seized or levied upon by him.(3) Duties of slieriff^ as a general officer of the court.'] It is made, by stat- ute, the duty of the sheriff of the county in which any term of the court shall be held, before the commencement of the term, to summon two constables of his county to attend the same ; and he and the two con- stables thus summoned are required to attend the court during its sit- tings ; it being provided, that the compensation allowed by law, for such attendance, together with all moneys paid by the sheriff, for fuel and other necessary expenses, which the board of supervisors shall deem reasonable, shall be paid out of the treasury of the county.(4) It is likewise made the duty of the sheriff of each county in the state, in conjunction with the county judge and the clerk of the county, to attend upon the drawing of every jury for the circuit court or sittings within his county, or for the court itself, on a trial at bar, and to sum- mon such jury, and also to execute the orders of those several courts in (1) 2 R. S. 2d ed. 358, sec. 82 : Ibid. 359, sec. 84. (2) Ontario Bank v. Garhck, 1 Wend. 288 ; Outler v. Eatlihone, 1 Hill, 204. (3) 2 R. S. 286, sec. 58. (4) 2 R. S. 2d ed. 124, sec. 8 ; Laws of 1830, p. 394, sec. 35 ; Code, § 28. Vol. I. 9 66 DUTIES OF SHERIFFS. respect to tlie summoning of talesmen ; the whole of which is regulated bj statute, and which will be treated of hereafter. There are, also, many orders which either and all of the courts just referred to may make, growing out of their inherent powers, regulated and modified, in some instances, by statute, — such as commitments for contempts and the like, not involving the private rights of suitors, and sometimes very summarily executed, — which it is the duty of the sher- iff to carry into effect. These will also be referred to, in the subse- quent pages of the work. It is sufficient, for the present purpose, to remark, that in all these respects, the sheriff is the executive of&cer of the court, and that, as such, the execution of every order which the court may lawfully make, devolves upon him. Their offices^ and service of papers upon them.~\ It is made, by statute the duty of the sheriff of every county, to keep an ofl&ce, in some pro- per place in the city or village in which the county courts are held ; of which he is required to file a notice in the office of the clerk of the county. If there be more than one place of holding courts, the notice shall specify, in which his office will be kept, or it may specify, that an office will be kept in all such places, if he thinks proper. Such office must be kept open during the hours and on the days prescribed in re- lation to clerks ;(1) namely, on every day in the year, except Sundays, and the fourth of July, — in the city of New York, from 9 o'clock in the forenoon to 4 o'clock in the afternoon ; and in all other parts of the state, from 9 to 12 o'clock in the forenoon, and from 2 to 5 o'clock in the afternoon.(2) Every notice or other paper, which shall be required to be served on any sheriff, may be served, by leaving the same at the office desig- nated by him in such notice, during the hours for which it is thus re- quired to be kept open ; but if there be any person belonging to such office, therein, such notice or paper shall be delivered to such person ; and every such service shall be deemed equivalent to a personal service on such sheriff.(3) And if "no notice shall be filed by any sheriff, with the county clerk, as herein required, the service of all papers on such sherifiJ" may be made, by leaving them at the office of the county clerk, with such clerk or his deputy ; and the same snail be deemed equiva- lent to a personal service on such sheriftX-i) (1) Ante, 42. (2) 2 R. S. 285, sec. 55. (3) 2 R. S. 285, sec. 56. (4) Ibid. sec. 57. DUTIES OF UNDER AND DEPUTY SHERIFFS, &c. 67 4. Powers and duties of under and deputy sheriffs^ — and liability of tlic sheriffs for their acts. Their powers and duties^ generally ^^ It has been already remarked, that during the continuance of the term of office of the sheriff, the pow- ers of the under and deputy sheriff arc the same. Their designations are used as synonymous terms, the one having no more power than the other.(l) In speaking of them, therefore, in this place, they will, to avoid repetition, be both comprehended under the term, deputy sheriff, A deputy sheriff has power to execute every ministerial act which the sheriff may perform. Thus, he has authority to summon and im- panel juries, even where directed by a special statute ; provided no express requirement of law exists, imposing the duty personally on the sherifif.(2) So, he may execute a deed, in the name of the sheriff, to a purchaser under an execution, (3) without the existence of any special authority from the sheriff for that purpose.(4) And he may even execute a writ of inquiry, except when the sheriff is directed, by statute, or by the writ itself to execute it in person ;(5) that act^ though quasi j udicial in its character, being regarded as involving the perform- ance of a merely ministerial duty. In the performance of these several duties, the deputy has general powers, which he cannot transfer ; but he may constitute a servant or bailiff to do a particular act ; and it was accordingly held, that a deputation in writing by an under sheriff to a third person to serve a cajyias, was valid^ and afforded a protection to the party to whom it was given.(6) Liability of the sheriff, for their acts, in the execution of process^ As a consequence of the powei^s conferred upon the deputy, by his general appointment, before referred to, (7) it follows, on principles of public policy, that the sheriff is liable for the tortious act, default or miscon- duct, whether it be wilful or inadvertent of his deputy in the course of the execution of his duties; (8) though this liability is only a civil one, and does not extend to the criminal acts of the deputy ; by which is (1) Tillotson V. Cheetham, 2 Jolms. Rep. 63. (2) Tlie President and Trustees of Brooklyn v. Fatchen, 8 Wend, 6L (3) Jackson v. Bush, 10 Johus. 223. (4) Jackson v. Davis, 18 Johns. 1. (5) Tillotson V. GheetJmm, 2 Johns. Rep. 63. (6) Hu7it v. Burrel, 5 Johns. 137 ; see also, Parker v. Kett, 1 L. Raym. 658 ; LeakY. Howell, Cro. Eliz. 533. (7) Ante, 55. (8) Woodgate v. KnaichbuU, 2 T. R. 151; PesJiall v. Layton, 2 T. R. 712 ; Sturmyy. Smith, 11 East, 25 ; Anonymous, 11 Mod. 49 ; Smith v. Hall, 2 Mod. 32 ; Saunclerson v. Baker, 2 W. Bl. 832 ■,S.C.3 Wils. 309 ; Balme v. HuUon, 3 M. & So. 1 ; S. C. 9 Bing. 471. QQ DUTIES OP UNDER AND DEPUTY SHERIPPS, meant tliat tlie sheriff is not liable to be indicted for the acts of bis officer. (1) Thus, the sheriff is liable to an action of trespass where his officer, in executing a process against the goods of A., takes the goods of B.(2) So, also, an action lies against the sheriff for the act of his deputy, in taking more fees, on levying an execution, than are allowed by law ; and this, whether he have recognized the act of the deputy or not.(8) So, also, trespass was held to be maintainable against a sher- iff, for an arrest made by his officer, by color of a warrant under a Ji. fa.{4:) In this case, it was contended, on the part of the sheriff, that there must be some limit to the rule that the sheriff is, in all cases, to be identified with his officer, and that there he was not liable, inasmuch as the officer had acted entirely without authority and with the grossest ignorance ; but the court regarded the principle as covering the case, and adopted the reason given by ^i/re, Ch. J., in its support in a case where the sheriff was held liable for an arrest made by the officer after the return day of the writ.(5) " The true ground," says he, " upon which the sheriff, in these cases, is held liable, is, that he has thought fit to commit the execution of the writ to another person, and if he has not executed it properly, the sheriff is liable.(6) The officer is the servant of the sheriff, and executing process directed to him ; if, there- fore, he acts irregularly, the law subjects the sheriff, from whom he derives that authority." So, where the deputy of a sheriff received an execution, which was by mistake directed to the sheriff of another county, and though he might have refused to execute the writ, yet proceeded and collected the money, and having become possessed of it, under color or by virtue of his office, refused, to pay it over to the plaintiff, this court held his principal liable for the money collected, in an action for money had and received ; regarding the defect in the execution as voidable merely, and amendable as between the parties thereto, and therefore not avail- able to the sheriff.(7) And in the case just cited, Bronson, J. observes : — " In ascertaining whether the sheriff is answerable for the acts of his deputy, the question is, whether the latter did an official or a mere per- sonal act. If the act is personal only, and does not relate to his duty as an officer, he is not the agent or servant of the sheriff ; but if he (1) Laycock's case, Latch, 181 ; S. C. Noy, 90. (2) Ackworth v. Kempe, 1 Doug. 40 ; Hazard v. Israel, 1 Binn. 240. (3) ATIntyre v. Trumbull, 1 Johns. 35 ; Bowden v. Waithman, 5 Moore, 183. (4) Smart v. Button, 2 N. & M. 426 ; S. G. S A. & E. 568, n. (5) Parrot v. Mumfard, 2 Esp. N. P. C. 585 ; Price v. Peek, 1 Bing. N. C. 385. (6) See also, Brown v. Copley, (C. P., June 4, 1844,) 8 Lond. Jurist, 577, 579;) S. C. 13 Law Jour. N. S., C. P., 164. (7) WaMen v. Damson, 15 Wend. 575. AND LIABILITY OP SHERIFF, FOR THEIR ACTS. G9 execute process, under color or by virtue of his office, the sheriff is answerable for the consequences. It is not necessary to charge him that the act of the deputy should, in all cases, be lawful, or one which he might rightfully do under the process. If it were so, the sheriff would not be liable where the deputy takes the property of some other person than the judgment debtor. Many other cases might be put where the sheriff is answerable for the wrongful acts of his deputy. Where he acts by virtue of his office, third persons have a right to regard him as the mere servant or agent of another, and resort to the principal for the redress of any injury they may sustain. It would be a dangerous doctrine to hold that the sheriff may, for his own conve- nience, depute persons to discharge the duties of his office, and yet not be answerable to third persons for their misconduct."(l) And it seems that the declarations and confessions of a deputy sheriff, made to the attorney of the plaintiff, in answer to inquiries relative to an execution delivered to such deputy to be executed, and while the execution was in force, are admissible evidence to charge the sheriff.(2) It has been said, as a qualification of the rule as to the liability of the sheriff for the acts of his deputy, that if the wrong complained of be neither expresslj^ sanctioned by the sheriff, nor impliedly committed by his authority, or if it be an act Dot within the scope of the autho- rity given, the sheriff is not responsible.(3) This rule, if understood to the full extent in which it is thus laid doAvn, would entirely overthrow the principle acted upon in the cases already referred to, and abundantly established by authority. It must therefore be taken with some modifications. In the first place, in addition to the cases already referred to, others may be adduced to show that it is enough to charge the sheriff that the deputy is acting at the time as the servant of the sheriff under an exist- ing authority, and that the sheriff is discharged only where that autho- rity has been withdrawn. Thus, in a very old case, (4) it is laid down that if a man be arrested by the bailiffs of the sheriff, and upon that, he show to them a supersedeas to discharge him, and the bailiffs refuse it and detain him afterwards in prison, he shall have false imprisonment against the bailiffs, and not against the sheriff. And upon the autho- rity of this case, in a very late case in the common pleas in England, (5) (1) Walden v. Davison, 15 Wend. 579. (2) Mott V. Kip, 10 Johns. 418. (3) 1 Chit. Archb. 7th ed. 16. (4) 2 RoM. Abr. 552, '-Trespass" (0,) pi. 10. (5) Brown v. Copley, (0. P., June 4, 1844,) 8 Loud. Jurist, 577; S. C. 13 Law. Jour. N. S., 0. P, 164. 70 DUTIES OF UNDEE AND DEPUTY SHEHIPFS, wliere a slieriff directed process upon an attacliment against the goods of tke defendant to two bailiffs specially named for tliat purpose by the attorney of the plaintiff in the cause, and also took an indemnity from such attorney against any wrongful acts the bailiffs might commit, the attachment having been issued to compel an a|)pearance to the action ; and, afterwards, the defendant having appeared, a siqyersedeas issued under the hand of the sheriff; but, in the meantime, the bailiffs having seized certain goods of such defendant, upon demand being made, after the issuing of the suixrsedeas^ refused to deliver them up ; it was held, in an action of trover, brought by such defendant against the sheriff, for a conversion of those goods, that he was not liable for the act of the bailiffs. In the second place, and for reasons similar in their nature, where the party prosecuting the sheriff has, by his own act or that of his attorney, led the deputy sheriff into the wrong of which he complains, he is, as a matter of course, not permitted to allege the wrongful act of the deputy, as a ground of action against the sheriff. Thus, where an attorney for an execution creditor, on being informed of a claim by the landlord for rent, directed the sheriff's officer to withdraw the execu- tion, which he did, and thereupon the plaintiif sued out a ca. sa. for the debt, — it was held that such execution creditor could not bring an action against the sheriff, for falsely returning to the ft. fa. that so much rent was due, and could not recover, though he should show, that the supposed landlord had not a right to the rent claimed, and that the attorney, at the time he directed the officer to withdraw the execution, did not know what the landlord's title was.(l) So, where a sheriff's officer had seized under a fi. fa. the goods of a trader more than sufficient to satisfy the levy, and the trader having become bankrupt, and assignees having been chosen before the goods were sold, the assignees authorized the officer to deliver the whole of the goods to A,, and to receive from him a certain sum as the full value of the goods, which he accordingly did, and out of that money satisfied the execution creditor, but never paid over the residue to the assignees ; it was held that they could not sue the sheriff for this money, the officer not having derived his authority to sell the whole of the goods from the sheriff, but from the plaintiffs, the assignees.(2) So, where, upon a f. fa. issued against the goods of A., the goods were seized by the sheriff's officer, whereupon the exe- cution creditor, authorized the officer to quit possession, the debtor con- senting that he might return at any time and sell the goods, and the officer accordingly gave up possession, and at the end of some months (1) Stuart T. Tiniitaker, 2 Car & P. 100 ; *S'. C. Ry. & M. 310. (2) Cook V. Palmer, 6 B. & C. 739 ; S.C.9D.&, R. 723. AND LIABILITY OF SHERIFF, FOR THEIR ACTS. 71 returned and gave notice of sale ; but before tlie sale another fi. fa. issued at the suit of a second creditor, to which the sheriff returned nulla bona, upon which the second creditor brought an action for a false return, and recovered the value of the debtor's goods against the sheriff, — the sheriff having previously paid the value of the goods to the first creditor : it was held, in an action bj the sheriff against the first creditor, to recover back the money so paid that he was entitled to recover ; inasmuch as it appeared that the act of the officer was done, not only without the knowledge of the sheriff, but with the full knowledge and assent oS the defendant ; and that the sheriff was compelled, in consequence of that misconduct of the of&cer, so autho- rized by the defendant to pay to a third person the value of those very goods, which they had already paid to the defendant.(l) And where the plaintiff interferes, and directs a deputy sheriff to take a course, in the execution of a process, or in the collection of an execution out of the line required by law, as by giving a credit — selling land for less than the execution — -or withholding a deed until the whole shall be paid, or the like, — he thereby makes the deputy his special agent, and discharges the sheriff; nor would the sheriff's executing a deed, on a sale of land so made, operate to af&rm the acts of his deputy, and adopt them as his own acts ; especially where his full knowledge of the special instructions to his deputy is not shown.(2) And where the plaintiff's attorney, being about to issue a ca. sa. against H. at the suit of the plaintiff, requested of the sheriff a particular sheriff's of&cer, delivered the warrant to that of&cer, took him in his carriage to the scene of action, and then encouraged an illegal arrest, from which H, afterwards escaped,- — -it was held that the plaintiff could not sue the sheriff for such escape, and that the of&cer must be taken to be the special bailiff" of the plaintiff.(3) So, the appointing a special bailiff' or giving special directions to the of&cer, with regard to the receiving the money on an execution, discharges the sheriff; and if he afterwards return that he has paid the money over to the plaintiff, he is not liable to an action for a false return. (4) So, where the plaintiff' appointed a special bailiff and agent, to manage the sale of goods under a fi. fa., it was held, that the sheriff was discharged ; although, on being ruled to return the writ, he returned that he had sold, and that he had made (1) Croioder v. Loiig, 8 B. &C. 598. (2) Gorham v. Gale, 1 Cowen, 139; S. C. 6 Cowen, 46*7, note a. (3) Doe V. 2V?/e, 5 Bing. N. 0. 573; S. 0.1 Scott, N. R. 704; S. C. 1 Dowl. 0. S. 63G; S a 3 Lond. Jurist. 954. (4) Porter v. Fmer, 1 Chit. Rep. 613, 7i. See also, De MoranUa v. JDunkin, 4 T. R. 119 ; Foster v. Blakeloch, 5 B. & 0. 329 ; /S. C. 8 D. & R. 48 ; Hamilton v. Dalziel, 2 W. Bl. 952 ; Taylor v. Richardson, 8 T. R. 505. 72 DUTIES OP UNDER AND DEPUTY SHERIFFS, deductions, whicli it is clear a sheriff lias no riglit to make, in point of law.(l) So, a distringas issued against the sheriff, was set aside, where the officer had given time to the defendant, and the plaintiff had ac- quiesced in the arrangement, and received part of the money, without the privity of the sheri£f.(2) The question has been much discussed, recently, in the English courts, how far the designation, by the attorney issuing the writ, of a particular officer, (though he be a general deputy of the sheriff,) constitutes him the special agent of the plaintiff, so as to discharge the sheriff from a liability for his acts. The first case, on the subject, is that of Balson v. 3feggatt,{S) in which it was decided by Coleridge^ J. that the mere request to the sheriff to. dehver his warrant to a particular officer, was not sufii- cient to constitute the officer the plaintiff's special bailiff. Next is the case of Ford v. Leche^{^ in which the plaintiff, (an attorney,) having sued out alias writs of capias ad respondendum,^ sent them to an under sheriff, with a letter in these terms : — " I inclose you writs herein, and shall feel obliged, by your granting warrants to Mr. Mee and Mr. Bate- man. I shall write to Mr. Bateman, in a day or two." An action being brought against the sheriff", for an escape, the defendant having been taken at the suit of another person, and discharged on giving a bail bond in that suit. Lord Ahinger^ Ch. B., who tried the cause was of opinion, that he was not liable for the omission to detain the defendant, because the plaintiff, by the letter had appointed Mee and Bateman his special bailiffs, and authorized a suspension of proceedings, till orders should be received from him. A nisi rule, obtained to set aside the nonsuit granted by the judge, was, after full argument, discharged, on the ground, that the plaintiff's letter not only constituted Mee and Bateman special bailiffs, but that its effect was, that the sheriff was not bound to deliver the warrants till some further directions were given, or to detain the defendant who was already in his custody in another suit, inasmuch as the plaintiff, by his letter, had suspgpded the sheriff's duty, and in fact taken the business out of his hands. — Then came- the case of Corhet v. Brown^{5) where the terms of the request were : — "I will thank you to direct the warrant to Keeve, if he is at home, and can return with the bearer hereof; if he is not at home, to any officer you think proper." Eeeve being an officer of the sheriff, Coleridge, J. held, that this did not constitute Eeeve the special bailiff of the plaiu- (1) Pinaster v. Pallister, 1 Chit. Rep. 614, n. (2) The King v. The late sheriff of London, 1 Chit. Rop. 613. (3) 4 Dowl. 0. S. 557. • (4) G A. & E. 699 ; -ST. a 1 N. & P. iSt -,8.0.1 Lond. Jurist., 334. (5) 6 Dowl. 0. S. 794 ; S. C. 2 Lond. Jurist. 568. AND LIABILITY OF SHERIFF FOR THEIR ACTS. 73 tiff, it being a mere request tliat a particular person might be employed in the execution of the process. And, lastly, the question was very recently considered by the court of exchequer, in the cases of Aklerson V. Davenport and Perrin v, Davenport,{l) in which the plaintiff's attorney wrote to the under sheriff, requesting the w^arrants to be directed to an officer of the sheriff, of the name of Topham, whom he said he had in- structed as to their execution, having previously written to that officer, as to the best means of finding out the defendant, and directed him as to his conduct, generally, in the matter. The defendant not having been arrested, actions were brought against the sheriff, in which ver- dicts were found for the j)laintiff, by consent, with leave reserved to the defendant to move to enter a nonsuit, if the court in banc should be of that opinion. After argument, the rules were discharged, and judg- ment rendered for the plaintiffs, on the verdicts. In delivering judg- ment, Pollock, Ch. B. observed : — " Both these rules must be discharged. The point is, whether the letters which were put in evidence, amount to an appointment of Topham as special bailiff. But there is nothing in these letters, to prevent the sheriff exercising his discretion in the matter. Suppose, after the receipt of the letter of the plaintiff's attor- ney, stating that he had given instructions to Topham, and requesting the warrants to be forwarded to him, something had occurred or come to the knowledge of the sheriff, respecting Topham, to show that he was not trustworthy, so as to induce the sheriff to deprive him of his office, — would the sheriff be justified, in sending the warrants to him, notwithstanding ? But it is quite clear, from the whole transaction, that the plaintiff's attorney, when he wrote these letters, never intended to relieve the sheriff from the responsibility of executing the wrrits. He only indicates the individual, to whom he wishes them to be sent ; and it is well known, that most houses of large business do not send their ^vrits to any individual officer, but to the under sheriff, with directions to forward them to the one usually employed by then- house." Alder- son, B., observes : — I am of the same opinion, and think that the facts of this case do not shoAv an appointment of Topham as special bailiff. K, indeed, the case had stood on the letter to the under sheriff", it might have been fairly urged to the jury, that possibly Topham might, at the time it was written, be acting on false specific instructions, contained in the letter to him, and not produced before him. But, in this case, the other letter, and the instructions it contains, are produced, and show nothing in them, to exculpate the sheriff. With respect to the case of Porcl V. Leche, it may seem, at first sight difficult to be distinguished (1) May 31, 1844, 8 Lond. Jurist, 650 ; S. C. 13 Law Jour. N. S. Exch., 352 ; S. C. I Dowl. & L. 966. YOL. I. 10 74 DUTIES OF UNDER AND DEPUTY SHERIFFS, from the present : but there is this real distinction between them, that the instructions there given to the sheriff amounted to, ' joii shall have the instructions in a few days,' — being, ' I shall write to Mr. Bateman, (the bailiff,) in a day or two.) The production of such a letter would, at once, discharge the sheriff from responsibility in not proceeding. In the present case, it is quite otherwise." — Gurney, B., observed : — "It is the commonest thing in the world, to endorse upon a Avarrant, the place where the defendant lives, and the house at which he goes out or is likely to be found." — Bolfe, B., observed : — " Suppose Topham had, in the first instance, and without any communication from the plaintiff, been appointed by the sheriff, to execute these writs, and after that appointment, the plaintiff gave him the same instructions, as in the present case, would that, in the slightest degree, make Topham his bailiff? This letter only gives him some information as to the best manner of discharging his duty to the sheriff. "With respect to Ford v. Leche, it is expressly stated in the report, to have been decided, on its special circumstances."(l) It is a general rule, also, that where a right of action arises out of a breach of duty, though it result from the act of the deputy, the action must be brought against the sheriff, as for an act done by him ; and if it proceed from the default of the under sheriff or deputy, it is a matter to be settled between him and the sheriff ;(2) though an action will lie against the deputy, upon an express promise to pay money collected by him on an execution, to the plaintiff. But the plaintiff, in such case, must prove a clear and absolute promise. It is not sufiicient, that the deputy said that "he would pay the amountof the judgment, but not the costs of entering a rule for an attachment," when the plaintiff would not ac- cept the one without the other. (3) This rule extends both to acts of non-feasance and mis-feasance on the part of the deputy, and to those of mal -feasance, such as a trespass in seizing the goods of A., under an execution against B., arresting the wrong party, under a writ, ojDpres- sively executing process, or the like ; in all which cases the sheriff is answerable in an action,(4) and it seems the deputy is also answerable in an action by the party injured, for the positive wrong of which he has been guilt}-. Bond from deputy^ to the sheriff.'] In order to guard himself against loss, by reason of his liability for the acts of his deputy, the sheriff may, (1) See a review of these cases, in 8 Lond. Jur. Magazine, 193. (2) Cameron v. Reynolds, Cowp. 403 ; Paddock v. Cameron, 8 Cowen, 212. (3) Tuttle V. Love, 7 Johns. 470. (4) People v. Schuyler, 4 Corns. R. 173. AND LIABILITY OF SHERIFF, FOR THEIR ACTS. 75 if he chooses, take from him a sufficient bond, with sureties, for the faithful performance of his duties.(i) This, it is beheved, is usually done ; and if it be, it seems that the sheriff does not lose his claim upon the sureties of his deputy, although he omit to remove the deputy from office, upon the sureties signifying to him their unwillingness longer to remain sureties, and requesting the removal of the deputy,(2) The effect of such a bond, there being, of course, no established form, must depend upon the circumstances of each case. Thus, where the deputy gave the sheriff a bond to indemnify him, for, tou-ching and concerning the execution and return of all process, writs, &c., which might be executed by the deputy, and the deputy having taken insuf- ficient bail, the sheriff had, in consequence, been attached for not bring- ing in the body ; — in an action by the sheriff on the bond, it was held to be no defence, that the bail taken by the deputy were, at the time of executing the bail bond, good and sufficient ; for the liability of the defendant was not to be confined to cases where the deputy had failed in good faith and due discretion, but extended to all risks which the law attached to the execution of process, one of which is the permanent responsibility of the bail taken on the arrest. (3) And the mere fact of a deputy sheriff being directed by his principal, to levy upon specific property, on an execution being placed in his hands, does not consti- tute the deputy the servant or special agent of the sheriff, for that par- ticular service ; he will be deemed to act in his official character, and not as a mere servant or agent ; and if the sheriff be subjected to dama- ges in consequence of his acts in respect to such execution, he and his sureties will be held liable to indemnify the sheriff, notwithstanding such instructions. To exonerate a deputy from responsibility, under such circumstances, the directions must be so definite and specific as to debar him from the exercise of all discretion in the matter.(-i) So, the embezzlement of moneys received by a deputy sheriff, is a breach of the condition of a bond, conditioned for his executing his office accord- ing to law, and without fraud. (5) But, where a bond was executed to a sheriff, by a deputy and his sureties, conditioned to indemnify the former from all costs, damages, expenses and trouble, touching and con- cerning the return and execution of process, and concerning the non- execution or wrongful execution of process : it was held, that it should not be so construed as to render the obligors liable for the costs and expenses of suits wrongfully instituted against the sheriff, and wherein (1) Cartwright v. Balesworth, Moor, 542 : Bac. Abr. Sheriff, (H,) 2 ; Wats. Sheriff, 33, (7 Law Library.) (2) Barnard v. Darling, 11 "Weucl. 28. (3) Stevem v. JBoxjce, 9 Jolins. 292. (4) TuUle V. Cook, 15 Wend. 274. (5) Hughes v. Smith, 5 Johns. 168. 76 DISABILITIES OF SHERIFFS, AND THEIR DEPUTIES. he succeeded ; but that in order to constitute a breach, some improper act or omission of the deputy must be shown, for which the sheriff could be lawfally made answerable.(l) In pleading, in such an action, it was held, that the plaintiff, in his declaration, must assign breaches, and cannot take a verdict for nomi- nal damages.(2) And upon the trial of an action by a sheriff against his deputy, on his official bond, for indemnity against a fine imposed for not returning an execution, it is enough to produce the proceedings from the files of the court imposing the fine, and to show the order, &c., without showing that there was a rule to return the execution, or an attachment against the sheriff; especially where the deputy had no- tice of the proceedings against the sheriff: and proof by reputation, is sufiicient to establish the ofiicial character of the plaintiff. (3) And it would seem that, in such an action, the defendant cannot defend him- self, upon the ground that in an action against the sheriff, the latter ne- glected to plead the statute of limitations, which had run against the action.(4) If the sheriff have omitted to take a bond fi:om his deputy, though the latter is liable for any damages the sheriff may have sustained from his breach of duty, it seems that a special action will not lie against the deputy, but that he is answerable to the sheriff only, on his implied undertaking to serve the sheriff with dihgence and fideHty.(5) 6. Disabilities of Sheriffs^ and their deputies. In respect to other offices.'] It has already been seen, that by the con- stitution, (6) sheriffs are, during their continuance in office, prohibited from holding any other office. In addition, it is provided by statute, that no sheriff, under sheriff, deputy sheriff, sheriff's clerk, or coroner, shall, during his continuance in office, practice as a counsellor, solicitor or attorney, in any court of law or equity. (7) As to purchasing upon sales under execution.'] It is also provided by statute, that the sheriff or other officer, to whom any execution shall be directed, and the deputy of such sheriff or officer holding any exe- cution, and conducting any sale of property in pursuance thereof, shall not, directly or indirectly, purchase any property whatever, at any sale by virtue of such execution : and all purchases made by such sheriff, officer or deputy, or to his use, shall be void.(8) But this statute does (1) Franklin v. Hunt, 2 Hill, 671. (2) Barnard v. Darling, 11 "Wend. 28. (3) Ball V. Luther, 13 Wend. 491. (4) J/' dure v. Srwin, 3 Cowen, 313. (5) Kain v. Ostrander, 8 Johns. 207. (6) Const, art. 10, sec. 1 ; 1 R. S. 112, sec. 48. (7) 1 R. S. 109, sec 27. (8) 2 R. S. 370, sec. 41. ACTIONS AGAINST SHERIFFS. 77 not prevent a deputy sheriff, who is plaintiff in, or assignee of, a judg- ment, from purchasing under an execution thereon, directed to his principal. The object of the statute was, (to prevent abuse) that the sheriff or his deputies should not be allowed to become purchasers at their own sales, and thereby be induced to conduct corruptly in rela- tion to them ; but not to place those persons in a worse situation than others, as to the collection of their own demands. (1) And it has been held, that a turnkey or assistant jailer is not within the statute ; he is a mere servant of the jailer, and can have no official control or agency in the execution of process directed to the sheriff.(2) In respect to hecoming hail.'] This court has also recognized and adopt- ed the practice of the English courts, prohibiting sheriffs, and other persons concerned in the process of the court, from becoming bail.(3) The rule extends, of course, to their deputies or ofl&cers,(4) and to jail- ers, turnkeys or the like. (5) And for the same reason, it applies to bail, who have been indemnified by a sheriff's officer : for this would be a mere evasion of the rule.(6) But by the Code, (7) the sheriff or other officer who may have made an arrest, is sometimes himself liable as bail : thus, if, after being arrested, the defendant escape or be rescued, or bail be not given or justified, or a deposit be not made instead thereof, the sheriff shall himself be liable as baU. But he may discharge himself from such liability by the giving and justification of bail, at any time before process against the person of the defendant, to enforce an order or judg- ment in the action. Still, if bail be taken on the arrest, and they do not justify, or other bail be not given, they shall be liable to the sheriff by action, for the damages he may sustain by reason of such omission.(8) 6. Actions against Sheriffs. Reserving for fature consideration, those of the duties of sheriffs which have not already been referred to, and the particular remedies, for the violation of all or any of them, to which the party aggrieved is (1) Jachsonv. Collins, 3 Cowen, 89; Revisers' notes, 3 R. S. 2d ed. 128. (2) Jackson Y. Anderson, 4 Wend. 481. (3) Bailey v. Warden, 20 Johns. 129. (4) Bolland v. Pritchard, 2 W. Bl. 799 ; Doldern v. Feast, 2 Str. 890 ; See Ilaioldns v. Mag- nail, Doug. 466. (5) DalyY. Brooshoft, 2 '^t. & B. 359 ; S. 0. 5 Moore, 12; but see Faulkner v. Wise, 2 B. & P. 150, contra, (6) V. Earvey, MS. E. T. 1824, cited 1 Chit. Archb. 1th ed. 601 ; but see Chick's Bail, 1 Chit. Rep. 114, note. (1) Sec. 201. (8) Code, sec. 203. 78 ACTIONS AGAINST SHEEIFFS. entitled, it is sufficient, for the present purpose, to remark, that, in ad- dition to the summary power of the court, which may, in most cases, be resorted to, as will hereafter be seen, the party aggrieved has his action against the sheriff for any act of non-feasance, mis-feasance or mal-feasance on the part of the sheriff, or of his deputies, in the cases already mentioned. It only remains, therefore, to inquire when and where such actions may be prosecuted, and to notice generally, some of the incidents of their prosecution and defence. Within what time, to he brought.'] As to the time within which such ac- tions must be prosecuted, it is provided, by the Code, that all actions against sheriffs or other officers, for the escape of persons imprisoned on civil process, shall be commenced within one year from the time of such escape, and not after.(l) This provision, it was held under the revised statutes, was confined in its construction as well as in its terms, to an action against the sheriff, and does not extend to an action against the obligors of the bond for the jail hberties.(2) It is also provided, by the Code, that all actions against sheriffs and coroners, upon any liability incurred by them, by the doing any act in their official capacity, or in virtue of their office, or by the omission of any official duty, including the non-payment of money collected upon an execution, except for escapes, shall be brought within three years after the cause of action shall have accrued, and not after that period.(8) This provision was for the first time enacted in the revised statutes, and was designed to relieve the sureties of sheriffs, by requir- ing suits to be speedily brought, where they stood responsible for those officers ;(4) and in terms as well as intent, applies only to cases of official liahility, such as enable the party aggrieved to resort to the official bond. It was therefore held, not to apply to an action of tres- pass, against a sheriff, for an alleged wrongful taking of personal property, which he justified under a writ of replevin. " If," says Nelson, Ch. J., " the defendant is guilty of a trespass, (and unless he is, the plaintiff must fail in the suit,) he cannot maintain, that the liability was incurred by doing an act in his official character. It may have been done, colore, but not virtute officii:' The correctness of that de- cision has been frequently questioned, and recently, in the Court of Appeals, overruled.(5) It was held in this case that when a sheriff, having in his hands a process against the property of the defendant therein, seizes by virtue thereof the goods of another person, he is guilty of official misconduct, and he and his sureties thereby become liable on <1) Code, sec. 94, sub. 1. (2) Binds v. Boichledy, 21 "Wend. 223. (3) Code, sec. 92, sub. 1. (4) Revisers' notes, 3 R. S. 2ded. 702. (6) People V. SchvAjkr, 4 Come. R. 173. ACTIONS AGAINST SHERIFFS. 79 liis official bond. An action against a sheriff, however, for not paying over money collected by him under an execution, must be brought within three years. It would seem, however, that the limitation of three years would be a bar to an action, brought after three years, for not returning an execution ; but it has been held, that, notwithstand- ing that lapse of time, the sheriff may still be proceeded against, by attachment, in order to conijDel a return ; though, in such case, the court, giving effect to the statute, which, if he were driven to his action upon the return, would be a bar, will not impose a fine, for the benefit of the party instituting the proceeding, but will discharge the sheriff, on his returning the fi. fa., and paying costs.(l) To a complaint against a sheriff, for not levying and not returning an execution, the proper answer is, that the causes of action did not accrue within three years.(2) Venue, or jjlace of trial.'] Among the incidents, which peculiarly distinguish proceedings in actions against sheriffs, from those in actions against private persons, are the rules which existed at common law, and have been adopted in the Code, in relation to the venue or place of trial, and also the statutory enactments in their favor, as to the form of pleading matters of defence. These provisions apply also to other public officers ; and to avoid unnecessary repetition, the former of them will be treated of, when I come to the subject of place of trial generally, and the latter in that portion of the work devoted to the subject of an- swers. In the meantime, however, I shall extract the general pro- visions of the statutes on the subject, so that in connection with the office of sheriffs, their general spirit may be here understood. As to the venue or place of trial in such cases, it is provided, that every action against any public officer, appointed under the authority of the state, or elected by the people, and against any person specially appointed, according to law, to execute the duties of any such public officer, for or concerning any act done by such officer or person, by virtue of his office, and every action against any other person, who, by the commandment of such officers or persons, or in their aid or assist- ance, does anything touching the duties of such office or appointment, shall be laid in the county where the £.ict complained of happened, and not elsewhere.(3) It is now, however, provided by the Code, that if the county designated for that purpose in the complaint, be not the proper county, the action may, notwithstanding, be tried therein, un- less the defendant, before the time for answering expires, demand in (1) Tlie People v. Everest, 4 Hill, 71. (2) Fisher v. Pond, 2 Hill, 338 ; Dyster v. Battye, 3 B. & Aid 448, 452. (3) Code, sec. 124, sub. 2. 80 PEOCBEDINGS ON THE writing, tliat tlie trial be had in the proper county ;(1) in which case it is the duty of the plaintiff to change the place of trial to the proper county. The Code, however, has put actions against sheriffs and other public officers, as respects the place of trial, upon the same footing with actions against private persons; (2) and, as will be seen hereafter, when I come to speak of the place of trial generally, the place of trial in ac- tions against public officers may be removed for any of the reasons that will authorize a removal in actions against private persons. Pleading^ As to the form of pleading, it is enough to say that it is the same as in actions against other persons. Service of process^ in actions hy or against sheriffs^ Another incident, peculiar to actions where the sheriff is a party, whether plaintiff or de- fendant, is the mode of executing process — namely, its service by the coroner. Of this, I shall speak in the present section, when upon the subject of the office and duties of coroners. Sheriffs remedy over, on bond of indemnity.'] The last and only inci- dent, connected with suits against a sheriff, which it remains to notice, is his course of defence, where he has been sued for an act done by him in his official character, against the consequences of which he has been indemnified, — as, for instance, a levy upon personal property, the title to which is claimed by a third party, and for the alleged wrongful taking of which he is prosecuted. In these cases, he is, if he fail in the action, entitled to call upon the sureties for an indemnity. For his own protection as well as theirs, it was formerly the practice, to permit the party indemnifying to manage the defence, and employ his own attorney and counsel. It has, however, been decided, that a sheriff, sued for an act done by him, in the execution of process, is entitled to take upon himself the conduct of the defence, and to retain such attor- ney as he sees fit, notwithstanding he is indemnified by the party suing out the process ; at the peril, if he should conduct the defence im- properly, and, by reason thereof, a recovery be had against him, if the indemnitor availing hunself, in the action against Mm^ of such improper conduct, as a defence.(3) 7. Proceedings on the official bonds of sheriffs. What constitutes a violation of the bond^ The condition of a sheriff 's bond, (which is executed to the people of the state of ISTew York,) is as has been already seen, (4) that he shall well and faithfully, in all (1) Code, sec. 126. . (2) Code, sec. 126. (3) Peck V. Acker, 20 "Wend. 605. (4) Ante, 48. OFFICIAL BONDS OF SHERIFFS. 81 tilings, perform and execute the office of sheriff, during his continu- ance in the said office, without fraud, deceit or oppression. As to what shall constitute a violation of this bond, subjecting the sureties of the sheriff to liability, — it was formerly held, that the con- dition of the bond did not extend beyond non-feasance or mis-feasance, in respect to acts which by law he is required to perform as sheriff. And accordingly, where the papers, 'oh which the motion for leave to prosecute his bond was made, showed only that the sheriff had failed to satisfy a judgment recovered against him, in trespass, for seizing the relator's goods under a Ji. fa., and that-0n the trial of the cause, the sheriff attempted to justify under the writ ; it was held, that no right of action existed on the bond.- — ■' The condition is," says Cowen, J., " that Hart shall perform and execute the office, &c. ; not that he shall avoid the commission of wrongs generally. The words cannot be ex- tended beyond non-feasance or mis-feasance, in respect to acts which he is required to perform as sheriff. Here, the sureties are sought to be fixed with the consequences of a trespass, having no connection Avith his office, any more than an assault without a warrant of arrest. The charge of a trespass assumes that the act could not have been done virtute officii. It is no more the act of the sheriff, because done colore officii, than if he had been destitute of process. To allow a prosecution, would be equivalent to saying, that the sureties of a sheriff are bound for his general good behaviour as a citizen."(l) Though, in the case just cited, the court avoided expressing an opinion, as to how it would be, were the original seizure lawful, but the sheriff a trespasser ah ini- tio, by reason of subsequently abusing his authority.(2) But this has recently been overruled in the Court of Appeals,(3) And it is now settled that the sureties of a sheriff are liable for acts of trespass in seizing the goods of another than the judgment debtor. And, although the bond covers no acts which were done before its execution,(4) yet the sureties are liable for money received by him on an execution, after the making of their bond, although the process was received by the sheriff, previous to the giving of the bond.(5) Nor are they re- sponsible for money collected by him, on an execution, which came into his hands as a deputy of a former sheriff* although the money was in fact received by him, subsequent to the time of their becoming sure- ties.(6) But it is no answer to an action on a sheriff's bond, that he is sought to be charged for the non-performance of duties, created subse- quently to the act under which the bond is executed, provided that (1) Ex parte Reed, 4 Hill, 5'72, 573. (2) Ex parte Reed, 4 Hill, 572. 573. (3) People V. Sclmyler 4 Corns. R. 173. (4) Andff'us v. Waring, 20 Johns. 166. (5) The People v. Ring, 15 Wend. 623. (G) Tlie People v. W Henry, 19 "Wend. 482. YOL. I. 11 82 PROCEEDINGS ON THE such duties existed at tlie time of such, execution. ; though, if new duties were imposed, subsequently to the giving of the bond, it seems it would be otherwise.(l) The surities, also, are liable only to the ex- tent of the penalty of the bond.(2) Application for leave to prosecute the bond.'] In order to enforce this liability, it is provided by the revised statutes, that whenever a sheriff shall have become liable for the escape of any prisoner committed to his custody, or whenever he shall have been guilty of any default or misconduct in his ofhce, the party injured thereby, may apply to the Supreme Court, for leave to prosecute the official bond of such sheriff, (3) That jDortion of this section, which relates to escapes, was designed to obviate the injustice resulting from its omission in the former statutes. As the rule formerly existed, inasmuch as an action did not lie against the executors or administrators of a sheriff, for an escape in his life- time, (4) and as the plaintiff must, in order to render the sureties liable for a breach of the official bond, have recovered a judgment against the sheriff, (5) the plaintiff was remediless, after the death of the sheriff, for the escape of his prisoner. The revisers, not designing to alter the common law rule as to actions against the representatives of the sheriff, but to remedy the evil resulting from the construction of the former statutes, and supposing that the remedy on the bond should, in the first instance, be extended to this case, as the plaintiff would otherwise be perfectly remediless, in case of the death of the sheriff, recommended, and the legislature in pursuance of that recommendation, adopted the provision in question. The latter part of the section is in conformity with the former statutes, and the construction put upon them by this court, which was, that the sheriff's bond, that he would execute the duties of his office without fraud deceit or oppression^ was broken, if he was guilty of any default or misconduct in his office ;(6) the present ex- position of which has been already stated. As to the mode of making the application for leave to prosecute such bond, the proof necessary to be furnished for that purpose, and the order which the court is authorized to make, — it is provided by statute, that such application shall be accompanied by proof of the default or delinquency complained of, and that no satisfaction has been received, and by a certified copy of such ofiicial bond ;(7) (the motion for this purpose being ex parte ;) and that upon such application and proof, the (1) TliePequh v. Brush, 6 Wend. 454 (2) Lewis v. Ball, 6 Cowen, 583. (3) 2 R. S. 47 G, sec. 1. (4) Martin v. Bradley, 1 Caines, 124; EamUyy. Trott, Cowp. 375. (5) 1 R. L. of 1813, p. 421 sec. 6 ; Laws of 1827, p. 219, sec. 5. (6) The People v. Brush, 1 Wend. 454. (7) 2 R. S. 476, sec. 2. OFFICIAL BONDS OF SHERIFFS. 83 court shall order that such bond be prosecuted ; and the applicant shall thereupon be authorized to prosecute the same, in the said Supreme Court only, in the name of the people of this state, stating in the pro- cess, pleadings, proceedings and record in such action, that the same is brought on the relation of such applicant.(l) These provisions have materially altered the former practice, to which, as aiding in their construction, a brief reference is deemed im- portant. Under the act of 1813,(2) it was necessary that the plaintiff or party aggrieved by the default of the sheriflp, in order to entitle himself to have the ofl&cial bond put in suit against the sheriff and his sureties, should show that he had previously recovered a judgment against the sheriff, in an action against him, grounded directly on such default ;(3) and should also show a fi. fa.^ and a return of nulla hona, on a judgment against the sheriff; though this was not necessary, where it was clearly shown that he was insolvent.(4) By the act of 1827, the court were authorized to order the bond to be put in suit, on the application of any party aggrieved, without requiring that a previous recovery should have been had against the eheriff.(5) It was, therefore, discretionary with the court, whether they would direct a prosecution on the bond or not ; and in the exercise of that discretion, they held, that before directing a prosecution of the bond, by which the sureties were to be put to trouble and expense, it should be shown to the court, (which might be done by afiidavit,) that the sheriff was individually unable to respond in damages, for the default or miscon- duct alleged against him.(6) Under the present statute, it is not necessary to show a pevious re- covery against the sheriff, for the default or misconduct complained of ;(7) nor would it seem to be necessary to show the insolvency of the sheriff; the provision being, that the applicant shall show the default or delinquency complained of, and that no satisfaction for the same has been received, accompanied by a certified copy of the official bond, and that, upon such proof, the court shall make the order ;(8) thus, not leaving it discretionary with the court, but making it their imperative duty to grant the order, upon the required proof being furnished. It seems, however, that upon such an application, it must appear, that the money has been demanded of the sheriff, where the proceeding is founded on his default in not paying over money, collected by him on an execution.(9) (1) 2 R. S. 476, sec. 3. (2) 1 R. L. of 1813, p. 421. (3) The People v. Spraker, 18 Johns. 390. (4) Ex parte Noble, 2 Co wen, 590. (5) Laws of 1827, p. 219, sec. 5. (6) Anderson v. Hitchcock, 2 Wend. 299, (7) Ex parte Chester, 5 Hill, 555. (8j 2 R. S. 476, sec. 2. 3. (9) Rhinelander v, Mather, 5 Wend. 102. 84 PROCEEDINGS ON THE Proceedings in actions upon ilie lond.] Under tlie former practice, the order to prosecute required tlie bond to be sued in the name of the people, alone, without naming the relator ; and upon a judgment being obtained upon the bond, for the penalty, the practice was, for the party at whose instance the bond was sued, to move the court to have the amount of the original judgment, with interest and costs, levied on the execution against the sheriff and his sureties ; which might be done, without any previous notice of the motion for that purpose.(l) If any other default occurred, on the part of the sheriff, as to any other party, such as would have entitled him, originally, to move for leave to pro- secute, the practice was, to move for leave to have the amount of his judgment levied upon the execution, to be issued against the sheriff and his sureties, on the judgment recovered against them ; which motion must, however, have been founded on previous notice to them for that purpose.(2) And so, with each successive claimant, until the penalty of the bond, (beyond which, as has been seen, the sureties are not hable,) was exhausted. From this practice, many inconveniences resulted ; and the revisers, regarding a proceeding, by one plaintiff, on a judgment obtained by another, in a distinct right, and for a distinct cause of action, as altogether anomalous, — involving, as it did, the difiicu.lty, that after a judgment was satisfied, it must either continue a lien on the estate of the defendants, so as to remain as a security for fature breaches, or that it must be cancelled and discharged, (3) — recom- mended, and the legislature adopted, the provision, already referred to, that although the suit should still be brought in the name of the people, as the obligees in the bond, yet that it should be stated in the process, pleadings, proceedings and record in the action, that it was brought in the name and on the relation of the applicant ; and other enactments, designed to carry out the object of making each suit a separate one, and simplifying the proceedings generally. Accordingly, it is provided that in such actions, the same pleadings and proceedings shall be had, as are provided by law, in the case of suits upon bonds, with other conditions than for the payment of money, (which will be hereafter treated of,) except as therein otherwise provi- ded ; and judgment shall be rendered for the defendants, in the like cases.(4) But such judgment shall not be a bar to any other suit that may be brought, on the same of&cial bond, by the same plaintiff, or by any other plaintiff, for any other delinquency or default of such sheriff, than such as was assigned as a breach of the condition of such bond, in the action in which such judgment was rendered.(5) And during the (1) TJie People v. Matth^wson, 20 Johns. 300. (2) The People v. Birdsall, 20 Johns. 297. (3) Revisers' notes, 3 R. S. 2cl. ed. 758. (4) 2 R. S. 477, sec. 4. (5) 2 R. S. 477, sec. 5. OFFICIAL BONDS OF SHERIFFS. 85 pendency of any suit upon sucL. official bond, or after judgment ren- dered in such suit, any other party aggrieved by the default or delin- quency of such sheriff may, in like manner, apply to the Supreme Court, for leave to prosecute such official bond.(l) Upon such leave being granted, the applicant may prosecute such bond in the manner above provided ; and the pendency of any other suit, at the relation of any other person, on the same bond, or a judgment recovered by or against any other person, on such bond, shall not abate, or in any man- ner affect such suit, or the proceedings therein, except as herein provi- ded.(2) And, any person who may have recovered any judgment upon such official bond may, in like manner, apply for leave again to prose- cute such bond, whenever he is aggrieved by any other default or de- linquency than such as shall have been the subject of the former ac- tion ; and shall proceed therein in like manner as hereinbefore provi- ded.(3) And, in order expressly to abolish the former practice, it is provided that no scire facias shall be brought upon any judgment ren- dered upon such official bond, by the party at whose relation such judgment was obtained, or by any other person, for any breach of the condition of such bond,(4) and that every suit brought upon such offi- cial bond, and every judgment rendered therein, shall be deemed the j)rivate suit and judgnient of the party on whose relation the same shall be brought or obtained ; such suit may be discontinued, and the rela- tor may be non-suited, as in private suits ; and the judgment therein may be cancelled and discharged by the relator, in the same manner as if he were the nominal plaintiff, and shall be deemed satisfied, in the same cases as judgments by individuals.(5) And if the suit be discon- tinued, or the relator be non-suited, or judgment be rendered for the defendants, upon verdict, demurrer, or otherwise, costs shall be award- ed against the relator, as if he were the nominal plaintiff, and judgment shall be rendered for such costs, and execution thereon awarded against him, in the same manner. (6) In order to prevent a sheriff and his sureties from collusively suffer- ing judgments to the amount of the penalty of the bond, and satisfying them with the very money retained by the sheriff for that purpose, — thus effectually defeating the security arising from the bond, (7) — it is further provided that no such suit shall be barred, nor shall the amount which the plaintiff may be entitled to recover therein, be affected by any plea or notice made by any surety in such bond, of a judgment recovered thereon, unless it be accompanied by an allegation that the (1) 2 R. S. Ann, SGc. 6. (2) Ibid. sec. T. (3) Ibid. sec. 8. (4) Ibid. sec. 9. (5) Ibid. sec. 10. (6) Ibid. sec. 11. (7) Revisers' notes, 3 R. S. 2d ed. 758. 86 PROCEEDINGS ON THE OFFICIAL BONDS OF SHERIFFS. sureties in such bond, some or one of them, have been obhged to pay the damages assessed in such judgment, or some part thereof, for the want of sufficient property of such sheriff whereon to levy the same, or that they will be obliged to pay the same, or some part thereof, for the same reason ; nor unless such plea or notice be verified by the oath of the defendant making the same.(l) And with a view to carry out this provision, as well as to protect the sureties, (2) it is provided, that if it appear that the amount of any dam- ages so recovered, which such surety has been obliged to pay, or will be obliged to pay, as specified in the last section, is equal to the amount for which such defendant shall be liable, by virtue of the bond, he shall be acquitted and discharged of all further liability, and judgment shall be rendered in his favor.(3) And if it shall appear that the amount of any damages so recovered, and which such surety has been obliged to pay, or which he will be obliged to pay, is not equal to the amount of such surety's habilitj^, the amount tliereof shall be allowed to such de- fendant, in estimating the extent of his liability in any such action.(4) Whenever a judgment shall be obtained against a sheriff and his sureties, a direction shall be endorsed on the execution issued thereon by the attorney issuing the same, to levy the amount of such execution, in the first place, of the property of such sheriff, and if sufficient pro- perty of such sheriff" cannot be found to satisfy such execution, then to levy the deficiency of the property of the sureties.(5) Proceedings^ where there are several judgments on the bond, to prevent un- due preference.'] With a further view, in certain cases, to make a dis- tribution among all the creditors, as far as possible, and to prevent any undue preference, from priority of execution, (6) it is provided also, that whenever several judgments shall be obtained at the same term, upon any official bond of a sheriff, for damages amounting in the whole to more than the sums for which the sureties therein shall be liable, the Supreme Court shall order the moneys levied upon such judg- ments, from the property of the sureties, to be distributed to the rela- tors respectively in such judgments, in projDortion to the amount of their respective recoveries.(7) And if executions be issued upon seve- (1) 2 R. S. 478, sec. 12. (2) Revisers' notes, 3 R. S. 2d ed. 758. (3) 2 R. S. 478, sec. 13. (4) Ibid. sec. 14. (5) Ibid. sec. 15. It was also iDrovided by the next section, that in every such case of a judgment against a sheriff and his sureties, no execution against the bodies of the defend- ants should be issued, until an execution against their property should have been returned unsatisfied, in whole or in part. (Ibid. sec. IG.) Since the passage of the act abolishing imprisonment for debt, however, this process cannot be issued at all in cases like the pre- sent. (Laws of 1830, p. 396, sec. 1, 2 ; Laws of 1840, p. 120, ch. 165, sec. 1, 2.) (6) Revisers" notes, 3 R. S. 2d ^d. 758, 759. (7) 2 R. S. 478, sec. 17. CORONERS— THEIR OFFICE,— &c. 87 ral judgments obtained at the same term, upon any official l:)ond, and sufficient moneys shall not be raised to satisfy all of tlie said execu- tions, tlie Supreme Court shall distribute the moneys collected on such executions, to the relators respectively in such judgments, in proportion to the amount of their respective recoveries. (1) 8. Coroners^ — their office^ — and 'powers and duties in relation to process. Their election^ and general incidents of their office.'] The constitution provides, that there shall be so many coroners, as the legislature may direct, not exceeding four, in each county, who shall be elected in the same manner as sheriffs, and shall hold their offices for the same term, and be removable in like inanner.(2) The legislature, in pursuance of the power thus conferred upon them, have provided, that there shall be a coroner for the city and county of New York, and four coroners for every other county. (8) They are required to take the constitu- tional oath of office in the same manner as sheriffs, (4) and like them, also, must reside within the county, in which the duties of their office are required by law to be executed.(5) When to act as sheriff^ It has already been seen that when the office of sheriff shall have become vacant by death, removal or otherwise, the governor is required to appoint some fit person, who was eligible to the office, to execute the duties thereof until it shall be supplied by an election ; but that the exercise of this power, in case of the death of a sheriff, shall not affect the power now vested by law in any sheriff to appoint under sheriffs, nor the powers of such under sheriffs, as now declared by law. (6) The power, on the part of the under sheriff, thus referred to, is, as has been seen, his right, upon the death of the sherifl' to hold, and perform the duties of the office of sheriff until a ncAV sheriff shall have been elected or appointed.(7) To meet the contingency, however, of a vacancy in the office of sheriff and there being no under sheriff, the revised statutes have pro- vided that whenever a vacancy shall occur in the office of sheriff of any county, and there shall be no under sheriff of such county then in office, or the office of such under sheriff shall become vacant, or he become incapable of executing the same before another sheriff of the same county shall be elected or appointed, and qualified, and there shall be more than one coroner of such county then in office, it shall (1) 2 R. S. 4*78, sec. 18. (2) Const, art. 10, sec. 1. (3) 1 R. S. 97. (4) 1 R. S. 119, sec. 20. (5) 1 R. S. 102, sec. 15. (6) Ante, 53. (1) Ante, 53. 88 CORONERS— TEEIR OFFICE— AND POWERS be the duty of the judge of the county court fortliwitli to designate one of such coroners to execute the ofiice of sheriff of the same county, until a sheriff thereof shall be elected or appointed, and qualified. Such designation shall be by an instrument in writing, and shall be signed by the judge, and filed in the office of the clerk of the county, who shall immediately give notice thereof to the coroner,(l) The coroner so designated, within six days after receiving such notice, shall execute with sureties a joint and several bond to the people of this state, which shall be in the same amount, and with the same number of sureties, and be aj^proved of in the same manner,(2) and be subject, in all respects, to the same regulations, (3) as the security required by law from the sheriff of such county ; and after the execution of such bond, the coroner so designated shall execute the office of sheriff of the same county until a sheriff shall be duly elected or appointed, and quah- fied.(4) And if the coroner so designated shall not, within the time above specified, give such security as is above required, it shall be the duty of the judge to designate in like manner another coroner of the county to assume the office of sheriff ; and in case it shall be neces- sary so to do, the judge shall proceed to make successive designations, until all the coroners of the county shall have been designated to assume such office ; and all the provisions contained in the last two sections shall apply to every such designation, and to the coroner named therein.(5) Whenever any such vacancies shall occur in the offices both of sheriff and under sheriff of any county, if there shall be but one coroner of such county then in office, such coroner shall be entitled to execute the ofiice of sheriff of the same county until a sheriff shall be duly elected or appointed, and qualified ; but, before he enters on the duties of such office, and within ten days after the happening of the vacancy in the ofiice of the under sheriff, he shall execute, with sureties, a joint and several bond to the people of this state, in the same amount and with the same number of sureties, as may be required by law from the sheriff of such county ; and such bond shall be subject, in all respects, to the same regulations as the security required from the sheriff.(6) If such coroner, solely in office on the happening of such vacancies, shall neglect or refuse to execute such bond, within the time above specified, or if all the coroners, where there are more than one in office on the happening of such vacancies, shall successively neglect or refuse to execute such bond, within the time required, it shall be the duty of (1) 1 R. S. 380, sec. 18. (2) Ante, 48, 49. (3) Ante, 80—87. (4) 1 R. S. 380, sec 19. (5) 1 R. S. 381, sec. 80. (G) BM. sec. 81. AND DUTIES RELATING TO PROCESS. 89 the judge of the county court in wliich such vacancies shall exist to appoint some suitable person to execute the office of sheriff of the same county until a sheriff shall be duly elected or appointed, and qualified.(l) Such appointment shall be in writing, under the hand and seal of the judge, and shall be filed in the office of the county clerk, who shall forthwith give notice thereof to the person so appoint- ed,(2) The person so appointed shall, within six days after receiving notice of his appointment, and before he enters on the duties of the office, give such security as may be required by law of the sheriff of such county, and subject to the same regulations ; and after such secu- rity shall have been duly given, such person shall execute the office of sheriff of the county until a sheriff shall be duly elected or appointed, and qualified.(3) Until some coroner designated, or some person appointed by the judge shall have executed the security above prescribed, or until a sheriff of the county shall have been duly elected or appointed, and qualified, the coroner or coroners of the county in which such vacan- cies shall exist, shall execute the office of sheriff of the same county.(4) Whenever any under sheriff, coroner, coroners, or other person, shall execute the office of sheriff, pursuant to the provisions just cited, the person so executing such office shall be subject to all the duties, liabil- ities and penalties, imposed by law upon a sheriff duly elected and qualified.(5) Duties of coroner^ loliere sheriff is a partyP\ In addition to these in- stances, in which the office of sheriff is made by law to devolve upon the coroner, the revised statutes, in conformity with the rule as it existed at common law, (6) that whenever the sheriff of any county shall be a party in any suit, all process in such suit, except when otherwise pro- vided by law, shall be executed by the coroner of the county to whom the same shall be delivered, in the same manner in all respects, subject to the same obligations and liabilities, and with the like authority, and entitled to the same privileges, as are prescribed by law in respect to sheriffs, except in cases otherwise specially provided for.(7) And it seems that if the sheriff" be a party, and the process be directed to him, the court will set aside the proceedings for irregularity.(8) (1) 1 R. S. 381, sec. 82. (2) Ibid. sec. 83. (3) Ibid. sec. 84. (4) 1 R. S. 382, sec. 85. (5) 1 R. S. 382, sec. 86. (6) Letsom \. BicJdey, 5 M. & Sel. 144 ; Aiidreivs v. Sharp, 2 W. Bl. 911. It was formerly held, that a deputy sheriff might serve a capias ad respondendum in his own favor, where no bail was required. {Bennett v. Fuller, 4 Johns. 486.) Though, now, it seems otherwise. {Mills V. Young, 23 "Wend. 315.) 0) 2 R. S. 441, sec. 84. (8) Weston Coulson, 1 W. Bl. 506. Vol. I. 12 90 CORONERS— THEIR OFFICE— AND POWERS, &c. When process shall be directed to the coroners of a county generally, the same may be executed, and a return thereto may be made and signed by any one of such coroners ; but such act or return shall in no degree prejudice the other coroners not participating therein,(l) If process for arresting the sheriff of the county be delivered to a coroner, he shall execute the same in the manner prescribed by law, in respect to the execution of similar process by sheriffs ;(2) and shall be authorized to take a bond on the arrest, or a bond for the jail liber- ties to himself by the name of of&ce in the same cases, and in the same manner in which a sheriff would be authorized to take the same; which bonds shall have the like effect, and be subject to the same pro- visions as bonds taken in like cases by sheriffs ; and the proceedings, rights and liabilities thereon, shall be the same in all respects,(3) It was held, b}^ this court, in a very early case, that where a ca. sa., on a judgment against a sheriff, was delivered to the coroner, who arrested the sheriff, and delivered him in the jail to the custody of the under sheriff and jailer, and the sheriff, immediately after, went at large, that the coroner was liable for an escape ; that upon arresting the sheriff, the coroner was bound to make his own house the jail, for the purpose of keeping hmi in custody — this being a casus omissus in the statute book, and the coroner being left to the rule of the common law, by which a sheriff might make his own house or any other place a prison.(4) In conformity with this rule, and as declaratory of the law in this respect, the revised statutes have provided, that if a sheriff, on being arrested b}^ a coroner, on civil process, requiring him to be held to bail, shall refuse or neglect to give the bond, required by law, to entitle him to be discharged, or if a sheriff shall be arrested on execution against his body, or on attachment, he shall be confined by the coro- ner in some house situated within the liberties of the jail of the county, other than the house of such sheriff, or the jail of such county, in the same manner as sheriffs are required by law, to confi.ne prisoners in the jails of their counties respectively.(5) Such house shall thereupon be- come the jail of the county, for the use of such coroner; and all laws relating to the jails of counties, shall be applicable to the same, while such sheriff shall be confined therein,(6) And for any escape of such sherifi" from such house, the coroner shall be liable in the same manner and to the same extent, as sheriffs for the escape of their prisoners, and may plead and give in evidence the same matters allowed to sheriffs in similar actions.(7) (1) 2 R. S. 442, sec. 85. (2) See Bay v. SreU, 6 Johns. 22, and cases there cited. (3) 2 R. S. 442, sec. 86. (4) Day v. JBrett, 6 Johns. 22. (5) 2 R. S. 442, sec. 87. (6) Ibid. sec. 88. (7) Ibid. sec. 89. PROCESS HOW EXECUTED, &c. 91 A sheriff, so confined, sliall be admitted to tlie liberties of the jail of the county, established for other prisoners, in the same cases, and upon executing the like bond to the coroner in whose custody he shall be, as provided in other cases. For any escape of such sheriff from such liberties, the coroner shall be liable, in the same manner and to the same extent, as sheriffs for similar escapes, and may plead and give in evidence the same matters allowed by law to sheriffs.(l) The coroner may prosecute such bond taken by him, and shall be entitled and sub- ject to all the provisions of law, in respect to similar bonds taken by sheriffs : and such bonds may be assigned by him, to the party at whose suit such sheriff shall have been arrested, and the same proceedings shall be had thereon, in all respects, as on bonds taken and assigned by sheriffs in similar cases. (2) As to suits in which a sheriff is plaintiff, it is provided, that if any person be arrested by a coroner, on process issued in a suit in which the sheriff of the county is a plaintiff, he shall be committed to the com- mon jail of the county, in cases where a commitment is required by law ; but such coroner shall not be liable for any escape of such pri- soner from such jail, after he shall have been committed thereto.(3) Such prisoner when so committed, shall be kept, in all respects, as other prisoners committed on civil process, and shall be entitled to be discharged, if he be committed on mesne process, on executing a bond to the coroner, in the same manner, and in the same cases, in which such bond is required to be given to a sheriff, which shall have the like effect, and be proceeded on in the same manner, in all resi3ects.(4) Such prisoner shall be entitled to the liberties of the jail, in the same cases as other prisoners, on executing to the coroner, a bond, in all re- spects similar to that required to be given to sheriffs, which shall have the like effect, and shall be assigned and proceeded on. in the same manner.(5) For any escape of such prisoner, from such liberties, the coroner shall be answerable, in the same manner, and to the same ex- tent, as sheriffs for similar escapes, and may plead and give in evidence the same matters.(6) 9. Process^ how directed and executed^ lohere both sheriff and coroner are parties. Elisors^ and their duties?^ Where both the sheriff and coroner are parties, all process in the case, must issue to two persons to be desig- (1) R. S. 442, sec. 90. (2) Ibid. sec. 91. (3) 2 R. S. 443, sec. 92. (4) 2 R. S. 443, sec. 93. (5) Ibid. sec. 94. (6) Ibid. sec. 95. 92 ATTORNEYS— ORIGIN AND NATURE nated by tlie court, for tliat purpose, who are denominated elisors.(l) So, if an attacliment be issued against tbe coroner, for not attacliing the sheriff, it must be directed to ehsors.(2) And in like manner, an at- tachment, for not returning a process, against the sheriff, must issue to ehsors, in the first instance, if the coroner be a party in the cause.(3) The duties of these officers, in the execution of process, are analogous to those of the sheriff and coroner, in ordinay cases. SECTION YII. ATTORNEYS, 1. Origin and nature of the office of attorney, — and admission thereto. 2. Privileges of attmneys. 8. Disahilities of attorneys. 4. Wlio may ai^]^ear hy attorney. 5. How appointed to sue and defend. 6. Duties of attorneys. 1. Authority of an attorney, and its duration. • 8. Change of attorney. 9. Consequences of his acting for a party, without authority. 10. Summary power of the court over attorneys, as it respects misconduct or otherwise. 11, Remedy s of attorneys, for their services. 1. Origin and nature of the office of attorney, — and admission thereto. Origin of attorneys?^ An attorney, in the more enlarged sense of the term, may be defined to be a person put in the place, stead or turn of another, to manage his concerns ; and as such, he may be of two kinds, — an attorney in fact, or an attorney in law. In the latter cha- racter, in which alone he is at present to be considered, he is a person duly invested with authority to represent, in actions in courts of law, all parties who may see fit to employ him, and to conduct such actions according to the prescribed rules of legal proceeding. At common law, the parties to a suit were obliged to appear in court, (1) 1 Chit. Archb. nh ed. 508 ; See Mayor of Norwich v. Gill, 8 Bing. 27 ; S. C. 1 U. &, Sc. 91 ; S.C.I Dowl. 0. S. 24G. (2) Andrews v. Sharp, 2 W. Bl. 911. {3)Regina\. Sheriff of Glamorganshire, 1 Dowl. N. S. 308; S. C. 5 Lond. Jurist, 1010. OP OFFICE,— ADMISSION. 93 in person, unless allowed, by a special warrant -from the crown, called a dedimus potestatem de aitornato faciendo, to appoint an attorney ; or unless, after appearance, they had appointed a deputy, called a respon- salis, to act for them ; which, in some instances, the court allowed them to do.(l) A general liberty of appearing by attorney, was first given by an act passed in the 13th year of Edward I., (2) by which it was l^rovided, in substance, that every person of full age and sound memory, other than defendants in cases where corporal punishment might be in- flicted, might appear by attorney, in every action or plea by or against him in any court, or might, at his election, prosecute or defend the same action or plea in proper person ; — though Mr, Archbold, in the course of an argument in a recent case in the King's Bench,(3) seems to have supposed, that before the statute, passed in the third year of James I., (4) there was no such thing as a regularly admitted attorney ; and that, therefore, in the interval which had occurred between the statute of Westminister^ which first authorized a party to appear by attorney, and the passing of the statute of James, an attorney must have been a mere deputy. Be that as it may, the statute of Westminster has been generally sup- jDOsed to be the source of this authority, and, as such, was at an early day, adopted in this state. Its provisions were in force, as thus re- enacted, when the revised statutes were adopted, by which it was pro- vided, that every person of full age and sound mind, may appear by attorney or solicitor, as the case may require, in every action or plea by or against him in any court; or may, at his election, prosecute or defend such action or plea in person : but this provision does not ex- tend to proceedings in criminal cases ; nor will any person be permit- ted to appear on the record, in a civil cause, in persoD, whilst he has an attorney or solicitor in such cause.(5) This provision, and the previous statutes, both in England and in this state, from which it is derived, do not, however, imply that every person indiscriminately may be invested with the right of representing another, in causes in court, as his attorney. On the contrary, it is necessary, to entitle him to do so, that he possess certain qualifi- cations, — and that, having conformed himself to the regulations estab- lished in order to ascertain his fitness for this delicate and import- ant function, — he should be regularly and duly admitted ; — and that, having been so admitted, he should be employed by the party whom he shall thus undertake to represent. Out of this general admission, as well as out of his special employment, arise the various incidental (1) 1 Chit. Archb. Hh ed. 49. (2) "Westm. 2., 13 Edw. I., ch. 10. (3) Thomjjson v. Blackhurst, I N. & M. 266. (4) 3 Jac. I., cli. T, sec. 2. (5) 2 R. S. 2f 6, sec. 11. Code, sec. 417. 94 ATTORNEYS— ORIGIN AND NATURE riglits, obligations and duties, embraced in the several divisions of this section. Nature of the office.'] Attorneys have been -aniformly regarded as officers of the courts to which they belong. By the old constitution of this state,(l) they were, in terms, treated as such ; it having been ex- pressly ordained by that instrument, that all attorneys, solicitors, and counsellors at law, thereafter to be appointed, be appointed by the court, and licensed by the first judge of the court in which they shall respec- tively plead or practice, and be regulated by the rules and orders of the said courts. The constitution of 1821 does not contain any similar provision ; but the omission in this particular was supplied soon after it went into effect, by the judiciary act of April 17, 1823, which pro- vided for their appointment, in future, in terms almost similar to those adopted in the old constitution, and for the continuance of those then in office.(2) This provision was substantially re-enacted by the revised statutes, which provided that counsellors, solicitors and attorneys, should be appointed, and licenced to practise by the several courts of law and equity in which they intended to practise, and that their licenses should be signed by the chancellor, chief justice, or presiding judge of the courts by which they shall respectively be appointed.(3) Indeed, they have been Adewed as public officers, in the more enlarged sense of the term, first, by chancellor Sanford, in considering the question, whether they hold an office or public trust, within the provision of the constitution prescribing to such persons an oath of office, and prohibiting all other tests ;(4) and subsequently, in the court of errors, by Savage, Ch. J., upon the question whether the provision of the constitution, disquali- fying a circuit judge from holding any other office or public trust, pre- vented his acting as counsel ; though no direct vote of the court upon that proposition appears to have been taken.(5) It is true, that formerly it had been considered otherwise, by this court,(6) — Piatt and Wbod- worth, Js., — {Spencer, Ch. J. dissenting,) upon the same question which arose before chancellor Sanford, — whether the oath prescribed by the duelling act had been repealed by the provision of the new constitution, prescribing a specific oath to persons holding a public office or trust ; — but this opinion has, ever since the cases above referred to, been re- (1) Const, of 1777, sec. 27, (2) Laws of 1823, p. 215, sec. 19. (3) 1 R. S. 108, sec. 20. (4) Matter of Wood, Hopk. 6 ; S. C. 2 Cowon, 29, note. (5) Seymour v. E'lison, 2 Cowen, 23 — 29. (6) Matter of Oaths of attorneys and counsellors, 20 Johns. 492. OF OFFICE —ADMISSION. 95 garded as ovcrruled.(l) In the revised vStatutes, also, tliey have been designated as judicial officers a2:)2^oinled hy courts of justice^ and as civil officers^ in the chapter, distributing under appropriate classifications, the public officers of the state, in which, in the class of judicial officers, is contained the provision, already referred to, as to their appointment.(2) The constitution which went into effect on the first day of January, 1847, contains an entirely new provision respecting the admission of persons to practice as attorneys and counsellors, in the courts of this state. By sec. 8, of art, 6, it is provided that " any male citizen of the age of twenty-one years, of good moral character, and who possesses the requisite qualifications of learning and ability, shall be entitled to admission to practice in all the courts of this state." It may be instructive to the student, briefly to recount the requisites of the old constitution, and the revised statutes, on the subject of the admission of attorneys and counsellors, and it is hoped that they may be thereby impressed with the importance of diligent and faithful application to their studies during the time they may devote to a preparation for examination. And they should remember that though they may pass the ordeal of an examining committee, and receive a certificate of possessing the "re- quisite qualifications of learning and ability," yet that the test comes afterwards when they may be called upon to give advice, or conduct the proceedings in a suit. From the statutory provisions before cited, and the former, as well as the present rules of this court, it is expressly provided, that no person can be admitted to practice as an attorney, without a regular admission and licence by the court. (3) Under the former statute it was provided that the Supreme Court should prescribe the rules and regulations, under which attorneys and counsellors should be appointed and licensed by that court ;(-i) in pur- suance of which, the court adopted rules prescribing the term of clerk- ship, — the evidence of the qualification of the party for admission, — and the mode of examination by which such qualification was to be ascertained. Before considering these, however, there are certain per- sonal requisites, to which reference will be had. Previous to the adoption of the revised statutes, there was no statu- tory provision, requiring citizenship as a pre-requisite to the admission of attorneys or counsellors ;(5) nor Avas it even prescribed by rule of (1) Eohhy V. Smith, 1 Cowen, 538. See also, per Walworth, chancellor, in Merritt v. Lambert, 10 Paige, 356. (2) 1 R. S. 06, 98, sec. 1; Ibid. lOt, 108, sec. 20. (3) Rule 1. (4) 1 R. S. 108, sec. 21. (5) Revisers' notes, 3 R. S. 2d ed. 443, note to sec. 21, art 3. 96 ATTORNEYS,— ORIGIN AND NATURE court, until that of August term 1806, AYliicli provided, that thereafter, no person, not being a natural born or naturalized citizen of the United States, should be admitted as an attorney or counsellor of this court.(l) Before that time, and in February term 1805, the court had determined, in the case of Thomas Addis Emmeit^ who was admitted at that term, to the degree of counsellor, that alienage was no bar to admission : the then existing statute of this state on the subject, not requiring the oaths of abjuration and allegiance to be administered, either to counsellors or attorneys, and this court having therefore, no power so to do ; the only oath requisite to admission being that of office ; and in that case, the court sait, they could not conceive how the practice of administering the other oaths had crept in, unless from the old colonial practice, under the statute of 13 Wm. 3, c. 6, (made to secure the crown against the pretender,) by the provisions of which, counsellors and attorneys were enjoined to take the oaths of allegiance and abjuration ; but that by those of 4 Hen. 4, c. 18, from which our then existing act was borrowed, the oath of ofiice only was prescribed ; upon the taking of which Mr. Emmet received his license.(2) The rule of 1806, requiring citizenship, has been ever since retained in the standing rules of the court, and constitutes the first subdivision of the second of the existing rules. By that rule it is provided, that no person, unless he be a citizen of the United States, shall be admitted to practise as an attorney or counsellor. (3) It was, moreover, provided by the revised statutes, as applicable to all civil officers, (in which class, as we have already seen, (4) were included attorneys and counsellors,) among other things, that no person should be capable of holding a civil office, who at the time of his election or appointment should not be a citizen of this state.(5) This pre-requisite, therefore, could not be dis- pensed with by the court ; nor was there any instance, in which even the legislature had done so, except by a special act, formerly passed, by which, the several courts of record in this state were authorized to admit Louis Joseph Amedee Papineau dit Montigny to practise as an attorney, counsellor or solicitor in such coiu'ts, in like manner as if he was a citizen of the United States.(6) The same section of the revised statutes which required that attorneys or counsellors should, at the time of their admission, be citizens of this state, also required that they should be of the age of twenty-one years ;(7) and all the rules of this court, (and especially, those respecting the al- lowance of time spent in the pursuit of classical studies, which expressly (1) 1 Johns Rep. 528. (2) Matter of Emmet, 1 Gaines, 38G. (3) Rule 2. (4) Ante, 94. (5) 1 R. S. IIG, sec. 1. (6) Laws of 1841, p. 4. chap. 3, sec. 1. (7) 1 R. S. IIG, sec. 1. OF OFFICE,— ADMISSION. 97 required tliat it should be shown that they were pursued after the per- son applying attained the age of fourteen years,(l) and to which I shall presently advert,) pointed to that as a necessary pre-requisite to admis- sion. Independently, however, of these provisions, it was held in recent cases in England, where no express statute or rule of court on the sub- ject exists, that a minor could not be admitted as an attorney .(2) And in the case last cited, Patteson, J., observed : — ■"■ I never yet heard of a person, who is an infant, being an attorney. This person cannot be admitted, until he has attained the full age of twenty-one. An attorney must of necessity enter into many contracts ; and when it is sought to enforce them, the party with whom he contracts may be met by a plea of infancy. The examination is preparatory to the person being ad- mitted ; and he must be presumed to be of fit age, at the time of examination, to be admitted. It will be necessary for the person for whom the present application is made, to wait until he is twenty-one, before he can be examined," The statutes of this state have, from an early period, (3) required that an applicant for admission must be approved by the court for his good character. As the only means of ascertaining this fact, the court, by rule, required of the attorney, with whom he had served his clerkship, a certificate stating his moral character. Upon this certificate, full re- liance was placed by the court ; and it was and is, therefore, the duty of the attorney, to be cautious that he do not grant it to an unworthy person, inasmuch as by doing so he renders himself guilty of a deception upon the court, and, as a consequence may stand in danger of summary punishment, to the extent of even forfeiting his own license. A case of this kind occurred a few years ago, in this court, in which, long after the admission of an attorney, both the party who had been admitted, and the attorney who gave him a certificate of good moral character, were brought before the court, upon a rule to show cause, founded on proof of the falsity of the certificate, and in which the court expressed themselves, in terms of strong reprobation, of the practice of granting this certificate loosely or inconsiderately. I mention this case, because this requirement seems, of late years, to have been regarded by some of the profession as a sort of fiction, retained not so much from its in- trinsic propriety or utility, as from respect to its former existence, and to its great antiquity. In order to satisfy the requirement of the statute, that no person should be admitted as an attorney, (or counsellor,) unless he be ap- (1) Eule 2. (2) Ex pa/rte Evans, (B. C. Mich. T. 1837,) 2 Lond. Jurist, 41 ; Ex parte Oragg, Wilm. WoU. & Hod. 34 ; S. C, 6 Dowl. 0. S, 256. (3) 1 R. L. of 1813, p. 416, sec. 4 ; 1 Dunl. 61. Vol. I 13 98 ATTORNEYS— ORIGIIT AND NATURE proved by the court for liis learning,(l) and in pursuance of the autho- rity conferred upon the court, to prescribe the rules and regulations under which they should be admitted, (2) it was provided by rule, that no person should be admitted to examination as an attorney, unless he should have served a regular clerkship of seven years in the office of a practising attorney of this court ; but if he had regularly pursued classical studies for four years, or any shorter period, after the age of fourteen, it might be allowed in lieu of an equal time of clerkship.(3) Formerly, the extent of such allowance must, at the commencement of the clerkship, have been ascertained and settled by one of the justices of the court, by an order to be sig-ned by him.(4) But, by the then existing rules, it was provided, that the extent of such allowance must, at the commencement of the clerkship, have been ascertained and set- tled by one of the clerks of this court, by an order to be signed by him.(5) Under the rule allowing a deduction from the period of clerkship, of time spent in the pursuit of classical studies, as it had continued for some time to be ]3ractised upon, and as it had substantially existed be- for the adoption of the rules of 1830, the court, in many cases, found themselves embarrassed by repeated applications to their indulgence, and by difficulties gTOwing out of the peculiar circumstances of indi- vidual cases, as to the nature of classical studies, and the mode of proof to be required in relation to them. In order to remedy this inconve- nience, it was provided by the 2d rule, that the evidence of such clas- sical studies should be, — 1. A diploma conferring the degree of Bachelor of Arts by some in- corporated college, or a certificate of the president of such college ; 2. If neither could be produced, an affidavit of the teacher or teach- ers with whom the student has pursued his studies, stating the time spent and studies pursued, with a specification of the books used ; or, 3. K the teacher be dead or absent from the country, so that his affi- davit could not be obtained, then the affidavit of the student himself, stating such death or absence, and also the time spent with his teacher or teachers, and the books studied by him under each teacher. When the person applying for an order to allow classical studies had no diploma nor certificate, an affidavit should also be produced, stating the qualifications of the teacher or teachers. Time spent in classical study without the aid of a competent teacher, or time spent in those studies which are usually taught in common schools, and compose an (1) 2 R. S. 287, sec. 65. (2) 1 R. S. 108, sec. 21. (3) 1 Rule 2. (4) Rule 2, of 1830. (5) Rule 2. This regulation was first adopted in January term, 183G ; (13 Weud. 674,) and was incorporated in Rule 2, of ISSY. OF OFFICE— ADMISSION. 99 ordinary Englisli education, including Englisli grammar, arithmetic and geography, would not be allowed. And in every case it must have been shown by affidavit, that the studies were pursued after the person applying attained the age of fourteen years. The clerk was obliged to file in his office the papers on which the application was founded, unless it was founded on a diploma. In such case he should state, in the order of allowance, that such diploma was produced to him. Legal studies, regularly pursued in another state, might be allowed in the place of so much time passed in classical stu- dies.(l) It was also provided by the 4th rule, that any portion of time not exceeding one year, spent in regular attendance upon the law lectures of the university of New York, Cambridge university, or the law- school connected with Yale college, should be allowed in lieu of an equal portion of clerkship in the office of a practising attorney of this court. (2) By the 3d rule, it was made the duty of the attorney with whom the clerkship should have been commenced, to file a certificate in the office of one of the clerks of this court, certifying that the person had com- menced a clerkship with him ; and if an order had been obtained, as before mentioned, allowing a shorter term than seven years for such clerkship, the same should be filed with such certificate, and the clerk- ship should be deemed to have commenced on the day of the fihng of the certificate. These regulations, though very precise in their terms, had not thereto- fore been very strictly regarded by attorneys or students ; and as a con- sequence, applications to the court had been very frequent for leave to file certificates and obtain allowances of time, in lieu of clerkship, nunc 2)ro tunc. To obviate this practice, the court had provided by a rule adopted November 7, 1845, that where a clerkship as a student at law had already been commenced, without complying with the rules of the court, by filing a certificate of the commencement of the clerkship, or by procuring and filing an order for the allowance of classical studies, such certificate, verified by the affidavit of the attorney, might be filed at any time before the first day of February next, (1846 ;) and such order might be made by one of the clerks of this court, at any time before the said first day of February next. If there should not be a com- pliance with this order, or, in the case of clerkships theretofore com- menced if the rules of the court should not be observed, the student wou.ld lose an allowance for legal or classical studies, as the case might be.(3) (1) Rule 2. (2) Rule 4.' (3) Rule 104. 100 ATTORNEYS— ORIGIN AND NATURE I liave, therefore, pointed out the requirements prescribed by tlie former statutes and rules for the admission of attorneys and counsellors. It will be seen that the foregoing apj)lies only to the admission of attor- neys. Counsellors could not be admitted to practice as such until after the period of three years practice as an attorney had elapsed, and then only upon an examination and license by the court. In pursuance of the provision of the constitution of 1816, which does away, as will be seen, with all previous rules and regulations requiring a specific term of clerkship, the legislature enacted (1) that every person who was a sohcitor in chancery, or attorney of the Supreme Court of this state, in the first Monday of July, 1847, should be entitled to prac- tice as attorney, solicitor and counsellor in all the courts of this state ; and every person who was an attorney of the court of common pleas on the said first Monday of July, 1847, should be entitled to practice in the county court of the same county. By the same section, it is further provided, that every male citizen of the age of twenty-one years, ap- plying to be admitted to practice as attorney and counsellor in the courts of this state, shall be examined by the justices of this court, which examination shall be at a general term thereof; and if such per- son shall be found to be of good moral character, and to possess the requisite quahfications of learning and ability, the court shall direct an order to be entered by the clerk thereof, stating that such person has been so examined, and found to possess the qualifications required by the constitution ; and thereupon such person shall be entitled to prac- tice as attorney and counsellor in all courts of this state, until he shall be suspended from such practice for cause as thereinafter provided. A copy of such order, certified by such clerk, shall be presumptive evi- dence of the right of such person to practice as aforesaid ; and the said court shall, by general rules, prescribe what shall be deemed sufiicient proof of good moral character, and no term of clerkship or period of study shall .be required. In pursuance of these provisions, the court have, by general rules, prescribed the terms upon which a person may be admitted to practice as an attorney and counsellor, (2) wherein it is provided that applicants for admission to practice as such attorneys and counsellors, who are en- titled to examination, shall be examined in open court ; the examination to commence on the first day of each general term. Requisites of admission^ It follows from the statutory pro^dsions just cited, and is also expressly provided by the foregoing rules of this court, that no person can be permitted to practice as an attorney and (1) Laws 1847, pp. 342, sec. 15. * (2) Rules 1 and 2. OP OFFICE— ADMISSION. 101 counsellor, witliout a regular admission and license by tlie court. Botli the constitution and the statute above referred to, point to the only requisites necessary to this admission, and which provide that no per- son shall be admitted a counsellor and attorney, unless he be approved by such court for his good character and learning. For the purpose of carrying out the objects of these enactments, this court have adopted the above mentioned rules, prescribing the proof of citizenship, his age, residence and good moral character. He must he a citizen?^ It is now expressly provided by the constitu- tion, the act of 1847, and^ the rules of the court, that the applicant must be a citizen of the United States, and this fact must be made to appear to the court. Although under the former statutes, (there being no provision to that effect in the former constitution,) there were one or two instances of admissions made by the courts ex gratia of persons who were not citizens, yet, under the express provision contained in the present constitution, this requisite cannot now be dispensed with ; and the applicant must, at the time of his application, be a citizen of the United States. He must he of age.} In like manner, the constitution, statutes, and rules require that the applicant must be of lawful age, and this must be proved to the court, and may be by the af&davit of the applicant. Residence.'] It is now provided by rule,(l) that the person applying for admission must be a resident of the district in which he applies. This is a new requisite, caused by the new organization of this court, which, as it will be remembered, is now composed of thirty-two judges, with eight judicial districts — it, therefore, now becomes neces- sary, in addition to the other requisites, to furnish the court with proof that the applicant for admission resides in the judicial district in which he applies. He must he of good cJtaracter.'] Evidence must be furnished of good moral character, and this may be by the certificate of a reputable counsellor of this court, or of some other reputable person known to the court. This certificate, however, is not conclusive evidence. And if the court suspect or have reason to believe that the certificate is false in this particular, they may require further evidence, the rule say- ing that the court must be satisfied on the point, after a full examina- tion and inquiry. (1) Rule 2, sub. 1. 202 ATTORNEYS— ORIGIN AND NATURE The affidavits and certiiicates are usually delivered on the first day of the term to the clerk of the court, by whom they are examined, and if found correct are filed by him, and the applicant's name inserted among the candidates for admission. Examination^ when and hoiv had.] The rules require that the ex- amination shall be had at a general term of the court, and on the first day thereof; and in most of the judicial districts such is the time for the examination. In some of the districts, however, the examination does not take place until the first Thursday in term, each district claim- ing to have the right to regulate the time of the examination in their district. The examination of applicants is usually, and I believe now universally, delegated to a board of three examiners, selected and ap- pointed by the court, whose duty it is to attend at the time and place desiarnated in the order, and examine the candidates for admission, and who, if they are satisfied the applicants possess the requisite qualifica- tions of learning and ability, are required to give to the clerk a certifi- cate to that effect ; upon filing which an order is entered admitting the persons so named, to practice as attorneys and counsellors in all the courts of this state. A certified copy of such order is presumptive evidence of such right, though it is usual to furnish the applicant with a diploma, signed by the presiding justice of the district. Admisssion of attorneys from other states^ Previous to the adoption of the rules of 1845, there was no uniform practice as to the admission of attorneys from other states ; the granting or refusal of the application, in each case, being made to depend on its own peculiar circumstances. And it was provided by the 7th rule of the late Supreme Court, that persons who have been admitted, and have practised four years as attorneys in the highest court of law in another state, might be ad- mitted, without examination, to the degree of counsel in this state : and after practising as counsel for two years in this state, might be ad- mitted, on examination, j^s attorneys. But such persons must have become residents of this state, before applying for admission, and must have brought a letter of recommendation from one of the judges of the highest court of law in the state from which they corae.(l) At present there is no rule of this court upon this subject, but it is understood to be the uniform practice in all the districts, to admit upon motion all persons who have been regularly admitted to practice in the courts of any of the neighboring states. Where the date of such admission is very re- (1) Rule 7. OP OFFICE— ADMISSION. 103 cent, the court may require tliat the applicant be examined in this state. Effect of admission.'] Formerly an attorney, when admitted, was only authorized to practice as such in the court in which he was so admitted. This follows from the terms of the statute already referred to, by which, counsellors, solicitors, and attorneys were required to be appointed and licensed to practise by the several courts of law and equity in which they intended to practice,(l) If he desired to practise in any of the inferior courts of record, such as the courts of common pleas, mayors' courts, or superior court of the city of New York, he must, of course, have obtained a license to do so, in conformity to their rules. The inconvenience resulting from this state of things, — (but which, it is believed, was in a great measure obviated by a reasonable liberality in admitting to practise in those courts, persons licensed in this, and by extending to counsellors of this court, almost of course, the privilege of advocating causes before them,) — and the apparent in- justice of requiring a distinct license in inferior courts, when the license of the highest original court of law in the state might be presumed to have settled the question of his fitness, presented itself to the minds of the revisers, and induced them to submit to the legislature, a section, to the effect, that all attorneys or counsellors licensed to practice in the Supreme Court, should be authorized to practice as such in all the courts of law in this state, and that all solicitors and counsellors so licensed in the court of chancery, should be authorized to practise as such in all the courts of equity. (2) The first clause, however, was stricken out by the legislature, and the latter was retained ;(3) though it has no meaning whatever, inasmuch as all the pre-existing courts of equity are abolished by the revised statutes, and their powers merged in, as well as the cases then pending before them, transferred to, the court of chancery.(4) Attorneys and counsellors of this court were, however, authorized to practise as such in the court for the correction of errors ; that court having no roll of attorneys or counsellors, and having recognized as such, the attorneys, counsellors and solicitors of the Supreme Court and court of chancery, by a rule providing, that in all cases in that court, the attorneys or solicitors and guardians ad litem, of the respect- ive parties in the court below, should be deemed the attorneys, solici- tors or guardians ad litem, of the same parties respectively in that (1) 1 R. S. 108, sec. 20. (2) Revisers' notes, 3 R. S. 2d ed. 440. (3) 2 R. S. 108, sec. 22. (4) 2 R.S. 168, sec. 1, 2; Ibid. 170, sec. 13, 14, 15. 104 ATTORNEYS— ORIGIN AND NATURE court, until others should be retained or appointed, and notice thereof served on the adverse party ,(1) It is now, however, expressly provided by the statute before referred to, (2) that all applications for admission to practice as attorneys and counsel must be made to, and the examination had in, the Supreme Court, and upon being admitted therein, the person so admitted, is enti- tled to practice as such in all the courts of this state. This, of course, includes all superior courts, such as the Court of Appeals, and all inferior courts, such as the superior court and common pleas of the city and county of New York, county, mayors', and recorders' courts. Practising witliout admission?^ A person assuming to be an attor- ney, and acting as such without authority, is guilty of a contempt of court, and may be summarily punished by the court, by fine and im- prisonment, or either.(3) The mode of proceeding, for this purpose, will be hereafter pointed out, when we come to treat of contempts. The court will also set aside the proceedings in a suit, prosecuted in such assumed capacity, and will order the person so acting to pay the costs.(4:) Although, where a declaration was delivered in the name of a person, as the attorney, but who in fact was not so, it was held that the defendant could not treat the declaration as a nullity, and sign judgment, but must apply to the court.(5) And it seems, that such application may be made at any stage of the proceedings. (6) But, in a case where, upon a motion to set aside proceedings on the part of the defendant, for irregularity, upon the ground that the de- fendant's attorney had not been admitted as an attorney of this court, at the time he was retained by the defendant in the cause, which was on the day of his arrest on the ca2nas^ it appeared, that the defendant's attorney was duly admitted subsequently to his retainer, and that since his admission, his acts had been recognized and sanctioned by his client, and also by the plaintiff's attorney, — Bronson, J., denied the motion, with costs. (7) It follows, also, that a party, acting in such assumed capacity, can- not maintain an action for his fees, or even for money out of pocket ; (1) Rule It, of Court of EiTors, 2G "Wend. 656; 3 HiU, 630, (2) Laws of 1847, p. 342, sec. 75. (3) 2 R. S. 535, sec. 1, subd. 4. (4) Hawkins v. Edwards, 4 Moore, 603. See also, Patterson v. Poivell, 9 Ring. 620 ; S. 0. 2 M. & So. 773. (5) Bayley v. Thompson, 2 Dowl. 0. S. 655 ; S. C.2 Cr. & M. 673. (6) Constable v. Johnson, 1 Dowl. 0. S. 598. (7) Parow v. Gary, 1 How. Sp. T. Rep. 66. OP OFFICE— ADMISSION. 105 nor has he any lien for the costs, or for money disbursed.(l) And it would seem, that even if the plaintiff's costs had been taxed and paid, and it were afterwards discovered that his attorney had improperly assumed to act as such, the court would direct a re-taxation, with directions to disallow all such items as did not conist of fees paid to the officers of the court, with a view to having them refunded.(2) In connection with this branch of the subject, it is proper to remark, that the whole subject of costs, has undergone an entire change. For- merly the taxed costs in a suit belonged exclusively to the attorney, and he might enforce their collection, and he had a lien upon the papers in the suit and the money collected. By the provision of the Code, however,(3) it is provided that all statutes establishing or regu- lating the costs or fees of attorneys, solicitors and counsel in civil ac- tions, and all existing rules and provisions of law, restricting or author- izing the right of a party to agree with an attorney, solicitor or counsel, for his compensation, are repealed ; and hereafter the measure of his compensation shall be left to the agreement, express or implied, of the parties. But there may be allowed to the prevailing party upon the judgment, certain sums by way of indemnity for his expenses in the action ; which allowances are in the Code termed costs. Thus, it will be seen, that all costs now recovered in prosecuting or de- fending an action, belong to the party and not to his attorney, and hence, the latter's compensation is regulated by the agreement, express or implied, that he may make with his client. He has no lien, upon the moneys in his hands for his compensation, nor it would seem upon the papers in the action, but he must resort to his contract with his client, express or imphed, to enforce the payment of the sum agreed upon, or in the absence of an express agreement, to receive such sum as his services are reasonably worth. Permitting another to practise in his name.] It is provided by the re- vised statutes, that if any attorney or sohcitor shall knowingly permit any person, not being his general law partner or a clerk in his office. to sue out any process, to prosecute or defend any action in his name, such attorney or solicitor, shall severally forfeit to the party against whom such process shall have been sued out, or such action prosecuted (1) Latham v. Eyde, 1 Dowl. 0. S. 494; S (7. 1 Cr. & M. 128 ; Vince7itv. HoU,iTaMnt. 452. See Sumphreys v. Harvey, 1 Bing. N. C. 65 ; S. (7. 4 M. & Sc. 500. (2) Coates v. Eawkyard, 1 Euss. & Myl. 746; Prebble v. Boghwrst, Ibid. '744; Sumner y. jRidgway, Ibid. 748. (3) Code, sec. 303. Vol. I. 14 106 ATTORNEYS— ORIGIN AND NATURE, &c. or defended, the sum of fifty dollars.(l) This section is substantially the same as the former provision on the subject, by which it was en- acted, " that if any attorney shall knowingly and wilfully, permit or suffer, any other person to sue out any writ, or prosecute or defend any action, in his name, such attorney, as well as such person, shall each of them forfeit for every such offence, the sum of fifty dollars ; the one moiety thereof to the people of this state, and the other moiety to the party grieved, to be recovered by action of debt, or by information in any court of record. "(2) Under this provision, on a rule to show cause why an attachment should not be issued, against a counsellor of this court, who was al- leged to be practising in the name of a person who was an attorney, — it appeared, that a partnership existed between the attorney and counsellor, who had distinct ofiices at different places. The party having exculpated himself, the rule was discharged ; but the court laid down as a rule, that if an attorney should take a counsellor into partnership who was not an attorney, the attorney must have the whole and exclusive charge and superintendence of the attorney's business, for which he is responsible, so that no person could take any part in the conduct of the suit, on the ground of partnership, whose office was kept at a different place from that of the attorney. (3) The object of this provision, as thus interpreted, was to prevent the use of the name of an attorney by any person in the prosecution or defence of a suit, under any pretence whatever, unless he were actual- ly his partner or clerk ; and the legislature, by introducing into the re- vised statutes, the words " not being his general law partner, or a clerk in his ofiice," as containing the only exception to the rule, that no person shall be permitted by an attorney to use his name in prose- cuting or defending a suit, have given full force and effect to this in- tention, and to the principle decided in the case last referred to. That they expressly designed to do so, is more apparent from the fact, that the words above stated, as constituting the exception, were not origi- nally reported by the revisers, but were inserted by the legislature them- selves.(4) The terms, general law partner^ cannot be misunderstood ; and we have already seen, (5) that the terms, clerk in his office, as con- strued by this court, are equally clear and explicit. It is clear, also, that a violation of the provision now under consideration, may be punished summarily, as a contempt, by a fine and imprisonment, or either, under the provision of the revised statutes, which confers upon (1) 2 R. S. 287, sec. 70. (2) 1 R. L. of 1813, p. 41G, sec 4. (3) MaUer of Woodward, 4 Johns. 289. (4) Revisers' notes, 3 R. S. 2d ed. 697. (5) Ante. PRIVILEGES OF ATTORNEYS. 107 the court such power over attorneys, for any misbehavior in office, or for any wilful neglect or violation of duty therein, (1) and which will be more particularly referred to hereafter.(2) Where, under the permission given by the statute just referred to, an attorney lent his name to his clerk to defend a suit, and upon a motion of which notice was given in the name of the attorney, it appeared, that the attorney had thus allowed his name to be used, under the statute, by his clerk, at the commencement of the suit, but that the clerk had since been admitted as an attorney, and that the nominal attorney had refused to do any thing about the suit, with the plaintiff's attorney, saying, he had never been retained, and knew nothing about it, and that the clerk had the management of it altogether ; and, upon this state of facts, it was objected, that the attorney who appeared upon record was not the attorney in fact, and had no right to make the motion : Jewett, J., said, he could not look beyond the papers and the records in the suit, to ascertain who the attorney was, in fact ; — it was enough for him to know, that an attorney of this court appeared upon the records and papers for the motion, without inquiring by what means, or in what manner, he came to be the attorney.(3) Effect of the removal of an attorney from the stated] An attorney loses the right to exercise his office, by removing from the state, with the fixed intention of taking up his residence in another place ; and in such case, his name can no longer be used, even for the purpose of carrying on his unfinished business. It cannot be done, even by his law part- ner, without a substitution of record. The reason of the rule being, as stated by Bronson, J,, that " the attorney, in whose name a law-suit is conducted, must reside within the state, so that he can be reached by the orders of the court, in case his client or the opposite party should complain of any mal-j)ractice."(4) 2. Privileges of Attorneys. As to offices and duties, requiring personal service.'] The common law was very liberal in creating, and scrupulously watchfiil in preserving, the privileges of attorneys, as well as of all other officers concerned in the administration of justice ; these privileges being granted, not for the sake of the individual, but of the suitors and of the administration (1) 2 R. S. 534, sec. 1, subd. 1. See also, Case af Yates, 4 Johns, 317 ; S. C, in error, nom. Yaies v. Tlie People, 6. Johns. 337. (2) See ^05^, 10th subdivision of this section. (3) Post v. Eaiglit 1. How. Sp. T. Rep. 171. (4) Chautaugue Co^mty Bank v. Risky, 6 Hill, 375, 376. 108 PRIVILEGES OF ATTORNEYS. of justice ; and it being therefore regarded as tlie duty of tlie courts to give them their constant protection.(l) For example, they were, at common law, exempted from serving all offices where personal service was required, even although imposed by statute, in the most compre- hensive terms ;(2) such as the offices of constables, (3) overseers of the poor,(4) tything men and corporation officers, such as sheriff, &c., even although the attorney were resident in the corporation town.(5) But they were not privileged, from being ballotted for the militia; inas- much as they could be relieved from personal service, by paying for substitutes ;(6) though formerly, even in this case, their privilege existed.(7) In England, these privileges still exist ; and wherever it has been attempted to restrict them, it has been held, that being for the benefit of clients, they must be taken away by the express words of a statute, and not by implication.(8) The question as to the existence of the privileges referred to, from offices or duties requiring personal service, has been rarely discussed in this state. The only case, on the subject in our books, is that of The matter of Bliss,{9) on a motion for a writ of privilege, to test the validity of an order drafting an attorney into the militia, during the last war. The court regarding the question as important, directed notice of the motion to be given to the attorney general, and, after argument, refused the writ, on the ground that the act of congress having created exemptions in behalf of certain persons, among whom were the judges and certain officers of the courts specially named, the whole intent of the act seemed to be at variance with the exception claimed. In delivering their opinion, the court, at the same time, re- mark, " that it was a principle of the common law, that the privileges of the officers of the courts of justice were not to be taken away by the general comprehensive words of a statute. This doctrine is not to be questioned ; and as the privilege is granted, not for the sake of the individual, but of the suitors, and of the administration of justice, it is the duty of the courts, to give this privilege their constant protection. It is, however, as little to be disputed, that the legislature may, in its discretion, abridge or take away this privilege ; and whenever the (1) Matter of Bliss, 9 Johns. 34T. (2) Gerard's case, 2 W. Bl. 1123. (3) liexv.Boutkdge, 2 Doug. 538 ; Gerard's case, 2 W. Bl. 1123. (4) Ex parte Jeffries, 6 Bing. 195. (5) J/ayor of Norwich v. Berry, 1 "W. B]. 636; ;?. C. 4 Burr. 2109. (6) Gerard's case, 2 W. Bl. 1123. (7) Eviiidon's case, 2 Str. 1143. (8) Johnson v. Bray, 2 Br. & Bing. 698; S. C. 5 Moore, 622. (9) 9 Johns 347. PRIVILEGES OP ATTORNEYS. 109 legislative will is to be ascertained witli perfect certainty, either from the express words, or the manifest intent of the statute, the courts are bound to yield obedience to that will. To contend, that the privilege of an attorney cannot be taken away, without express words mention- ing attorneys^ when the sense of the legislature shall otherwise appear, with equal conviction and certainty, does not seem to be consistent with a due obedience to law." — and again : — "these special exemptions, in the act, of the officers of the comets, are idle and superfluous, and in- volve an absurdity, if the attorneys of the court are nevertheless ex- empted, without any such exception. We can cheerfully acquiesce in the general doctrine, that the privilege of the attorney is valuable, and is not to be taken away by general words, or when the statute is sus- ceptible of any other reasonable construction. But when the intent is so manifest as to leave no doubt of it, and when all the rules, which the wisdom of the common law has provided for the interpretation of statutes, declare that intent, and the statute would otherwise be made to speak without sense or meaning, the courts are bound to follow that intent, as much as if it had been conveyed in express words." In regard to these personal privileges, the policy of the legislature? of late years, seems to have been, to dscountenance them ; and the only privilege of attorneys, which remains on the statute book, is that which requires the court to excuse, from serving as jurors, all persons execut- ing any civil office, the duties of which are inconsistent with his atten- dance as a juror ;(1) within which, attorneys have been uniformly re- garded as included. In all other cases, when, by statute, no special exemption has been created in their favor, but the statutes have im- posed a duty upon persons generally, attorneys have been regarded, in practice, as bound to its performance, and as not entitled to an exemp- tion under the ancient principle of the common law above referred to. Privilege^ as to the commencement and prosecution of suits, hy and against them.'] At common law, attorneys had peculiar privileges, as to suits by and against them. As plaintiff, an attorney had, in all personal actions,(2) the right of suing in the court of which he was an attorney, by an attachment of privilege ; and having brought the defendant before the court by that writ, he might have declared against him, and proceeded in the action as in ordinary cases.(3) This process, though once a part of our prac- tice at common law, borrowed from the English courts, does not seem to have been much used. In one case only, as far as I have observed, does it appear to be at all referred to, as in use in this state. (4) Now, (1) 2 R. S. 416, sec. 35, subd. 2. (2) Pitcher y. Sheriff of Monmouth, 2 Marsh. 152. (3) 1 Chit. Archb. 7 th ed. 846. (4) Allaire v. Ouland, 2 Johns. Cas. 52, 53, 55, 57. IIQ PRIVILEaES OF ATTORNEYS. however, even in England, tlie right of suing by attachment of privi- lege is abolished by statute, and an attorney must, in all cases, sue, in the same way as any other persou.(l) And in this state, it is in like manner abolished ; the only modes of commencing personal actions, now recognized by our practice, as will hereafter be seen, being by summons. They had, also, (and in England, still have,) peculiar pri- vileges, in relation to the venue or place of trial.(2) But, for this pur pose, they must sue, in person, as such, and not as an ordinary person by another attorney ;(o) though the description of attorney need not appear in the proceedings.(4) It was attempted, in one instance, in this court,(5) to set up the right of an attorney to have the venue where he resided, and where the coart sat, and the English practice was relied upon in support of his claim. But the court refused it, — observing : — *' We do not recognize any such privilege of attorneys and counsellors of this court, but shall direct the venue to be changed or not, as may be most convenient to the parties," As defendant, also, an attorney formerly had the privilege of being sued by hill, in the court in which he practised ; the effect of which was, that while he continued to practise, (6) he could in no case be arrested, npon mesne process, or be holden to bail, even though it should appear that he was about to quit the kingdom ;(7) though this privilege did not apply to an arrest on a capias ad satisfaciendum ;(8) his exemption from arrest on final process, like that of parties and witnesses, existing only during his attendance on a cause.(9) The privilege of being sued by bill, as derived from the English practice, seems to have existed at one time in this state ; though greatly restricted by statutory regulation,(10) subjecting attorneys to the opera- tion of ordinary process, (except as to arrest, under certain circumstan- ces,) and thus, in effect, taking away their peculiar privilege as to suits by bill, with its common law incident of immunity from arrest.(ll) It became, therefore, a form of process to which a plaintiff might, though he need not necessarily, resort. Having, in this view no substantial (1) 2 Chit. Arcbb. 7 th ed. 846. (2) Meggison v. Ook, Tidd, Supp. 65 ; Partington v. Woodcock, 2 Dowl. 0. S. 550 ; Burn V. Passmorc, 1 Dowl 0. S. 17 : Pye v. Leigh, 2 W. Bl. 1065. Bradshmv v. Burton, (B. C. Mich. T. 1838,) 2 Lond. Jurist, 990: S. C. 7 Dowl. 0. S. 329. (3) Harrington v. Page, 2 Dowl. 0. S. 164; Lawless v. Timin-s, 3 Dowl. 0. S. 707. (4) WiUouglihy v. Fenton, (B. C. Mich. T. 1838,) 2 Lond. Jurist, 1041. (5) King V. Burr, 20 Johns. 274. (6) Brooke v. Bryant, 7 T. R. 25 ; see also 1 Archb. New Dr. 67. (7) Bedman's case, 1 Mod. 10. (8) 1 Chit. Archb. 7th ed. 447. (9) Bagl. New Prac. of the Courts of Law at "Westminster, 38. (10) 1 Dunl. 73. (11) Se« Foster \. Garnsey, 13 Johns. 465. PRIVILEGES OF ATTORNEYS. Ill advantage, tlie revised statutes abrogated it, — as tending unnecessarily to multiply and confuse the proceedings for the commencement of suits, — by the enactment above referred to, — providing for the commence- ment of all personal actions by summons. The result, then, is, that attorneys are, by the present practice, in- vested with no privileges whatever, in the commencement of, or mode of proceeding, in suits by or against them, excepting as it respects arrest, which will now be considered. Privilege from arrest.] It has been already remarked, that at com- mon law, the privileges of attorneys, in regard to arrest on mesne pro- cess, extended even to a total immunity from arrest ; while, on final process, it existed, only during his actual attendance on a cause. Without tracing, minutely, the gradual restrictions which have been imposed upon this privilege, it is sufiicient for our present purpose, to remark, that in this state, previous to, and at the time of, the adoption of the revised statutes, an attorney or counsellor of any court of record was deprived of his plea of privilege before justices of the peace or any other court, for the recovery of any debt or demand against him, to the amount of twenty-five dollars, or under, unless it should appear, that the court wherein he was such an attorney or counsellor, was then sit- ting. (1) The effect of this provision was, that during the term of the court, the attorney was left completely under his common law privi- leges ; and if process issued against him out of a justice's court, during, though not returnable until after term, he might plead his privilege in abatement ; the legal intendment being, that the attorney or counsel was occupied exclusively in the business of the term, during its continuance, and the statute having modified the common law privilege, by subject- ing attorneys and counsellors, during vacation, to the jurisdiction of justices.(2) The provision just referred to, related to attorneys and counsellors of any court of record, and was confined to cases before justices or other courts, for sums not exceeding twenty-five dollars. It did not there- fore, extend the privilege to process from this court. " The privilege," said the court, in another case,(3) " of the oSicers of inferior courts, from arrest by process from this court, has never been extended beyond the time of their necessary attendance on those courts. They have no ■exclusive perpetual privilege, as against the jurisdiction of this court." As it respected attorneys and counsellors of the Supreme Court^ they were, before the revised statutes, made liable by statute, (except during (1) 1 R. L. of 1813, p. 345, sec. 1. (2) Gilbert v. Yanderpool, 15 Johns. 242. (3) Gibbs V. Loomis, 10 Johns. 463. 212 PRIVILEGES OF ATTORNEYS. the actual sitting of this court,) to arrest on mesne process, or by virtue of a writ of capais ad resj^ndendum, and might be held to common and special bail, in like manner as other persons might be arrested and held to bail, any law, usage, custom or privilege to the contrary, in any wise notwithstanding.(l) Under this provision, it was held, that an attorney or counsellor of this court was privileged from arrest, during the sit- ting of the court, though not in actual attendance at the time ;(2) but it would seem, that this privilege did not exist, where the attorney was sued with another person not privileged, (though it was otherwise, if sued with a privileged person, )(3) thoagh during the actual sitting of the court and during his attendance at court ;(4) or where the proceed- ings were at the suit of the people ;(5) or where he had left off prac- tice for a year, (6) not in consequence of any temporary absence or avo- cation, but by betaking himself to a profession or business incompati- ble with his practice as an attorney.(7) In this state of the law on the subject, the revisers submitted to the legislature, a section defining this privilege, as to mesne process, which they reported as only varied from the former act, (8) to adapt it to the construction, by which the privilege was taken away, where the attor- ney was sued with another person. The section, as presented, was altered by the legislature, so as to apply to any process against the body ; and with this alteration, provides, that all of&cers of the several courts of record, shall be liable to arrest, on any process against the body, and may be held to bail, in the same manner as other persons, except during the actual sitting of any court of which they are ofl&cers ; and when sued with any other person, such officers shall be liable to arrest, and may be held to bail, as other persons, during the sitting of the court of which they are officers. The legislature, however, design- ing still further to restrict the privilege, added to the section as thus reported, the following qualification : "but no attorney or counsellor or solicitor, shall be exempt from arrest, during the sitting of the court of which he is an officer, unless he shall be employed in some cause (1) R. L. of 1813, p. 418, sec. 12. (2) Waiardy.Sperry, 1 Wend. 32. (3) Ramshottom v. Earcourt, 4 M. & Sel. 585. (4) Gay v. Rogers, 3 Co wen, 368 ; see Bank of Chenango v. Root, 4 Cowen, 126 ; Tiffany v. Driggs, 13 Johns. 252. (5) TJie People v. Rossiter, 4 Cowen, 143. (6) CoUv. Gregory, 3 Cowen, 22. (7) Brooks Y. Patterson, 2 Johns. Cas. 102 ; S. C, Coleman, 133. (8) 1 R. L. of 1813, p. 418, sec. 12. DISABILITIES OF ATTORNEYS. 113 pending and then to be heard in such court;" and in this form, it now constitutes a portion of the revised statutes.(l) This provision has been held to apply to attorneys and counsellors of this court, whilst in actual attendance uj)on the court, or whilst going to or returning from court; but whilst remaining at home, they are subject to arrest.(2) It was also held, before the creation of the special terms, and, the same rule doubtless still exists in reference to those terms, that it extend- ed to a counsellor attending court, for the purpose of making a special motion, it appearing that he was actually attending court for that pur- pose, and that his personal attendance was deemed necessary to the interest of his client.(3) But an attorney or counsellor is not privileged from arrest, while attending before a judge out of court.(4) It seems, also, that the privilege of an attorney or counsellor from arrest, while attending court, may be waived by him ; and accordingly, where a counsellor, on being served with a capias^ requiring him to be held to bail, omitted to claim any exemption, but rather invited the arrest, telling the officer to prepare a bail bond, which he afterwards exe- cuted, — it was held, that this amounted to a waiver of the privilege. (5) And in delivering the opinion of the court, Bronson^ J,, refers to a remark of the court in a former case, (6) in which it had been said, "th^t an attorney could not waive his privilege;" and observes: — " that was where the defendant had been sued by bill, as an attorney, and he pleaded, that he had left the profession and become a farmer, and thus attempted to defeat the suit, by renouncing his privilege. But it was held, that the plaintiff had a right to treat him as an attor- ney, so long as his name remained on the roll. Here, the defendant not only omitted to claim any exemption, but he rather invited the arrest ; and after having thus waived his privilege, I think he ought not to be heard in making this complaint ; honesty and fair dealing forbid it." The mode in which the privilege from arrest is availed of, will be treated of in a subsequent portion of the work. 3. Disabilities of attorneys. In treating of the disabilities imposed, either at common law or by (1) 2 R. S. 290, sec. 86 ; Revisers' notes, 3R. S. 2d ed. C9Y, 698. (2) Corey v. Eussell, 4 Wend. 20-4. (3) Humphrey v. Gumming, 5 Wend. 90. (4) Cole V. JifCleUan, 4 Hill, 59. (5) Ibid. (6) Scott V. Van Alstyne, 9 Johns. 216. Vol. I. 15 114 DISABILITIES OP ATTORNEYS. statute iii)on attoracyp, I sliall consider, jirst^ sucli as relate to tlieir general character as attorneys, and, second^ those which concern them in their relation to the prosecution or defence of suits in which they may be employed. When disqualified from practising hy reason of holding judicial offices. — It is perhaps hardly necessary to repeat after what has been already said on the subject, (1) that under the section of the constitution, pro- hibiting the justices of the Supreme Court from holding any other ofl&ce or public trust, (2) attorneys and counsellors are prohibited from practising as such in any court, while they hold either of the offices refer- red to in that section. There are also certain statutory restrictions upon judges practising as attorneys or counsellors, or having partners prac- tising as such in the courts of which they are judges, which, with the modifications created by subsequent legislation, have been already sufficiently considered.(3) Prohibited from practising ivhile holding certain ministerial offices^ It is provided by the revised statutes, that no clerk, deputy-clerk, register, assistant register, or de|)uty register of any court, shall, during his con- tinuance in office, practice in such court, as a counsellor, solicitor or attorney ;(4) and that no sheriff, under sheriff, deputy sheriff, sheriff's clerk, or coroner, shall, during his continuance in office, practice as a counsellor, solicitor or attorney, in any court of law or equity.(5) The policy and object of these provisions, (as was well expressed by Clinton^ Senator, in delivering the prevailing opinion in the court of errors in the celebrated case of Yates v. The People,{Q) in reference to a similar provision in a former statute, prohibiting certain officers, — and, among others, masters in chancery, — from acting as solicitoi's or coun- sel in any action or matter in the same court,) is " to maintain purity and impartiality by preventing them from interfering, ministerially or judicially, in cases in which they are employed by one of the parties." And according to that learned senator, the prohibition of the statute equally applies, whether he ^jractices in his own name or in the name of another, — " Whether," says he, " he practices in his own name or uses the name of a friend, the evil will be the same : and I consider both modes of conduct as falling within the spirit and reason of the prohibition. The adoption of the name of another may produce more pernicious effects than a palpable open violation ; because the secrecy (1) Ante, 28, 29. (2) Const, art. 6, sec. 8. (3) Ante, 30, 31. (4) 1 R. S. 109, sec. 26. (5) 1 R. S. 109, sec. 21. (6) G Johns. 499. DISABLITIES OP ATTORNEYS. 115 of tlic agency may prevent those measures, wliicli might defeat the mischief: and indeed the officer might act in cases wherein he had prejudged the question, and was so biassed and interested, as to be incapable of acting properly and justly. The practising as solicitor in another's name is, if an offence, a more aggravated one, than practising in the master's own name."(l) It is not necessary, however, to resort to this latter principle of con- struction, because, as has already been seen,(2) attorneys are prohibited from permitting any person, except a general law partner or clerk from practising in their names. PurcJiCLsing choses in action^ for tlie purpose of suing upon titem.'] At a very early stage of the practice in this state, it was found that the pur- chasing of notes and other choses in action by attorneys and counsel- lors for collection, was becoming an evil of alarming magnitude — 'inas- much as it gave the power to those of the profession, who were dis- posed to avail themselves of it, of harassing and impoverishing the community by suits conducted with little expense, and with great pro- fit to themselves. In view of this consideration, and because it was deemed derogatory to the profession, that ifs members should be engaged in purchasing business, and thus (tempted by interest at the sacrifice of professional honor,) causing distress in the community by numberless unnecessary prosecutions — the legislature, as long ago as 1807, passed the first act on the subject, which has from time to time since been substantially re-enacted in its general features, though with some alterations from the original and subsequent acts, and is now embodied in the revised statutes. In order to a full understanding of the law as it existed upon the subject, a brief recurrence to the former legislation, and to the judicial expositions, it has, from time to time received, is deemed not unimportant or unprofitable. The original act of 1807, provided that if any attorney of the Su- preme Court, or of any court of common pleas, should purchase or re- ceive, by way of pledge or security for money lent, any bond, note or other writing, with intent to commence a suit thereon, and shoidd com- mence such suit, accordingly every such attorney should be deemed guilty of a misdemeauor.(3) This provision was re-enacted in the same words, in the revision of 1813.(4:) It was found, however, in the course of time, that, though the object of the legislature was to prevent attorneys from purchasing or loaning money upon choses in action, for the purpose of prosecution, yet, that the act contained two defects, (1) 6 Johns. 499, 500. (2) Ante, 105. (3) 5 Webst. & Skin. 11'?, sec. 4. (4) 1 R. L. oflSlS, p. 417, sec. 7. IIQ DISABILITIES OF ATTORNEYS. tending to defeat its object : — first, in confining its prohibitions to tbe purchase or loaning of money, upon bonds, notes or other writings, leaving all other choses in action untouched — and second, and what was deemed more important as to the intent to prosecute, in requiring that it should be evidenced by the actual commencement of a suit. The legislature finding, therefore, that these enactments failed to strike at the root of the evil,(l) in 1818 passed another act,(2) by which it was, in substance, provided that no attorney or counsellor should buy any bond, bill, promissory note, bill of exchange, book debt or other chose in action ; nor should any such attorney or counsellor, directly or indirectly, lend or advance any money to any person, as an induce- ment to the placing in the hands of such attorney or counsellor, any debt, demand or chose in action, against any other person for collec- tion ; provided^ hoiuever, that nothing therein contained should be con- strued to prohibit thg receiving in payment by an attorney or counsel- lor, any bond, &c., for estate real or personal, or for services actually rendered, or for a debt antecedently contracted, or from buying or re- ceiving any bill of exchange, draft, or other chose in action, for the purpose of remittance, or without any intent to evade or violate that act. Under that act, it had been held by this court, that the purchase of a senior judgment, by a junior judgment creditor, who was an attorney, for the mere purpose of securing the younger debt, was not void within the statute, nor was it forbidden by the statute, which was penal and ought not to be extended by construction.(3) In a subsequent case, however, it was held, upon demurrer, that an indictment against an attorney for buying a note, need not allege that he bought it with intent to prosecute, or that it had been prosecuted, or when it became due, its amount, or other circumstances, from which an intent to prosecute was to be inferred ; but that the act of buying was the offence, unless it came within the proviso of the statutes, which it lay with the defendant to show.(4) And in the same case, which subseqilently came before the court, upon a conviction by the jury, (5) the same principle was re- affirmed by the court, and the conviction sustained ; and in delivering the opinion of the court. Savage, Ch. J., among other things, remarked : — " As I read the act, it creates two offences : first, the act of purchasing a note by an attorney or counsellor is prohibited : secondly, the procur- ing a note, by loan of money, for the purpose of collection. It is con- (1) See the remarks of Savage, Ch. J., in Tlie PeojM v. Walbridge, 3 Wend. 128, 129. (2) Laws of 1818, p. 278, sec. 1. (3) Tan Rensselaer v. Sheriff of Onondaga, 1 Cowen, 443. (4) The People \. Walbridge, 6 Cowen, 512. (5) 77(6 People v. Walbridge, 3 Wend. 120. DISABILITIES OP ATTORNEYS. 117 tended that tlie words, ' for collection,' in the statute, relate to all which precedes them ; and that, of course, the f)urchase is not prohibited, un- less made for collection ; but, from the manner in which the sentence is framed, it seems to me the words 'for collection,' relate only to the member of the sentence in which they are found, and not to the first member; and consequently the first member contains an absolute pro- hibition, without reference to the intent or object of the purchase. This construction seems to me to be confirmed by the proviso. If no oifence was created unless the purchase was made for the purpose of collection, it was surely useless, at least, to state in the proviso^ that there were four objects for which an attorney or counsellor might lawfully pur- chase a note. If he was at liberty to purchase, for any purpose except the collection, why specify only four instances in which he was not pro- hibited from purchasing ? The introduction of the proviso proves to my mind that the legislature supposed, that without it, no note could be purchased by an attorney or counsellor, for remittance, or received in payment for property sold, or for services rendered, or for an ante- cedent debt ; and, of course, they must have intended the first para- graph of the first section as a total prohibition. — Had they intended only to prohibit an attorney from purchasing a noteyor collection^ it was very easy to say so. But they evidently, to my mind, intended to re- lieve the public prosecutor from any trouble in proving the intent with which the purchase was made. The purchase is to be, of itself, evi- dence of the intent ; and the attorney shall be punished severely for the act, unless he disproves the wicked intent, by showing one of four things, viz : a receiving the note for property sold ; for services render- ed ;- for an antecedent debt ; or for the purpose of remittance, and with- out any intent to evade or violate the act : — that is, as I understand it, every other mode by which an attorney gets a note into his posses- sion as owner, is a violation of the act. — They judged correctly, also, in concluding that to remedy the evil, there must be no difficulty about proving the intent. They, no doubt, asked, for what purpose does an attorney buy a note, unless for prosecution ? and answered, by saying- he buys it for no other purpose, unless he brings himself within the exceptions contained in the proviso. They accordingly went the whole length of absolute prohibition, except in the specified cases."(l) The revisers, in directing their attention to the subject, had before them the previous statutes, and the decisions above referred to, except ing that in The Peojjle v. Walhridge^ last cited, (u23on the conviction by the jury,) which, though pronounced in August term, 1829, was not published until after the revised statutes went into effect. Supposing (1) Tlie PeoxAe v. Walbridge, 3 'Wend. 127-130. 1X8 DISABILITIES OF ATTORNEYS. that there was a conflict between the case of Van Renssela&i- v. Sheriff of Onondaga,{V) and the origiiml case of The People v. Walbrid{je,{2) and that the latter case had, in overlooking the question of inteyit in the purchase of a note, as an ingredient necessary to constitute the offence, departed from the intention of the legislature, they recommended ex- press legislation on the subject, restoring the ingredient of intent ; and, for that purpose, introduced the provisions of the revised statutes, which were enacted precisely as they were reported by the revisers.(3) Those provisions, as contained in the four sections of the revised statutes, relating to the subject, were: — that no attorney, counsellor or solicitor, shall, directly or indirectly, buy, or be in any manner inter- ested in buying, any bond, bill, promissory note, bill of exchange, book debt, or other thing in action, with the intent, and for the purpose, of bringing any suit thereon :(4) nor shall he, by himself, or by or in the name of any other person, either before or after suit brought, lend or ad- vance, or agree to lend or advance, any money, or any bond, bill of exchange, draft, or other thing in action, to any person, as an induce- ment to the placing, or in consideration of having placed, in the hands of such attorney, counsellor or solicitor, or in the hands of any other person, any debt, demand, or thing in action, for collection.(5) And every attorney, counsellor, or solicitor, who shall violate either of the two last preceding sections, shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be punished by fine or imprisonment, or both ; and he shall also be removed from office, in the several courts in which he is licensed.(6) But nothing contained in either of the three last preceding sections, shall be construed to prohibit the receiving in payment, by any attorney, counsellor or solicitor, any bond, bill, pro- missory note, bill of exchange, book debt, or other thing in action, for any estate real or personal, or for services actually rendered, or for a debt antecedently contracted ; or from buying or receiving any bill of exchange, draft, or other thing in action, for the purpose of remittance, and without any intent to violate either of the said last three sec- tions.(7) These provisions, it will be seen, are substantially the same as those of the act of 1818, excepting, that in regard to the purchase of choses in action, the intent to prosecute must be affirmatively established, (as it may be by circumstances,) before the offence is complete. So far, therefore, it abrogates the doctrine of The People v. Walhridge ; but when that intent is established, according to that case, it still throws (1) 1 Cowen, 443. %) 6 Cowen, 512. (3) Revisers' note?, 3 R. S. 2(1 eil. GOT. (4) 2 R. S. 288, sec. 11. (5) Ibid. sec. 72. (6) Ibid. sec. 73. (7) Ibid. sec. 74. DISABILITIES OF ATTORNEYS. 119 upon the defendant the burden of establisliing any defence, arising out of the proviso^ but yet consistent with the intent to prosecute. In ac- cordance with this view, it has been held, in reference to the enact- ments in the revised statutes, that when the advance was not made with the intent and for the purpose of bringing the suit, but long after suit brought, nor in consideration of the note having been placed in the hands of the attorney, for collection, and with such intent, but from motives of humanity and benevolence, the demand was not affected, nor was the attorney punishable.(l) And, in a later case, where, in an action by an endorsee on a note for $300, it appeared, that an attorney, from whom the plaintiff received it, had received the note from one of the endorsees, shortly after its date, as security for $200, advanced by him to such endorsee at the time, and for $100, previously lent, in the attorney's note, which he had negligently paid — it was held, that, under the proviso of the statute of 1818, which ap- plied to the case, (and which is substantially the same as in the present statute,)(2) allowing the object to have been, as found by the jury, the payment of the previous loan, unmixed with any intent to evade the statute, the attorney stood within the ^roy wo; although, in order to at- tain the desired security, he was under the necessity of making the additional, and comparatively large, advance of $200.(3) Under these provisions, it would seem, that where the suit is brought by the attorney, as the party in interest, in the name of another, the attorney will be regarded as the plaintiffs within the meaning of the act. It was, in the course of the discussion which the provisions in ques- tion underwent, contended, that they were unconstitutional, upon the ground that, to say, that one shall not purchase a chose in action, be- cause he is an attorney, was depriving him of a right which every citizen has an equal claim to, and which the legislature cannot take from him, without his consent ;(4) but the objection was answered by the court, that they had no doubt of the constitutionality of the law.(5) The constitutionality, policy, and construction of the law on this subject, therefore, seemed to be well settled. That it applied to attor- neys and counsellors, so long as they remain on the roll,(6) appeared to be equally clear. It would seem, however, that an attorney might throw off this amenability, by being stricken off the roll at his own (1) Baistol V. Dann, 12 Wend. 142. (2) See ante, 118. (3) Watson's Ex\s. v. M'Laren, 19 Wend. 557. (4) TJie People v. Walbridge, 6 Cowen, 515. (5) The People v. Walbridge, 6 Cowen, 511 ; S. 0. 3 Wend. 120. (6) See ScoU v. Vaii Alstyne, 9 Johns. 216 ; Cole v. McOkUan, 4 Hill, 60, 61 ; Ante, 116. 120 DISABILITIES OF ATTORNEYS. request : and an instance is mentioned by Mr. Coicen^ in liis note to The People v. Walhridrie^{V) already cited, of an attorney appearing in court, at tlie August term, next after the passage of the act of 1818, and moving to have his name stricken from the rolls of the court, as an attorney and counsellor, which the court ordered to be done. What has been said on this subject has reference chiefly to the pro- visions contained in the revised statutes and the decisions of the late Supreme Court, and which are introduced here for the purpose of showing what the law was before the enactment of the Code. By section 303 of the Code all statutes establishing or regulating the costs or fees of attorneys, solicitors and counsel in civil actions, and all existing rules and j)rovisions of law, restricting or controlling the right of a party to agree with an attorney, solicitor, or counsel, for his com- pensation, arc repealed ; and hereafter the measure of such compensa- tion shall be left to the agreement, express or implied, of the parties. The same section further provides that there may be allowed to the " j)revailing party," upon the judgment, certain sums by way of indem- nity, for his expenses in the action, and which are termed costs. Since the passage of the Code it has been held in the superior court of the city of New York, in a case arising before the act took eflfect,(2) that a contract to give an attorney, employed to collect a debt, a part of his debt as a compensation for his services in collecting it, was void by the law of this state, as it existed when the contract was made, and could not be enforced either at law or in equity. But jSandford, Justice, re- marks, that "the Code of Procedure appears to have changed the law in this respect, and to enable parties to make such bargains as they please with their attorneys. The provisions of the revised statutes prohibiting an attorney from buying a demand for the purpose of bringing a suit thereon, are still in force, unaffected by the Code, and the only change is that which allows the attorney to make any bargain with the party as to the compensation he is to receive for his services. But the court will still see that it is not unjust to the client." Thus in a late case in the IST. Y. superior court, (3) where a hard and oppressive bargain had been made between the attorney and client, the court interposed, and relieved the party from the contract. Oakley, J., says, " It is contended that under the Code, arrangements may be made between attorney and client as to compensation in suits, and that vnth such agreements, the court has no right to interfere. Without consider- ing the question whether the statutes of champerty and maintenance have been abrogated by the provisions of the Code in reference to the subject of costs, which we very much doubt, we do not think that the (1) 6 Cowen, 516. (2) SaUerlee v. Frazer, 2 Sand. S. C. Rep. 141. (3) Barry v. Wntney, 1 Code R. (N. S.) 101. DISABILITIES OF ATTORNEYS. 121 court is deprived of the power of looking into these arrangements be- tween attorney and client. Before the Code, the court had the general power of examining into bargains of this character, to see that they were not unreasonable or oppressive, and the power has not been taken away. There are numerous cases in the books, where courts have ex- ercised this superintending power, even where a judgment has been confessed by a client in favor of an attorney, although resting upon a record of the court which has received its sanction, the courts have not hesitated to open and investigate the transaction. This power results from the general superintending power of the court over its officers, and the very peculiar relations which exist between clients and attor- neys. It is a poAver which should be exercised with caution, but which is, nevertheless, to be exercised firmly where a necessity for it exists." Disqualifications of attorneys and their clerks^ cfrc, and persons indemni- fi£d hy them, from being hail] The rule which has existed in England, since 1654,(1) that attorneys cannot be bail, was long since adopted by this court.(2) The reason of the rule, as given in a recent case,(3) by the New York superior court, is, that "if it were allowed, it might be productive of serious inconvenience, if indeed worse consequences to both parties did not result from it. If an attorney was allowed to be- come bail for a client, in causes in which he was engaged, he would often be subjected to importunities, with which he would perhaps be, in a measure, constrained to comply, though he might deem it impru- dent so to do. A clienfriiight, on the other hand, if his attorney was allowed to become bail, be subject to great inconvenience, especially, if the attorney happened to be an unworthy member of his profession. The attorney, having become bail for his client, who might perhaps find it difficult to obtain other security, might demand exorbitant fees, or require property to be placed in his hands as an indemnity, and thus exercise an undue authority over his client." This rule, from the reason on which it is founded, would seem to be applicable to every case, in which a party, in the prosecution or de- fence of a suit, is required to give bail or security of any kind ; and accordingly it was held, by this court, before the revised statutes, to extend to bail in error. (4) In a more recent case, (5) however, where an attorney became security for costs, in the case of a non-resident plaintiff, by executing a proper bond, and duly justifying as a suffi- (1) Lush's Practice, 616; Mann v. NoUage, 1 Y. .t J. 3 6*7, note. (2) Cosier v. Watson, 15 Johns. 535. (3) Blankman v. HiUiker, 1 N. Y. Leg. Obs. 188, 189. (4) Craig v. Scott, 1 Wend. 35. (5) Walker y. Holmes, 22 Wend. 614. YoL. I. IG 122 DISABILITIES OF ATTORNEYS. cient surety, pursuant to tlxe statute ;(1) upon wliicb, tlie defendant moved for judgment oi non pros^ on the ground tliat an attorney could not become such surety, — likening it to the case of special bail, — the court held him to be competent: — Bronson^ J., observing, "The prac- tice, on requiring security for costs, has been regulated by statute ; and it is enough, that the plaintiff has complied with the statute, by exe- cuting a bond with a sufficient surety, and the surety has justified." Upon the principle of this case, therefore, in all cases where the statute has regulated the practice as to security, by prescribing generally the execution of a bond with sufficient sureties — (as in cases of bail to the sheriff, (2) — undertakings — security on appeal — bail for the jail liber- ties, (3) or the like,) — attorneys are competent bail. In respect, however, to special bail, the qualifications of which are left untouched by statute, the rule is still in force. And, it seems, that the disqualification of an attorney, as bail, is, not confined to cases in which he is attorney, but is general in its operation.(4) But he must be a j)ractising attorney ; and accordingly, when he had not practised for six years, he was considered competent.(5) It seems, however, that such bail cannot be treated as a nullity ; nor will the allowance be set aside ; but it is ground for exception only.(6) An attorney, moreover, is liable on his recognizance, when it is entered into, notwithstanding he is prohibited from becoming bail, and though an infringement of the rule might subject him to penalties.(7) The rule prohibiting an attorney from becoming bail, for the same reason extends also to his clerks ;(8) and is equally applicable, though the clerk be not in the service of the defendant's attorney.(9) But it seems, that there is no objection to an attorney's clerk being bail for his employer ; the reason of the rule, in such a case, having no applica- tion.(lO) So, also, it has been held, that a conveyancer, engaged in partnership with an attorney, and sharing in the general profits of the (1) 2 R. S. 620, sec. 4, 5, 6. (2) 2 R. S. 348, sec. 11. (3) 2 R. S. 433, sec. 41. (4) Anonymous, cited 1 Chit. Rep. 714, note. (5) The Kingy. Sheriff of Surrey, 2 East, 182; Bell v. Gate, 1 Taunt. 162. (6) Ibid.; Petersd. on Bail, 270, (10 Law Libr. 150;) The King v. Slieriff of Surrey, 2 East, 181 ; Foxall v. Bowerman, 2 East, 182 ; Banter v. Levi, 1 Chit. Rep. 713. The English practice now, however, by a recent rule is otherwise. Lush's Prac. 616 ; Bagl. New Prac. 37, 38 ; 1 Arch. New Prac. 177, 184. (7) Harper v. Tahourdin, 1 Chit. Rep. 714, note; S. C, 6 M. & Sel. 383; Petersd. on Bail, 279, (10 Law. Libr. 150.) (8) Anonymous, LofiFt, 263, 280 ; Bologne v. Vautrin, Cowi). 828 ; S. C. 2 Doug. 467, note; Thompson v. Boubell, 2 Doug. 467, note; Laing v. Cundale, 1 H. Bl. 76; Coi-nish v. Ross, 2 H. Bl. 350 ; Stoneham v. Pink, 3 Price, 263 ; Fenton v. Buggies, 1 B. & P. 356. (9) Redii v. Broomhead, 2 B. & P. 564. (10) Dixon V. Edwards, 2 Anstr. 356. WHO MAY APPEAR BY ATTORNEY. 123 business of tlie office, tliougli lie did not himself practice as an attorney, could not justify as bail.(l) For tlie same reason also, on whicli tlie rule itself is founded, and to prevent evasions of it, tending to its entire defeat, it has been held, that bail who have been indemnified by an attorney, are not competent ;(2) and this, whether the indemnity be in writing or not; (3) and, in one case, the bail, although not actually indemnified, but expecting to be indemnified, by the defendant's attorney, was rejected.(4) Though, if bail becomes such, at the request of the defendant's attorney, but with- out being indemnified, or expecting indemnity, and therefore not in evasion of the rule, but in good faith, he would of course be compe- tent.(5) The rule, however, prohibiting an attorney, or his clerk or partner from becoming bail, does not prevent his being put in as bail, for the purpose of surrendering the defendant ; but he cannot justify as such bail.(6) 4. Who may appear hy attorney. Generally.'] It has been already seen, (7) that, by statute, every per- son of sound mind, may appear by attorney or solicitor, as the case may require, in every action by or against him, in any court : or may, at his election, prosecute or defend such action in person ; but that this provision does not extend to proceedings in criminal cases ; nor will any person be permitted to appear on the record, in any civil cause, in person, whilst he has an attorney or solicitor in such cause.(8) This provision is so clear, upon its face, that it only remains to con- sider, who, irrespective of the statute, may, or must appear in person or by attorney : — and in what manner those who are prohibited by statute from appearing in either of those modes must appear. These, together with some other matters, necessarily incidental, will be treated of in the present division of this section. Corporations ?\ In regard to the provision just cited, it is to be ob- served, that in using the term persons, as descriptive of those who may (1) V. Yates, 1 D. & R. 9. (2) 1 Chit. Archb. 7th ed. 601 ; 1 Archb. New Pr. 189. (3) Greensil v. Ilopley, 1 B. & P. 103; Preston v. Bindky, Tidd, 9th cd. 2G9; Capon y. Dillamore, 1 Bing. 423; S. G. 8 Moore, 516. (4) Anonymous, 1 Dowl. 0. S. 1. (5) Hant v. Blaquiere, 4 Bing. 588. (6) Bell V. Gate, 1 Taunt. 162 ; Galcish v. Ross, Ibid. 164, note; Hilly. Tliompson, 7 Moore, 403 ; Jachson v. Trinder, 2 W. Bl. 1180. (7) Ante, 93. (8) 2 R. S. 276, sec. 11.— Code, sec. 417. 124 WHO MAY APPEAR BY ATTORNEY. appear by attorney, tlie statute contemplates natural persons merely, as the qualifying expressions — of full age and sound mind — clearly show ; and does not comprehend artificial persons or corporations. These are left, as at common law ; by which, they were bound, in all cases to appear by attorney, being incapable of appearing in person, or in any other way than by attorney.(l) Infants.] An infant, being disqualified, at common law, as well as by statute, either to appoint an attorney, or to appear in person,(2) the Code has provided, as to cases where an infant is plaintiff] that before any process shall be issued in the name of an infant, who is sole plain- tiff in any suit, a competent and responsible person shall be appointed, to appear as guardian for such infant, in such suit.(3) This regulation applies expressly to cases where an infant is sole plaintiff; and he may therefore appear by attorney, when he sues jointly with others ; the adult plaintiffs being competent to aj)point an attorney, for him as well as themselves.(4) As to infant defendants, it is provided, by the Code that after the service of any process, against any infant defendant, by which he shall have been arrested, the suit shall not be any further prosecuted, until a guardian for such infant be appointed.(5) Under this provision, an infant defendant must, whether sued in his own right or in auter droit,{6) appear in all cases, even where he is sued with others, (7) though he be sued as a co-executor or administrator. (8) The mode of appointing a next friend or guardian, and the incidents thereof, vyHI be considered hereafter. If an infant, appear by attorney or in any other way than by guar- dian, where he is sole plaintiff, (or, which is the same thing, where an infant husband sues jointly with his wife,(9) or than by guardian, when he is either a sole defendant, or one of several defendants, and judgment be rendered against the infant, such judgment though not absolutely void,(tO) is erroneous ;(11) and such, if the cause be in this court, will, on motion be revoked ; or if brought into this court from an inferior court, upon motion will be reversed ;(12) and when the judgment is against (I) Co. Lit. 66, b. (2) See Snyder v. Spoonable, 1 Hill, 571. (3) Code, sec. 115. (4) 1 Dunl. 86 ; 2 Chit. Arcbb. 7th ed. 889. (5) Code, sec. 115, 116. (6) Hindmarsh v. Chandler, 7 Taunt. 488 ; S. C. I Moore, 250. (7) Camp V. Bennett, 16 Wend. 48 ; Cruikshank v. Gardner, 2 Hill, 333. (8) Frescdbaldi v. Kingston, 2 Str. 783. (9) Gosling v. Acker, 25 "Wend. 639 ■ S. G. 2 Hill, 391. (10) Bloom V. Burdick, I Hill, 130, 143. (II) Mockey v. Grey, 2 Johns. Rep. 192 ; Alderman v. Tirrell, 8 Johns. 418 ; Bliss v. Eice, 9 Johns. 159 ; Gosling v. Acker, 25 Wend. 639 ; S. C.2 Hill, 391 ; Camp v. Bennett, 16 Wend. 48 ; Cr^nkshank v. Gardner, 2 Hill, 333. (12) Camp V. Bennett, 16 Wend. 48 ; Gosling v. Acker, 2 Hill, 391. In the first of these WHO MAY APPEAR BY ATTORNEY, 125 several defendants, one of whom is an infant, it is erroneous and will be reversed or revoked as to all.(l) And the death of such infant, after appeal brought, will not prevent a reversal of the judgment, where the appeal was brought by the infant and liis co-defendant in the court be- low, and the co-defendant survives and prosecutes the appeal. (2) But, under the statute regulating proceedings against joint debtors,(3) — by which a plaintiff is authorized to proceed to judgment, where some of the defendants have not been brought in, — ;judgment may be entered, as well where the defendant not brought in is an infant, as where he is an adult ; and consequently, a judgment thus entered against an infant defendant, will not be revoked, on motion, although such judgment was entered without an appointment of a guardian to the infant ; there being, in this case, no violation of the rule, that an infant can appear only by guardian ; inasmuch as the act is framed upon the idea of the non-appearance of the debtor not brought in, and as the debtor who is brought into court is regarded as appearing for all, as to the joint interest. It is well settled, also, — the ground of error being, the appearance of an infant by attorney, — that the fact, that at the time of the rendition of the judgment, the party was of full age, is no answer to the allega- tion of error ; and even where the assignment of error in fact alleged, that the party, at the time of his appearance, at the time of trial, and at the time of giving judgment^ was an infant, a plea, that at the time of giving judgment, he was of age, and concluding to the country was held bad, as tendering an immaterial issue.(4) And, consequently, the infancy of the party is well assigned as error, by averring him to have been an infant at the time of the appearance and answer ; and he need not aver, that he was an infant at the time of the rendition of the judg- ment ; and although a defendant, who was an infant, at the time of appearance and answer, may be deemed, by going to trial after arriving at his full age, to have waived the error, yet it cannot be taken advan- tage of as a waiver, on a demurrer to the assignment of errors, unless cases, the distinction between a judgment of reiiersaZ and of revocation, as explained in the text, is fully shown; and the error of this court in Maynard v. Doimer, 13 "Wend. 516, in overlooking the distinction, is pointed out by the court. When a judgment is revoked, the plaintiff in error is not entitled to costs ; where it is reversed, he is entitled to the costs in error only. Maynard v. Downer, 13 Wend. 577 ; Camp v. Bennett, 16 Wend. 51 ; Gosling v. Acker, 2 Hill, 396; 2 R. S 618, sec. 31. (1) Cruikshank v. Gardner, 2 HQl, 333 ; Arnold v. Sandford, 14 Johns. 417 ; Richard v. Walton, 12 Johns. 434 ; Casthdine v. Mundy, 4 B. & Ad. 90 ; Lush's Prac. 202. (2) Camp V. Bennett, 16 Wend. 48. (3) 2 R. S. 377, sec. 1-5 —Code, sec. 136. (4) Gosling v. Acker, 25 Wend. 639. 126 WHO MAY APPEAR BY ATTORNEY. the fact appear upon tlie record.(l) Whetlier tliat fact would have been a good answer to the assignment, was not decided ; but it would seem upon principle, to be clear, that that or any other fact, going to show a voluntary appearance in, or recognition of the case, by the party, after he became of age, would be a good answer. This remark does not apply to the mere fact whether he was of age or not, at the time of the entry of the judgment, for the reason given by Nelson, Ch. J., (2) that it is "difficult to see how the entry of judgment against the party after he has attained his age, should operate as a waiver of the error ; as the act is one in which he does not participate, and is wholly independent of him." After the reversal of the judgment, where the defendant in the court below procures the reversal of a judgment on the ground, that being an infant, he appeared and answered by attorney, this court may compel him to appear in the suit by guardian, if still an infant, or to answer de novo, if he shall have attained his majority.(8) But neither such an order, nor one for a venire de novo, can be made, where a plaintiff re- verses the judgment, because while an infant, he appeared in the court below, by attorney. The difficult}^, in that case, reaches back to the very first step. The suing out of process without a next friend was irregular ; and the court is so trammelled by legislation, (4) that it can- not compel the plaintiff to appoint a next friend, as of the time when the process was issued. Until that be done, whatever course the suit may take, the objection will still remain, that an infant plaintiff has appeared by attorney.(5) In other words, the distinction between the case of a defendant, and a plaintiff, in this respect, is that in the former case, the party, for the purpose of giving the court jurisdiction to amend the proceedings, or in any other respect, is regularly in court, by the service of process and the proceedings against him become erroneous, only by reason of the fact, that his apearance on the record is irregular, so as not to warrant a judgment against him ; — while, in the latter case, the party is not in court, for any purpose whatever, — his first step being wholly irregular. The right to bring error, in cases such as we have been considering, for the appearance of an infant by attorney, formerly existed, whether the judgment was for him or against him.(6) But now, it applies only (1) Arnold V. Sandford, 14 Johns. 417. (2) Gosling v. Acker, 25 Wend. 640. (3) Gosling y. Acker, 2 Hill, 391; Arnold V. Sandford, 15 Johns. 534; Deivit v. Post, 11 Johns. 460. (4) 2 R. S. 446, sec. 2-7. (5) Per Bronson, J., in GosUnj v. Acker, 2 Hill, 396, 397. (6) Retv V. Long, Cro. Jac. 5 ; Bartholomew v. Digldon, Cro. Eliz. 424. WHO MAT APPEAR BY ATTORNEY. 127 wlien judgment lias been rendered against the infant, and the remedy, of course, extends to the infant himself, alone ; or, as has been seen, in the case of a judgment against him as a co-defendant with others, to all the defendants in such judgment ; it being expressly provided by statute, that the appearance of an infant by attorney shall not be a ground for reversing any judgment upon verdict, confession, default, nihil dicit^ or non sum informatus^ if the verdict or judgment be for him.(l) If, however, the judgment be against the infant, or even for him in any case not enumerated, then the statute does not apply.(2) In some cases, also, if an infant appear by attorney or in person, the proceedings may be set aside, on motion, by the opposite party, who of course could not bring error upon them. Thus, where an infant plaintiff appears by attorney, the defendant, inasmuch as he has no mode of compelling him to appoint a next friend, may, at any time before answer, apply to set aside the summons ; but after answer, it Avill be too late to make this motion. In that stage of the case, his only remedy is to answer ; the infancy of the plaintiff not being a ground of non-suit at the trial, inasmuch as the defendant by answering, waives the irregularity, and admits the due appearance of the plain- tiffi(3) If the defendant do not avail himself of either of these modes of proceeding, he would seem, from the cases cited in support of the pre- ceding proposition, to be without remedy. Yet, if, (as was actually the case, in one of the cases already cited,)(4:) the plaintiff, an infant, should prosecute his suit by attorney, without the slightest knowledge or sus- picion of his infancy, on the part of the defendant, and with every ap- pearance of his having attained full age, the defendant by being deprived of the opportunity of setting aside the proceedings, if not availed of by motion, before, or by plea in abatement, after declaration, would be placed in the situation of contending with an irresponsible adversary, who might avail himself of the judgment, if in his favor, and turn around, if against him, and reverse it with costs against the innocent defendant. In such a case, upon the great principle that the court will not permit its process to be abused, and the forms of law to be prostituted to the basest trickery, it would seem, that it must have the power to interfere, if not to set aside the plaintiff's proceedings, at least to stay them, until he should consent to come in and appoint a next friend, nunc pro tunc, and amend his proceedings accordingly. At (1) 2 R. S. 425, sec. 7, subd. 7 ; see Bird v. Pegg, 5 B. k Aid. 418. (2) Cainp V. Bennett, 16 Wend. 49. (3) Fellows V. Niver, 18 Wend. 563 ; Wilder v. Eviber, 12 Wend. 191 ; Schervierhorn v. Jenkins, 7 Johns. 313. (4) Gosling v. Acker, 2 Hill, 395, 396. 123 "WHO MAY APPEAR BY ATTORNEY. all events, if the defendant should obtain judgment in the action, to prevent the pernicious consequences of its reversal with costs against him, he would, no doubt, be permitted, either to vacate it, without prejudice to his right of protection from further proceedings in the cause, or be, in some other manner, relieved from the oppression of a writ of error upon it. And where an infant defendant appeared by attorney, the court upon the application of the plaintiff set aside a judgment of nonpros taken against him; but they did so without costs, inasmuch as the plaintiff might have compelled an appearance by guardian,(l) Upon the same principle, if an appearance be entered by the infant, either in person or by attorney, it may be struck out, on motion to the court, with costs ;(2) and though the fact of infancy be not known, till after the record is made up for trial, it is not too late for the plaintiff to have a guardian appointed ; — the appearance and the record may then be amended accordingly.(8) But, at this stage, the court would not give the costs of the application, if there ap- peared no intention of fraud, in the defendant's attorne}^, nor any suf- ficient reason why the plaintiff did not ascertain the fact before.(4) So, , where the plaintiff proceeds against an infant defendant, without having a guardian appointed for him, if he himself should neglect to do so, the plaintiff's proceedings may be set aside, on motion. Thus, an appearance according to the revised statutes was set aside, even after a writ of inquiry executed, and final judgment entered ; but with- out costs, the defendant hunself being regarded as technically in fault, in not having duly appeared by guardian,(5) So, in a recent case, in the Exchequer^ in England, where a cognovit was given by an infant, authorizing an attorney to appear for him and confess an action brought against him, for a precise sum, for necessaries provided for him by the plaintiff, with an undertaking not to bring any writ of error, nor to do any act to prevent the plaintiff from entering up judg- ment or suing out execution ; the cognovit was set aside, on motion, on the grounds, first^ that an infant cannot apjDoint or appear by attorney; second^ that he cannot state an account ; and third^ that he cannot de- prive himself of his right to bring a writ of error, or any right to which he is entitled.(6) But in order to make such a motion, it is (1) Comstock V. Carr, 6 "Wend. 526. {2) Paget v. Thompson, 3 Bing. 609; S. C. 11 Moore, 504; Eindmarsh v. Chandler, 7 Taunt. 488 ; S. C. I Moore, 250. (3) Shipman v. Stevens, 2 Wils. 50; Paget v. Thompson, 3 Bing. 609; S. G. 11 Moore, 504. (4) Shipman v. Stevem, 2 Wils. 50. (5) Nunn v. Curtis, 4 Dowl. 0. S. 729. (6) Oliver v. Woodruffe, 4 M. & W. 650; S. C. 1 Dowl. 0. S. 166; S. C. 3 Lond. Jurist, 59. WHO MAT APPEAR BY ATTORNEY. 129 necessary that he should appoint a guardian ; and he cannot, even for this purpose, appear by attorney.(l) Idiots and lunatics.'] It is laid down, in the old authorities, that an idiot must appear in person ; that any person who prays to be admitted as his next friend, may sue for him ; and that, if an action be brought against him, he must appear in proper person, an'd any one who can make a better defence, shall be admitted to defend for him ; but if an idiot has been allowed, however irregularly, to plead by attornej^, and the parties proceed to trial, the verdict and judgment will be binding upon him ; but that a lunatic, or one who becomes 7ion compos mentis, must appear by guardian, if he be within age, and by attorney, if he be of full age.(2) And notwithstanding the fact, that the statute of Westminster confers the privilege of appearing by attorney, upon per- sons of full age and sound mind, saying nothing of others, the English books, down to the latest period, have adopted this rule.(3) And, in a recent case, in the Excliequer^{^ where an action of debt was com- menced in the name of a lunatic, by his wife, the authority of a lunatic to appear' by attorney was recognized ; and it seemed to be considered, that if the case had gone on to judgment, the defendant would hive been safe in paying it to the attorney. But instead of pleading to the action, the defendant took out a summons, calling on the plaintiff's attorney to show his authority for taking proceedings. He accord- ingly attended with the wife of the plaintiff, who stated, that her hus- band had been for some time wow compos mentis, although no commission of lunacy had been issued against him : that she had collected, as well as she was able, for the support of his family, the debts which had been due before he lost his reason, and had instructed the attorney to brino- the action. On this statement, Coleridge J., made an order, that the sum claimed should be paid into court, to abide the order of the full court. Upon an application, (founded on the old rule, as above stated,) that the money be paid out of court, to the wife of the plaintiff, or her attorney, it was contended, against the application, that a lunatic was not capable of ap^^ointing an attorney, inasmuch as an attorney is an agent, to appoint whom presupposes the exercise of mental power : and that if the court should order the money to be paid out to the (1) Sheiyherdy. Eihhard, 19 Wend. 96. (2) Bro. Abr. Tit. Idiot; Co. Lit. 135, b. ; Beverley' s case, 4 Coke, 124, b. ; Dennis y. Dennis, 2 Saund. 335 ; Dennis v. Phrasier, 2 Keb. G97 ; Frasier v. Dennis, Ibid. 752 ; Slielf. on Lun. 395, (2 Law Library.) (3) Tidd, 9tli ed. 93, note 6; 1 Chit. Archb. 7th ed. 49 ; Lush's Prac. 199 ; 2 Perg. Irish Prac. 727. (4) Rock V. Slade, 7 Dowl. 0. S. 22; ^. C. 2 Lond. Jurist, 993. Vol. I. 17 130 "^HO MAY APPEAR BY ATTORNEY. plaintiff's wife, or to the attorney, and the plaintiff slionld afterwards recover his reason, and sue the defendant anew for it, the latter could not plead this rule of court, and the consequent payment, in bar of the action. But the court granted the rule ; and Lord Abinger, Ch. B., re- marked : — " I have known many instances, where actions have been brought in the names of lunatics, before any committee was appointed. "Were this not allowable, many a person, 7ion comjDos mentis^ would die of starvation, before any regular proceedings, to declare him a lunatic, could be complied with. It is not necessary, therefore, to pronounce any opinion, as to whether this rule of court would be pleadable in bar to any future action or not ; as, independent of that consideration, I think it ought to be granted." In one case, in this court, also,(l) an application was made, on the part of the plaintiff, that attorneys should be appointed for two of the defendants, who were mm compos 'mentis, but not idiots, from nativity, and who were of full age ; which was founded upon an affidavit, that the attorneys proposed had given notice of retainer for another defend- ant, and were willing to appear for the two defendants named. It was admitted by the counsel moving, that he did not know of any adjudg- ed case, which determined the rule of practice in such a case, except the old authorities above cited. The court granted the application, observing : — " This court has no settled rule of practice, in a case like the present : but we see no objection to granting a rule, that the attorneys who have been named, appear and defend for the defendants, stated in the affidavit, to be of unsound mind and of full age." This, therefore, is the state of the practice on the subject ; although it cannot fail to be observed, that it seems to be repugnant to the lan- guage of the statute, by which the capacity to ap23ear by attorney, is made to depend on the fact, that the party is of full age and of sound mind{2). And in a recent case in this court,(3) it would seem to have been so regarded ; for Bronson, J. observes : — " Married women, in- fants, lunatics, and other persons, not sui juris, are not in general, capable of appointing an agent or attorney." Probably, the more cor- rect practice would be, that the idiot or lunatic, if declared such, ac- cording to law, should appear upon the record by his committee ; and indeed I recollect a case,(4) which, in different stages of it, came before this court, on several occasions, in which a person who was declared a lunatic, by the appropriate proceedings in chancery, appeared and de- fended the suit by his committee. Such was the established practice in chancery ; in which, as remarked by chancellor Walworth, " it ap- (1) FauUmer v. JiTClure, 18 Johns. 134. (2) Ante, 124. (3) Snyder v. Sponable, 1 Hill, 571. (4) Hart v. Beamer, 6 Wend. 491, 537 ; S. C. Gra. Prac. 2cl ed. 779. WHO MAY APPEAR BY ATTORNEY. 131 pears to be well settled, tliat they are to defend suits in equity by tlieir committees; and that upon a joint bill filed against the lunatic and the committee of his estate, the latter, if he has no interest adverse to that of the lunatic, was, as a matter of course, appointed guardian to appear and answer for him. And, as the statute puts idiots, lunatics, habitual drunkards, and other persons of unsound mind upon the same footing, both as to the guardianship of their persons, and the management of their estates, the same course of practice is equally applicable to all."(l) Until the passage of a recent statute, the committee of a luna- tic, idiot, habitual drunkard and other persons of unsound mind, could not sue in his own name, but had to sue in the name of the lunatic, &c. by his committee.(2) By an act passed in 1845,(3) it was provided that receivers and committees of lunatics and habitual drunkards, appointed by an order or decree of the court of chancery, might sue in their own names, for any debt, claim or demand transferred to them, or to the possession and control of which they are entitled as such receiver, or committee. And this class of cases is excepted from the provision in the Code that every action must be prosecuted in the name of the real party in interest, by sec. 113 of the Code, which allows persons ex- pressly authorized by statute to sue in their own names, and without joining with them, the person for whose benefit the action is prosecuted. If no committee be appointed, and the party be not declared an idiot or lunatic, it would no doubt be regular, for him to appear, either in person or by attorney ; inasmuch as, in that case, the legal presump- tion would of course attach, that he was of sound mind, and therefore legally capable of doing so. It may not be amiss to observe, in this place, that under the statutes of this state, respecting idiots, lunatics, and persons of unsound mind, and also, as respects persons who are incapable of conducting their own affairs by reason of habitual drunkenness, (who are placed upon the same footing,) the entire control over their estates was vested in the court of chancery, (4) — except in the case of habitual drunkards, where the drunkard's estate amounts to less than $250,— in which case, a similar jurisdiction was conferred on the courts of common pleas, subject to an appeal to the court of chan- cery.(5) But upon the adoption of the new constitution and the enact- ment of the judiciary act, it was provided that there should be a Supreme Court having general jurisdiction in law and equity, (6) and that such Supreme Court should possess the same powers, and exercise the same jurisdiction, as was then possessed and exercised by the then present Supreme Court and court of chancery.(7) And in the same (1) Neiv y. New, 6 Paige, 238. (2) Petrie v. Shoemaker, 24 Wend. 85. (3) Sess. Laws, 1845, p. 90. (4) 2 R. S. 52, sec. 1. (6) 2 R. S. 52, sec. 3 ; Matter of Heller, 3 Paige, 201. (6) Cons. art. 6, sec. 3. (7) Laws 1847, p. 323, sec. 16. ;|[32 WHO MAY APPEAR BY ATTORNEY. manner the powers and jurisdiction, theretofore exercised by the court of common pleas, were by the constitution and said act vested, in this class of cases, in the county courts. Under the provisions above referred to, this court has a paramount authority, not merely over lunatics, idiots, and drunkards, and their committees, who are, pro hac vice, officers of the court, but even over creditors, or others having legal or equitable claims against them. With respect to the authority of that court, in the case of claims of third parties, against a lunatic or drunkard, the law was fully examined by chancellor Walworth, in a number of cases ; and the principle is now fully settled, that all gifts of the goods and chattels of the idiot, lunatic, or drunkard, and all bonds or other contracts made by him, after the actual finding of the inquisition declaring his incompetency, and until he is permitted to assume the control of his property, by the permission of the court, are utterly void ; and it is a contempt of that court, even to commence a suit at law against a lunatic, without permission, after notice of the inquisition declaring his incompetency. "If," says the chancellor, " any person has a legal or equitable claim against him or his estate, the proper course is to apply to this court, by petition, for the payment thereof ; and if the claim be disputed or doubtfal, it may be referred to a master to ascertain the facts. It is not proper, even to subject the estate to the expense of a proceeding by bill, except by the direction of the court. The statute having given to this court exclu- sive jurisdiction in such cases, and charged it with the duty of provid- ing for the support of the lunatic and his family, and for the payment of his debts out of the estate, the chancellor will see, that the legal and equitable rights of the creditors are protected and enforced. But this must be done, according to the usual forms of proceeding in this court, or by suits instituted under its direction. None of the creditors will be permitted to take the law into their own hands, and mete out jus- tice to themselves, according to their own ideas of their equitable rights."(l) In the subsequent case of Heller, (2) the chancellor recognizes the same principles, and uses the following language : — " The statute has given to this court, exclusive jurisdiction over the estates of idiots and lunatics, and over the estates of habitual drunkards, except in a few cases, where a concurrent jurisdiction is given to the courts of common pleas.(3) If any person has a legal or equitable claim against the estate, which is under the care and management of the committee, who refuses to allow the same, he must apply to this court, by petition, to (1) L'Amouereux v. Crosby, 2 Paige, 428. (2) 3 Paige, 201. (3) 2 R. S. 52, sec. 1, 3. WHO MAY APPEAR BY ATTORNEY. 133 enforce his claim. And he will not be permitted to obtain payment by means of a suit at law, except where the suit is brought under the express direction or sanction of this court. Although the lunacy of the defendant may not always form a legal defence, this court, upon a l^roper application by the committee, will restrain such a proceeding and compel the plaintiff to come here for justice.(l) And even if a party succeed in an action at law, it will be a contempt of this court, for him to interfere with the property which is under its exclusive control. Although he may afterwards come here for the payment of his claim, he must again establish it, in such manner as this court may think proper to prescribe. He must also give up his proceedings at law, and pay his own costs, before this court will interfere for his re- lief I have recently learned, that many suits at law, have been brought against idiots, and drunkards, after the appointment of com- mittees by this court ; and sometimes, for debts contracted by them, against the consent of meir committees, after their appointment. In every case of that kind, it is the duty of the committee, to apply to this court to restrain such proceedings. No debt contracted by the lunatic or drunkard, under such circumstances, can be paid out of his estate, and if paid by the committee, without the sanction of this court, although after a recovery at law, he will not be allowed for it in the settlement of his accounts."(2) The principle established by these de- cisions apply now to the Supreme Court, which is clothed with all the powers and jurisdiction of the late court of chancery, and the former court may now supervise and control the custody of the persons and estates of idiots, lunatics, &;c., in the same manner and to a like extent as lately was done by the court of chancery. Married women.'] In no case, where it is necessary that a married woman should be a party to a suit at law, can she legally sue or be sued without her husband, except in actions between themselves or where it respects her separate property.(3) And even where a' feme sole plaintiff or defendant marries during the pendency of the suit, the husband must be made a party. Of the jDroceedings to do this, we will speak hereafter. Where husband and wife sue or are sued together, the husband can, of course appoint an attorney for both ;(4) or they may appear in per- (1) Fraud v. Lawrence, 1 Jac. & Walk. 636, 643 ; Kaye v. Cunningliam 5 Mad. Rep. 406; Assignees of Gardiner v. Shannon, 2 Sch. & Lefr. 229. (2) Matter of Heller, 3 Paige, 201, 202. See also, Brasher v. Cortlandt, 2 Johns. Ch. Rep. 400 ; Executors of Brasher v. Van Cortlandt, 2 Johns. Ch. Rep. 242 ; Matter of H(^per, 5 Paige, 489. (3) Code, sec. 114. {^Foxwisty. Tremaine, 2 Saund. 213. 134 WHO MAT APPEAR BY ATTORNEY. son.(l) If they appear by attorney, there can be but one attorney, who is deemed to have been appointed by the husband, though he is de- scribed as attorney for both.(2) Nor can they appear by separate attorneys ; and if they do so, it is error.(3) And in an action against both, if the husband be served, or if an attorney undertake to appear, he must enter an appearance for both. If he answer for himself alone, the plaintiff may treat it as a nullity and sign judgment.(4) Nor can the wife answer alone ; but whatever defence she makes, must be in the name of herself and her husband.(5) But, as they may be sued for a joint trespass or conversion, one may be acquitted and the other found guilty ;(6) and therefore, it would seem, they are entitled to set up separate defences.(7) Though the husband may thus appoint an attorney for himself and his wife, — if he should refuse to do so, it would seem that the court for the protection of her interest may appoint an attorney for her ; though, even in such case, the record should show a joint appearance by the husband and wife to avoid the allegation of error. A case of this kind(8) is mentioned by Bronson, J., with approbation in a late case in this court, (9) where the husband refused to suffer the wife to appear on proceedings against them continued to the exigent, and it was ruled by the court that in this case she might make an attorney to prevent being waived. Some contradiction seems to exist, among the older cases,(10) as to whether an infant wife, sued with her husband, ought or not to appear by guardian ; and in reference to the doubt which is thus created on the subject, Mr. Liish,{ll) without laying down a rule on the subject, observes : — " If the wife be an infant, it is said she must appear by a guardian, as in other cases, or it will be ground of error ; and that the husband cannot disavow the guardian made by the court." I should think that where the rights and legal existence of the wife are merged in the husband, the rule should be, as I believe the practice is, other- wise ; and that the husband may appoint an attorney for both : for (1) Com. Dig. Pkader, 2 A. 1. (2) Lush's Prac. 200. (3) Maddox v. Winne, 3 Salk. 62 (4) Russell V. Buchanan, 6 Price, 139. (5) Watsonv. Thorpe, Cro. Jac. 239; TampionY. Neiuson, Ibid. 288. {Q) Anonymous, 1 Ventr. 93 ; EareY. White 12 Mod. 19 ; Lush's Prac. 184. (7) Lush's Prac. 200. (8) Dyer, 271, b., pi. 27, margin. (9) Snyder v. Sponahle, 1 Hill, 571. (10) Baddington v. Freeman, 2 Lev. 38 ; S. C. nom. Free^nan v. Baddington, 1 Yent. U Coutra, Humfreys v. Vaughan, 1 Show. 13. (11) Lush's Prac. 200. WHO MAY APPEAR BY ATTORNEY. 135 many purposes, even to the extent of suing, and being sued by the husband, the separate existence of the wife is recognized, there is great reason for the appearance of the infant wife by guardian. But if the husband be an infant, he must, though sued jointly with his wife, appear by guardian. And even where an infant plaintiff, sued with his wife, had appointed an attorney for both, the court reversed the judgment for error, in fact, without even mentioning the distinction ; evidently regarding the wife as a party merely for conformity, and deeming the husband, as in legal effect, the sole plaintiff. It is now provided by statute, (1) that when a married woman is a party, her husband must be joined with her, except when the action concerns her separate property, or when the action is between herself and her husband, she may sue or be sued alone. But in all cases where her husband cannot be joined with her, she shall prosecute or defend by her next friend. And it was held that in a suit by a mar- ried woman, in respect to her separate property, she must sue by her next friend, who must be a person of sufficient substance to be respon- sible for costs.(2) And it was further decided that the objection that a married woman had sued in her own name, without a next friend, could be taken at any stage of the suit.(3) Thus, if the action be by the wife against the husband for a divorce, either limited or absolute, it would seem that the former must sue by her next friend.(4) A feme covert, not being capable of suing alone, (except in the cases before mentioned,) cannot appoint an attorney for any purpose; and accordingly, where the fact of coverture appeared on the record in a real action prosecuted by a wife, without her husband, by attorney, the objection was held good, and the writ was quashed.(5) So, if sued alone, she must both appear and plead her coverture in person ; if she should answer by attorney, the answer would be bad, for the reason, that the matter of it shows the want of capacity on her part to appoint an attorney.(6) As to the effect of an appearance, by a married woman, by attorney, it is to be remarked that the disability of a /erne covert differs from that of an infant, inasmuch as hers is a relative^ while that of an infant is a personal disability, arising out of his tender age and presumed want of discretion. The one is grounded on the privilege of the husband, the other on the privilege of the infant. Hence, if a feme covert sues or is (1) Code, sec. 114. (2) Coit V. Coit, 2 Code Rep. 94; 3 Ibid. 23 ; 4 Pr. Rep. 232. (3) Ibid. (4) Forrest v. Forrest, 3 Code Rep. 254 ; and Helkr v. Eeller, 1 Code Rep. N. S. 309. (5) Oulds V. Samom, 3 Taunt. 261. (6) Co. Lit. 135 ; Foxwiat v. Tremaine, 2 Saund. 209, b. c, note. 136 "^HO MAY APPEAR BY ATTORNEY. sued alone, and judgment is given against her, slie cannot allege for error, her appearance in person or by attorney, but in conjunction with her husband ;(1) and consequently, if he dies, or refuses to join in the writ, the judgment stands good. Nor can the defendant bring error, if judgment be against him.(2) How the rule, prohibiting the appearance of persons not of full age or sound mi7id, hy attorney, is to he understood.'] The implied prohibition of the statute, against persons not of full age or sound mind appearing by attorney was, at one time, understood to prevent the use of the name of an attorney in any of the proceedings in the cause. But it was held, by this court, to extend only to an appearance on the record, and is not intended to deprive a party so situated of the professional aid of an attorney ; and that where an attorney is so retained (as he may be) to conduct the proceedings, — every proceeding but the entry of a techni- cal appearance on the record in the various proceedings may be had in his name. In that case, the plaintiff, an infant, had sued by procheiyi ami, and a replication and demurrer on his behalf signed by an attor- ney, and a rule for default in not answering such pleading, were held to be regular. " The rule," says Savage, Ch. J., " that an infant shall appear by prochein ami, and not by attorney, relates to the appearance upon the record, but is not intended to deprive the infant of the profes- sional aid of an attorney. There is surely no good sense in requiring the attorney to enter rules and give notices in the name of the prochein ami, when it is perfectly well known that the suit is conducted by the attorney. The rule that a plaintiff who appears first hj prochein ami, shall not afterwards appear by attorney, relates to the appearance on the record. For instance, an infant plaintiff complains by prochein ami; the defendant puts in an answer, which requires a reply ; the plaintiff shall not reply by saying that he appears by A. B., his attorney, unless in the mean time he has come of age ; and then, I apprehend that fact should be suggested upon the record. But when a prochein ami has been properly appointed, the pleadings are regular in the name of .the prochein ami, and the rules are entered properly, entitling the cause' in the name of the infant by his prochein ami. The question then is, may an attorney who conducts the proceedings, .do so in his own name, or is he obliged to sign the name of the prochein ami to his notices, and use the name of the 2'>i'ochein ami in entering rules, as if he loere an attorney ? I am of opinion he is not bound to do so, but may conduct the proceedings in his own name. "(3) (1) Bac. Ab. Error B. (2) Coan v. Bowles, 1 Show. 165, per Eolt, Cb. J. (3) The People v. Neiu York Common Pleas, 11 "Wend. 164, 166. ATTORNEYS, HOW APPOINTED TO SUE AND DEFEND. 137 The same principle, of course, applies to all cases in which a person, non sui juris, is compelled to appear upon the record, through the inter- vention of a person legally competent to appear, as well as to cases in which an appearance on the record in person is required. Appearmj in person.~\ The statute reserves to those, who at common law were competent to do so, the right of appearing in person ; with this restriction only, that no person can be permitted to appear on the record, in person, whilst he has an attorney in the cause ;(1) a provi- sion new in terms, as compared with the old act authorizing appear- ance by attorney or in person, but introduced by the revisers as being conformable to the practice. (2) They may, however, after having ap- peared in person, appoint an attorney, at any stage of the proceedings, and without leave. (3) A person suing or defending in person, is, moreover, bound to know the practice of the court, and cannot claim indulgence on account of his ignorance ;(4) but must submit to the same rules, as to the promptness and regularity of his proceedings, as other persons. (5) 6. Attorneys, liow appointed to sue and defend. Generally, and in special cases.'] Formerly, it was necessary, in all cases, that an attorney, before he undertook the management of the proceedings in a cause, either for the plaintiff or defendant, should file a warrant of attorne}^, — if for the plaintiff, in the same term in which he declared, — and if for the defendant, in the same term in which he appeared ; or in default, he was compellable to make satisfaction to the party grieved, according to the discretion of the court.(6) This require- ment, however, although it existed down to the adoption of the revised statutes, had long become obsolete, and never was complied with in practice, excepting in cases of judgment by confession.(7) In those cases, it was still retained ;(8) it being provided by statute that it should not be necessary to file any warrant of attorney, to au- thorize any attorney to appear in any court, for either party to an ac- tion brought therein, except in cases where it should be specially re- (1) 2 R. S. 276, sec. 11 ; Code, sec. 417. (2) Revisers' notes, 3 R. S. 2d ed. 695. (3) Tlie People v. New York Common Pleas, 11 "Wend. 164, 16t; Kerrison v. Wallingbo- rough, 5 Dowl. 0. S. 564. (4) Gillingham v. Waskett, McClel. 568. (5) Currey v. Bowker, (B. C. East. T. 1841,) 5 Lond. Jurist, 341 ; S. C. 9 Dowl. 0. S. 523. (6) 1 R. L. of 1813, p. 415, sec. 2, 3; seo 10 Car. 1, sess. 2, ch. 12, sec. 4; 6 Anne, cli. 10. (7) Revisers' notes, 3 R. S. 2d ed. 721. (8) 2 R. S. 360, sec. 10. Vol. I. 18 138 ATTORNEYS, HOW APPOINTED TO SUE AND DEFEND. quired by law ; nor should any entry of a warrant of attorney in any judgment roll or record, or other proceeding, be necessary ; but the plaintiff in his declaration, and the defendant in his plea, should state the name of his attorney or attorneys, by whom they respectively ap- pear.(l) By the Code, as will be seen hereafter, the old mode of entering up judgments upon confession, as above stated, has been abolished,(2) and a new and different form prescribed. Hence, there is no longer any warrant of attornc}', nor, indeed, need the attorney's name appear any- where in the proceeding. For the purpose of affording greater security to titles, and prevent- ing the commencement of suits without authority and from mere specu- lation, it -was provided by statute, that a defendant in ejectment might, at any time before pledging, apply to the court, or to any judge thereof in vacation, (or to a Supreme Court commissioner,(3) to compel the at- torney for the plaintiff to produce to such court or officer, his authority for commencing the action in the name of the plaintiff therein.(4) Such application was to be accompanied by an affidavit of the defendant, that he had not been served with proof in any way, of the authority of the attorney to use the names the plaintiffs stated in the declaration.(5) Upon such application, the court or officer should grant an order re- quiring the production of such authority, and should stay all proceed- ings in the action, until the same be produced.(6) Any written request of such plaintiff or his agent, to commence such action, or any written recognition of the authority of the attorney to commence the same, duly proved by the affidavit of such attorney or other competent witness, should be sufficient presumptive evidence of such authority.(7) If it should appear that previous to such application by any defendant, he was served with a copy of the affidavit of the plaintiff's attorney show- ing his authority to bring such action, such application should be dis- missed, and such defendant should be liable for the costs of resisting such application ; the payment of which might be compelled by attach- ment, as in other cases, which might be issued upon proof of disobe- dience to the order of the court or officer, directing the payment of such costs.(8) The authority to appear in these cases must have been ob- tained before the commencement of the suit.(9 ) These provisions of the revised statutes apply to actions commenced (1) 2 R. S. 351, sec. 26. (2) Code, sec. 382. (3) Harris v. Mason, 19 Wend. 568. (4) 2 R. S. 305, sec. 17. (5) 2 R. S. 305, sec. 18. (6) 2 R. S. 306, sec. 19. (7) 2 R. S. 306, sec. 20. (8) 2 R. S. 306, sec. 21. (9) ATBermot v. Davison, 1 How. Sp. T. Rep. 194. See also as to the authentication of the power, when taken in a foreign country, St John v. Croel, 6 Hill, 573-575, and note. ATTORNEYS, HOW APPOINTED TO SUE AND DEFEND. 139 under the Code for tlie recovery of the possession of real property, which are now substituted for the old action of ejectment. And it is therefore necessary, previous to commencing an action for the recovery of real property, for the attorney to obtain from the plaintiff authority to commence the suit.(l) In all other cases, the authority of the attorney may be, and usually is, by parol ; and such an authority is now sufiicient, even for a corpo- ration, although formerly it must have been under their corporate seal ;(2) the technical doctrine, that a corporation could not contract except under its corporate seal, being now exploded, and it being well settled, that wherever a corporation is acting within the scope of the legitimate purposes of its institution, all parol contracts made by its au- thorized agents are express promises of the corporation, and all duties imposed on them by law, and all benefits conferred at their request, raise implied promises, for the enforcement of which an action may well lie.(3) The propriety of a written retainer has, however, been strongly urged upon the profession. "I think it right to state," said Lord Tenterden, Ch. J., in an action for costs, in which the attorney failed in proof of his retainer, " that every respectable attornej'- ought, before he brings an action, to take a written direction from his client for commencino- it; and he ought to do this, both for his own sake and for the sake of his client. It is much better for him, because it gets rid of all difficul- ty about proving his retainer ; and it would also be better for a great many clients, as it would put them on their guard, and prevent them from being drawn into law suits without their own express direc- tion."(-i) An additional reason for this precaution is, that if the client afterwards disavow the proceedings, and disclaim having authorized them, the attorney will be put upon proof of it, and in the event of his failing to establish a retainer, have to pay the costs of the proceed- ings.(5) And, in a late case in chancery, in England, it was said by Lord Langdale^ master of the rolls, that although the retainer of a soli- citor need not be in writing, yet, if he neglects taking that precaution, and, his retainer being afterwards questioned, there is nothing but as- (1) Code, sec. 471. (2) Co. Litt. 66, b. (3) Bank of Columbia v. Patterson, 1 Cranch, 306 ; Molt v. Eicks, 1 Cowen, 536, 537, and cases there cited ; see, also, Moss v. Raynor, 1 How. Sp. T. Rep. 110. As to the rule in Eng- land, see Arnold v. Mayor of Poole, 4 M. & O. 868-899 ; S. C. 5 Scott, N. R., 741 ; S. C. 2 Dowl. N. S. 574; S. C. 7 Lond. Jurist, 653. (4) Ovjen v. Ord, 3 Car. & P. 349. (5) Anonymous, 1 Chit. Rep. 193, a; French v. French, 2 Molyn. Ir. Rep. 123; Peedv. Cus- sin, Hayes' Ir. Rep. 66; 1 Ferg. Ir. Prac. 33 ; see the 9th division of this section. 140 ATTORNEYS, HOW APPOINTED TO SUE AND DEFEND. sertion against assertion, lie must bear the costs of the risk he thus un- dertakes.(l) Where the question of retainer arises in an action for an attorney's bill, it is of course to be determined by the jury ;(2) and it may be inferred from circumstances. Thus, where an attorney was employed for a party, by his father, to defend an action, and the party knew of the retainer and did not disapprove of it, he was deemed as much bound as if he had himself employed the attorney.(3) This retainer, whether express or implied, should be from the party for whom the attorney appears. And an authority from* the principal, does not authorize him to appear for the bail ;(4) nor the authority of the landlord, to appear and defend an ejectment in the name of the tenant.(5) It must also, either specially, or by a general authority necessarily implied, extend to the particular suit. Thus, if an attorney be employ- ed to bring an action, he cannot by virtue of that retainer, accept service of process in a cross action.(6) But if the first action be de- feated, by an answer of non-joinder, he may, by virtue of the original retainer commence a new action against all the parties named in the answer.(7) So, it would seem, that an attorney who receives a note from his client to collect, is warranted by his general retainer, to bring a second suit on the note, after being nonsuited in the first, for want of due proof of the execution of the note.(8) But, an attorney em- ployed to put in bail for a prisoner, (9) or to take out a summons for his discharge, (10) does not, from such retainer, derive an authority to defend the action. But having once appeared on the record, he con- tinues the attorney, at least as regards the adverse party, till the end of the suit. There cannot be a retainer to expire in the middle of the proceedings ; though the client may change his attorney at any stage of them by an order,(il) or by the consent of the latter. Appearance must he in good faitJi.'] The retainer of the attorney, to (1) Wiggins v. Peppin, 2 Beav. 403 ; see, also, Alkn v. BoTie, 4 Beav. 493. (2) 1 Leigh's N. P. 182. (3) Cameron v. BaJcer, 1 Car. & P. 268; Lee v. Jones, 2 Camp. 496; Gray v. Wain7nan, 1 Moore, 467; see also, Hall v. Laver, 1 Hare, 571. (4) Chivers V. Fenn, 2 Show. IGl. (5) Boe V. Doe, Barnes, 39. (6) V. Davis, 3 Law Jour. Exch. 212 ; Lush's Prac. 218. (7) Crook y. Wright, Ry. & M. 278. (8) Scott V. Ehmdorf, 12 Johns. 315. (9) Dent \. Eallifax, 1 Taunt. 493. (10.) Spencer v. Newton, 6 A. & E. 630 ; arties in the cause?^ As between the parties in the cause, the general rule is, that they are concluded by the appearance of their respective attorneys, and that the party whose name has been improperly used, or for whom the attorney has improperly appeared, is liable as the party to the record, and must seek his remedy against the attorney, provided the latter be solvent. This rule was laid down in a very old case, in which it was said, that if an attorney appears, and judgment is entered against his client, the court will not set aside the judgment, though the attorney had no warrant, if the attorney be able and responsible ; but if the attorney be not responsible, or be suspicious, the judgment will be set aside.(8) (1) Eutchiiis v. Eutchins, 1 Hogan, 315; Keo7i v. NesbiU, 1 Sausse & Scul. 365, note; Walkr V. Fowler, 1 Sausse & Scul. 369. (2) Doe V. Eoe, 3 Dowl. 0. S. 496. (3) Eohson v. Eaton, 1 T. R. 62. (4) Dupen v. Keeling, 4 Car. & P. 102. (5) Anderson v. Watson, 3 Car. & P. 214. (6) Eammond v. Thorpe, 1 C, M. & R. 65 ; S. C. 2 Dowl. 0. S. 721. (T) Ante, 139 140. (8) Anonymous, 1 Salk. 85; S. C. 6 Mod. 16. 23J. CONSEQUENCES OP AN ATTORNEY ACTINa The rule, as thus established, has been uniformly acted upon by the English courts. Thus, where an action against the principal and his bail, had been defended by the attorney for the principal, without the knowledge of the bail, and judgment had gone against them, the court held, that the bail must seek his remedy against the attorney, especi- ally as he was able to answer in damages.(l) So, where one of two persons, who were made defendants in an action of replevin, knew nothing of the suit, until his goods were taken in execution, the at- torney having been employed by the other, the real defendant, — upon a motion to have the amount of the levy, which was in the sheriff 's hands, repaid, the court said they could not come to a decision without knowing the circumstances of the attorney, and therefore enlarged the rule to give time for an inquiry, and directed the rule to be served on the attorney. (2) So, upon a motion for judgment as in case of non- suit, the plaintiff showed for cause, that he never authorized the pro- ceedings, nor knew of the action until the rule was served on him, and that the attorney could not be found ; but the court considered that his only remedy was against the attorney, and for the like purpose en- larged the rule; at the same time granting a rule against the attorney to show cause why he should not pay the costs.(3) In this state, also, this principle was at an early day adopted in its broadest terms ; the court holding, on the authority of the old cases, that when an attorney takes upon himself to appear, they will look no further, but will proceed as if the attorney had sufl&cient authority, and leave the party to his action against him.(4:) In a case occurring soon after, (5) which was most elaborately argued, and very fally con- sidered by the court, they adopted the rule, that an appearance by an attorney of the court, even though without authority, is good as to the court, the remedy of the party being by action against the attorney : but that it is otherwise, if there be any fraud or collusion between the plaintiff's attorney, and the attorney assuming to act for the opposite party ; or that if the latter be not responsible, or perfectly competent to answer to his assumed client, the court will relieve against the judg- ment. The ground upon which the rule rests, as stated by Kent, Ch. J., is, that " by licensing attorneys, the courts recommended them to the public confidence ; and if the opposite party, who has concerns with an attorney in the business of a suit, must always, at his peril, look beyond the attorney, to his authority, it would be productive of (1) King v. Davies 12 Mod. 579. (2) Stanhope v. Firman, 3 Bing. N. C. 301 • S. 0. 5 Dowl. 0. S. 357. (3) Mudry v. Newman, I C, M. & R. 402 ; Barber v. WUkins, 5 Dowl. 0. S. 305. (4) Jackson v. Stewart, 6 Jolins. 34, 37. (3) Denton v. Noyes, 6 Johns, 296. FOR A PARTY, WITHOUT AUTHORITY. 185 great public inconvenience. It is not usual for an attorney to require a written warrant from his client. He is generally employed, by means of some secret confidential communication. The mere fact of his appearance, is always deemed enough for the ojiposite party, and for the court. If his client's denial of authority is to vacate all the jDroceedings, the consequences would be mischievous. The imposition might be intolerable."(l) In applying this principle, however, this court has somewhat relax- ed the rigor of the English rule. In one case, (2) where a suit against several defendants was commenced by declaration, which however, was not served on all of them, but an attorney aj^peared for all, and put in a plea, the court refased to set aside the proceedings ; it not being pretended that the attorney was insolvent, or incapable of re- sponding in damages ; but there, the only ground of the application, was the supposed irregularity of the proceedings, and no other relief seems to have been asked. But in one of the cases above referred to, (3) where an attorney, of whose insolvency there was no pretence, had confessed a judgment without authority, the court, (while they ad- mitted the force of the rule,) in order to prevent the plaintiff from suffering by the unauthorized act of the attorney, and, at the same time, to save the defendant from injury, let the judgment stand, but stayed all proceedings, and let the defendant in to plead. In deliver- ing the prevailing opinion, Kent, Ch. J, remarked: — "I am. disposed, therefore, to prevent all possible injury to the defendant, and, at the same time, to save the plaintiffs from harm. This can be done, only, by preserving the lien which the plaintiffs have acquired by their judgment, and by giving the defendant an opportunity to plead, if he has any plea to make, to the merits. To go further, is not required by any considerations of justice or policy ; and it Avould be repugnant to the established practice and precedents. I think it can be shown, that the court is bound, by a series of decisions, to preserve the judg- ment. The usual course has been, to turn the injured party over to his remedy against the attorney for the deceit ; but we now disarm this practice of all its severity, by not confining the party to that remedy, but allowing him to come in and plead."(4) In a more recent case, also, (upon the authority of the case last cited,) the same practice was adopted and approved ; and where a judgment was entered on a cognovit given by an attorney of this court, as the attorney of two partners, when, in fact, he was employed by only one of them, on whom a declaration had been served ; and the other was wholly ignor- (1) Denton v. Noyes, G. Johns. 296. (2) Adams v. Gilbert 9 Wend 499, (3) Denton v. Norjes, 6 Johns. 297. ' (4) Ibid. 301, 302. Vol. I. 24 186 SUMMARY rOWER OF THE COURT, ant of tlie commencement of any suit ; — altliougli tlie court refused to set it aside, as unduly entered up,' — all fraud or collusion between the parties being denied, and the attorney being perfectly responsible, — yet they stayed the proceedings on the judgment, and joermitted the party complaining to put in a plea, and contest the plaintiff's de- mand.(l) "Where, however, the attorney is insolvent, the court will open the proceedings upon payment of costs.(2) And in a later case, (3) where a suit was prosecuted in the name of a plaintiff, without authority, and judgment was obtained against him and execution issued, the attorney being insolvent, — Bronson^ J., set aside the execution, and ordered, that all proceedings against the plaintiff be perpetually stayed, on his stipu- lating not to bring any action. In a recent case, also, in the common pleas in England, where execution had issued against a party made a co-defendant, and the defence had been conducted without his authority or knowledge, the court, upon being satisfied of the insolvency of the attorney, made absolute a rule for restoring the amount levied.(4:) 10. Summary power of the court, over attorneys, as it respects misconduct or otherioise. The power of the court over attorneys and counsellors, (who have always been, but under our system as has been seen, (5) are especially regarded as of&cers of the court,) has been from time immemorial,(6) at common law, of a very full and summary character. Its design has been, not merely to guard the profession from the admission, (7) and continuance of unworthy members, but to enforce the performance of the various duties devolving upon those ofiicers, by means, adequate to the attainment of that end — to protect clients and suitors from the con- sequences of their acts when they would otherwise tend to injustice, or oppression(8) — and to hold them, in their relations to the court and its ofiicers, as well as to suitors, to a strict and summary accountability for their conduct, even to the extent of suspending them from practice, or striking them from the roll. The cases, in which this jurisdiction is ordinarily exercised, may be reduced to four heads : — misconduct in his profession ; — crimes unconnected with his profession ; — breach of duty to his clients or to the opposite party ; — and disobedience of the orders of the court, or the judges thereof It is provided by the j udiciary act,(9) that the Supreme Court organ- (1) Grazebrook v. ITCreedie, 9 Wend. 437. (2) Meacham v. Dudley, 6 Wend. 514. (3) Campbell v. Bristol, 19 Wend. 101. (4) Stanhope v. Firmin, 4 Scott, 39. (5) Ant-e, 100-101. (6) Merritt v, Lambert, 10 Paige, 356. (7) Ante, 100-102. (8) See /« i?e Marti7i, 6 Beav. 237. (9) Laws 1847, p. 342, sec. 75. OVER ATTORNEYS. 187 ized by that act shall possess the same power to remove or suspend any attorney, solicitor, or counsellor, as was theretofore possessed by the former Supreme Court and court of chancery. The power of the old Supreme Court and court of chancery was derived from the revised statutes which provides that counsellors, solicitors and attorneys may be removed or suspended by the several courts in which they shall be appointed ; but subject to such removal and suspension, they hold their offices during life ;(1) and that any counsellor, solicitor or attorney, may be removed or suspended, who shall be guilty of any deceit, mal-prac- tice, or misdemeanor ; but not until a copy of the charges against him, shall have been delivered to him, by the clerk of the court in which the proceedings shall be had, and an opportunity shall have been given to him, of being heard in his defence.(2) These provisions were taken by the revisers, substantially from the former statute,(3) excepting that portion which requires notice of the charges, which was introduced as being in conformity to the existing practice of the courts.(4) They are all, however, declarations of the rule at common law, by which it is well settled, that if an attorney be guilty of misconduct in his profession, unfitting him for the confidence which his profession draws after it, he may be summarily punished by the court, either by suspension from practice for a limited period, or by being stricken from the roll. Thus, an attorney was stricken from the roll, for forging a barrister's name to a demurrer.(5) And in a case in chancery, in this state, (6) where a solicitor forged the name of a person, as deputy register, to a paper purporting to be a copy of an order, ob- tained on his application as solicitor, declaring the marriage, between a husband and his wife void, for the purpose of enabling the husband to impose upon his wife, and induce her to believe, that she was legally divorced, such solicitor was removed from his office as solicitor. So, if an attorney, knowingly suffer an unauthorized person to use his name, he may be stricken from the roll.(7) And where the attorney of a de- fendant induced a witness, subpoenaed by the opposite party, to absent himself from the trial on receiving an indemnity against the consequences of disobedience of the subpcena, it was held that his name ought to be stricken from the roll.(8) And, in one case, where it appeared, that an attorney kept out of the way, in order to avoid a personal service of a rule for an attachment, the court are reported to have intimated a doubt of the propriety of his (1) 1 R. S. 109, sec. 23. (2) Ibid. sec. 24. (3) 1 R. L. of 1813, p. 417, sec. 5. (4) Revisers' note, 3 R. S. 2d ed. 446. (5) Smith V. Matham, 4 D. & R. 738. (6) Matter of Peterson, 3 Paige, 510. (7) Tidd, 9th cd. 89 ; 1 Chit. Archb. 7th ed. 62. (8) Stevens v. Hill, 10 M. & W. 28 ; S. C. I Dowl. N. S. 669 ; S. C. Q Lond. Jurist, 585. 188 SUMMARY POWER OP THE COURT being allowed to remain any longer npon the roll ;(1) bnt an application to that effect has since been refused.(2) So, also, the court will inter- fere in tliis summary way, not only in cases wliere the misconduct of the attorney has arisen in the course of a suit, or other regular and ordinary business of an attorney, but where it has arisen in any other matter, so connected with his professional character, as to afford a fair presumption that he was employed in it, in consequence of that charac- ter.(3) And where an attorney sent letters to a person, threatening him with prosecution, in order to extort money from him, the court ordered him to be struck off the roll ; the misconduct having been in his business of attorney.(4) But, where an attorney brought several qui tarn actions, and after their commencement made an offer to the defendants to compromise them, it was held no ground for striljing him off the roll.(5) Nor is it a ground for striking him off the roll, that he has brought vexatious actions ; though it might be otherwise if he made a threat to bring them for the j^urpose of extortion or the like.(6) And in a very late case in the queen's bench,(7) the court refused to strike an attorney from the roll, for alleged unfair play in gambling, in his private relation to the party complaining, although, the relation of at- torney and client had existed between them, — upon the ground that such a power did not exist, where the act of the attorney was uncon- nected with his profession. It has been supposed to be regarded by the queen's bench, and com- mon pleas in England, as a rule, that they will not interfere in this summary way, when the misconduct complained of amounted to an indictable offence, as barratry, champerty, conspiracy, maintenance, perjury, or the like,(8) The reason given in the cases referred to, is, that an attorney cannot, any more than any other person, be called on to answer criminatory matter ; as his answer would afterwards be evi- dence against him, in case of an indictment.(9) More recently, however, this question has been considered in the Excliequer^ and the rule, (what- (1) Matter of , 1 D. & R. 529. (2) Ee:c v. Cari^enter, 1 Chit. Archb. Tth ed. 61, note d. (3) Tidd, 9th ed. 86 ; Re Atkin, 4 B. & Aid. 47 ; and see Be Wolfe v. , 2 Chit. Rep. C8; Ee Knight, 1 Bing. 91 ; Ex parte, , 2 Dowl. 0. S. 110. (4) Rex V. Southerton, 6 East. 143. (5) Smith V. Gilleit, 3 Dowl. 0. S. 364 ; and see Re Warren, 1 Ear. & "W. 113. (6) Ibid. (7) Ex parte Stratford, (Trin. T. June 12, 1843.) 7 Lond. Jurist, 512. (8) Matter of , 5 B. & Ad. 1088 ; Re Knight Short v. Pratt, 1 Bing. 102 ; S C. 1 Moore, 424 ; Anonymous, 2 Dowl. 0. S. 110 ; Anonymous, (Q B. HU. T. 1839,) 2 Lond. Jurist, 467 ; In Re ., 3 N. & P. 389 ; Ex parte Jones, 2 DowL 0. S. 161 ; Robertson v. MiUs, (B. 0. East. T., May 3, 1842,) 6 Lond. Jurist, 896; S. C. 1 Dowl. N. S. 772. (9) 1 Chit. Archb. 7th ed. 62. OVER ATTORNEYS. 189 ever it may be in the other courts,) lias been limited to cases where the attorney, according to the English practice, is called upon to answer the matters of the affidavit ; and, where an attorney had been guilty of professional misconduct in the course of a cause, that court granted a rule calling on hira to show cause why his name should not be stricken from the roll, even though the matters complained of amounted to an indictable offence ; although they would not, (for the reason above stated,) under such circumstances call upon him to answer the matters of an affidavit.(l) In support of this view. Lord Ahirvjer^ Ch. B., in the case last cited, in speaking of the rule of the queen's bench and common pleas, no less conclusively than clearly observes : " All the cases are, where an attorney abuses the process of the court of which he is an officer, and his proceedings are of such a nature as tend to the defeat of j ustice, in the very case in which he is engaged professionally. I have never heard, that because by possibility he may thereby have exposed himself to be indicted as a cheat, or for a conspiracy, he is to be per- mitted to remain on the roll ; and if the cases in the queen's bench be carefully examined, it will be found, that no such, rule exists.(2) Such a rule would be extremely injurious ; for in no case could any remedy be had against the attorney, unless the client would first prosecute him to conviction, until when, he would not be struck off the roll or pre- vented from practising ;"' — and again : — " Is it to be said, that no remedy can be had, unless he is first indicted, and that the court has no power, at once, to strike him off the roll ? If an indictment i%to be first pre- ferred, the point at issue in it might, from its very nature, be one of which a jury would not be the best judges, and more proper to be de- termined by the court, who are always the fittest tribunal to decide on complaints of technical misconduct, and to determine not only the de- gree of severity which ought to be resorted to, but of the proper cases for the exercise of that mercy, which they are ever ready to extend, where they see just grounds for it." These views are particularly applicable in this state, from the fact that our statute contemplates, in express terms, that the court are to investigate any charge of professional deceit, mal -practice or misde- meanor, — and not merely to call upon the attorney to answer the mat- ter, — and that, as a consequence of such investigatiou, they may re- move or suspend the attorney. While, in the cases of misconduct or mal -practice, to which allusion (1) Stevens v. Hill, 10 il. & "W. 28 ; S. C. 1 Dowl. N. S. 669 ; S. G. Q Lond. Jurist, 585. (2) The cases referred to in a preceding note, {ante, 188, note 8,) — particularly the late ones, — notwithstanding this remark, sustain the idea, that the rule exists, as stated above, in the queen's bench and common pleas: and this view is adopted in 1 Chit. Archb. Tth ed. 62. 190 SUMMARY POWER OP THE COURT, has been made, the summary power of the court has been exercised, to the extent of removing an attorney from office, it does not follow that, in all cases where he may be found to have misconducted himself in his professional character, he will be dealt with with so great a degree of severity. In some cases, it has been considered sufficient to make the attorney pay the costs incurred by the jDarties by reason of his mis- conduct. Thus, for instance, where an attorney obtained a rule nisi^ on his own affidavit, swearing that no bail had been put in in the ac- tion, when, in fact, bail had been put in and justified, but merely a mis- take was made in the filacer's entry in the christian name of one of the plaintiffs, the court discharged the rule, with costs, to be paid by the attorney who had so sworn.(l) So, where an attorney put in bail, which he knew to be insufficient, and gave notice of their justification, the court ordered him to pay the costs of opposing them.(2) So, where an attorney obtained a rule nisi^ on suggestions which were groundless, the court discharged the rule, and ordered the attorney to pay the costs.(3) And where an attorney, without any corrupt or unworthy motives, prepared a special case, in order to take the opinion of the court upon the will of a testator, and suggested several facts which had no foundation, he was holden to be guilty of a contempt, and fined 30/., for his offence.(4) So, where an old lady had obtained a judgment in ejectment, against the casual ejector, and the attorney for the landlord afterwards called upon her, and, in the absence of her attorney, ob- tained her sig^iture to a paper, whereby she agreed to abandon her judgment, and to allow the title to be tried between her and the land- lord, the court ordered the attorney to deliver up the instrument to the old lady, and obliged him to pay the costs.(5) As a general rule, also, the court will not interfere in this summary way, where the misconduct complained of took place previously to the attorney's admission ;(6) unless it be made to appear that he was fraudu- lently admitted ; as where an attorney and clerk joined in the affidavit of the execution of the articles, and the clerk swore to the service under them, and was consequently admitted ; it appearing, afterwards, that the articles were merely collusive, the pretended clerk being, in fact, an apprentice to a hatter, and his affidavit of service under the articles false, the court ordered the clerk to be struck off the roll, and granted (1) Clarke v. Gorman, 3 Taunt. 492. (2) Blundell v. Blundell, 5 B. & Aid. 533 ; S. G.lD.k R. 142. (3) Rolfe V. Rogers, 4 Taunt. 191 ; and see G^-oggen v. WJiite, 4 Taunt. 881. (4) Matter of Elsam, 3 B. & C. 597 ; S C. 5 D. & R. 389. (5) Matter of Oliver, 2 A. & E. 620 ; S. G 4 N. & M. 471 ; S. C. 1 Har. & "W. 79. (6) Matter of Page, 1 Bing. 1)50; S. C. 1 Moore, 572. OVER ATTORNEYS. 191 an attacliment against the attorney for the collusion.(l) Although, where application was made to strike an attorney off the roll, on the ground of misconduct and the want of regular service in his clerkship, three years and a half after his admission, it was refused.(2) Crimes unconnected iviih his profession?^ While it is well settled, as has been seen, (3) that the court will not investigate, or act upon, mis- conduct of an indictable nature on the part of an attorney, unless it be connected with his professionaV character, it is equally well settled that they will, in such case, after conviction, if the offence involve moral turpitude, strike an attorney from the roll.(4) And where an attorney had been convicted of larceny, the court ordered him to be struck off the roll, although the conviction had taken place five years before, and no subsequent misconduct was attributed to him ; considering that the conviction rendered him an unfit person to practise as an attor- ney.(5) And where an attorney had been convicted of subornation of perjury, he was held to have been properly stri^cken from the roll.(6) But a conviction for a conspiracy is not, of itself, sufficient ground for striking an attorney off the roll, unless the conspiracy be of an aggra- vated nature.(7) And, it seems, the being found guilty in an action of libel, however aggravated the libel may have been, is not enough ; it must be a conviction on a criminal prosecution.(8) Nor will the court strike him off merely for being a common informer.(9) But where an attorney had been found guilty on an indictment charging him with writing a letter, pretending that he had been applied to, to prosecute an information for penalties, that he had told the parties that all such informations must be prosecuted by the public officer, and offering his services in stopping them, for the mere purpose of extorting money, — though the judgment was arrested on the ground that it constituted no offence at common law, the court struck him off the roll.(lO) Breach of duty to his clients^ or to the opjiosite party^ In considering, in a former division of this section,(ll) the duties of attorneys to their clients and to the opposite party, allusion has been incidentally made (1) Ex parte. Hill, 2 W. Bl. 991 ; Matter of Taylor; 5 B. & Aid. 538 ; soc also Faget v. Cham- bers, 5 Bing. N. C. 630; S C. 1 Scott, 610 -8.0.^ Lond. Jurist, 823. (2) Matter of , 2 B. & Ad. 766. (3) Ante, 187, 188. (4) See per Lord Abinger, Ch. B., in Stephens v. Hill, 10 M. & "W. 28 ; S. C. 1 Dowl. N. S. 669; S. G. 6 Lond. Jurist, 585; Anonymous, 2 Halst. 162. (5) Exj)arte Bounsall, Cowp. 829; see also, Rex v. Vaughan, 1 Wils. 22. (6) State V. Holding, 1 M'Cord, 379. (7) Anonymous, 1 Dowl. 0. S. 174. (8) Anonymous, 2 Dowl. O. S. 110. (9) Smithy. GilleU, 3 Dowl. 0. S. 364. (10) Rex V. Southerton, 6 East, 127. (11) Ante, 154, 160—166. 192 SUMMARY POWER OP THE COURT, to some of tlie summary powers of tlio court, in enforcing tlieir per- formance and punishing their violation. A more particular reference remains to be had to the princijDles on which this jurisdiction is found- ed, and the rules by which its exercise is governed. In this respect, it is laid down by the writers on practice, that beside the ordinary proceedings by action and indictment, there is a mode of proceeding against attorneys by an application to the summary juris- diction of the court, which is exercised according to law and conscience, and not by any technical rules ;(1) and by which the court will compel an attorney specifically to perform his duty, if practicable, and will punish him for its breach, by ordering an account or payment, on pain of attachment, — by fine, — or, in very gross cases, where enough is shown to prove that the attorney is unfit to be a member of the pro- fession, by striking him off" the roll.(2) And, first, — as to the protection of the rights of clients. The pur- jjoses, in this respect, for which this jurisdiction is most commonly re- sorted to, are, either to compel the attorney to account and pay over money or to deliver uj) papers ; and as a preliminary ground of such application, it must be made to appear, that the money was paid or the papers deposited by or on behalf of the party applying, or some one under whom he claims as representative, (3) and, that the attorney re- ceived them in his character of attorney alone. In the former case, its exercise is of very frequent occurrence : and it has been well vindi- cated by Bronso7i, J., in a very recent case,(4) as essential not only to the protection of clients, but to the honor of the profession itself. " The summary jurisdiction," says he, " exercised by the courts, for the pur- pose of compelling attornej^s to perform -their duty to their clients, is not only just in itself, but it exerts a wholesome influence over the whole body of the legal profession. If the client were driven to the dilatory and sometimes inefficient remedy by action, when the attorney improperly neglects to pay over money, a few unworthy members of the bar would bring odium upon all the rest." In cases of this kind, therefore, it is well settled, that the court will in a summary manner, relieve the client from the misconduct of an attorney ;(5) and will always look into the dealings between an attor- ney and client, and guard the latter from imposition.(6) Thus, for re- fusing or neglecting to pay over money collected by an attorney for his client, a rule will be granted for the attorney to show cause why (1) Ex park Bayley, 9 B. & C. 691. (2) 1 Chit. Archb. 7th ed. 60. (3) III re Fenton, 3 A. & E. 404 ; S C. 5 N. & M. 239 ; S. C.\ Ilar. & W. 310, (4) Matter of Dakin, 4 Hill, 44, (5) TJie Feople v. Smith, 3 Caines, 221. (6) Starr v. Vanderheyden, 9 Johns. 253. OVER ATTORNEYS. 193 an attacliment should not issuc.(l) The attorney cannot, however, be proceeded against, in this manner,(2) nor even by action, (3) to recover money collected by him for his client, until after demand or direction to remit ; even although he may have declared, that he intended to re- tain the money, upon a claim of indemnity on the part of his client, growing out of some other matter, unless such declaration be made to the client or his agent, or it be shown, that it came to his knowledge, before proceedings commenced or action brought.(4) And if the client commence an action against his attorney for the recovery of the money, he cannot make a summary application to the court, to compel him to pay it, until he have discontinued the action. (5) Though, where it was sworn that an attorney had fraudulently appropriated to his own use, certain trust moneys, and made certain false representations as to mortgages, Ooleridge^ J., granted a rule yiisi, calling on him to answer the matters in the affidavit, and to show cause why he should not be stricken off the roll, even although a bill had been previously filed in equity against him.(6) And where, in an action against an attorney, for moneys collected by him as such for a client, it appeared, that the moneys for the recovery of which the action was brought, were col- lected by him as the attorney of the plaintiff, but that after such collection, the attorney, with the consent of the plaintiff", appropriated the moneys to his own use, and the plaintiff accepted his note for the amount, on which note the action was brought, — upon a motion for leave to enter a suggestion, that the moneys were collected by the attorney, as a pubhc officer, so as to deprive him of the exemption from arrest provided by the non-imprisonment act, (7) it was held, that by the arrangement subsequent to the collection of the moneys, the rela- tion of attorney and client had ceased, and that of debtor and creditor Avas created.(8) Nor will the court interfere in this manner, against an attorney, where there is a lona fide dispute as to the right, which is a question for the jury ; as where the right is dependent on the evi- dence of a special agreement between the client and the attorney, which the latter disputes.(9) (1) The Pe(yplc v. Wilson, 5 Johns. 368 ; Matter of Dakin, 4 HiU, 42. See also, Ex ■parte CuUiford v. Warren, 8 B. & C. 220 ; Bex v. Edwards, 9 B. & C. 652 ; Matter of Bonner, 1 N_ & M. 555 ; /S. C. 4 B. & Ad. 811. (2) Ex parte Fergiison, 6 Cowen, 596. (3) Taylor Y. Bates, 5 Cowen, 376; Ull'le v. Hoyt, 5 Hill, 395. (4) Rathlun v. Ingalls, 7 Wend. 320. (5) Anonymous, (B. C. East. T. 1841,) 5 Lend. Jurist, 678. (6) Ex parte A. B. (B. C. Trin. T. 1840,) 4 Lond. Jurist, 630. (7) Laws of 1831, p. 396 ; and see Stage v. Stevens, 1 Denio, 267. (8) Bohanan v. Peterson, 9 Wend. 503. (9) Hodson v. TerraU, 2 Dowl. 0. S. 264; and see Beal v. Langstaff, 2 Wils. 371. YoL. I. 25 194 SUMMARY POWER OF THE COURT, Nor will the court interfere in this summary manner, unless the duty springs from the employment of the attorney, as such.{l) The rule, on this subject, as laid down by Abbott, Ch. J.,(2) and adopted by this court, (3) that where an attorney is employed in a matter wholly un- connected with his professional character, the court will not interfere, in a summary way, to compel him to execute faithfully the trust re- posed in him ; but Avhere the employment is so connected with his professional character, as to afford a presumption, that his character formed the ground of his employment by the client, there the court will exercise this, jurisdiction. And, accordingly, where an adminis- trator employed an attorney, to get in the debts due the intestate's estate, the court granted a rule calling upon the attorney to furnish a bill of costs for the business thus done, and also an account of the money received and paid by him on account of the administrator, — to pay over the balance, and to deliver up all deeds, j)apers, &c. ; — al- though the attorney had not been employed by the administrator, in prosecuting or defending any action, suit or other law proceeding.(4:) In such case, it is not essential to the exercise of this summary power, that the attorney should have received the money in any suit or legal proceeding, or that he should have been employed or instructed to commence legal proceedings. It is enough, that the money was re- ceived by him in his character of attorney ; as where a demand is left with him, with instructions to call for payment, or obtain better security, but without any directions to sue. And when the attorney is engaged in other business, and the particular character in which he was retained does not afl&rmatively appear, it may be inferred from the nature of the employment, and the other circumstances of the case.(5) Thus, where an attorney received money, under a power, which de- scribed him as a counsellor and attorney, the court said, it was mani- fest, that the employers contemplated the party's professional character; and he was ordered to account and pay over the money.(6) So, where an attorney was employed to prepare mortgage deeds, and the mort- gage money was paid to him ; out of which he paid several debts at the instance of the mortgagor, leaving a balance in his hands ; Coleridge, (1) 3Iatkr ofFenton, 5 N. & M. 239 ■ S. C. 1 Har. & W. 310 ; Matter of Chitty, 2 Dowl. 0. S. 421 ; ExjMrte Deane, 2 Dowl. 0. S. 533 ; Ex parte Cowie, 3 Dowl. 0. S. GOO ; S. C. nom. Ex parte Cohen, 1 Har. & W. 211; Cocks v. Earman, 6 East, 404; S. C. 2 Smith, 409; E): part/- Schwalbanker, 1 Dowl. 0. S. 182. (2) Matter of Aitkin, 4 B. & Aid. 47. (3) Matter of Dakin, 4 Hill, 44. (4) Matter of Aitkin, 4 B. & Aid. 4*7. (5) Per Bromoii, J., in Matter of Dakin, 4 HUl, 44. (6) De Woolfe v. , 2 Chit. Rep. 68. OVER ATTORNEYS. 195 J., held him summarily liable to account and pay over.(l) So, where a bond was left with an attorney, to the end, that he should write to the obligor and obtain the money ; but without any express direction to bring a suit, in default of payment ; — the attorney having received the money without suit, and neglected to pay it over, on demand, to his client, this court held, that he received the bond in his character of attorney, and granted a rule against him, to show cause why an at- tachment should not issue against him, for not paying it over.(2) But where an attorney advanced money, on a deposit of bills to a much greater amount than the advance, and he afterwards received the amount of the bills, Paiteson^ J., held that he did not act in his professional character, and refused a rule to compel him to pay over the balance.l^S) So, where a party purchased a parcel of a certain manor, for building, and paid to an attorney, who acted for him in the purchase, certain money, in his capacity of steward of the manor, Wightman, J., refused to compel the attorney to refund the money, by summary proceding,(4) So, where, on an application for an order that D., an attorney, pay over moneys received by him for R., — it appeared, that L., who was a land agent, took a bond and mortgage in favor of R., and sent him the bond, but retained the mortgage, for the purpose of receiving payments on it; that, several years afterwards, L., with the assent of those for whom he acted, (among whom was R.,) trans- ferred his land agencies to D., the attorney, who attended chiefly to that kind of business ; — that D. never had the bond in his possession, nor had instituted proceedings to collect the mortgage, or been in- structed to do so ; — but that he received several sums of money on the mortgage and refused to pay them over, though demanded ; — this court held, that it was not a case for the summary interference of the court ; that although the fact that the party was an attorney, may have had some influence in his selection as agent, 3'et the nature of the business was not such as to raise the presumption, that he was retained in his professional character.(5) So, where an attorney received moneys during his clerkship, and be ■ fore he became an attornej^, the court refused to interfere to compel him to pay them over.(6) But one who has been an attorney, remains liable to the summary jurisdiction of the court, for his conduct while (1) Ex parte Creswdl, 5 Dowl. 0. S. 689; S. C. Willm., ^Yol & Dav. 356 ; //* re Cretwell V. Fosbrooke, (B. C. June 8, 1837,) 1 Lond. Jurist, 755. (2) Ex parte Staats, 4 Cowen, 76. (3) Ex parte Schwalbanker, 1 Dowi. 0. S.182. (4) Ex parte Faith, (B. 0. Trin. T. 1841,) 5 Lond. Jurist, 751 ; S.C^ Powl. 0. S. 973. (5) Matter of Dakin, 4 Hill, 42. (6) Ex parte Deane, 2 Dowl. 0. S. 533. 196 SUMMARY POWER OP THE COURT, he was an attorney, although he may have taken his name off the roll, and ceased to be an attorney. (1) According to the English practice, it seems, that the court will not summarily compel an attorney to pay over money which he has receiv- ed in his character of an attorney, where, after the receipt of the money, he has become bankrupt, and obtained his certificate.(2) This practice would seem to be applicable here also, in reference to our insolvent acts, and especially such of them as discharge the debt. But even, in such case, it would seem that the attorney may be proceeded against, summarily, if there be fraud on his part. (3) And, in one case, it was held, — where a rule was made absolute by consent, ordering an attorney who had fraudulently retained in his hands the money of his client, to pay the amount by a particular day, with the costs of the application, and that otherwise an attachment issue, — that it was no answer to a motion for an attachment, that on the day after that ordered for the payment, a fiat in bankruptcy had issued against the attorney, under which he had obtained his certificate, and that no service of the rule and allocatur took place before the bankruptcy. (4) It seems, also, that the fact of the money having come to the at- torney's hands, upwards of six years ago, (that being the period which would bar an action,) will, not of itself defeat the application ; though, perhaps, some reason should be shown, for not making the application earlier. (5) To warrant this court, however, in granting a rule against an at- torney to pay over money collected by him, he must not only be an attorney of this court, but he must be so, in regard to the particular transaction out of which the application arises. And, accordingly, where an attorney of the superior court of the city of New York, who was also an attorne}^ of this court, was retained to defend a suit pend- ing in the former, and, in consequence of such retainer, received cer- tain moneys belonging to his client ; it was held, that this court had no power to grant a rule requiring the attorney to pay over the money, but that the matter belonged exclusively to the superior court ; though, it would seem that where an attorney of this and other courts, receives money under an agency having no particular reference to a suit here, (1) SimesY. Gibbs, (B. 0. Hil. T. 1838,) 2 Lond. Jurist, 418 ; S. C. 6 Dowl. S. 310 ; S. C. 1 Willm., Wol. & Hod. 40; see also Scott v. VaiiAktyne, 9 Johns. 216 ; Cole v. M'Clellan^ 4 Hill, 60, 61 ; ante, 113. (2) Ex parte Culliford v. Warren, 8 B. & C. 220 ; Matter of Bonner, 4 B. & Ad. 811 ; S. C. 1 N. & M. 555. (3) Matter of Bonner, 4 B. & Ad. 811 ; ) on certiorari fmm. the marine court of the city of New York. The plaintiff, a seaman, sued in the marine court, for an assault and battery, committed on the high seas, by the defendant, who was master of the vessel. The defendant pleaded in bar, that he and the plaintijff were British subjects, and that the offence was committed on board a British vessel, on the high seas ; to which plea the plaintiff demurred, on which he had judgment. The question presented to this court was, whether the marine court could take cognizance of a tort committed on the high seas, on board a foreign vessel, both the parties being subjects or citizens of the country to which the vessel belonged. Yates, J., in delivering the opinion of the court, after examining a number of cases, from which he draws the inference, that the law of nations gives com- plete and entire, but not exclusive jurisdiction, to the courts of the country to which the vessel belongs, concludes, by observing: — "It must, on principles of policy, often rest in the sound discretion of the court, to afford jurisdiction or not, according to the circumstances of the case. To say that it can be claimed, in all cases, as matter of right, would introduce a principle, which might oftentimes be attended with manifest disadvantage and serious injury to our citizens abroad, as well as to foreigners here. Mariners might so annoy the master of a vessel, as to break up the voyage, and thus produce great distress and ruin to the owners. The facts in this case sufficiently show the impropriety of extending jurisdiction ; because it is a suit brought by one of the (1) Code, sec. 126. (2) Glen v. Hodges, 9 Johns. 6*?; BogertY. Eildreth, 1 Caines, 1 ; Cotyoratmi of New York V. Dawson, 2 Johns. Cas. 325 ; Low v. Eallett, 2 Caines, 374; Pisani v. Laivson, 6 Bmg. N. C. 90 -S.C.S Scott, 180 ; S. C.S Dowl. 0. S. 5t. (3) 14 Johns. 134. 224 JURISDICTION OP THE SUPREME COURT ; mariners against the master, both foreigners, for a personal injury sus- tained on board of a foreign vessel, on the high seas, and lying in port when the action was commenced, and for aught that appears in the case, intending to return to their own country, without delay, other than what the nature of the voyage required. Under such circum- stances, it is manifest, that correct policy ought to have induced the court below to have refused jurisdiction, so as to prevent the serious consequences which might result from the introduction of a system, with regard to foreign mariners and vessels, destructive to commerce, since it must materially affect the necessary intercourse between nations, by which alone it can be maintained. The plaintiff, therefore, ought to have been left to seek redress in the courts of his own country, on his return." The judgment was therefore reversed. A similar question was again presented, in the case of Johnson v. Dalton,{l) also on certiorari from the marine court of the city of New York, There, however, although it appeared that both parties were foreigners, and that the assault and battery was committed on board a foreign vessel, on the high seas, yet it also appeared, that at the inter- mediate port, the plaintiff was discharged from the vessel, and that the relation between him as mariner and the defendant as master had been, in point of fact, determined, and that, too, by the act of the latter. And the court, while they recognized the rule laid down in Gardner v. Thomas, regarded the circumstances of this case as forming an excep- tion, and deemed, that, under such circumstances, to send the plaintiff to a foreign tribunal, would be a denial of justice. General nature of the original jurisdiction of the courtJ^ In the cases in which the Supreme Court has the original jurisdiction, to which refer- ence has thus been made, that jurisdiction is exclusive in its nature, excepting so far as it has been made concurrent with that of the other courts, (2) and is wholly unlimited as respects the amount in controversy. When, therefore, a suit is commenced in this court, it must be finally disposed of there, (excepting in the cases mentioned hereafter, (3) in which it may be removed into the circuit court of the United States ;) and it can in no case be removed into another state court, as may be done in certain suits commenced in county courts and mayors' courts, hereafter to be considered. The only excep- tion to this rule, if indeed it can properly be considered an exception, (1) 1 Cowcn, 543. (2) As to the original, coucurreiit and relative jurisdiction of all the other courts of law, see Gra. on Jurisd. 1-132. (3) See Post. MANDAMUS. 225 grows out of the provision of tlie act creating tlie superior court of tlie city of New York ; by the 27th section of which, it is provided, that the Supreme Court of this state shall, on the consent of both parties, order and direct, that any action or proceeding of a civil nature, pend- ing in the said Supreme Court, the venue whereof is laid in the city and county of New York, and in which no verdict shall have passed, or plea to the merits have been decided, be transferred and continued over to the said superior court thereby established ; and such action or proceeding shall be there proceeded in, with the like effect, and in the same manner, as if originally had or commenced therein. And the Supreme Court shall possess all the necessary powers for the removal of all papers and files relating to such action or proceeding, to the said superior court ; and nothing therein contained shall be construed to invalidate any bond or recognizance, made or entered into in any action that may be so removed ; but the same shall continue of as much vali- dity, as though that act had not been passed. And where bail has been given in any such suit, the surrender of the defendant in the said superior court, shall have the like effect, as a surrender in the said Supreme Court would have had, if that act had not been passed.(l) SECTION II. JURISDICTION OF THE SUPREME COURT IN PROCEEDINGS OTHER THAN ACTIONS. The original jurisdiction of the Supreme Court, to which our atten- tion has, thus far, been confined, relates only to its ordinary cognizance, on the civil side, of what are technically denominated actions. It pos- sesses, in addition, a very extensive original jurisdiction, of a summary character, either originally derived from, or mainly regulated by sta- tute, to which I shall now briefly advert ; leaving a discussion of their particular incidents, and of the practice applicable to them, so far as they fall within the scope of the present treatise, to a subsequent por- tion of the work. This subject will be considered under the following heads : (1) Laws of 1828, p. 146, sec. 2'7 ; 3 R. S. 2d ed. 264. Vol. I. 29 226 JURISDICTION OP THE SUPREME COURT; 1. Mandamus. 2. Quo Warranto. 8. Poiuers respecting elections in incorporated companies. 4. /Scire facias, to repeal letters patent, and acts of incorporation. 5. /Summary proceedings, for the determination of claims to real property. 6. Arbitrations. 7. Attachments against absconding, concealed and non-resident debtors. 8. Pi'oceedings against ships and vessels. 9. Reference of claims against deceased persons. 10. Proceedings for the admeasurement of dower. 11. Habeas corpus and certiorari, to inquire into cause of detention. 1. Mandamus. The Code of Procedure lias not affected proceedings upon mandamus, but they are expressly excepted out of the provision of the second part, which relate to proceedings in actions ;(1) hence the proceedings in these cases remain unchanged, and the practice, as it heretofore existed and the decisions made by the late Supreme Court, apply to and regu- late such proceedings now. The power of this court, through the instrumentality of the writ of mandamus, in addition to being one of the most important branches of its jurisdiction, is one of constant and daily application. In its general and more extended use, it has been regarded as the suppletory means of obtaining substantial justice in every case where there is no other specific legal remedy for a legal right.(2) According to Sir William Blaclcstone, "it is, in general, a command, issuing in the king's name, from the court of king's bench, and directed to any person, corporation or inferior court of judicature, within the king's dominions, requiring them to do some particular thing therein specified, which appertains to their office and duty, and which the court of king's bench has previously determined, or at least supposes to be consonant to right and justice. It is a high prerogative writ, of a most extensively remedial nature. "(3) The power which the court of king's bench exercises, in this respect, resulted from the fact, that the king originally sat there in person, and aided in the administration of justice ; and which, although it has long since ceased to be literally true, still holds good by fiction of law ; the sovereign being still regarded as present in the persons of his justices. According to the theory of the English constitution, the king is the (1) Code, sec. 417. (2) The King v. Archbishop of Canterlmry, 15 East, 117. (3) 3 Bl. Com. 110. MANDAMUS. 227 fountain of justice; and where tlie laws do not afford a remedy, and enable the individual to obtain his right by the regular forms of judi- cial proceedings, the prerogative powers of the sovereign are brought in aid of the ordinary powers of the court, and the 7nandamits is issued, in his name, to enforce the execution of the law.(l) The same juris- diction has been uniformly exercised in this state by the Supreme Court which, as the highest court of the people has, as has been already remarked, been regarded as bearing the same judicial relation to the sovereign power in this state, which the king's bench does in Eng- land. The application of this power has been usually regarded as two- fold — first, as it respects inferior courts, and second, as it respects pub- lic ofl&cers and other persons. In its application to inferior courts, much contrariety of opinion, as well as diversity of practice, has existed. In the English cases, and in the earlier cases in this state, to which a particular reference is unneces- sary, the principle was laid down and acted upon, that its office was simply to compel inferior courts and magistrates to act within their prescribed duty, but not to direct them how to act ; and, accordingly, it was declared that a mandamus would never direct in what manner the discretion of an inferior court should be exercised, but would, in a proper case, direct the inferior court to decide.(2) And in a case in this court, it was said, that where the inferior court has a dis- cretion, and proceeds to exercise it, this court has no jurisdiction to control discretion by writ of mandamus. But if subordinate public agents refuse to act or to entertain the question for their discretion in cases where the law enjoins upon them to do the act required, this court may enforce obedience to the law by mandamus^ where no other legal remedy exists.(3) Notwithstanding the clearness of this principle, however, constant applications were made to this court to review, upon mandamus^ the decisions of inferior tribunals ; and the books are full of cases, showing that this writ became a means of correcting, by a species of appeal, the erroneous decisions of inferior courts upon matters of practice, and in other cases where the decision could not be reviewed upon writ of error. It became, at length, a well established branch of the jurisdic- tion of this court, and the principles upon which it was exercised were upon a full review of all the cases vindicated and enforced in an elaborate opinion of Sutherland^ J., in which he regarded as settled, — (1) Per Taney, Ch. J., in Kendall v. Tlie United States, 12 Peters, 630. (2) Per Marshall, Ch. J., in Life and Fire Ins. Co. of New York v. Adams, 9 Peters, 602. (3) HvM V. Supervisors of Albany, 19 Johns, 269. 228 JURISDICTION OP THE StTPREME COURT ; 1, that a writ of mandamus would lie where a party had a right, and no other appropriate remedy ; 2, that it did not lie to an inferior tri- nal in cases where such tribunal had the right of exercising its dis- cretion ; 3, that the discretion which this court could not control was one governed by no fixed legal principles ; 4, that in all cases where an inferior court is bound to proceed according to established legal principles, and it was alleged that an error had been committed, this court had power to issue a mandamus; and if an error intervened, the same obligation existed to issue the writ, as to affirm or reverse a judgment upon a return to a writ of error.(l) And when the same case subsequently came before this court upon a demurrer to a return to the alternative mandamus^ an absolute moMdamus was ordered, com- manding the superior court of the city of New York to vacate a rule which they had granted for a new trial on the ground of newly dis- covered evidence ; because, in the opinion of this court, the evidence was cumulative, and also because the party obtaining the new trial had been guilty of negligence, in not being provided with the newly dis- covered testimony upon the first trial.(2) In a subsequent case, however, in the court of errors, where the common pleas had allowed costs to a party, on the ground that title to land came in question on the trial of the cause, and had directed a rule to be entered accordingly ; and the defendant in the suit obtained a mandamus from the Supreme Court directing the common pleas to vacate the rule granting costs to the plaintiff, and to enter a new rule giving costs to the defendant ; and upon the judgment granting the mandamus^ the plaintiff sued out a writ of error to the court of errors, — that court reversed the judgment. Opinions were delivered by the chancellor and senator Tracy. The former placed his opinion for a reversal, principally upon the ground, that from the case it apj^eared to have been more a question of fact than of law, as to whether title to land had come in question ; and as the common pleas were most competent to the determination of that question, their decision upon it, was entitled to be treated as conclusive ; and that therefore the judg- ment of the Supreme Court should be reversed. The chancellor avoided expressing an opinion, upon the question of the jurisdiction of the court, to grant a mandamus in such a case ; although he pointed out several objections, to the exercise of such a power. Senator Tracy^ however, directed the whole strength of his opinion against the jurisdiction of the court, and held that the Supreme Court had no power to control the decision of the common pleas, upon such a question. The judgment of (1) The Peoplev. Superior Court of the City of Nm TorJc, 5 Wend. 125, 126. (2) S. a 10 Wend. 289. 290. MANDAMUS. 229 the Supreme Court was unanimously reversed, and a resolution adopted, thit the Supreme Court, in such a case, had no jurisdiction to interfere with the decision of the common pleas, by mandamus. {1) And in a still later case in this court, upon a motion for a mandamus, to compel a court of common pleas to vacate a rule quashing an appeal bond, and to proceed to the trial of a cause, where the common pleas had manifestly erred, the mandamus was refused, upon the ground that it will not lie to a subordinate court, for the correction of judicial errors ; and that all this court can do, in the exercise of its supervisory power, is to require inferior tribunals to proceed to judgment, but cannot dic- tate the judgment to be rendered ; much less, require such tribunals to retrace their steps, and reverse a decision already made. And in de- livering the opinion of the court, Bronso7i, J., observes : " This presents an important question, in relation to the appropriate office of the writ of mandamus. The court of common pleas, acting within the scope of its jurisdiction, has heard and decided a matter properly brought before it for adjudication ; and the question is, whether we can, by mandamus, require that court to undo what it has done, on the ground that the decision was erroneous. I am of opinion, that we possess no such power. I shall not stop to inquire, whether the order quashing the appeal, was such a final judgment upon the rights of the parties, as may be reviewed by writ of error, nor whether the relator has any other remedy. — I place my opinion upon the broad ground, that the v/rit of mandamus cannot be awarded for the correction of judicial errors. This court, in the exercise of its supervisory power over inferior tribunals, can require them, by mandamus, to proceed to judgment ; but we cannot dictate what particular judgment they shall render ; much less can we require them to retrace their steps, and reverse a decision already made. Al- though ministerial officers and corporations may be required, by this writ, to act in a particular manner, or even to reverse what they have already done, the rule is otherwise in relation to courts of justice, and other bodies acting judicially, upon matters v/ithin their cognizance. Their errors, if corrected at all, must be reached by some other process than the writ of mandamus. It is not to be denied, that there had been a gradual departure, in this state, from the old law on this subject, until this court had, in one instance, at least, exercised a jurisdiction by man damus, as large as that which we now decline. But we stand corrected by the decision of the court of last resort, in the case of The Judges of Oneida v. The People.{V) As we understand that decision, taken in connection with the resolution adopted b}^ the court, we have no juris- (1) Judges of the Oneida Common Pleas v. The People, 18 Wend. 79-107. (2) 18 Wend. 79. 230 JURISDICTION OP THE SUPREME COURT: diction by mandamus, to review the decision of a subordinate court, in a matter of whicli it had judicial cognizance."(i) The same doctrine has been re-alhrmed in a very late case, decided by the present Supreme Court in the first judicial district, (2) where it is held, that the writ of mandamus is proper, wherever some legal right has been refused or violated, and there is no other appropriate legal remedy. That so far as regards inferior judicial tribunals, the operations of the writ of mandamus in this state, is confined simply to a mandate that they proceed. But as to corporations and ministerial officers, it is competent for this writ not only to direct them to act, but to prescribe the mode in which they shall act, and that in such cases, the existence of another and adequate remedy against them, is no objection to award- ing the writ. Hence, in this case it was decided that a writ of manda- mus was the proper remedy to put a minister of a religious sect in pos- session of a pulpit to which he is entitled, notwithstanding such pulpit is occupied by another. So, where the N. Y. superior court, had opened a judgment on terms, for the purpose of enabling the defendant to plead his discharge in bankruptcy, this court refused a mandamus to compel them to vacate the order, and the cliief justice, said, " We utterly disclaim any such jurisdiction, as we are requested to exorcise, and the question is too well settled to be open for debate."(3) And even where the court of common pleas dismissed an appeal in violation of a statute, this court refused a mandamus to compel the common pleas to reverse their decision, though that decision was manifestly wrong. Jewett, J. says, " the decision of the court and the order then made dis- missing the appeal, was in my opinion, in manifest violation of the provisions of the statute. But the common pleas having decided other- wise, the important question arises, whether this court, in the due exer- cise of its jurisdiction over inferior tribunals, can correct the errors by mandamus. The common pleas had judicial cognizance of the subject matter ; and although I have no doubt but that it erred in its decision, yet it cannot be corrected by mandamus. It was clearly a judicial error." But where the act, sought to be enforced against an inferior court, is purely ministerial, a mandamus will lie. Thus, it has been granted, to compel them to try a cause ;(4) and to approve a new appeal bond. (1) TJie People v. The Judges of Dutchess Common Pleas, 20 Wend. 658-663, and the cases there cited. See also the cases cited by Senator Tracy, in The Judges of the Oneida Common Pleas V. The People, 18 Wend. 89-106 ; The People v. Tlie Judges of the Oneida Common Pleas, 21 Wend. 20 ; The People v. The Superior Court of New York, 20 Wend. 663 ; The People v. Tracy, 1 How. Sp. T. Rep. 186. (2) The People ex rel. Griffin v. Steele et al. 2 Barb. S. C. R. 397. (3) Elkins v. Athearn, 2 Denio R. 191. (4) The Peopk v. The Judges of Essex Common Pleas, I How. Sp. T. Rep. 114. MANDAMUS. 231 ■where the bond returned by the justice was not approved by him, or was approved by an officer who was not authorized by law.(l) And where the marine court of the city of New York, without authority, set aside a verdict and judgment, and ordered a new trial, Beardsley^ J., granted a peremptory mandamus, compelHng them to issue execution upon the original judgment.(2) In its application to other cases, it is well settled, that the performance of a duty, either on the part of a public officer, or of a corporation created by authority of law, will, in general, be enforced by mandamus, where, for the want of any appropriate remedy, the party would fail in the enforcement of his legal rights. In the exercise of this power, al- though it is a general principle that the mandamus is a prerogative writ, which the court have power to issue or withhold according to their discretion, (8) yet the granting or refusal of it depends upon well estab- lished rules, which are of daily and constant application. In the first place, it will issue, where the act required to be performed by a public officer, is ministerial in its character, involving a direct duty imposed upon him by law. Thus, a peremptory mandamus, in the first instance, was ordered to the clerk of a county, who had refused to record a deed presented to him for that purpose, and which had been duly acknowledged by the grantor, and the proper certificate and proof of the identity of the grantor endorsed thereon.(4) So, also, to a sheriff, to compel him to execute a deed to a redeeming creditor ; but without prej udice to the rights of the parties, in a future litigation in equity .(5) So, also, to commissioners of highways, to lay out and open a road.(6) And to supervisors, where it was made their duty to raise a certain sum of money, as the ordinary county charges are levied and collected.(7) And to the canal commissioners, to compel them to pay a certain sum, ordered by the canal board to be paid on a contract for buildmg locks.(8) It has also been awarded to a ministerial officer, to compel him to administer the oath of office to a person duly appointed or elected to office ;(9) though, where an office is already filled, by a person who is (1) The People v. The Judges of Niagara Common Pleas, 1 How. Sp. T. Rep. 196. (2) The People v. Tlie Justices of the Marine Court of the city of New York, MS., Sept. Sp. Term, 1845. (3) Ex parte Fleming, 4 Hill, 581. (4) Ex parte Goodell, 14 Johns. 325. (5) Va7i Rensslaer v. Sheriff of Albany, 1 Co-wen, 501 ; see also. The People v. Perrin, 1 How. Sp. T. Rep. 15 ; Barker v. Gates, 1 How. Sp. T. Rep. 11 ; Ex parte Wikon, 7 Hill, 150. (6) The People v. Commissioners of Sakm, 1 Cowen, 23. (1) The People v. Supervisors of Columbia, 10 "Wend. 363. (8) Commercial Bank of Albany v. Canal Commissione7-s, 10 "Wend. 326 ; see also, Gra. on Jurisd. 305, note 6. (9) The People v. Bean, 3 Wend. 438 ; Ex parte Heath, 3 Hill, 42. 232 JURISDICTION OF THE SUPREME COURT; in by color of riglit, a mandamus is never issued to admit anotlier per- son ; the proper remedy, in such case, being by action in the nature of a quo warranto.{l) And, in this respect, corporations being creatures of the statute, and invested with a quasi public character, may, subject to the limitations which will be hereafter referred to, be compelled to perform a duty resulting from the obligations of their charter. Thus, where a board of directors of a bank had passed a resolution excluding one of its mem- bers from an inspection of its books, believing him to be hostile to the interests of the institution, it was held, that such resolution was invalid ; and the cashier having refused to permit the director so excluded, to inspect the discount book, this court held, that a mandamus lay, com- manding the cashier to submit the book to his inspection, although the conduct of the cashier had been approved by a resolution of the board ; and that it might properly be directed to the cashier, and need not be directed to the board. (2) So, also, where a private individual acts in a quasi public character, as, for instance, under the authority and sanction of a public statute, a mandamus may be resorted to, to compel him to perform a duty conse- quent upon that relation. Thus, where a reference to arbitration had proceeded under the statute, a mandamus was granted to the arbitrator under it, to appoint an umpire ;(3) though, except in cases of arbitra- tion founded upon some statute, or where the written submission to arbitration has been made a rule of court, under the general arbitration act, the proceedings would be regarded as a mere private transaction between the parties, in respect of which no writ of m^andamus could issue.(4) And a mandamus was granted by Nelson, Ch. J., on behalf of a non-resident, to compel the trustees to appoint referees in pursu- ance of the statute, in order to contest the validity of the debts present- ed and claimed by attaching creditors.(5) Again, — in analogy to the principle which has been established, in respect to inferior judicial tribunals, this writ may be resorted to for the purpose of compelling subordinate public ofiicers and bodies, who are invested by law with a discretion as to lioio they shall act under particular circumstances, to exercise that discretion ; but the court can- (1) The Peoph v. Corporation of New York, 3 Johns. Cas. 79; Tlie People y. Stevens, 5 Hill, 616. Code, sec. 428. (2) The Peoph v. Throop, 12 "Wend. 183 ; see also, Tlie People v. Mott, 1 How. Sp. T. Rep. 247. (3) The King v. Goodrich, 3 Smith, 388 ; The King v. InlmUtants of Washlrooke, t D. & R. 221; Tidd, 9th ed. 844. (4) 1 Chit. Gen. Prac. 805. (5) Titus V. Kent, 1 How. Sp. T. Rep. 80. MANDAMUS. 233 not direct tlicm liow to act, iior can their doings be directly or colla- terally reviewed, or their final determination be held void, upon man- damus. Thus, a mandamus will be awarded to the supervisors of a county, to compel them to audit and allow accounts properly charge- able upon the county.(l) But, it will not lie to a board of supervisors, to control them in the exercise of their discretion, as to the amount at which an account presented shall be aadited.(2) And, where the water of Chitteningo creek was diverted from a mill and other hydraulic works on that creek, — the right to erect the works being claimed under a patent or grant from the state, bounded on the margin of the creek, — it was held, that the appraisers appointed under the statute, were bound to appraise the damages of the owners of the works ; and that having refused to act, on the ground that the property of the creek was in the state, and that therefore they had no jurisdiction, a mandamus should issue, commanding them to appraise.(3) So, in proceedings for the opening of a street in the village of Wil- liamsburgh, the jury having refused or neglected to make a return of their action in the premises, a peremptory mandamus was granted to compel tlie jury to make their return. (4) So, the damages sustained by the owner of land taken for the im- provement of a highway, having been assessed by a jury, and the amount having been approved and liquidated by the board of supervi- sors, this court granted a peremptory mandamus to compel the board of supervisors to cause the amount to be raised and paid to the owner.(5) There are, how^ever, certain limitations of the remedy by mandamus, which remain to be noticed. The first of these is, that inasmuch as it is based upon the existence of a legal right, without any other appro- jDriate legal remedy, it will in no case be granted, where the party has an adequate remedy at law ; for example, "where the party has a remedy by action ; as where a public corporation has refused to pay a sum made chargeable upon them by law ;(6) or where a banking or other money- ed corporation improperly refuses to transfer stock on its books ;(7) or (1) Bright r. Supervisors of Ohenango, 18 Johns. 242; Mallory v. Supervisors of Cortlandi, 2 Cowen, 531; DouNeday v. Supervisors of Broome, 2 Cowen, 533; Tlie Peopky. Supervisors of Albany, 12 Wend. 257. (2) Tlie People v. Supervisors of Albany, 12 Johns. 414; Hidlv. Supervisors of Oneida; 19 Johns. 259; The People v. Sup)ervisors of Dutchess, 9 "Wend. 508; The People v. Tiie Supervi- sors of New York, 1 Hill, 367; Tlie People v. Supervisors of Warren, 1 How. Sp. T. Rep. IIG. (3) Ex parte Jennings, 6 Cowen, 518. (4) In matter of Trustees of Williamsburgh; 1 Barb. S. C. Rep. 34. (5) People ex rel. Fountain v. Supervisors of Westchester Co., 4 Barb. S. C. Rep. 64. (6) The Peoples. Tlie Mayor of New York, 25 Wend. 685. (7) Ex parte Firemen^ s Ins Co., 6 Hill, 243; Kortwright v. Buffalo Commercial Bank, 20 Wend. 91 ; £f. C. in error, 22 Wend. 348 ; Shipley v. Mechanics' Bank, 10 Johns. 484, Vol. I. 30 234 JUllISDICTION OF THE SUPREME COURT; where a county treasurer refuses, without cause, to pay money ordered by the board of supervisors to be paid ;(1) or where the party has a remedy by quo warranto,{2) or by writ of error.(3) But, it would seem, that it was not a conclusive answer to the remedy by mandamus, that the party might have sought redress in chancery. That fact may and should influence the court, in the exercise of the discretion which they possess, in granting the writ, under the facts and circumstances of the particular case ; but does not affect its right or jurisdiction.(4) Nor does the fact that the party is liable to an indictment and punishment, for liis omission to do the act, to compel a performance of which this writ is sought, constitute any objection to the granting of the writ. This is not regarded as an adequate legal remedy, inasmuch as the only direct effect of an indictment is the punishment of the defendant by fine, and not the procuring, for the relator, the" benefit which he seeks and is entitled to.(5) And, although, as a general rule, a mandamus will not lie, where the aggrieved party has another remedy, it is not without exceptions, in relation to corporations and ministerial of&cers ; although they may be liable, in an action on the case, for neglect of duty, they may be compelled, by mandamus, to exercise their functions, according to law. And, accordingly, it has been held, that where it is the duty of a corporation to take the necessary measures to have the sums assessed for the taking of lands for streets collected, and where they are liable in an action on the case, for neglecting to do so, yet a mandamus is a more appropriate remedy.(6) So, also, it would seem, that an action against supervisors, for refusing to audit and allow an account, is not such a remedy, as to supersede that by mandamus.{7) In the next place, the right which the party seeks to enforce, through the instrumentality of this writ, must be complete, and not merely in- choate. As, where the trustees of a village refused to file a report of commissioners of estimate and assessment, and obtain a confirmation of the same, and have the damages, which had been awarded, assessed, — this court refused a mandamus, to compel them to do so, but left the parties to their remedy by action. (8) And the legal right of the party to what he seeks, must be clear, or the court will not enforce it in this (1) Boyce v. Russell, 2 Cowen, 444 ; The People v. Lawrence, 6 Hill, 244. (2) Tlie People V. Stevens, 5 Hill, 616, 629. (3) Ex parte Nelson, 1 Cowen, 423; Ex parte Bostwicl; 1 Cowen, 143. (4) Tlie People Y. The Mayor of New York, 10 "Wend. 396, 397. (5) Ibid.; Regina v. Victoria Park Go., 1 A. & B. N. S. 291; S. C. 4 P. & D. 639; Rex v. Seoern and Wye Railway Co., 2 B. & Aid. 646. (6) irCulloch V. The Mayor of Brooklyn, 23 "Wend. 458. (7) Ex parte Lynch, 2 Hill, 45, 47 ; see also TJie People v. Supervisors of Columbia, 10 "Wend. 363 ; Tfie People v. The Mayor of New Yoi% 10 Wend. 393; Ex parte Rogers, 7 Cowen, 526. (8) The People v. Tlie President and Trustees of Brooklyn, 1 "Wend. 318. MANDAMUS. 235 form. As, wlicre a statute autliorizcd the corporation of a city to sell lands for taxes, and to execute a lease for the same, if the owner should neglect to redeem within a specified time, this court refused a manda- mus^ requiring the execution of such lease, where there had been an irregularity on the part of the corporation, in not giving' notice after the sale, and before the expiration of the time for redemption, calling upon the owner to come in and redeem, — on the ground that, although, if the lease were executed, the purchaser's title might be protected, yet that they were not inclined to exert this high power of the court, to give strength and validity to a title which appeared clearly defective on the merits, and which, without the aid of the statute, could not be supported.(l) And in a very late case, where, upon a return to a mandamus issued by this court, commanding the sheriff to execute a deed to the relator, this court gave judgment against the relator, from which judgment the relator appealed to the court of ajjpeals, the last court affirmed the j udgment of this court, holding, with this court, that the relator had failed to show a good title, and that the relator was bound to set forth facts sufficient to entitle him to the relief which he claimed,(2) Again, — the court will not grant a mandamus, unless the application has been preceded by a distinct demand of the specific thing, the per- formance of which is the object of the mandamus, and by a refusal of performance, or conduct equivalent thereto.(3) It is not, indeed, ne- cessary that the word refuse, or any synonymous word, should be used ; but there should be enough to show that the party withholds compli- ance, and distinctly determines not to do what is required. (4) And lastly, — it is a rule in relation to the proceeding by mandamus, that the court will not interfere, after considerable delay, and where the party applying for it has slept on his rights, and perhaps allowed other rights to grow up. Thus, where allotments were set out, under an indosure act, to the party clauniug them, and possession given, in or about 1817, and there was no road to them, nor any access but through allotments made, or land sold under the act to other persons, — on motion, twelve years afterwards, (1829,) for a mayidamus to the commissioners, (who had not yet published their award,) to set out an occupation road to the first mentioned allotments, — the king's bench (1) The People v. Tlie Mayor of New YorJc, 10 "Wend. 393. (2) People V. Ransom, 2 Corns. Rep. 490. (3) Regina v. Bristol and Exeter Railwarj Co., (Q. B. Hil. T. 1843,) 1 Lond. Jurist, 233; S. (?. 4 A. & E. N. S. 162 ; S. G.3 Gr.& D. 384; Regina v. Sealey, (B. C. Trin. T. 1844,) 8 Lond. Jurist, 496 ; Regina v. Wilts and Berks Canal Co., 3 A. & E. 477. (4) Regina V. Company of Proprietors of the Br eclmock and Abergavenny Canal Navigation, 3 A. &E. 217; S. (7. 4 N. &M. 871. 236 JURISDICTION OF THE SUPREME COURT; held, tliat the application came too late ; and Bayley, J., mentioned a a case,(l) where a motion was made in 1813, for a mandamus^ directing the commissioners under a canal act, to cause a jury to be summoned, and compensation assessed, for lands taken in 1799, and was refused, as too late.(2) 2. Quo Warranto. The second species of original summary jurisdiction, with which this court is invested, is the proceeding by action in the nature of a quo tvarranto, where an individual or body politic has usurped or assumed to exercise a franchise or privilege, without being legally entitled to do so, and which is alleged or supposed to be injurious, either to an- other party entitled to the franchise, or to the public. The design of this proceeding, as its name implies, is to call upon the defendant, to show by what authority, {quo warranto,) he has assumed to exercise the franchise in question. Such, from the earliest periods of the Eng- lish law, has been the office of this writ ; it having been regarded as a writ of right for the king, issuing out of his own pecuhar court, (3) to prevent the usurpation of any ofiice, franchise or liberty.(4) Without going into an inquiry as to the cases to which, at common law, and under the former statutes of this state,(5) this writ was appli- cable, (which, as well as the practice under it, are discussed with great learning and ability, in a note to the The People v. JRichardson,){6) it is sufficient for the present purpose, to refer to its existing incidents, as pointed out by the Code. Thus considered, it has reference to two classes of cases ; first, against corporations for the purpose of annulling or vacating their act of incorporation ; and second, against an indivi- dual or association for usurping offices, franchises, or liberties. In regard to the first of these classes, it is provided by the Code, (7) that an action may be brought by the attorney-general, in the name of the people of the state, whenever the legislature shall so direct, against a corporation, for the purpose of vacating or annulling the act of in- corporation, or an act renewing its corporate existence, on the ground, that such act or renewal was procured upon some fraudulent suggestion or concealment of a material fact, by the persons incorporated, or by some of them, or with their knowledge and consent. An action may also be brought by the attorney -general, (8) in the name of the people (1) Rex V. Stamforth and Keadley Canal Co., 1 M. & Sel. 32. (2) Rex V. Commissioners of Cockermouth Inclosure Act, 1 B. & Ad. 31S, 380. (3) 2 SuU. Lect. 168, 169. (4) 3 Bl. Com. 262. (5) 1 R. L. of 1813, p. 108, sec. 4, (6) 4 Cowen, 100, 123. (7) Sec. 429. (8j Code, sec. 430. QUO "WARRANTO. 237 of tlie state, on leave granted by the Supreme Court, or a judge thereof, for the purpose of vacating the charter, or annulling the exist- ence of a corporation, other than municipal, whenever such corporation shall — 1. Offend against any of the provisions of the act or acts, creat- ing, altering, or renewing such corporation ; or, 2. Violate the provi- sions of any law, by which such corporation shall have forfeited its charter, by abuse of its powers ; or, 3. Whenever it shall have for- feited its privileges or franchises, by failure to exercise its powers ; or, 4. Whenever it has done or omitted any act which amounts to a sur- render of its corporate rights, privileges, and franchises ; or, 5. When- ever it shall exercise a franchise or privilege not conferred upon it by law. And it is made the duty of the attorney-general, whenever he shall have reason to believe that any of these acts or omissions can be established by proof, to apply for leave, and upon leave granted, to bring the action in every case of public interest ; and also, in every other case in which satisfactory security shall be given, to indemnify the people of the state agttinst the costs and expenses to be incurred thereby. The original power of this court, in relation to informations in the nature of a quo tvarranto, extended to persons usurping, intruding into, or un- lawfully holding and executing any office or franchise within this state.(l) The question having arisen, (2) as to what were legitimately to be considered franchises, or, in other words, privileges and immunities of a public nature, which cannot legally be exercised without a legiti- mate grant, and whether the carrying on of banking operations by an incorporated company, without authority from the legislature, was illegal ; and considerable difficulty having arisen out of the discussion, further legislation was resorted to, and express power was given to the Supreme Court, to entertain informations against corporations for violating their charters.(3) In conformity with the powers thus con- ferred, and (as expressed by the revisers) to remove doubts whether quo warranto might be filed by the attorney -general, when his own re- lation, on leave granted against any corporate body, provisions were incorporated in the revised statutes, substantially the same as those now contained in the Code.(-i) There is a further provision in the Code, not contained in the revised statutes, which authorizes the attorney-general, upon the direction of the legislature, to institute an action against a corporation, for the purpose of vacating or annulling (1) 1 R. L. of 1813, p. 108, sec. 4. (2) The Peojjle v. The Utica Ins. Co. 15 Johns. R. 358. See also, Attorney-general v. Utica Ins. Co. 2 Johns. Ch. Rep. 371. (3) Laws of 1825, p. 450, sec. 7. (4) 2 R. S. 583, sec, 39 ; Amendment of 1830 ; Laws of 1830, p. 400, sec. 53. 238 JURISDICTION OP THE SUPREME COURT ; its act of incorporation, on tlie ground tliat sucli act was procured tipon some fraudulent suggestion or concealment of a material fact, by the persons incorporated, or by some of them, or with their knowledge and consent. It is also provided in the Code,(l) that whenever, by the provisions of law, any property, real or personal, shall be forfeited to the people of this state, or to any officer, for their use, an action for the recovery of such property, alleging the grounds of the forfeiture, may be brought by the proper officer in this court In regard to the second of these classes, it is provided by the Code, (2) that an action in the nature of a quo warranto^ may be brought in the Supreme Court of this state, by the attorney-general, against indivi- duals, upon his own relation, or upon the relation of any private party, and without applying to the court for such leave, in either of the fol- lowing cases: — 1., when any person shall usurp, intrude into, or unlawfully hold or exercise any public office, civil or military, or any franchise, within this state, or any office in any corporation, created by the authority of this state ; 2., whenever any public officer, civil or military, shall have done or suffered any act, which, by the provisions of law, shdl work a forfeiture of his office ; 3., where any association or number of persons shall act, within this state, as a corporation, with- out being legally incorporated. Before the adoption of the revised statutes, the information in the case of the alleged usurpation of an office, was intended merely to try the right of the defendant to the office possessed by him. In effect, the right of the party duly elected or appointed, was also established by it, where there had been a valid election or appointment, and judgment passed agaiust the defendant. But in that case, the party might still have been obliged to institute a new proceeding, to get into possession. It was accordingly, in aii early case in this court, (3) held, that the court would not allow an information in the nature of a quo warranto, to be filed against an officer, when it appeared that the time for which he was elected would expire, before the inquiry could have effect ; but would leave the party to his remedy against the inspectors. But, in a later case,(4) it was held, that the court would not deny leave to file an information in the nature of a quo warranto, agaiust persons who unlawfully intruded into offices, on the ground that the offices were merely annual, and that, therefore, it was doubtful, whether, according to the course of the court, a trial could be had before the term of office should expire ; provided the application for leave to file the informa- tion were made at the earliest opportunity, after the commission of the (1) Code, sec. 447, (2) Code, sec. 432. (3) The People v. Sweeting, 2 Johns Rep. 184. (4) The People v. Tibhets, 4 Cowen, 358. ELECTIONS IN CORPORATIONS. 239 offence complained of. The Code has, however, enlarged this proceed- ing, by providing for the ascertainment of the title to the office, of the party on whose relation the complaint is made against the alleged in- truder ; and in case his title be established, further providing for the assessment and recovery of his damages, by reason of the wrongful possession of the office by the defendant.(l) Of these proceedings, as well as of the practice in these cases, generally, I shall speak here- after. 3. Powers respecting elections in incorporated companies. The appropriate remedy by quo loarranto^ which has just been treated of, being too dilatory in its nature to afford a practical and adequate remedy, where ground of complaint in respect to corporate elections (which are, for the most part, annual,) exists, the legislature have pro- vided that it shall be duty of the Supreme Court, upon the application, of any person or persons, or body corporate, that may be aggrieved by, or may complain of, any election, or any proceeding, act or mat- ter, in or touching the same, (reasonable notice having been given to the adverse party, or to those who are to be affected thereby, of such intended application,) to proceed forthwith and in a summary way, to hear the affidavits, proofs and allegations of the parties, or otherwise inquire into the matters or causes of complaint; and thereupon to establish the election so complained of, or to order a new election, or make such order and give such relief in the premises, as right and jus- tice may appear to the said Supreme Court to require : provided^ that the said Supreme Court ma}^, if the case shall appear to require it, either order an issue or issues to be made up, in such manner and form as the said Supreme Court may direct, in order to try the respective rights of the parties who may claim the same, to the office or offices, or franchise in question ; or may give leave to exhibit, or direct the attorney gene- ral to exhibit, one or more information or informations in the nature of a quo warranto in the premises, in which case the attorney-general would now proceed by action.('2) The grounds upon which this jurisdiction is ordinarily invoked are, that the election has been irregularly or illegally conducted — or that illegal votes have been received, or legal votes rejected. As it respects the first of these grounds — namely, that the election has been irregularly or illegally conducted — it has been held, that the statute does not warrant the establishing of an election which has not been legally conducted, though the objection be merely technical, and it (1) Code, sec. 437. (2) 1 R. S. 603, sec. 5 ; Code, sees. 468, 471. 240 JURISDICTION OF THE SUPREME COURT; be evident tliat the result is satisfactory to those who have a majority of the legal votes, and that thus, in one sense, riglit and justice have been done ; those words, as used in the statute, being construed in a legal and not in an arbitrary sense. Thus, where the statute incorporating a company conferred no power on any particular number of directors, to do the business or manage the concerns or affairs of the company, and consequently, by the common law rule, a quorum was necessary for that purpose ; and less than that number had acted in the appoint- ment of inspectors of election, — it was held, that the election was in- valid.(l) And where the charter of a company provided, that its affairs should be managed and conducted by twenty -three directors, of whom the major part should constitute a board ; and on the day pre- scribed by the charter for that purpose, an election was regularly held for a new board of directors, when twenty -two individuals received the requisite number of votes, it was held, that they were duly elected ; and when the old board, conceiving, under such circumstances, that ihe election had wholly foiled, ordered a second election, at which twenty-three directors were chosen, — the court, upon the summary application authorized by the statute, set aside the second election, and ordered a new election to supply the vacancy of one^ left at the first election : but an application to the court, previous to the second election to declare the twentj'-two persons to have been chosen directors, and to order the election of one additional director, was considered prema- ture.(2) So, where an irregularity has occurred, in respect to giving notice of the election, for the length of time prescribed by the by-laws of a corporation, (where they are authorized to provide on that subject, by by-laws,) or, where they are silent on the subject, for the period pre- scribed by the general statute relating to corporations, (3) such irregu- larity will vitiate the election.(4) But it is no ground for setting aside an election, that the inspectors were not sworn in the form prescribed by the statute ; and it seems that the election would not be set aside, although no oath whatever was administered to the iuspectors, if no objection was interposed at the time of the election ; it being enough that they were duly appointed, and entered on the discharge of the duties of their of&ce, — thus becoming inspectors de facto.{5) Nor will (1) Ex parte WillcocJcs, 1 Cowen, 402. (2) Matter of the Union l7is. Co. 22 Wend. 591. (3) 1 R. S. G03, sec. 6. (4) Hatter of the Long Island Rail Road Co. 19 Wend. 39, 40. (5) Mati^ of the Mohaivk and Hudson Railroad Co. 19 Wend. 135 ; Matter of the Chenango County Mutual Ins. Co. 19 "Wend. 635. ELECTIONS IN CORPORATIONS. 241 an election be set aside, because the inspectors do not close the polls at the end of tlie hour designated ; although by the resolution of the board from which they derive their authority, the election is limited to one hour ; inasmuch as, in this respect, they may lawfully exercise a reasonable discretion. (1) And inspectors of a corporate election may be candidates at such election, without affecting its validity. (2) As to the second ground upon which applications to set aside corpo- rate elections are based, — namely, that illegal votes have been received or legal votes rejected, — it is sufficient to say, that in determining the case according to its right and justice^ the court have uniformly in- quired, whether the party complaining have been in point of fact pre- judiced. And, accordingly, it has been held, that the mere circum- stance that improper votes are received at a corporate election, will not vitiate it ; but the fact should be shown affirmatively, that a sufficient number of improper votes was received for the successful ticket to reduce it to a minority, if they had been rejected ; or the election shall stand.(8) So, where the rejection of legal votes has not varied the result, the election will not be set aside. In determining the question also, as to whether the election shall stand or not, the court, in one case, — where the election of directors of an insurance company, elected by a vote upon the stock of the company, was vacated, — declared the directors having a majority of the legal votes to be duly elected ; the facts being clearly ascertained upon the proof submitted ; the court observing, that they could not perceive the use of a new election.(4) But where votes rejected by the inspectors at an election of directors which, if received, would have elected a certain ticket, are adjudged to have been erroneously rejected, the only remedy is to set aside the election ; the court not having the power to declare the ticket success- ful, for which the votes would have been cast, had they been re- ceived. (5) The apphcation for the setting aside of a corporate election must be made at one of the special terms. For this purpose, the usual notice required in non-enumerated motions, namely, eight days, (6) must be served ; and such notice of a motion affecting the election of directors of a corporation, is valid, if served only on the directors whose election is questioned ; and it need not be given to persons whose right to vote (1) Matter of the Mohaiuh and Hudson RailEoad Co. 19 "Wend. 135. (2) Ex parte Wilkocks, 1 Co wen, 402. (3) Sx parte Murphy, 1 Cowen, 153. (4) Ex parte Desdoity, 1 Wend. 98, 99. (5) MaUer of the Long Island Rail Road Co. 19 Wend. 37, 45. (6) Code, sec. 413. Vol. I. 31 242 JURISDICTION OF THE SUPREME COURT; is in question.(l) And no one but a party named as aggrieved, in tlie notice of application to set aside the election, is entitled to be heard ; and where a notice was given by one as aiiorney for A. B. and others, it was held that no one but A. B. was entitled to be heard.(2) As to the form of the rule, though it is given in full in two cases decided by this court, (3) yet it seems to have been more fully considered in a later case, by Nelson, Ch. J., in which, upon setting aside an elec- tion, he directed " that the statute pubhcation and notice be given, which is a notice of two weeks, thirty days before the election ;(4) the election to be held the same as if it was the regular annual one ; the test of qualification to be, with respect to the time when it is held, and not as of the fifth of June last," (the day of the first election ;)— in re- spect to which last provision of the rule, he observes :—" This will enable all the existing stockholders to prepare and control the direction, if they choose ; thus placing the power, where it was intended by the charter to be, in the hands of a majority of the stockholders."(5) It is to be remarked also, that, as the power in question extends to incorporated companies only, it does not apply to associations under the general banking law. (6) 4. Scire facias, to repeal letters patent and acts of incorporation. In respect to patents of land, it is provided by the Code that an action may be brought by the attorney general in the Supreme Court, in the name and behalf of the people of this state, upon the relation of the attorney general, or of any private person, for the purpose of vacating and annulUng an}^ letters patent, granted by the people of this state, in the following cases : 1. when he shall have reason to believe that such letters patent were obtained, by means of some fraudulent suggestion or concealment of a material fact, made by the person to whom the same were issued, or made with his consent or knowledge ; 2. when he shall have reason to believe that such letters patent were issued through mistake or in ignorance of a material fact ; 3. when he shall have reason to believe that the patentee, or those lawfully claiming under him, have done or omitted any act in violation of the terms and conditions upon which such letters patent were granted ; or have by any other means, forfeited the interest acquired under the same.(7) (1) Ex parte Eohnes, 5 Cowen, 426. (2) Matter of the Mohawk and Hudson Rail Road Co. 19 Wend. 135. (3) Ex parte Holmes, 5 Cowen, 435, 436; Ex parte WillcocJcs, 1 Cowen, 412. (4) 1 R. S. 603, sec. 6. (5) Matter of the Long Island Railroad Co., 19 Wend. 45. (6) Matter of the Bank of DansviUe, 6 Hill, 310. (7) Code, sec. 433. SCIRE FACIAS, TO REPEAL LETTERS PATENT, &c. 243 This provision, is the same as that incorporated in the revised statutes, which, as stated by the revisers, in their report,(l) was intended to be conformable to the common law rule, as laid down by Sir William Blackslone ; by which, when it appeared, from the face of the grant, that the king was mistaken or deceived, either in matter of fact or of law, as in case of false suggestions, misinformation, or misrecital of former grants, or if his own title to the thing granted were different from what lie supposed, or if the grant were informal, or if he granted an estate contrary to the rules of law, — in any of these cases, the grant was ab- solutely void.(2) And, according to the English practice, as well as that of this state, previous to the statutory provision above cited, the remedy for the repeal of letters patent, issued under any state of facts tending to invalidate them, was by scire facias^ or by bill or information in chancery.(3) The power which the Code confirms and establishes in this court, it possessed at common law, as the immediate judicial organ of the sovereign power ; and in this respect, as well as in defining the cases to which it extends, the statute is rather declarator}^ than creative. Upon the same principle, on which is based the power of repealing grants or patents issuing from the sovereign power, under circum- stances of fraud, deception, or mistake, it follows, that private, and in- deed public legislative grants should be, when unduly obtained, the subject of a similar revision and repeal. At the time when the revision of the statutes took place, however, it appears never to have been de- cided, whether a scire facias could be brought to vacate a private act, on the ground, that it was obtained by false suggestions. Nor was it considered, by the revisers a material question ; inasmuch as, by the miiform phraseology of the recent acts of incorporation, as well as by the general saving clause, incorporated in the first part of the revision, the power of alteration, modification or repeal, is reserved to the legis- lature, in express terms.(4) In order, however, to secure the object of that clause, so far as it has reference to a repeal of acts of incorporation, and to provide a distinct legal form of investigation, where the legisla- ture may elect that course, it is provided by the Code, that an action may be brought in the Supreme Court, upon the relation of the attor- ney general, against any corporation created or renewed by any act of the legislature, for the purpose of vacating and annulling such act, on the ground that the same was passed upon some fraudulent suggestion or concealment of a material fact made by the persons incorporated by (1) Revisers' notes, 3 R. S. 2d ed, 787. (2) 2 Bl. Com. 348. (3) Jackson v. Laioton, 10 Johns. 23 ; Jackson v. Hunt, 12 Johns. 77. (4) Revisers' note, 3 R. S. 2d ed. 787. 2-1-4 JURISDICTION OF THE SUPREME COURT; sucli act, or made with their consent or knowledge : but that no such writ shall be issued, except where the legislature shall specially direct the attorney general to prosecute the same.(l) It was formerly provided by statute, that in every writ of scire facias, issued to vacate letters patent or acts of incorporation, the particular matters and circumstances upon which the same were founded, might be set forth, with such convenient certainty, that the defendants might be fully apprised of the general nature thereof And if the matters duly alleged in such writ, should be found for the people, or the defend- ants should make default, judgment should be rendered, that the letters patent or act of incorporation specified in the writ, as the case might be, be vacated and annulled.(2) There is, however, no such provision in the Code, but inasmuch as the action to vacate letters patent or an- nul acts of incorporation, is now conducted like all other actions, and is subject to the same general rules of pleading, it becomes necessary in every such case, to state the facts of the case in the complaint. When- ever judgment shall be rendered against the defendant, in an action brought to vacate letters patent, or to vacate any act of incorporation it is the duty of the attorney general to cause a copy of the judgment roll to be forthwith filed in the oflSice of the secretary of this state.(8) Upon which, the secretary is required, if the record relate to letters patent, to make an entry in the records of the commissioners of the land ofl&ce, of the substance and effect of such j udgment, and of the time when the record thereof was docketted ; and the real property granted by such letters patent, may thereafter be disposed of by such commissioners, in the same manner as if such letters patent had never been issued,(4) And where a judgment, vacating or annulling an act of incorporation has been thus rendered, this court is invested, by statute, with power to restrain the corporation, — to appoint a receiver of its effects, — and to take an account and make distribution thereof among its creditors, — in the same manner as upon the voluntary dissolution of a corporation ;(5) and it is made the duty of the attorney general, immediately after the rendering of a judgment vacating and annulhng such act of incorpora- tion, to institute proceedings for that purpose.(6) 5. Summary proceedings, for the determination of claims to real property. The proceeding by fine and recovery, to bar outstanding claims of of title to real estate, having been abolished by the revised statutes, — (1) Code, sec. 429. (2) 2 R. S. 57^, sec. 14. (3) Code, sec. 445. (4) Code, sec. 446. (5) As to the proceedings here referred to, see Gra. on Jurisd. 459-470, and the statutes and cases there cited. Also, Code sec. 444. (6) Code, sec. 444. ARBITRATIONS. 245 a proceeding, with the intricacy and subtlety of which, the common law student is familiar,(l) — the legislature have substituted in its stead, a simple and summary remedy, for the determination of claims to real property, which has invested this court with a new and most important jurisdiction. For this purpose, it is provided, that where any person, singly, or he and those whose estate he has, shall have been for three years, in the actual possession of any lands or tenements, claiming the same in fee or for life, he may compel a determination upon any claim which any other person may make, to any estate in fee or for life, in possession, reversion or remainder, to such lands and tenements in the manner pointed out in the statute.(2) All these proceedings to compel the determination of conflicting claims to real property are continued in force by the Code,(3) where it is provided that such proceedings, pursuant to the provisions of the revised statutes, may be prosecuted by action under the Code without regard to the forms of the proceedings as they are prescribed by the revised statutes. As the form and mode of proceeding, for this purpose, will be fully treated of hereafter, it is sufl&cient in this place to state generally, that any person who has been in possession of real estate three years, may serve a notice upon another, of fall age and not insane, nor imprisoned on any criminal charge or conviction, and not being a married woman, who is supposed to have any claim to such estate, requiring him to appear in the Supreme Court and assert his claim, or be forever barred. If the person notified, do not choose to appear, judgment by default goes against him, with the same effect as if he had disclaimed. If he appear and disclaim all title to the property, he is to be allowed his costs, and judgment passes against him, that he, as well as all claiming from him by title subse- quent to the notice, be forever barred. Or he may deny that the per- son giving the notice, has been in possession three years. If he mean to claim title, he is then to declare in ejectment, and the same proceed- ings are to be had as in other cases. If a non-resident be supposed to have any claim to such estate, notice may be served on his agent in this state, under the direction of the Supreme Court ; and the same pro- ceedings are to be had, as if he were personally served with notice. (4) 6. Arbitrations. By statute, all persons, except infants and married women, and per- sons of unsound mind, may, by an instrument in writing, submit to the decision of one or more arbitrators, any controversy existing between (1) For a description of the proceedings by fine and recovery, see Bl. Com. 348-364. (2) 2 R. S. 312, sec. 1, (3) Sec. 449. (4) 2 R. S. 313-315, sec. 2-20. 1 Code Rep. N. S. 30. 246 JURISDICTION OF THE SUPREME COURT;- them, which might be the subject of an action at law, or of a suit in equity, except as is therein otherwise provided ; and may in such sub- mission, agree that a j udgment of any court of law and of record, to be designated in such instrument, shall be rendered upon the award made pursuant to such submission.(l) But no such submission shall be made, respecting the claim of any person to any estate, in fee or for life, to real estate ; but any claim to an interest for a term of years, or for one year or less, in real estate, and controversies respecting the partition of lands between joint-tenants, or tenants in common, or concerning the boundaries of lauds, or concerning the admeasurement of dower, may be so submitted to arbitration.(2) Reserving the full consideration of this subject, for a subsequent por- tion of this treatise, it maybe generally remarked here, that the sections just cited, make two essential variations from the former act on the subject of arbitrations.(3) In the first place, instead, as fornierly, of enforcing an award by process of attacliment as for a contempt, the first section authorizes a regular j udgment to be entered, filed and docketed ; and an execution to be issued thereupon, as in ordinary cases. In the second place, though the old law was, that freehold or inheritance of lands could not be determined by arbitrament, (4) yet, in modern times, the rule has been qualified by saying, that while the award could not operate to transfer the title, it might estop the parties, and was thus in- directly conclusive upon them, even in an action of ejectment.(5) The revisers, conceiving that this was only calculated to mislead those who might wish to resort to an arbitration, to determine their titles, and that, on principles of public policy, such controversies, which always involve intricate law questions, ought not to be thus determined, — pre- sented to the legislature, who accordingly adopted, the second section prohibiting the submission of controversies respecting claims to estates in fee or for life, in real estate ; at the same time excepting from its prohibition, cases of subordinate estates, which seemed to require it, and which had been most usually presented to the courts.(6) In addition, also, to providing for the proceedings in conducting the arbitration, and in entering up and and enforcing the award, the revis- ed statutes have invested the (30urt with power to vacate the award, upon either of the following grounds : 1. that it was procured by corruption, fraud, or other undue means : 2. that there was evident (1) 2 R. S. 541, sec. 1. (2) Ibid. sec. 2. (3) 1 R. L. of 1813. p. 125, sec. 1. (4) 1 Roll. 242, L. 10; Com. Dig. Arbitrament, D. 3.; Johnson v. Wilson, Willes, 248. (5) Doe V. Jiosser, 3 East, 15 ; SellicJcv. Addams, 15 Johns. 197 ; see also, Munro v. Allaire, 2 Caines, 327; Marks v. Marriott, 1 L. Raym. 114; Jackson v. Dysling, 2 Caines, 198; CaUioun's Lessee v. Dunning, 4 Dall. 122. (6) Reviser's notes, 3 R. S. 2d ed. 774; ante, 245. ATTACHMENTS AGAINST DEBTORS. 247. partiality or corruption in the arbitrators, or either of them : 3. that the arbitrators were guilty of misconduct, in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to licar any evi- dence pertinent and material to tlie controversy, or any other mis- behavior, by which the I'ights of any party shall have been prejudiced: 4, that the arbitrators exceeded their powers ; or that they so imper- fectly executed them, that a mutual, final, and definite award on the subject matter submitted, was not mHde.(l) The court is likewise empowered to modify or correct the award, in the folllowing cases : 1. where there is an evident miscalculation of figures, or an evident mistake in the description of any person, thing or property, referred to in such award : 2. where the arbitrators shall have awarded upon some matter not submitted to them, not affecting the merits of the de- cision upon the matter submitted : 3. where the award shall be im- perfect in some matter of form, not affecting the merits of the contro- versy ; and where, if it had been a verdict, such defect could have been amended or disregarded by the court, according to the provisions of law.(2) The mode in which these various powers are exercised, the proceed- ings by which they are to be carried out, and their incidents, as well as those of the subject of arbitration generally, will hereafter be discussed A proceeding some what analogous to an arbitration is now provided by the Code, entitled ^'•submitting a controversy^ without action.'''' The parties to a question of difference, which might be the subject of a civil action, may, without action, agree upon a case containing the facts upon which the controversy depends, and present a submission of the same, to any court which would have jurisdiction, if an action had been brought. But it must appear by affidavit, that the controversy is real, and the proceeding in good faith to determine the rights of the parties. The court shall thereupon hear and determine the case, at a general terra, and render judgment thereon as if an action were pending. (3) The judgment is entered in the judgment book as in other cases, but without costS; for any proceeding prior to notice of trial. The case, the submission, and a copy of the judgment constitutes the judgment roll. The judgment is to be enforced in the same manner, as if nt had been rendered in an action, and is subject to appeal in like manner.(4) 7. Attachments against absconding^ concealed and non-resident debtors. By the revised statutes, it is provided, that the real and personal (1) 2 R. S. 542, sec. 10. (2) Ibid. sec. 11. (3) Code, sec. 372. (4) Code, sec. 373, 314. 248 JURISDICTION OF THE SUPREME COURT; property of a debtor may be attached, for tlie payment of bis debts, in the following cases : 1. whenever such debtor, being an inhabitant of this state, shall secretly depart thcreform, with intent to defraud his creditors, or to avoid the service of civil process ; or shall keep himself concealed therein, with the hke intent : 2. whenever any person, not being a resident of this state, shall be indebted on a contract made within this state, or to a creditor residing within this state, although upon a contract made elsewhere.(l) The application for this purpose may be made to one of the oflQcers designated in the statute, (2) by any creditor resident within this state or out of it, or by his personal repre- sentatives, having a demand against such debtor personally, whether liquidated or not, arising upon contract, or upon a judgment or decree rendered within this state, amounting to one hundred dollars, or up- wards: or by any two such creditors having such demands, to the amount of one hundred and fifty dollars or upwards ; or by any three or more creditors, having such demands, to the amount of two hundred. dollars, or upwards ;(3) such application to be in writing, verified by the afiidavit of the creditor, or of the person making the same in his behalf, specifying the sum in which the debtor is indebted, over and above all discounts, to the person in whose behalf such application is made, and the grounds upon which the application is founded ;(4) and to be accompained by the affidavits of two disinterested witnesses, veri- fying the facts and circumstances, to establish the grounds on which such application is made. (5) Upon this application and proof, a warrant is issued to the sheriff", to attach the property of the debtor, and pro- ceedings are had, resulting in the appointment of trustees, and the dis- tribution of the debtor's estate, by such trustees ; which are fully point- ed out in the subsequent provisions of the statute, but to which the scope of the present work does not require a particular reference.(6) Our present concern being alone with the jurisdiction of the Supreme Court, as connected with these proceedings, it is only necessary to ad- vert to those provisions which relate to that subject. There are different stages of these proceedings in which this juris- diction arises. First^ If the party be proceeded against, as an absconding or conceal- ed debtor, he may, at any time before the appointment of trustees, pre- sent a petition by himself or his attorney, verified by his oath, or that of some other person, to the ofi&cer who issued the warrant against him, (1) 2 R. S. 3, sec. 1. (2) Ibid. sec. 2 ; 2 R. S. 34, 35, sec. 1. (3) 2 R. S. 3, sec. 3. (4) Ibid. sec. 4. (5) Ibid. sec. 5. (6) On this subject, the student is referred to the statutory, provisions, in 2 R. S. 3-14, and to the Digests, as well as to the Indexes to the Reports, under the head of Absent and Absconding Debtors. ^ ATTACHMENTS AGAINST DEBTORS. 249 Stating that lie is a resident within tliis state, and was not, at any time within thirty days before the issuing of such warrant, or at any time thereafter, an absconding or concealed debtor, within the intent of the statute ; and may therein pray, that his allegations in that behalf may be heard and determined by the Supreme Court, or the court of com- mon pleas of the county in which such officer resides.(l) If proceeded against as a non-resident debtor, he, and any person on his behalf, may, at any time before the appointment of trustees, present a petition veri- fied by the oath of the person presenting the same, to the officer who issued the warrant, stating that at the time of issuing such warrant, he was a resident of this state ; and may pray, that the allegations in such petition may be determined by the Supreme Court, or the court of common pleas of the county.(2) And such debtor, in either of the cases before mentioned, or his agent, shall, at the time of presenting the petition, deliver to the officer who issued the warrant, a bond to the attaching creditors, in the penal sum of one hundred dollars, with such security as shall be approved by such officer, with a condition, (preceded by a recital of the petition,) that such debtor shall prove to the Supreme Court, or to the court of common pleas of the county, which ever shall be inserted by such officer, at his discretion, at the next term thereof, the facts set forth in such petition.(3) The statute then directs, that the officer with whom such petition and bond shall be filed, shall report his proceedings, with the affidavits presented to him in relation to such proceedings, to the court named in the condition of such bond, on the first day of the next term thereof ; (4) and that the court shall proceed to hear the proofs and allegations of the parties in a summary way, and shall determine whether the allega- tions in such petition have been satisfactorily proved ; unless the court shall deem it a proper case to be submitted to a jury ; in which case, the court may in its discretion, award a venire^ to try the same in such manner as the court shall direct. (o) If the court determine that the allegations in the petition are proved it shall grant an order, cancelling the bond given by or on behalf of the debtor, and discharging the warrant or warrants that may have been issued against him, and thereby releasing all property which shall have been attached under such Avarrants ; which order shall terminate all proceedings upon such warrants ;(6) and the court shall also tax the costs and expenses of the debtor, incurred in obtaining such order and shall cause the same to be paid by the attaching creditor ; and may (1) 2 R. S. 9, sec. 43. (2) 2 R. S. 10, sec. 44. (3) 2 R. S. 10, sec. 45. (4) 2 R. S. 10, sec. 46. (5) Ibid. sec. 47. (6) 2 R. S. 10, sec. 48. Vol. I. 32 250 JURISDICTION OF THE SUPREME COURT; enforce the payment thereof by attachment.(l) If the court determine that the allegations contained in the petition are not proved, then the obligee in the bond given by or on behalf of such debtor, may recover the penalty thereof, with costs ; one moiety of the penalty may be re- tained by the obligee or his representatives, and the other moiety shall be paid to the trustees, to be disposed of by them as part of the pro- perty and effects of such debtor ; or if no trustees be appointed, such moiety may be retained by the obligee.(2) Nor is the proceeding to set aside the attachment, on the ground that it was improperly issued, confined to the debtor alone. If any person, to whom a debtor shall have assigned or delivered any pro- perty on a valuable consideration, or to whom the debtor may have made payments, after the publication of the notice of attachment, shall desire to contest the fact of such debtor's being non-resident, concealed or absconding, within the meaning of the statute, he may do so, on executing a bond similar to that required of a debtor, as already men- tioned, and within the time allowed to the debtor for that purpose ; and on his application to the court to which such proceedings are or shall be reported, the court shall direct such allegations to be tried by a jury, and shall direct the proceeding for that purpose.(3) A decision by a jury, in any case, where a trial may be had, pur- suant to the provisions which have been cited, if not set aside by the court, shall have the same effect, in aU cases, as the determination of a court without such trial ; and the same proceedings may be had upon the bond executed by any other person than the debtor, as are above provided in respect to the bond of such debtor, in the like cases and with the like effect.(4) Second^ — This court is invested with full jurisdiction of all the pro- ceedings in cases of this kind, after the appointment of trustees, by the provision of the revised statutes which requires, that within twenty days after the appointment of any trustees by the officer issuing the warrant, he shall make a report to the Supreme Court, to be filed with the clerk thereof, of all the proceedings had before or done by him, under the statute ; after which, the Supreme Court shall have jurisdic- tion over such proceedings; and such report, and a certified copy thereof, under the seal of the court, and attested by the clerk, shall be conclusive evidence, that the proceedings stated therein were had be- fore such of&cer.(5) The proceedings had before any officer, under the provisions of this statute, may also be removed into the Supreme (1) 2 R. S. 11, sec. 49. (2) 2 R. S. 11, sec. 50. (3) 2 R. S. 11, sec. -51. (4) 2 R. S. 11, sec. 52. (5) 2 R. S. 13, sec. 68. ATTACHMENTS AGAINST DEBTORS. 251 Court, previous to any report, by certiorari^ at tlie instance of tlie debtor or of any creditor ; but such certiorari shall not stay any proceed- ings on such warrant.(l) Upon an examination of the return to such certiorari^ or of the report made by the oflicer, the Supreme Court may correct any errors therein, and make such order as shall seem just; and may remit the proceedings to the officer who issued the warrant, or to any other officer having authoritby to issue such warrant ; or may proceed to do such acts and things as remain to be done, to com- plete the proceedings.(2) Until the report shall have been made as thus required, the court has no right to entertain a motion to set aside an attachment, in respect to the regularity of the proceedings of the officer by whom it was issued ; its jurisdiction to review the proceedings being acquired only by report made, or certiorari. {^) After it has thus acquired jurisdic- tion, however, it may set aside the attachment ; and if, upon an exami- nation of the report, or the return to the certiorari, it appear that the officer granting the warrant of attachment had no jurisdiction in the matter, (as where the affidavits do not state the facts required by the statute,)(4) it is the duty of the court, to correct the error by setting aside the proceedings. And it will do so, though trustees have been appointed, and notwithstanding the provision of the statute, that the appointment of trustees shall, in all cases except on the hearing of a petition previous to such appointment, be conclusive evidence that the debtor named in such appointment was a concealed, absconding or non-resident debtor, within the meaning of the act, and that such ap- pointment and all the proceedings previous thereto were regular ;(5) — ■ the effect of that provision not being to debar the debtor from contest- ing the jurisdiction of the officer, or insisting that his case is not within the statute.(6) Third, — A special jurisdiction is also conferred upon the Supreme Court, after the appointment of trustees, either in the case of abscond- ing, concealed or non-resident debtors, or of debtors confined for crimes, or of insolvent debtors, (7) in relation to the adjustment of claims by or against the debtor. The revised statutes provide, on this subject, that if any controversy shall arise between the trustees and any other person, in the settlement of any demands against such (I) 2 E. S. 14, sec. 69. (2) 2 R. S. 14, sec. VO. (3) Hatter of Gilbert, 70 Wend. 490. (i) Matter of EoUingsJiead, 6 Wend. 553; Ex parte Robinson, 21 Wend. 672; Matter of Fitch, 2 Wend. 298. (5) 2 R. S. 12, sec. 62. (6) Matter of Eurd, 9 Wend. 465 ; Matter of Faulkner, 4 Hill, 598 ; see also, Ibid., correct- ing the reporter's head note in Eubbellv. Ames, 15 Wend. 372. (7) See 2 R. S. 40, sec. 1. 252 JURISDICTION OF THE SUPREME COURT; debtor, or of debts due to his estate, the same may be referred to three indifferent persons, who may be agreed upon by the trustees and the party with whom such controversy shall exist, by a writing to that effect, signed by them.(l) If such referees be not so selected by agreement, then the trustees may serve a notice on the other party to such controversy, of their intention to apply to the officer who ap- pointed them, or to any other officer of like authority residing in the same county, for the appointment of referees ; specifying the time and place when such application will be made ; which notice shall be served at least ten days before the time so therein specified. (2) On the day so specified, the trustees may nominate two persons, not being creditors of such debtor, or otherwise interested ; and the other party to such controversy, or in case of his absence or refusal, the said of&cer, on due proof of the service of such notice, in his place, shall nominate two indifferent persons.(3) The names of the persons thus nominated, shall be written on four pieces of paper, as similar in all respects as may be ; which shall be rolled up separately and put into a box, and from thence the said ofl6.cer shall draw out three of them ; and the per- sons whose names are so drawn, shall be the referees to determine the controversy.(4) The officer before whom they shall be selected, shall certify such selection in writing, and such certificate or the written agreement of the parties, shall be filed, in the case of absconding, con- cealed or non-resident debtors, in the office of a clerk of the Supreme Court; and in cases of debtors confined for crimes, or of insolvent debtors, either in the said of&ce, or in that of the clerk of the court of common pleas of the .county ; and a rule shall be thereupon entered, by such clerk, in vacation or in term, appointing the persons so se- lected, to determine the controversy. (5) Such referees shall have the same powers, and be subject to the like duties and obligations, and shall receive the same compensation, as referees appointed by the Supreme Court, in personal actions pending therein.(6) It is then provided, — and it is here that the jurisdiction of the court on the subject begins, — that the report of the referees shall be filed in the same office where the rule for their appointment was entered, and shall be conclusive on the rights of the parties, if not set aside by the court.(7) This power of revising the report, was exercised by the court, under the former statute; (8) which, however, did not exjDressly confer it ; with the remark, however, that " though the court might (1) 2 R. S. 45, sec. 19. (2) 2 R. S. 45, sec. 20. (3) Ibid. sec. 21. (4) Ibid. sec. 22. (5) Ibid. sec. 23. (6) Ibid. sec. 24. (7) Ibid. sec. 25. (8) 1 R. L. of 1813, p. 161, sec. 16. ATTACHMENTS AGAINST DEBTORS. 253 look into the merits of tlie controversy, without any objection to the behavior of the referees, yet they would require a pretty strong case, before they would interfere and set aside the decision."(l) It is pre- sumed that the same principle still applies ; inasmuch as the revisers introduced the provision, expressly giving the court the power to set aside the report, as declaratory of the existing rule.(2) And where a reference is made, in a case not within the statute, the court, having no legal authority to render judgment on the report, will, as a matter of course, set it aside. Thus, where the trustees of non-resident debtors claimed that certain shares of the capital stock of a foreign bank, — which were standing ujDon the books of the agent of the bank in this state, in the names of the debtors, and which had been assigned, with the consent of the trustees, to third persons, and by the latter to the trustees, — should be trans- ferred to them by the agent ; which was refused ; and the trustees procured the appointment of referees, under the section of the sta- tute above cited,(3) to settle the controversy ; and upon the hearing, an objection was made to the jurisdiction of the referees, who reported in favor of the trustees, subject to the opinion of the court : — it was held, that the referees had no jurisdiction of the case, the matter in controversy not being a debt^ within the meaning of the statute ; — the term debt, as there used, as well as in its ordinary and legal accepta- tion, importing a sum of money due upon a contract express or im- plied ; and for that reason, refused to render judgment in favor of the trustees upon the report, and granted the motion to set it aside,(4) It will have been remarked, however, that where the claim is against the debtor, the statute uses the term demands ; which, according to the case just cited, is of much broader import than deht^ — embracing rights of action, beyond those which can properly be called cZeife, — and is, in this respect, a term of more extensive meaning than almost anj^ other known to the law. The foregoing provisions which are contained in the revised statutes, are continued in force by the Code.(5) In addition, howevei', to these proceedings, the Code authorizes the issuing of an attachment in cer- tain cases, and which, in several essential respects, is different from the attachment authorized by the revised statutes.(6) It will be seen that these proceedings, when prosecuted under the revised statutes, are not (1) Cox V. Trustees of Pearce, 1 Johns. 298, 300. (2) Revisers' notes to sec. 18-25, 3 R. S. 2d od. 623. (3) 2R. S. 45, sec. 19; ante, 252. (4) Matter of Denny and the Manhattan Co. 2 Ilill, 220. (5) Code, sec. 471. (G) Code, sec. 22 T. 254 JURISDICTION OP THE SUPREME COURT; solely for tlie benefit of the creditor wlio institutes tliem, but equally, for the advantage of all the creditors who may come in ; whereas the attachment proceeding under the Code is, for the benefit of the indivi- dual creditor,(l) and is extended to suits against natural persons, in cases where jurisdiction of the person cannot be obtained by personal service of a summons in the state.(2) It is now provided,(3) that in an action for the recovery of money against a corporation, created by or under the laws of any other state, government or country, or against a defendant who is not a resident of this state, or against a defendant who has absconded or concealed him- self, with intent to defraud his creditors or to avoid the service of a summons, the plaintiff, at the time of issuing the summons, or at any time afterwards, may have the property of such defendant attached, as a security for the satisfaction of such judgment, as the plaintiff may recover. But as this proceeding will form the subject of a subsequent section, it is unnecessary to allude further to it here. 8. Proceedings against sJnjys and vessels. A power, very similar to that which has just been discussed, is con- ferred upon this court among others, by the statute relating to pro- ceedings for the collection of demands against ships and vessels.(4) After having provided for proceedings by attachment for the collection of any debt, as a lien upon any ship or vessel within this state, when contracted by the master, owner, agent or consignee thereof; 1. on account of any work done, or materials or articles furnished in this state, for or toward the building, repairing, fitting, famishing or equip- ping such ship or vessel ; 2. for such provisions and stores furnished within this state, as may be fit and proper for the use of such vessel, at the time when the same were furnished ; 3. on account of the whar- fage and the expenses of keeping such vessel in port, including the expense incurred in employing persons to watch her ; — such debts be- ing declared to be liens, and to be preferred to all other liens except mariners' wages,(5) — and after declaring that wlien the ship or vessel shall depart from the port at which she was, when such debt was con- tracted, to some other port within this state, ever}^ such debt shall cease to be a lien, at the expiration of twelve days after the day of such departure ; and that in all cases, such lien shall cease after the vessel shall have left this state ; — it goes on to provide for the issuing (1) Fisha- V. Curtis, 2 Sand. S. C. R. 660. (2) Huhbert \. Hope Mv.t. Ins. Co. 4 Pr. R. 27 5. (3) Code, sec. 227. (4) 2 R. S. 492-500. (5) 2 R. S. 493, sec. 1. PROCEEDINGS AGAINST SHIPS AND VESSELS. 255 of the attachment and its service, — for tlio coming in of other credi- tors, — for the sale of the vessel — and for the distribution of the pro- ceeds among the creditors, unless their demands be contested by the owner, agent, consignees or master, or by some other creditor.(l) It then provides that in case of such contest, the party making the objection, shall file with the oflScer issuing the warrant, a written state- ment thereof, and his desire that the claims so objected to be referred to referees, to examine and report thereon. (2) The party making such objection, and the creditors whose claims are contested, may agree upon three indifferent persons, by a writing to that effect, signed by them and filed with such of[icer.(3) If such referees be not selected by agreement, then the party making such objection, shall nominate two disinterested persons, and the creditor or creditors whose claims are contested, shall also nominate two indifferent persons ; or, if either of them refuse or neglect, the ofiicer before whom the proceedings are pending, shall name two indifferent persons, for the party or parties so refusing or neglecting.(4) The names of the persons thus nominated shall be written .on four distinct pieces of paper, as similar in all re- spects as may be, which shall be rolled up separately and put into a box ; and from thence, the said ofiicer shall draw out three of them ; and the persons whose names are so drawn, shall be the referees to de- termine the controversy.(5) The ofl&cer before whom they shall be selected, shall certify such election in writing, and deliver a depulicate of the same, or of the written agreement of the parties appointing referees, to each of the parties.(6) Such certificate or agreement shall be filed in the ofl&ce of the clerk of the Supreme Court, or, if such vessel was seized within the city and county of New York, with the clerk of the superior court of law therein, or with the clerk of the court of common pleas thereof, as shall be directed by such ofiicer ; and a rule shall thereupon be entered by such clerk, in vacation or in term, appointing the persons so select- ed, referees to determine such controversy.(7) The statute then pro- vides, that such referees shall have the same powers, and be subject to the like duties and obligations, and shall receive the same compensation as referees appointed by the Supreme Court, in personal actions de- pending therein.(8) The report of the referees shall be filed in the same oflice where the rule for their appointment was entered, and shall be conclusive on the parties, if not vacated by the court to which it (1) 2 R. S. 493-49t, sec. 3-25. (2) 2 R. S, 497, sec. 2G. (3) 2 R. S. 497, sec. 27. (4) 2 R. S. 498, sec. 28. (5) 2 R. S. 498, sec. 29. • . (6) Ibid. sec. 30. (7) Ibid. sec. 31. (8) Ibid. sec. 32. 256 JURISDICTION OF THE SUPREME COURT; was madc.(l) And cither party sliall have the same right to except to such report, as in cases of reference during the pendency of a suit, and the court shall proceed thereon in the like manner ; and may, in its discretion, appoint new referees, and direct a new hearing. Judgment for costs shall be rendered against the failing party, and execution shall be awarded thereon, as in other cases.(2) ■9. Reference of claims against deceased 'persons. For the purpose of speedily winding up the concerns of the estates of deceased persons, the statutes have conferre'd upon this court, con- currently with the courts of common pleas, a special jurisdiction, of a similar nature to that which has just been treated of. The revised statutes having provided, on this subject, that upon any claim being presented against the estate of any deceased person, the executor or administrator may require satisfactory vouchers in support thereof, and also the afl&davit of the claimant that such claim is justly due, that no pay- ments have been made thereon, and that there are no offsets against the same, to the knowledge of such claimant ; which oath may be taken before any justice of the peace, or other officer authorized to administer oaths ;(8) — proceed to enact, that if the executor or administrator doubt the justice of any claim so presented, he may enter into an agreement in writing with the claimant, to refer the matter in controversy to three disinterested persons, to be approved by the surrogate ; and upon filing such agreement and approval of the surrogate, in the office of a clerk of the Supreme Court, or of the clerk of the court of common pleas (now county court) of the county, in which the parties, or either of them, reside, a rule shall be entered by such clerk, either in vacation or in term, referring the matter in controversy to the persons so selected.(4) The referees shall thereupon proceed to hear and determine the mat- ter, and make their report thereon to the court in which the rule for their appointment shall have been entered. The same proceedings shall be had in all respects, the referees shall have the same j)owers, be entitled to the same compensation, and subject to the same control, as if the reference had been made in an action in which such court might, by law, direct a reference ; and the court may set aside the report of the referees, or appoint others in their places, and may confirm such report, and adjudge costs, as in actions against executors ; and the judgment of the court thereupon shall be valid and effectual in all respects, as if the (1) 2 R. S. 498, sec. 33. (2) 2 R. S. 498, sec. 34. (3) 2 R. S. 88, sec. 35. * (4) 2 R. S. 88, sec. 36. PROCEEDINGS FOR THE ADMEASUREMENT OF DOWER, &c. 257 same had been rendered in a suit commenced by the ordinary pro- cess.(l) 10. Proceedings for the admeasurement of doiuer. In addition to the remedy for the recovery of an estate in dower, wliich ^vi]l hereafter be treated of, a more convenient and expeditious proceeding, of a summary nature, for its admeasurement, has been cre- ated by the revised statutes, which provide that any widow who shall not have had her dower assigned to her, within forty days after the de- cease of her husband, may apply, by petition, for the admeasurement of her dower, to the Supreme Court, or to the court of common pleas (now county court) of the county in which the lands subject to dower lie ; or to the surrogate of the same county ; specifying therein the lands to which she claims dower.(2) The form and incidents of this proceeding, will be discussed in a sub- sequent j)ortion of the work, 11. Habeas corpus and certiorari, to inquire into cause of detention. The subject embraced in the title to this subdivision of the present section, is one which, in its ordinary application, pertains rather to the criminal than the civil jurisdiction of the court ; and for this reason, as well as bedliuse its discussion would necessarily extend beyond the limits which could be assigned to it in a book of practice, it will be dis- missed, with the remark, that it is alluded to, only that it may not ap- pear to have been overlooked, in pointing out the powers of the Su- preme Court. (3) (1) 2 R. S. 89, sec. 37. (2) 2 R. S. 488, sec. 1. '(3) The student is referred, on this subject, to the provisions of the revised statutes, (2 R. S. 562-575,) and the act of 1837 ; (Laws of 1837, pp. 230, 231, sec. 1, 2,) and to the Digests and Indexes to the Reports, under the title Habeas Gorims. He will also find the subject, in all its bearings, discussed with great learning and ability, by Mr. Hill, in a note in the 3d volume of his Reports, 647-676. See also Gra. on Jurisd. 167-198. Vol. I. 33 258 APPELLATE JURISDICTION OP THE SUPREME COURT. SECTION III. RELATIVE JURISDICTION OF THE SUPREME COURT. 1. lis a2')pellate jwHsdiction. 2. Its jurisdiction, as inferior to that of the Court of Appeals. 3. Its jurisdiction concurrently with other courts of this state, or of the United States. 1. Appellate jurisdiction of the Supreme Court. The appellate jurisdiction of the Supreme Court consists in its au- thority, 1. to review and correct the judgments of inferior courts, and in some instances, also, errors occurring in this court itself, on appeal ; 2. to restrain inferior courts within the limits of their jurisdiction, by- writ of prohibition, and, 3. in the revisory jurisdiction which it exer- cises, by certiorari, over courts or officers invested with special jurisdic- tion, either at common law or by statute. 1. As to its powers on appeal. — This subject, with its incidents and the practice applicable to it, will be fully treated of, in a subsequent portion of this work. I shall therefore content myself with remarking generally, that in civil cases, — according to its common law definition, it lies, where a person is aggrieved by an error in the foundation, pro- ceeding, judgment or execution of a suit ; provided it be an error in sub- stance, not aided at common law, or by the statutes of jeofails ; and can only be brought upon a judgment, or an award in the nature of a judg- ment, given in a court of record acting according to the course of the common law. In the exercise of this jurisdiction, it is entitled to re- view and reverse the judgment of the various county and mayors', re- corders' and city courts. In reference to these courts, — which are the only civil tribunals in the state from which an appeal may be taken to this court, — its juris- diction is reducible to two heads : — 1. Errors appearing upon the face of the record, which embraces, in due form, the appearance of the par- ties, their allegations leading either to an issue of law or of fact, their continuance in court, and the award of the court upon the finding of jury, or the judgment of the court upon the law, in favor of the suc- cessful party, constituting the judicial consequence which the law at- taches to such success, and varying according to the nature of the ac- tion, the plea, the issue, and the manner and result of the decision, — 2. Errors occurring on the trial of an issue of fact, either in the charge of the court to the jury, or in its decision of any interlocutory question, APPELLATE JURISDICTION OF THE SUPREME COURT. 259 in granting or refusing a non-suit, or in admitting or rejecting testi- mony, which are presented upon exceptions ; — or similar errors occur- ring before referees, which are presented in the form prescribed by the practice, of which I shall speak hereafter. Errors aliunde, or, as they were usually denominated, error* in fact, as contradistinguished from errors in law ; such as the appearance of an infant by attorney, the coverture of a party at the commencement of the suit, or (under cer- tain circumstances,) the death of one of the parties, or the like ; which, if they had appeared upon the record, would have proved it to be erro- neous, it seems, can now be taken advantage of only by motion. For- merly, upon the return of the writ of error, the defendant, in the court below, might assign errors in fact, and these questions were tried in the Supreme Court. Now, however, the appeal which is substituted for the writ of error, carries up the judgment roll, and only such errors as appear upon it can be corrected by this court, unless, as may be done, error in fact is suggested to the court ; as to which, see post, under ap- peals from judgments of inferior courts. Nor is this right, on the part of the Supreme Court, to review and reverse the judgments of inferior courts, confined to civil cases. It ex- tends, also, to the judgments of the courts of oyer and terminer, and sessions of the several counties of the state, upon the conviction of any party upon indictment ; with this restriction, however, that, by statute, writs of error upon judgments rendered on any indictment for a capital offence, shall not issue unless allowed by the chancellor, or one of the justices of the Supreme Court, or a circuit judge, upon notice given to the attorney-general, or to the district attorney of the county where the conviction shall have been had ; and no other officer than such as are herein enumerated, shall be empowered to allow such writs.(l) In all other cases, writs of error upon any final judgment rendered upon any indictment, are writs of right, and issue of course, in vacation as well as in term, out of the court in which by law they may be made returnable. (2) But no such writ of error shall stay or delay the exe- cution of such judgment, or of sentence thereon, unless the same shall be allowed by a justice of the Supreme Court, or by a circuit judge, with an express direction therein, that the same is to operate as a stay of proceedings on the judgment upon which -such writ shall be brought.(3) After pointing out the proceedings upon which such writ of error,(4) which it is not within the purpose of this work to consider, it is further provided, that, if the Supreme Court shall affirm such judgment, it shall direct the sentence pronounced to be executed, and the same shall be executed accordingly. If the Supreme Court shall reverse the judg- (1) 9 R. S. 740, sec. 14. (2) Ibid. sec. 15. (3) Ibid. sec. 16. (4) 2 R. S. 740, 741, sec. 17-23, 260 APPELLATE JURISDICTION OP THE SUPREME COURT. ment rendered, it shall either direct a new trial, or that the defendant be absolutely discharged, according to the circumstances of the case.(l) A still further jurisdiction, unknown to the common law, and cre- ated for the first time by the revised statutes, is conferred upon the Supreme Court, in reference to the review of the decisions of inferior, courts in criminal cases, which bears some analogy to the proceedings by writ of error; namely, the power of determining, before judgment, bills of exceptions taken on the trial of criminal cases. It is provided on this subject, by statute, that on the trial of any indictment, excep- tions to any decision of the court may be made by the defendant, in the same cases and manner provided by law in civil cases ; and a bill thereof shall be settled, signed and sealed, and shall be filed with the clerk of the court, and returned upon a writ of error, as now authorized in per- sonal actions, or upon a certiorari as hereinafter provided ; and the same proceedings may be had to compel the signing and sealing of such bill and the return thereof.(2) But no such bill of exceptions shall stay or delay the rendering of judgment upon any such indictment, or the exe- cution of such judgment, or of any sentence thereon, except as herein- after provided.(3) Such bill of exceptions being settled and signed, if the judge who tried the cause, or a justice of the Supreme Court, shall certify on such bill, that in his opinion there is probable cause for the same, or so much doubt as to render it expedient to take the judgment of the Su- preme Court, thereon, such certificate, on being filed with the clerk of the court, shall stay judgment on such indictment, until the decision of the Supreme Court be had upon such exceptions. (4) If such bill of exceptions shall have been tendered to any court of sessions, and shall have been settled, signed and sealed, and the judge who presided on the trial, or any justice of the Supreme Court, shall grant a certificate as provided in the last section, upon the filing thereof with the clerk of the court, judgment shall be stayed upon such indictment, until the decision of the Supreme Court be had upon such exceptions.(5) But no certificate shall be granted by a judge of the Supreme Court, unless application therefor shall first have been made to the judge who pre- sided at the trial, and the reasons of such judge for refusing the same, be attached to the bill of exceptions. (6) Upon such certificate being granted, as provided in the last three sections, in any case where the offence charged is punishable by im- prisonment in a state prison or in a county jail, the court in which the (1) 2 R. S. 141, sec. 24. (2) 2 R. S. 136, sec. 21. (3) Ibid. sec. 22. (4) Ibid. sec. 23. (5) Ibid. sec. 24. (6) Ibid. sec. 25. APPELLATE JURISDICTIOX OF THE SUPREME COURT. 261 trial shall have been had, or any justice of the Supreme Court, may let the defendant to bail, upon a recognizance with sufficient sureties, conditioned that he shall appear in the court where such trial was had, at such time as the Supreme Court shall direct, and that he will obey any order or judgment the Supreme Court shall make in the premi- ses.(l) When judgment shall have been stayed, upon any indictment as herein provided, it shall be the duty of the district attorney of the county, immediately to sue out a writ of certiorari^ returnable in the Supreme Court, to remove such indictment with the bill of exceptions and other proceedings thereon, into such court ; and the clerk of the court shall, without delay, make a return thereto, containing a tran- script of the indictment, bill of exceptions, and the certificates staying judgment.(2) 2. The power of the Supreme Court to restrain inferior courts within the limits of their jurisdiction, by writ o^ prohibition. — The writ of pro- hihiiion, as its name imports, is designed to prevent inferior tribunals from overstepping the hmits of their jurisdiction. In England, it is of very frequent use, while, in this state, not a single case is to be found in the books, before the adoption of the revised statutes,(o) and but few, since that period, in which it has been resorted to. It was, how- ever, recognized in the revision of 1813,(4) and the recent" revision speaks of it as a remedy, the existence and utility of which are known ; and defines, with accuracy, the proceedings by which it is to be govern- ed.(5) In the cases which have arisen in this state, the office of this writ have been well defined. In the Jirst place, it has been held, that it does not lie to a ministe- rial officer, to stay the execution of process in his hands; but it is to be directed to a court in which some action or legal proceeding is pending, and to the party who prosecutes the suit ; and commands the one not to hold, and the other not to follow the plea ; and stays both the court and the party from proceeding with the suit.(6) And, although, in one case, in this court, it was directed to a collector of taxes, to compel him to desist and refrain from collecting a tax unlawfully ordered,(7) yet, in a subsequent case, Bronson, J., remarked, that, " that case must not (1) 2 R. S. 736, sec. 20. (2) 2 R. S. 73G, sec. 27. (3) Revisers' notes, 3 R. S. 2ded. 789. (4) 1 R. L. of 1813, p. 343, sec. 9. (5) 2 R. S. 587, 588, sec. 61-65. (6) The People v. The Supervisors of Qmens, 1 Hill, 195, 201 ; Tlie People v. Tompkins Gen- eral Sessions, 19 "Wend. 154. (7) Tlie People v. Works, 7 "Wend. 486. 262 APPELLATE JURISDICTION OP THE SUPREME COURT. be understood as having decided any tiling more than that the tax then under consideration, was illegaL"(l) And accordingly, in a still later case, it was held, that it would not lie to a corporation, to stay them in the execution of a naked statute power, ministerial in it its nature.(2) Nor will it lie, even to a judicial tribunal, to restrain it from perform- ing a merely ministerial act, as, for instance, the issuing of an execu- tion ; its office being, to prevent courts from going beyond their juris- diction, in the exercise of judicial, not ministerial power. And even in such cases, it will not be granted, where there are other remedies per- fectly adequate. (3) Secondly.— It will not lie, where the subject matter is within the juris- diction of the subordinate tribunal. Thus, where proceedings, were taken before a county judge, to put a party in possession of certain premises as landlord, on the allegation that the opposite party was his tenant, and held over, after the expiration of his term ; and upon the hearing before the judge, a state of facts was shown, upon which it was insisted, on behalf of the relator, that the conventional relation of land- lord and tenant did not exist between the parties, and consequently, that the summary proceeding adopted was inapplicable, and that the judge had no jurisdiction ; but the judge overruled the objection, and submitted the case to the jury, who found that the relator did hold over as tenant ; an application for a writ of prohibition, to restrain the judge from issuing a warrant to put the landlord in possession, was denied by Savage, Ch. J., on the ground that the matter was within the jurisdiction of the judge, and that if he had erred in the decision made by him, the remedy of the party aggrieved was by certiorari, and not by writ of prohibition.{^) So, where a motion had been made to a court of common pleas, to quash an appeal from a justice's judgment, on the ground of certain irregularities, which motion was there denied ; Cowen, J., held, that it was not a case for a prohibition, any more than a man- damus would lie, for the purpose of reviewing a decision of an inferior court, because it was erroneous.(5) It is necessary, also, in order to found a prohibition, that, something yet remains to be done, by the tribunal to whom it is to be issued. And, accordingly, it has been held, that after judgment and execution in the court below, a motion for a prohibition come too late, because there was nothing to be prohibited.(6) (1) Tlie People v. Supervisors of Queens, 1 Hill, 201. (2) Matter of Mount Morris Square, 2 Hill, 14, 28. (3) Ez parte Braudlaclit, 2 Hill, 366. (4) The People v. Seward, 1 "Wend. 518. (5) Ex parte Gordan, 2 Hill, 363. (6) Hcdl V. Norwood, 1 Sid. 165 ; Darhy v. Cosens, 1 T. R. 552 ; Matter of Poe, 5 B. & Ad. 681. APPELLATE JURISDICTION OP THE SUPREME COURT. 263 lu this state, a writ of prohibition can only be issued out of the Supreme Court ;(1) and the revised statutes provide, that, hereafter, such writs shall be applied for upon affidavits, by motion, in the same man- ner as writs of mandamus^ which have already been considered. And if the cause shown shall appear to the court to be sufficient, a writ shall be thereupon issued, which shall command the court and party to whom it shall be directed, to desist and refrain from any further proceedings in the suit or matter specified therein, until the next term of the said Supreme Court, and the further order of such court thereon ; and then to show cause, why they should not be absolutely restrained from any further proceedings in such suit or matter. (2) Such writ shall be serv- ed upon the court and party to whom it shall be directed, in the same manner as a writ of mandamus ; and a return shall in like manner be made thereto by such court ; which may be enforced by attachment, as provided by law. (3) If the party to whom such writ of proldhition shall have been direct- ed, shall, by instrument in writing, to be signed by him, and annexed to such return, adopt the same return, and rely upon the matters there- in contained, as sufficient cause why such court should not be restrain- ed, as mentioned in the said writ, such party shall thenceforth be deemed the defendant in such matter ; and the person prosecuting such writ may reply, take issue, or demur, to the matters so relied upon by such defendant ; and the like proceeding shall be had for the trial of issues of law or fact joined between the parties, and for the rendering of judgment thereupon, as in personal actions.(4) But if the party to whom such writ of prohibition shall have been directed, shall not adopt the return, as above provided, the party prosecuting such writ, shall bring on the argument of such return, as upon rules to show cause ; and he may, by his own affidavit and other j^roofs, controvert the matters set forth in such return. And the court, after hearing the proofs and allegations of the parties, shall render judgment, either that a prohibition absolute, restraining the said court and party from pro- ceeding in such writ or matter, do issue, or a writ of consultation, authorizing the court and party to proceed in the suit or matter in question.(5) If the party to whom such first writ of prohibition shall be directed, shall adopt the return of the court thereto, as above provided, and judgment shall be rendered for the party prosecuting such writ, a prohibition absolute shall be issued; if judgment be given against (1) 2 R. S. 58*7, sec. 61 ; Revisers' notes, 3 R. S. 2d. ed. 789. (2) 2 R. S. 587, sec. 61. (3) Ibid. sec. 62. (4) Ibid. sec. 63. (6) 2 R. S. 588, sec. 64. 2()4 APPELLATE JURISDICTION OF THE SUPBEME COURT. such party, a writ of consultation shall be awarded, as above pro- vided.(l) 3. The last branch of the appellate jurisdiction of this court, which remains to be considered, is its revisory power, by certiorari^ over courts or officers invested with sj)ecial jurisdiction, either at common law or by statute. An examination of this subject, in all its details, would occupy an unnecessary and disproportionate space; and I shall there- fore limit my observation upon it to a statement of the general princi- ples which it involves, with such illustrations as may be necessary to render them more clearly intelligible. The jurisdiction of this court, in this respect, results mainly from the authority with which it is clothed at common law ; though, in several instances, it has been conferred by express statutory enactment. In this order, it will be treated of. Common law certiorari.^ In a yery early case in this court, (2) it was laid down, as a position beyond contradiction, that, in analogy to the king's bench in England, it has, at common law, jurisdiction, to award a certiorari^ not only to inferior courts, but to persons invested by the legislature with power to decide on the property or rights of the citizen, even in cases where they are authorized by statute finally to hear and determine. The principle upon which this power is founded, was re- garded as including also all cases where new jurisdictions are created, be it by public or private act ; and in speaking of it, Spencer, J,, observes: — "The authorities to this point are so numerous and uni- form, that it cannot be necessary to enlarge. The necessity of a super- intending power, to restrain and correct partialities and irregularities which may be committed by inferior officers, is so obvious and indis- pensable, that the court ought, by no means, to deny themselves a juris- diction of such salutary influence." And in referring to this case, in still later ones,(3) the rule is recognized and adopted, that whenever the rights of an individual are infringed by the acts of persons clothed with authority to act, and who exercise that authority illegally, and to the injury of an individual, the person injured may have redress by certiorari.{4:) Though, more recently, it has been defined with greater precision ; and it is now established, that a certiorari at common law, lies only to inferior courts, and officers exercising judicial powers, strictly so called, or powers judicial in their nature ; and that it will in no case be sustained, for the puri^ose of reviewing official proceedings (1) 2 R. S. 588, sec. 65. (2) Lawton v. Commissioners of Cambridge, 2 Caines, 182. (3) Wildy V. Washburn, 16 Johns. 50 ; Le Boy v. Mayor of New- York, 20 Johns. 430. (4) See also, Starr v. Trustees of Rochester, 6 Wend. 564. APPELLATE JURISDICTION OF THE SUPREME COURT. 265 of either a legislative, executive, or ministerial cliaracter.(l) It pos- sesses, iu tliis respect, all the characteristics of the late writ of error, and performs the same office, as to inferior summary tribunals, which a writ of error did as to inferior courts of record.(2) And in such cases, the right of this court, to review the proceedings of inferior tribunals, exists, unless it has been expressly taken away by statute.(3) And even where a statute authorizing a summary convic- tion before a justice, gave an appeal to the sessions, who were thereby also directed to hear and finally determine the matter, it was, neverthe- less, held, that these words merely prohibited a re-investigation of the facts, and that, after the determination of the appeal, the party convict- ed, might still remove the conviction by certiorari; and Lord Kenyan observed, that he thought it was much to be lamented, in a variety of cases, that a certiorari was taken away at all.(-i) But if a statute con- tain such comprehensive terms, as to prohibit the removal of any order, matter or thing, the latter word would be construed to comprehend every act whatever.(5) And upon the same principle, it has been held, that notwithstanding the provision of the revised statutes, authorizing the removal of a justice's judgment, by certiorari, into the common pleas, such judgment may be removed into the Supreme Court, by the same writ.(6) The general rule, however, on this subject, is, that a certiorari will not be granted, where there is an adequate remedy by appeal.(7) In regard to this remedy, also, it was formerly decided that on a return to a common law certiorari, no other question could be raised, than those relating to the jurisdiction of the court or officer before whom the proceedings were had ; and that decisions as to the admission or rejection of evidence, or instructions given to a jury, on submitting the case to their consideration, could not be reviewed hj certiorari ; the policy of the law, in creating those summary jurisdictions, being, as was held, that their decisions on the merits should be final and conclu- sive, and that if they erred upon questions either of law or fact, the parties were without remedy. "This writ" says Cowen, J., (8) "is but (1) The People v. Mayor of New- York, 2 Hill, 9. The student will find most of the cases, in illustration of this principle, collected in Gra. on Jurisd. 316-321. See also, Tlie People v. Supervisors of Queens, 1 Hill, 196 ; Tlie People v. Mayor of New- York, 2 Hill, 9 ; The People V. The First Judge of Columbia, 2 Hill, 398 ; Elmencbrf v. Mayor of New- York, 25 Wend. 693 ; Matter of Robinson, 1 How. Sp. T. Rep. 213. (2) Yev Paige, Senator, in Stone v. Mayor of New- York, 25 Wend. 16t. (3) Tlie King v. Moreley, 2 Burr. 1040 ; Bex v. Cashiobury, 3 D. & R. 35. (4) Rexv. Jukes, 8 T. R. 544, 545. (5) Bex V. Justices of Middlesex, 8 D. & R. 1 17. (6) Comstock v. Porter, 5 Wend. 98 ; Woody. Randall, 5 HiU, 264, 269. (7) The People v. Covert, 1 Hill, 674. (8) Birdsall v. Phillips, 17 Wend. 468. Vol. I. 34 266 APPELLATE JURISDICTION OP THE SUPREME COURT. an emanation from tlie general supervisory duty of the Supreme Court to restrain the action of all inferior magistrates to matters within their legal grasp. The matter is there, when the proper plaint, process and person are before them. If they go wrong upon the evidence, it is the misfortune of the parties. The object of the law is, to give them a final power over the merits of the light class of litigation which it confides to them.(l) Thus, in a case arising under the landlord and tenant act, as it stood in 1820,(2) this court refused to notice the return, so far as it respected the charge of the judge and the evidence, and confined themselves to the mere naked question of jurisdiction, arising upon the question of continuance or refusal to adjourn.(3) So, a certiorari was refused because it was founded not on a want of jurisdiction, but on the merits.(4) So, also, Woodiaorth, J., refused a certiorari, on the ground that the court below, in a criminal case, had erred, in deciding upon the question of variance between the proof and the indictment ; although, at that time, (5) there was no other mode of review,' — error on a bill of exceptions not being then sustainable in a criminal case.(6) And after- wards, in the same case, the return to the certiorari^ (which had been granted on other grounds,) having presented the* question of variance between the proof and the indictment, and the decision upon it in the court below, — this court refused to notice it ; and Savage, Ch. J., said : " We cannot notice that part of the return which relates to the evidence. The testimony is no part of the record in the court below. It is not therefore, removable, either by writ of error or certiorari.{7) And in very recent cases, this court has wholly denied their power to examine on certiorari, the decisions of inferior jurisdictions on questions of fact, or on the legality of their decisions, within their jurisdiction ; or that those tribunals are to state facts in their return, at all, except such as respect their jurisdiction.(8) In a late case however, decided in this court,(9) where, in summary proceedings on the part of a landlord to remove his tenant for the non- (1) See also, Starr v. Trustees of Bocheste?; 6 Wend. 564. (2) Laws of 1820, p. 176. (3) Nichols V. Williams, 8 Cowen, 13. (4) Rex WJdthread, 2 Doug. 549 ; Eex v. Abbot, 2 Doug. 553, note. (5) As to the law since the revised statutes, see ante, 260, 261. (6) Ex parte Vermilyea, 6 Cowen, 555. (7) The People v. Vermilyea, 1 Cowen, 108. (8) Starry. Trustees of Rochester, 6 "Wend. 564; BirdsallY. Phillips, 17 Wend. 464; Tlie People V. Mayor of New York, 2 Hill, 9 ; The People v. Tlie First Judge of Columbia, 2 Hill, 398 ; Bro^vn v. Wesson, 1 How. Sp. T. Rep. 141; United States v. Wyngall, 5 HiU, 16; Ex parte Mayor of Albany, 23 Wend. 277 ; Matter of Mount Morris Square, 2 Hill, 14; People V. Mayor of N. York, 5 Barb. S. C. R. 43 ; Peo^jfe v. Mayor of Brooklyn, 9 Barb. S . 0. R. 535. (9) Buck V, Bininger, 3 Barb. S. C. R. 391. APPELLATE JURISDICTION OF THE SUPREME COURT. 267 payment of rent, the case was removed into tins court by certiorari^ it was held (overruling the case of Birdsall v. Phillips^ and all the former cases) that the Supreme Court has a right to look into the return, for the purpose of examining any adjudication made by the officer before whom the proceedings were had, and to decide the case upon its merits. This decision is based expressly upon the peculiar language of the statute which enacts that "the Supreme Court may award a certiorari for the purpose of examining any adjudication made," &c.(l) And in a still later case, (2) it is held that although upon a certiorari to a court of sessions, this court is restricted from reversing the conviction on the ground that the verdict is against the weight of evidence, it may ex- amine any other errors in the proceedings and judgment, which appear on the face of the return. But, even within the range of cases to which this writ is thus appli- cable, it is not strictly a matter of right, but the granting of it is a matter of discretion, (3) to be governed by the consideration, how far the ends of justice and the public interest may require it. Thus, it has been held, in England, that a certiorari would not lie to remove the poor's rate itself, the remedy being by appeal or action, where a distress is taken, which will answer all the ends of justice in. coming at an un- equal rate ; whereas if the rate itself should be required to be sent up, as would" be the case if a certiorari should be issued, great inconvenience and delays would follow.(4) So, also, it seems, that in analogy to the limitation of a writ of error, a certiorari will not be granted after two years. (5) As to the mode of obtaining this writ, the practice requires, that it should be upon cause shown in all cases where it is brought to review the proceedings of an inferior jurisdiction, for error ; it being in no case issuable of course, except where it is sued out by the people,(6) This cause must be shown by affidavit ;(7) which must not be entitled in the Supreme Court,(8) although it may be, in the matter pending before the inferior tribunal. And it would seem, that it cannot be obtained (1) 2 R. S. 511, sec. 41. • (2) Pulling v. The People, 8 Barb. S. C. R. 385. (3) Arthurs. Commissioners of Sewers, 8 Mod. 331; iMdhwx. Ludlow, 1 Southard, 381; Lees V. CMlds, 11 Mass. 351 5 Ex parte Weston, 11 Mass. 411 ; Ex parte Adams, 4 Pick. 25 ; Inhabitants of Freetown v. County Commissioners of Bristol, 9 Pick. 46 ; The State v. Anderson, 1 Coxe, 318 ; The People v. Supervisors of Allegany, 15 Wend. 201-211 ; Ehnendxirf y. Mayor of New York, 25 "Wend. G91. (4) Bex V. Inhabitants of Uloxeter, 2 Str. 932. (5) Elmendorfv. Mayor of New York, 25 "Wend. 693. (6) Munro v, Baker, 6 Cowen, 396. (1) Finch V. MDowall, 1 Cowen, 531. (8) Nichols T. Coxvles, 3 Cowen, 345. 268 APPELLATE JURISDICTION OP THE SUPREME COURT. upon tlie mere suggestion of counsel. (1) It must also be allowed by the court, (whicli may be at one of the special terms.) It seems, also, that when the effect of the writ is to stay proceedings, notice should be given to the party to be affected by it.(2) And although it was at one time held, that on a motion for a com- mon law certiorari^ opposing affidavits could not be received, (3) yet, more recently it has been held otherwise ; for the reason that motions of this kind are addressed to the sound discretion of the court, and that that discretion is best exercised, after hearing all the facts, so far as either party chooses to present them.(4) It must also appear, that the party applying for a certiorari has an interest in the proceedings sought to be reviewed, otherwise it will not be granted.(o) And the certiorari should name the parties aggrieved, and set forth the cause of com- plaint, (6) The operation of the common law writ of certiorari^ when issued, is two-fold. In the first place, like the former writ of error it removes the record, though in point of fact, a transcript only is sent up.(7) But it differs from the writ of error in this, that it does not confer upon the court above, the right to give such judgment as the court below should have given, but merely that of reversing or affirming its decision.(8) In the second place, its delivery to the inferior tribunal, supersedes its powers, and renders all subsequent proceedings before it coram non judice and void, unless the judgment or order complained of have begun to be executed. (9) It would seem, however, that in some instances the writ of certiorari may be granted, without rendering it a stay ; though as a general rule, when the court entertains serious doubts as to the correctness of the decision sought to be reviewed, the certiorari will operate as a stay, until its correctness be ascertained ; but when no such doubts exist, it will be refused.(lO) On a common law certiorari^ neither party is entitled to costs as against the other.(ll) Certiorari hy statute.'] In addition to the jurisdiction which this court (1) Bogerty. Mayor of New York, 1 Cowen, 158. (2) Albany Water Works Company v. Albany Mayors' Court, 12 Wend. 292. (3) Comraissio'fiers of Highways of Warwick v. Judges of Orange, 9 Wend. 434. (4) The People v. Supervisors of Queens, 1 Hill, 197 ; The People v. First Judge of Colum- bia, 2 Hill, 400. (5) Colden v. Botts, 12 Wend. 234. (6) Ex parte Mayor of Albany, 23 Wend. 2T7. (7) Wolfe V. Eorton, 3 Caines, 86. (8) lMff\. Pope, 5 Hill, 413 ; see also. Lord v. Mayor of Nevj York, 3 Hill, 426, 430. (9) Case v. Shepherd, 2 Johns. Gas. 27 ; Patchin v. Mayor of Brooklyn, 13 Wend 664. (10) Patchin v. Mayor of Brooklyn, 13 Wend. 664. (11) Baldwin v. Wheaton, 12 Wend. 262. APPELLATE JURISDICTION OP THE SUPREME COURT. 269 is entitled to exercise, over tlie proceedings of inferior courts or officers invested with summary jurisdiction, at common law, the revised statutes have provided for a number af cases, some of them cumulative and others original, in which this power of review is vested in this court. These will be briefly alluded to. In cases of proceedings against absconding^ concealed or non resident debtors.'] The jurisdiction acquired by this court, by the report of the office as well as by certiorari^ before the appointment of trustees has been already sufficiently referred to.(l) It has also been seen, that where the fact that the party is absconding, concealed or non-resident is disputed, it may be determined in the manner pointed out, either by the Supreme Court or the count}^ court of the county, at the discretion of the officer granting the warrant.(2) By subsequent provisions, the statutes regulate and define the supervisory j urisdiction of this court, in respect to the decisions of courts of common pleas now county courts, upon the question whether the debtor was, in point of fact, at the time of the issuing of the attachment, absconding, concealed or non-resident, which will now be examined. In reference to this subject, it is provided, that whenever a petition shall have been presented by any person against whom proceedings shall have been instituted as an absent, absconding or concealed debtor, or by any person to whom such debtor shall have assigned or delivered any property or made any payments, as provided by sta- tute, (3) for the purpose of procuring the discharge of any warrant issued against such debtor, and such petition shall have been referred,, to any court, for its determination thereon, or for trial by jury, — such decision, when made by a court of common pleas, now county court, or the verdict of a jury, when rendered in a court of common pleas, may be examined by the Supreme Court, upon a certiorari, to be al- lowed by one of the justices thereof; and when made by the Supreme Court, shall be subject to a writ of error, as in other cases.(4) Such certiorari, and such writ of error, shall be brought and filed in the office of the clerk of the court by which the decision was made, or in which the verdict was rendered, within thirty days after such decision or ver- dict ; during which time, the order and judgment of the court shall be suspended, and the property seized by virtue of any such warrant, and any bonds or other securities taken according to law, in relation to such property, shall remain in the hands of the officer holding such warrant. (5) (1) Ante, 250-252. (2) Ante, 248-250. (3) 2 R. S. 10, sec. 45-51. (4) 2 R. S. 602, sec. GT. (5) 2 R. S. 602, sec. 08. 270 APPELLATE JURISDICTION OF THE SUPREME COURT. After making provision for the mode of bringing the certiorari^ and for the bond to be given, and the other proceedings thereon, the sta- tute goes on to provide, that upon any certiorari being brought, pursu- ant to the provisions of law, upon any decision of a court of common pleas, and upon a writ of error being brought upon the decision of the Supreme Court, as above provided, the court to which such writ shall be directed, shall return the testimony given upon the petition before such court ; and if any issue upon sach petition shall have been tried by a jury, a case, containing the testimony given on such trial, shall be made, under the direction of such court, and returned with such certio- rari, as part of the proceedings.(l) And the court to which such writ shall be returnable, shall examine the testimony so returned, and shall affirm or reverse the decision, in respect to which such writ shall have been brought, and shall award costs to the prevailing party ; and in case such writ shall appear to have been brought for the purpose of delay or vexation, the court may award double costs to the prevailing party.(2) In cases of forcible entry and detainer:] The statute which relates to the delivery of the possession of land forcibly entered and detained, after prescribing the mode of proceeding, to and including the inqui- sition,(3) provides, that no proceeding for the restitution of any premises forcibly entered or forcibly detained, had according to the foregoing provisions, shall be removed by any certiorari, unless the same be allowed by a justice of the Supreme Court, a circuit judge, or Supreme Court commissioner.(4) The offices of circuit judge and Su- preme Court commivssioner, having been abolished by the new consti- tution, the writ can only be allowed now by a justice of the Supreme Court. And such certiorari cannot be issued, until after inquisition found.(5) But no such writ of certiorari shall be allowed by such officer, unless the defendant prosecuting such writ, with two sufficient sureties, to be approved by such officer, or in case of the absence of such defendant, three sufficient sureties, to be approved as aforesaid, shall become bound to the complainant, in such penal sum as such officer shall direct, not less than one hundred dollars, conditioned that such party will appear at the return of the said certiorari, answer to the inquisition found, abide such order and judgment as the Supreme Court shall make in the premises, and pay all costs that shall be awarded against such defendant. Such bond shall be delivered to the (1)2R. S. 604, sec. 7G. (2) 2 R. S. 604, sec. 77 ; see also, as to these provisions, 3 R. ?. 2d ed. 793. (3) 2 R. S. 507-510, sec. 1-18. (4) 2 R. S. 510, sec. 19. (5) Ilaines v. Backus, 4 Wend. 213. APPELLATE JURISDICTION OF THE SUPREME COURT. 271 judge to whom such certiorari shall be directed, and until the same be so delivered, such certiorari shall be of no e£fect.(l) And the judge shall annex, and file such bond, with his return to such writ, and the Supreme Court shall proceed therein, and cause the defendant to tra- verse the inquisition, if no traverse has been had, and shall direct a trial.(2) If the defendant shall omit to traverse such inquisition, within such time as the court, by rule, shall direct, restitution shall be awarded by the court, with costs. And if, upon the trial of such traverse, the de- fendant be found guilty, the Supreme Court shall also award restitution, with costs ; and in either case, the court may authorize the complain- ant to prosecute the bond given on the allowance of the writ of certiorari.[2>) In cases of summary proceedings^ hy landlords^ to recover the possession of demised lands.] The revised statutes provide for the summary delivery of the possession of demised land to the landlord, where the tenant de- serts the premises, leaving them unoccupied and uncultivated, without any goods thereon subject to distress ;(4) — where he holds over and continues in possession of the demised premises, or any part thereof, after the expiration of his term, without the permission of the land- lord : — where he holds over without such permission, after any default in the payment of rent, pursuant to the agreement under which such premises are held, and satisfaction for such rent cannot be obtained by distress of any goods, and a demand of such rent shall have been made, or three days' notice in writing, requiring the payment of such rent, or the possession of the premises, shall have been served by the person entitled to such rent, on the person owing the same, in the manner prescribed by the statute : — where he shall have taken the benefit of any insolvent act, or been discharged under any act for the relief of his person from imprisonment : — and where any person shall hold over and continue in the possession of any real estate, which shall have been sold by virtue of an execution against such person, after a title under such sale shall have been perfected.(5) After having prescribed the mode of proceeding, in the several cases referred to, from their commencement to their determination, (6) it is provided, that the Supreme Court may award a certiorari, for the pur- pose of examining any adjudication made on any application thereby (1) 2 R. S. 510, sec. 20. (2) 2 R. S. 511, sec. 21. (3) 2 R. S. 511, sec 22. (4) 2 R. S. 512, sec. 24. (5) 2 R. S. 512, 513, sec. 28. (6) The proceedings in these several cases, are pointed out by 2 R, S. 511-516, sec. 24-4G. 272 APPELLATE JURISDICTION OP THE SUPREME COURT. authorized ; but the proceedings on any such application shall not be stayed or suspended by such writ of certiorari^ or any other writ or order of any court or officer.(l) And further, that whenever any such proceedings, brought before the Supreme Court by certiorari, shall be reversed or quashed, the court may award restitution to the party in- jured, with costs ; and may make such orders and rules, and issue such process, as may be necessary to carry their judgment into effect.(2) Under these provisions, the question repeatedly arose, as to how far the jurisdiction of this court extended ; and in a number of cases in this court, it was held, (and it was regarded as a general rule, appli- cable to all certioraris allowed by statute, unless the contrary were expressly stated,) that the authority in the statute to " award a certio- rari, for the purpose of examining any adjudication made," did not confer any power upon the court, or impose any duty, beyond what exists under a common law certiorari ; namely, the right to review such questions only, as relate to the jurisdiction of the court or officer before whom the proceedings are had, and to the regularity of their proceed- ings.(3) But in one of those cases, which came before the court for the correction of errors. Chancellor Walworth, in the only opinion Avhich was delivered, (although he, with the rest of the court, voted for the affirmance of the judgment of this court on another ground,) dissented from the opinion of this court as to their powers, and expressed himself to the effect, that upon a certiorari under the provision of this statute, giving the Supreme Court power to examine any adjudication made upon an application authorized thereby, it has a right and is bound to examine into the correctness of the decisions of the officer, before whom the proceedings were had, upon questions of law, and to require the return of such parts of the proceedings as are material to an examina- tion of the case upon its merits ; and that its power in this respect is not limited to questions of jurisdiction and regularity. (4) And in an- other case, in the court for the correction of errors, where this power on the part of the Supreme Court was contended for, and fully discussed by counsel, (the Supreme Court having adhered to then- former rule on the subject,) the argument was interrupted by the chancellor, who said that he had no doubt that a certiorari lay in such a case, and that the evidence was properly returned, referring to his opinion in a former case, just cited; and the attention of the counsel was distinctly directed to the question of the sufficiency of the evidence. The case was then discussed upon that point, by the counsel for the plaintiff in (1) 2 E. S. 516, sec. 47. (2) 2 R. S. 516, sec. 48. (3) Bird^aU v. PhiUips, 17 Wend. 464; rrindU v. Anderson, 19 "V\'end. 391. (4) Andersonv. Frindk, 23 Wend. G16. APPELLATE JURISDICTION 05* THE SUPREME COURT. 273 error, and at the close of His argument, and witliout hearing the ojd- posing counsel, the judgment was unanimously affirmed, the court, by a resolution, (adopted by the same vote,) placing their judgment dis- tinctly upon the ground of the sufficiency of the evidence, to warrant the finding of the jury in the court below.(l) But, as we have seen,(2) this court has in two recent cases adopted the views expressed in the above cases by the late chancellor, and it must now be regarded as settled, until reversed by the Court of Appeals, that upon a certiorari to remove these summary proceedings, the court is not confined to questions of jurisdiction and regularity merely, but may correct any adjudications made by the officers in the court below, and decide the case upon the merits. In addition to the right to review these proceedings by certiorari^ it is now provided by statute, that an appeal may be taken to the county court in all cases where the proceeding has been instituted before a justice of the peace.(3) In cases of habeas corpus and certiorari^ to inquire into cause of detention^ The discussion of this subject having been waived in a former part of this chapter, (4) as more properly appertaining to the criminal side of the court, it is necessary only to observe, in this place, that all pro- ceedings of that nature commenced before any officer, may be removed by certiorari into the Supreme Court, to be there examined and cor- rected; but no such certiorari shall be issued, unless the same be allowed by a justice of the Supreme Court, nor until a final adju- dication shall have been made by such officer, upon the claim to be discharged or bailed.(5) And after the Supreme Court shall have made a final determination upon any writ of habeas corpus or cei-tio- rari issued for the relief of any prisoner, such prisoner, if his dis- charge be refused, may prosecute his writ of error thereupon, to the court for the correction of errors, now Court of Appeals ; and if such prisoner shall have been discharged, the attorney-general, if the com- mitment was upon some criminal accusation, and the party aggrieved, if such prisoner was detained in any civil suit, may, in like manner, prosecute their writ of error to the said court.(6) And the court, (for the correction of errors,) when any such writ of error shall be brought, shall have power to make such orders, and to issue all such writs as may be necessary for the discharge or re-commitment of such prisoner, {\)Nihlo V. Post's Adm'rs., 25 "Wend. 280, 311, 312. (2) A7ite, p. 266, 267. (3) Sess. Laws, 1849, p. 292, sec. 5. (4) Ante, p. 25*7. (5) 2 R. S. 573, sec. 69. (6) 2 R. S. 573, sec. 70. Vol. I. 35 274: APPELLATE JURISDICTION OF THE SUPREME COURT. according to the judgment wliicli shall be given hy such court ; and, generally, to carry such judgment into full effect.(l) In cases of conviction hy special sessions.'] It is provided by the re- vised statutes, that a writ of certiorari, to remove into the Supreme Court a conviction had before a court of special sessions, may be allowed on the application of the party convicted, by any justice of the Supreme Court, or by any officer authorized to perform the duties of such jus- tice in vacation.(2) For this purpose, the party desiring such certiorari, or some one in his behalf, shall apply for the same within ten days after such conviction shall have been had, and shall make an affidavit, specifying the supposed errors in the proceedings or judgment com- plained o£(3) If the officer to whom application for such certiorari shall be made, shall be satisfied that any error has been committed in the proceedings or the judgment, he shall endorse upon the writ his allowance thereof, and shall certify the affidavit upon which the certio- rari was allowed. But where the defendant shall have been tried by a jury, no certiarari shall be allowed upon the ground that the verdict of such jury was against evidence.(4) Under this provision, it has been held, that the Supreme Court can- not pass upon the question, whether the finding by the jury, before a court of special sessions, was against or without evidence ; and, there- fore, though the facts of the case be returned, they will not look into them to see whether or not the jury erred ; nor will the proceedings of a court of special sessions be reversed, for errors in the decisions of the magistrate before whom the complaint was made, but only for errors of record.(5) After providing for the mode of proceeding upon the certiorari thus obtained, (6) the powers of this court are declared by subsequent sec- tions, which provide, that if the conviction be reversed, and the de- fendant be in prison by virtue thereof, the Supreme Court shall award a writ of supersedeas for his discharge. If the defendant shall have been let to bail, the judgment of the Supreme Court, whether the con- viction be reversed or affirmed, shall be remitted to the court of gene- ral sessions of the proper county, to be by that court carried into effect.(7) Upon such judgment being received, the court of general sessions, if the conviction be reversed, shall discharge the defendant ; if the con- viction be affirmed, and the defendant shall have been sentenced by the (1) 2 R. S. 513, sec. fO. (2) 2 R. S. 717, sec. 42. (3) 2 R. S. 717, sec. 43. (4) 2 R. S. 718, sec. 44. (6) Vanderworker v. The People, 5 Wend. 530; Son v. The Feopk, 12 "Wend. 344. (6) 2 R. S. 718, 719, sec. 45-53. (7) 2 R. S. 719, sec. 54. INFERIOR JURISDICTION OF THE SUPREME COURT. 275 court of*special sessions, sucli court of general sessions shall order tliat sucli sentence be executed ; and if the defendanlf shall have been let out of prison as therein provided, he shall be remanded to such prison for the remainder of the term for which he was sentenccd.(l) If the convic- viction be affirmed, and the defendant shall not have been sentenced, the court of general sessions shall proceed to sentence the defendant, upon such conviction, in the same manner and with the like effect, as if such conviction had been had in such court of general sessions.(2) And if it shall appear to the Supreme Court, that the person prosecuting such certiorari has unreasonably delayed to notice, or bring on for argument, the return to such writ, such court may enter a rule to quash such certiorari ; and upon the same being certified to the court of general sessions in which the person prosecuting such writ shall be bound to appear, such court shall proceed thereon, in the same manner as if the judgment of the court of special sessions had been affirmed by the Supreme Court.(3) 2. Jurisdiction of the Supreme Court, as inferior to that of the Court of Appeals. The powers of the Court of Appeals, which is the highest court in the state, and whose jurisdiction is wholly appellate, — are not defined by the constitution, which merely recognizes its existence, without desig- nating its jurisdiction.(4) In the late court for the correction of errors, this was supplied by a statutory provision, which is, in substance, a re-enactment of the old statute upon the subject, (5) and which declares that that court shall have power to correct and redress all errors that may happen in the court of chancery, or in the Supreme Court ; and that it shall examine all errors that shall be assigned, or found in any record brought from the Supreme Court, or in any process or proceed- ing touching the same ; and shall have power to reverse or affirm the judgment of the Supreme Court, or to give such other judgment as the law may require.(6) And upon any order or decree of the court of chancery being brought, by appeal, to the court for the correction of errors, that court shall examine all errors that shall be assigned or found in such order or decree ; and shall hear and determine such ap- peal, and all matters concerning the same, and shall have power to reverse, affirm or alter such order or decree, and to make such other order or decree therein, as justice shall require. (7) The same provisions (1) 2 R. S. 119, sec. 55. (2) 2 R. S. 719, sec. 56. (3) 2 R. S. 719, sec. 57. (4) Const, art. 6, sec. 2. (5) 1 R. L. of 1813, p. 133, sec. 7-10. (6) 2 R. S. 166, sec. 24, 25. (7) 2 R. S. 167, sec. 27. 276 CONCURRENT JURISDICTION OF THE SUPREME COURT. are substantially enacted in regard to the Court of Appeals.(5.) And its particular powers are now defined by the Code.(2) These provisions will, — so far as the Supreme Court is concerned, — be hereafter fully considered, when I come to the subject of appeal. I will, however, in this place observe, generally, that the revisory power of the Court of Appeals is applicable to every final or definitive sentence or decision of the Supreme Court, by which the merits of a cause are determined. 3, Jurisdiction of the Supreme Court^ concurrenlhj with that of other courts of this state or of the United States. Concurrent jurisdiction of other courts of this state^ It is not within the scope of this work, to consider either the original jurisdiction of the various subordinate courts of the state, or their relative jurisdiction as respects each other. It is enough, for the present purpose, to remark that the Supreme Court has concurrent jurisdiction with every court in the state, in all cases where they may exercise original jurisdiction. Beyond this, the only question is, as to which court is the more eligible. Concurrent jurisdiction of tlie courts of the United States J\ The consti- tution of the United States provides, that the judicial power shall ex- tend to all cases, in law and equity, arising under that constitution, — the laws of the United States, — and treaties made, or which shall be made, under their authority ; to all cases aftecting ambassadors, other public ministers, and consuls ; to all cases of admiralty, and mari- time jurisdiction ; to controversies to which the United States shall be a party ; to controversies between two or more states, between a state and citizens of another state, between citizens of diiferent states, be- tween citizens of the same state claiming lands under grants of differ- ent states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.(3) But, by the eleventh amendment, the judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or j^rosecuted against one of the United States, by citizens of another state, or by citizens or subjects of any foreign state.(4) The judicial power thus created, is declared to be vested in the Supreme Court, and in such inferior courts as con- gress may, from time to time, ordain and establish.(5) In pursuance of this authority, congress has established, as subordinate to the Supreme (1) Laws 1848, p. 321, sec. 8. (2) Code, sees. 11, 12. (3) Const. U. S., art. 3, sec. 2. (4) Amendment 11, of Const. U. S. (5) Const. U. S., art. 3, sec. 1. CONCURRENT JURISDICTION OP THE SUPREME COURT. 277 Court, — the circuit and district courts, — and has distributed among them the judicial power above referred to, to be exercised, in some in- stances, exclusively of, and in others, concurrently with the courts of the several states. To these courts, and their exclusive, — and as a con- sequence, — their concurrent jurisdiction, I shall advert very briefly, — • omitting all reference to the adjudications upon, and constructions of the constitutional and statutory provisions, by which they are created, as unnecessary to our present purpose, and referring the student, in the notes, to such sources of information as will enable him to pursue the subject farther. For the summary which I shall present, I am mainly indebted to judge ConkUng^s Treatise on the courts of the United States. And first, — Of the Supreme Court of the United States. — Its juris- diction is defined by the constitution, to be original, — that is to say, suits may be instituted in it, and be brought to trial or hearing, and decision before it, — in the first anstance, in all cases affecting ambassa- dors, other public ministers and consols, and those in which a state shall be a party.(l) The judiciary act, however, defines the first branch of this jurisdiction more fully, by declaring, that so far as con- cerns suits or judicial proceedings against ambassadors, other public ministers, their domestics or domestic servants, it shall be exclusive ;(2) while, of suits brought hi/ ambassadors or other public ministers, or in which a consul or vice-consul shall be a party plaintiff or defendant, it is declared to be concurrent.(3) As to the second branch, — (cases in which a state shall be a party,) it comprises all those cases in which a state can either sue or be sued, except those in which a state is plaintiff against its own citizens. Of these the state courts alone have jurisdic- tion. It is to be observed, also, that no suit can be maintained against a state, by any private person. It follows, therefore, that the Supreme Court of the United States has original jurisdiction of all civil actions between different states, — of all such actions brought by a state, against the citizens of another state, and against aliens, — and of all such actions brought against a state, by a foreign state. This branch of its jurisdic- tion is declared by the section of the judiciary act just cited, (4) to be partly exclusive, and partly concurrent ; — exclusive in suits between dif- ferent states, and by a foreign state against a state ; — concurrent, where the suit is against a citizen of another state or an alien.(5) Second, — Of the circuit courts of the United States. — Without refer- ring in detail, to the several acts of Congress, creating these courts, and defining their jurisdiction, it is sufficient for our present purpose, to observe, that they are invested with both original and appellate ju- (1) Const. U. S., art. 3, sec. 2. (2) Post (3) Act of September 24, 1789, sec. 13; (1 Story's Laws, 58, 59.) (4) Ibid. (5) Conkl. Treat. 2d ed. 31, 38. 278 CONCURRENT JURISDICTION OF THE SUPREME COURT. risdictiou. Their original jurisdiction, which will alone be referred to, embraces, concurrently with the courts of the several states, all civil suits, at common law and in equity ; 1. in which the United States are plaintiffs ;(1) 2. in which any officer of the United States, suing under the authority of an act of congress, is j^laintiff; 3. in which an alien is a party, plaintiff or defendant, against a citizen, or the party defendant,* at the suit of a state ; 4. in which one of the parties is a citizen of the state in which the suit is brought, and the other a citizen of another state ; provided, that where the suit is brought by the assignee, (claim- ing title through the assignment,) of a promissory note, or other chose in action, except foreign bills of exchange and debentures, to recover the contents thereof, the court would have had jurisdiction, if the suit had been brought by the original party before the assignment; 5. in which the parties are citizens of the same state, and are litigating con- cerning the title to lands, claimed by the one party under a grant from the state of which he is a citizen, and by the other, under a grant from another state ; provided, that in each of the three last descriptions of cases, the amount claimed by the plaintiff exceeds live hundred dol- lars; 6. in which damages are claimed by the plaintiff, for an injury to his person or property, on account of any act done by him under some revenue law ; and in each of the four last mentioned cases, provision is made for the removal of suits orignally commenced in the state courts, to the circuit courts ; 7. concurrently with the district courts, suits upon debentures, without regard to the character of the parties; 8. exclu- siveli/, all suits for the infringement of patents and copyrights, but con- currently with the state courts, in case of the unauthorized publication of any manuscript ;(2) 9. suits, in a few specified cases, for penalties.(8) Third, — As to the district courts of the United States. — The judi- ciary act of 1789, invests these courts with criminal — admiralty and maritime, — and common law jurisdiction. Though neither of the first two branches of this jurisdiction are strictly within the scope of our present inquiry, yet, in relation to the second of them, questions have arisen, as to the concurrent powers of the state courts, which render a cursory allusion to that branch of the jurisdiction of the district courts necessary. Its original powers, as an admiralty court, are exclusive of those of all other courts, in cases of seizure of property as prize of war, — and as an instance court, as it is termed, — where property is seized under laws of import, navigation or (1) See Post. (2) See Conkl. Treat. 2d ed. 62-64, note a. (3) Conkl. Treat. 2d ed. 98. For a more full exposition of the jurisdiction of the circuit courts of the United States, embracing the several acts of congress, with the judicial con- struction which have been given to them, the student is referred to Conkl. Treat. 2d ed. 57- 91; Qord. U. S. Dig. (ed. of 1844,) 143-159. CONCURRENT JURISDICTION OF THE SUPREME COURT. 279 trade, or under other laws of tlie United States, subjecting it to forfeit- ure, when seized on the high seas, or on waters which are navigable from the sea, by vessels of ten or more tons burthen.(l) In relation, to this jurisdiction, it has been well settled, in cases applicable to its powers as a prize court, (and the same principle would, of course, apply to its powers as an instance court,) that, although, it has jurisdiction of marine torts, yet the state courts have concurrent jurisdiction of all such cases, excepting such as fall within the prize jurisdiction of the court of admiralty. And accordingly, it was held, where a belligerent cruiser chased a neutral vessel, supposing her to be an enemy, or for the purpose of search, and in coming up with her, through negligence, ran foul of the neutral vessel, which had hove to in the night, by which she was sunk and lost, that an action of trespass lay at common law, for the damages sustained, it being considered as a marine tort merely, of which a court of common law has concurrent jurisdiction with the instance court of admiralty. (2) But no action at common law can be sustained, for an illegal capture on the high seas, as prize of war ; nor will any irregularity or misconduct of the captor, in the subsequent disposition of the prize, confer jurisdiction as to the original taking, or, in itself, constitute a ground of action at common law.(3) And in de- livering the opinion of the court of errors, in this case, reversing the judgment of this court,(4) chancellor Kent., observed : — " It is no longer to be doubted, or questioned, that a state court, of common law juris- diction, has no cognizance of the question of prize, or of any of its con- sequences, and that we have nothing to do with the subsequent treat- ment of the prize, or the subsequent conduct of the parties. They are all points incidental to the main question, and involve a consideration of it. If property be once taken at sea, by force, under pretence of being prize of war, there is no justification, at common law, of any pos- sible question of right whatever, resulting from such an act ; and no refinement or distinction can divest the admiralty of its exclusive juris- diction. The same doctrine applies, and the same consequences follow, if the taking be an act of piracy, and not of regular war. This has been abundantly shown, from the English authorities. In addition to them, the government of the United States, and its judicial authorities have, by the constitution, the sole and entire cognizance of all cases of ad- miralty and maritime jurisdiction, and of ' piracies and felonies com- mitted on the high seas, and offences against the laws of nations.'" It has been held, also, that the courts of common law have a concurrent jurisdiction with those of the admiralty, over maritime contracts.(l) (1) Conkl. Treat. 2d ed. 136, 137. (2) Percival y. Hickey, 18 Johns. 251. (3) Ealktt V. Novion, 14 Johns 273. (4) Novion v. EalM, 16 Johns. 327. (5) De Lovio v. Boit, 2 GaUis. 398. 280 CONCURRENT JURISDICTION OF THE SUPREME COURT. The original common law jurisdiction possessed by the district courts, extends to, 1. all seizures on land, or on waters not navigable from the ocean, by boats of ten or more tons burthen, made under the laws of the United States ; in regard to which, their jurisdiction cor- responds with that of the court of exchequer in England ; the pro- ceedings being instituted by information in reni^ and the trial of issues of fact being by jury :(1) 2. all suits for penalties and forfeitures, in- curred under the laws of the United States ; 3. cases where an alien sues for a tort only, in violation of the law of nations, or a treaty of the United States ; 4. cases where the United States, or an ofl&cer thereof, sue under the authority of an act of congress ; the most im- portant suits, and those of the most frequent occurrence, under this head, being suits against delinquent officers, and upon bonds for duties ; 5. suits against consuls or vice consuls, to which allusion will hereafter be made.(2) In X]iQ first and second of these classes of cases, the original jurisdic- tion of the district courts is exclusive ; in the third^ and in such cases embraced in the fourth, as are not equally comprehended in the first, — namely, suits founded upon seizures upon land, and for penalties and forfeitures, — it is concurrent with that of the circuit courts, and of the courts of the several states ; and in the fifth, it is concurrent with that of the Supreme court of the United States.(3) (1) For the distinction between the two classes of seizure, — those which appertain to the instance and the common law powers of these courts, see United States v. Schooner Betsey, 4 Cranch, 443 ; Tlie Sarah, 8 Wheat. 391. (2) Post. (3) See, on this subject, Conkl Treat. 2d ed. 129-160; Gord. U. S. Dig. (ed. of 1844,) 113-111. PAIIT II. OF CIVIL ACTIONS AND THEIE INCIDENTS. CHAPTER I. THE ORIGIN AND GENERAL NATURE OF ACTIONS. Section I. civil actions. II. criminal actions. III. special proceedings. SECTION I. civil actions. The term adioyi, which has been -used by elementary writers, as embracing proceedings for the punishment of offences against the public, as well as those which are applicable to the protection of pri- vate rights or the redress of private wrongs, will here be restricted to the latter class of legal remedies, denominated civil actions. In this sense, it was heretofore defined to be, the means pointed out by law, of obtaining ihd redress of a civil injury,(l) — or, to adopt the language of the Mirrour — the lawful demand of one's rights.(2) It has also been defined by Bracton and Fhta^ to be jus prosequendi in judicio^ quad alicui deheiur.{S) In its more practical sense, it has been well described as " that formal course of proceeding, which a party seeking to enforce a right, is by law, bound to adopt :"(4)^ — a course of proceeding, though, in the main, resulting from obvious principles of justice, yet, in many instances, growing out of rules, arbitrary in themselves, but not the less essential to the perfection of the system, by which alone the law can be rendered efficacious to the great end of its institution, and with- out which, it would be a mere mass of confusion. (1) Smith's Action at Law, 2cl ed. 1. (2) Com. Dig. Action, A. (3) Co. Litt. 285 ; Eall v. Kirby, Dyer, 217, b. pi. 2. (4) Smith's Action at Law, 2d. ed. 34. Vol. I. 36 232 CIVIL ACTIONS. It was observed, by the author just cited, (1) tliat " it was proper, indeed necessary, for the due administration of justice, that such stated forms of proceeding should be appointed, and that persons seeking to obtain justice, should be bound to observe them ; for courts of justice are created, not for the benefit of this or that particular individual, but for the safeguard and advantage of the whole community ; and it is therefore right, that they should adopt such forms, as are best calcu- lated, as well to economize their own time and labor, (which are the property of the public,) as to forward the interests of justice in the majority of cases ; though, in some particular instances, they may be found inconvenient." And it is not a little remarkable, in confirma- tion of this idea, that amid the various suggestions and efforts, which had been made, both in this country and in England, to impart greater simplicity to proceedings at law, the idea seems never to have been gravely entertained until now, of confounding the distinctions which exist in regard to the forms of actions. The reason for this adherence to the ancient forms of proceeding, in this respect, cannot be more forcibly or clearly expressed, than by Sir James Scarlett^ (late Lord AUnger^) in his answers appended to the second report of the commission- ers^ appointed to enquire into the practice and 'proceedings of the superior courts of common law. " I am clearly of opinion," says he, " that the forms of action should be kept distinct. If they may be blended, why have any forms at all ? Why not resort to the practice in Scotland, of writing a pamphlet, in a popular manner, upon the whole case? The technical forms of action are great helps to the understanding, in the investigation of the rules and principles of law, and in the application of those rules and principles to particular cases ; they serve to give that character of precision to the law of England, which is known in no other law."(2) And in accordance with this view, the commissioners, (consisting of Mr. Justice Alderson, Mr. Justice Fatteson, Mr. Baron Bosanquet, and Mr, Serjeant Stephen,) in their third report, observe: "An opinion is entertained by some persons, that all distinctions as to forms of action should be abolished, and that the plaintiff should be allowed to state the circumstances of his claim or complaint, in ordinary language, free from all restraint of technical method ; and there are others, who, with- out rejecting forms of action altogether, think that those which are now established, should be resolved into more convenient and simple divisions. We cannot, however, persuade ourselves, that with respect to the forms now in common use, any considerable change would be expedient, with the exception only, of the new shape, which, in our (1) Smith's Action at Law, 2d ed. 34. (2) 2 Loud. Law Mag. 414. CIVIL ACTIONS. 283 second report, we have proposed to give to the action of ejectment. It is not, that we are insensible to certain imperfections and inconve- niences incident to these forms ; for we feel that their classification is arbitrary, and otherwise defective. But in this, as in so many other cases, we are presented with a choice of difficulties. To those who have observed the inconveniences, which, in other systems of judica- ture, are found to flow from the v/ant of fixed forms of action, it will scarcel}^ be doubtful, that tliey are an invention of real merit and im- portance. They tend most materially, to secure that certainty in the right of action itself, which is one of the chief objects of jurisprudence; they form a valuable check to vagueness and prolixity of statement ; and in this and other respects, they are essential to the convenient ap- plication of the rules of pleading ; a system, the great advantages of which we have elsewhere endeavored to illustrate."(l) The force of this reasoning is regarded by many as applicable to the present system, which is an entire innovation upon the old practice, as much in con- founding the forms of action as in anything else. It may be w^ell, in order to a fall and more perfect understanding of the change in this respect produced by the Code, to advert briefly to the divisions of actions as they existed under the former practice. At the common law, the grand division of civil actions was into real, personal Bind mixed : — real actions being such as were brought for the specific recovery of lands, tenements or hereditaments : — 'p'^''^^^'^^^ being those which were brought for the specific recovery of goods and chat- tels, which are in law regarded as personal property, or for pecuniary compensation for the non-payment of any debt, or for the breach or non-performance of any contract, obligation or duty, or for the com- mission of any other private injury of whatever desci'iption, the specific recovery of lands, tenements, and hereditaments only excepted : and TYiixed actions being such as appertained, in some degree, to both the former classes, and therefore properly reducible to neither of them ; being brought both for the specific recovery of lands, tenements or hereditaments, and for damages for injuries sustained in reference to such propert3'.(2) In the revision of the statutes of this state, the legis- lature, in following out the general design of simplifying the forms of legal proceeding, divided civil actions into — 1. Such as relate to real estate : 2. Those which may be brought for the recovery of any debt, or for the recovery of damages only : 3. Those which may brought for penalties or forfeitures : 4. Suits in courts of equity. (3) (1) 6 Lond Law Mag. 250. (2) Steph. PL 4th ed. 3. (3) 2 R. S. 292, tit. 1, sec. 1. 284 " CIVIL ACTIONS. The design of this and of subsequent provisions, was, to comprehend those actions which were formerly known as real and mixed actions, under the general head of actions, such as relate to real estate ;(1) and ^^nder the denomination of personal actions, those which might be brought for the recovery of any debt or demand, or for the recovery of damages only, and those which might be brought for penalties and forfeitures ; (2) — thus reducing to two general classifications, all the forms of remedy known to the common' law ; while, by the various enactments applicable to them, all their substantial proceedings, form- erly regarded as distinct, have been preserved as incidents to their new classification. At the time of the adoption of these provisions, real and mixed actions existed in this state, as at common law ; and though of rare practical occurrence, were extremely numerous, and attended with forms of an exceedingly intricate and complicated character. By these enactments, however, under the general classification referred to, all actions relating to real estate were I'educed to the following: — eject- ment, — proceedings to compel the determination of claims to real pro- perty in certain cases — partition — writ of nuisance — waste — trespass on lands, — and proceedings to discover the death of persons, upon whose lives any particular estate might depend.(3) These actions and proceedings, (with the exception of the writ of nuisance, and waste, which were still in their nature and mode of enforcement, of a mixed nature, and trespass on lands, which, although relating to real estate, was in its nature and form of proceeding, j^ersonal^) were substituted in place of the various real actions ; it being provided, in the chapter con- taining this new classification, that all writs of right, writs of dower, WTits of entry and writs of assize, all fines and common recoveries, and all other real actions known to the common law, not enumerated and retained in that chapter, and all writs and other process heretofore used in real actions, which are not specially retained in that cnapter, should be, and they were thereby abolished.(4) It may not be amiss to observe, also, that in England, although at a later period than in this state, by a late act, (5) all the old real actions have been abolished except three, viz., the actions of dower, quare impedit^ and ejectment; the first of which is brought by a widow to compel the due assignment of her dower: the second, by a person who complains that he has been improperly deprived of ecclesiastical patronage ; and the third, by per- (1) 2 R. S. 292, cb. 4; Ibid. 302, cli. 5. (2) 2 R. S. 292, cli. 4; Ibid. 346, ch. 6. (3) 2 R. S. 2d ed. 302-346. (4) 2 R. S. 343, sec. 24. (5) 3 and 4 WiU. IV. ch. 27, sec. 36. CIVIL ACTIONS. 285 sons claiming land whicli they contend is wrongfully withlield from them.(l) Next, — as to the different personal actions. — In the origin of the division of the forms of personal actions, as derived by us from the mother country, there is much curious learning, which it is here unim- portant to trace, but to the general course of which, though it has no great practical importance here, it may not be unprofitable, cursorily to allude, as throwing some light on their early history, as well as illustrating, to a certain extend, the reasons on which they were found- ed. This subject, like most others connected with the early history of common law proceedings, is surrounded by many doubts, and so many and different speculations, that it would be almost impossible, at this day, accurately to determine the precise origin of the various forms of actions, at common law. And, accordingly, Mr. Ghittij contents him- self with referring them back to the sanction of the king's original writ, which formerly was an essential preliminary form to the institution of a suit in the common law courts; and which, from the fact, that from the most ancient times, it defined and determined concisely the form of the action^ rendered the forms of lorits and of actions correlative terms, and led to the result that the former were regarded as evidence of the right.(2) Mr. Stephen refers to various conflicting authorities, as to the anti- quity of these writs, which he regards, when considered essential for- mulae, for the institution of a suit, as not only connected with the whole scheme of actions, but as having an important relation to pleading in particular. After remarking that it is known that some of the hrevia or writs are at least as ancient as the time of Henry II., (being found in the work of Glanville, who wrote in that king's reign,) he observes, that the student will in vain search the books of the science for any distinct and satisfactory account of the original invention. — " It is said on hio-h authority," says he, " that the more common and ordinary writs were, de communi consilio totius regni^ concessa et aioprohata ;(3) and also that some writs existed " long before the conquest."(4) While another learned writer (Lord Chief Baron Gilbert) asserts, that the more ancient of them were brought from ]Srormandy.(5) And these vao-ue, and somewhat inconsistent statements, seem to constitute the whole substance of the information to be derived from professional sources on this subject. There is, however, much antiquarian research and learning on the (1) Smith's Actions at Law, 2cl ed. 35. (2) 1 Cliit. PI. lOT. (3) Bract. 413, h. (4) Co. Pref. to 10 Rep. (5) Gilb. Hist, of C. P. 2, 5. 2S6 CIVIL ACTIONS. subject, presenting very conflicting views upon it, wliicli would be neither profitable nor instructive to explore. It is enough to say that the opinion of Lord Chief Baron Gilbert^ ]\x.Qt referred to, was generally received as authority. From their introduction into England, in this manner, by the Nor- mans, the forms of writs, for many years after the Norman conquest, were devised, and the writs themselves issued, by the king's chancellor and the clerks in chancery. The chancellor was the keeper of the king's great seal, by which all writs, as well as other documents ema- nating from the king, were authenticated. We are informed by one of the most ancient writers on the English law, that the chancellor had associated with him certain honest and discreet clerks, sworn to the kino', who were more fully informed in the laws and customs of Eng- land, and whose duty it was to hear and examine the petitions and complaints of suitors, and upon the qualities of injuries shown by them to provide due remedy by the writs of the king. These writs called in Latin hrevia^ in French briefs, were expressed in clear, concise and intelligible language, and were perfectly adapted to the end they had in view. Bnouo-h has been said on the subjept of the distinctions between actions as they existed under the late practice of this court, to enable the student to understand and appreciate the change which, in this re- pect, has been produced by the Code of Procedure. We are now no longer left to the common law definitien of an action^ for we find in the Code that it is defined to be an ordinary proceeding in a court of justice, by which a party prosecutes another party for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public ofience.(l) In this general definition is embraced every species of cause of action, known to the laws of the land, the customs and usages of society, and the principles of equity and justice, of which the courts can take judi- cial cognizance. There must, however, be a party claiming, and a party resisting the claim ; a party prosecuting, and a party defending. Therefore, an action necessarily involves the idea of a right withheld, or an injury committed, and of a remedy provided for the enforcement or protection of the one, or for the redress or prevention of the other. In the language of Sir W. Blackstone, it is " the remedial instrument of justice," being the machine or instrument provided by law, and employed by the courts in cases of public or private injury and wrong, to enforce and protect the rights of the citizen. This definition also includes what was formerly denominated suits in (1) Code, sec. 2. CIVIL ACTIONS. 287 equity^ tlie distinction wliicli heretofore existed between sucL. suits and actions at law having been removed. Section 69 of the Code, provides that the distinction between actions at law and suits in equity, and the forms of all such actions and suits heretofore existing, are abolished ; and there shall be in this state, hereafter, but one form of action for the enforcement or jorotection of private rights and the redress of pri- vate wrongs, which shall be denominated a civil action. The eflect and meaning of this section has been frequently and much discussed by the judges of this court in different parts of the state. By some it is held that the Code, although it removes all distinction between law and equity, m so far as the mode of commencing the suit is concerned, and vests in the same tribunal jurisdiction over both, yet that in all its essential particulars, equity, and its application to suits and proceedings, remains the same as before.(l) By another judge it is held that in pleading at least the distinction still subsists and that a different rule is applicable to an equitable cause of action, from what applies to one of a purely legal nature. (2) But a very large and decided preponderance, (in numbers at least) of judicial authority is opposed to any such view of the subject ; and it may be regarded as pretty well settled, that but one uniform system of pleading and practice is applicable to both legal and equitable causes of action. "Without doing anything more at present than referring to the numerous decisions, pro and con^ upon this subject,(8) and leaving a further consideration to a subsequent part of this work, when I shall treat of pleadings, I will merely quote from the opinion delivered in the Court of Appeals, (4) which is the highest authority, and must, for the soundness of its views, commend itself to the approbation of all. Mr. Gardiner says : " the 69th section of the Code declares, that the distinction between actions at law and suits in equity, and the forms of such actions and suits, shall be abolished ; and thereafter there should be one form of action for the protection of private rights, &c. which should be denominated a 'civil action.' The preamble to the act de- clares ' that it is inexpedient that the distinction between legal and equitable remedies should be longer continued.' This was the great (1) Shaw T. Jayne, 4 Pr. R. 1 1 9 ; Hill v. Mc Carty 3 Code R. 49 ; Hinds v. Myers, 4 Pr. R. 316. (2) Enowles v. Gee, 3 Code R. 31; Rochester City Bank v. Suydam, 5 How. Pr. E. 21G. (3) 4 How. Pr. R. 427; Rochester City Bankv. Suydam, 5 How. Pr. Rep. 216 ; Millikin v Crary, Ibid. 272; Averill v. Taylor, Ibid. 476; Alger y. Scoville, 6 Ibid. 131; Woodony. Waffle, Ibid. 145 ; Getty v. H. R. R. R. Co. Ibid. 269; Hill v. Mc Carty, 3 Code, Rep. 49 : 3 Sandf. S. C. Rep. 668 ; Ibid. 695 ; Otis v. Sill, 8 Barb. S. C. R. 102 ; Knowles v. Gee, Ibid. 300 ; Crary v. Goodman, 9 Ibid. 657. (4) Giles V. Lyon, 4 Corns. R. 600. 288 CRIMINAL ACTIONS. object to be attained by tliosc who framed and those who adopted the Code ; and it .should be kept steadily in view by those who are called upon to interpret and apply its provisions. " The legislature by the section above quoted, sought to accomplish the object indicated in the preamble, by abolishing the formal distinc- tion between law and equity. They were to be blended and formed into a single system, which should combine the principles peculiar to such, and be administered thereafter, through the same forms, and under the same appellation. After ordaining a new name for all pro- ceedings to be thereafter instituted for the redress of private grievances, the legislature could not have intended to annul their own work by another provision in the same act, and forming a part of the same system." This was an appeal from a judgment of the superior court of the city of New York, in a suit which had been transferred to that court by the Supreme Court, in pursuance of the 47th section of the amended Code of 1849, which authorized the transfer to the superior court, of all equity cases pending in the Supreme Court in May, 1849. And the learned judge distinctly holds that the 47th section applies only to such equity cases as were commenced prior to the adoption of the Code, and not to cases of an equitable character prosecuted afterwards ; and he says, "if 'equity cases' is held to include all suits in which the relief sought is of an equitable character, the legislature are made to confer a power upon the Supreme Court, by reviving a distinction and adopting a nomenclature in one section, which they had expressly abolished in another of the same statute. A repugnancy so absolute between differ- ent parts of the same system, should be avoided, if possible." SECTION II. CRIMINAL ACTIONS. It is not the purpose or design of this work, to devote any space to the consideration of this species of actions. They are of a class distinct and peculiar, having little, if any thing, to do with civil actions, and with which the practitioner is seldom troubled. Besides, it is a sub- ject of sufficient magnitude to deserve a more extended notice than would comport either with the aim or design of this treatise, to give it. Criminal actions are such as have for their object the j^unishment of public offences, and hence all crimes, whether made so by statute or such by the common law; whether felonies or misdemeanors, fall SPECIAL PROCEEDINGS. 289 within this general definition of criminal actions. Tt will, therefore, readily be seen, that this is an inappropriate place for the consideration of such a subject. When, however, a public offence is not, by statute or common law, punishable as a crime^ but merely made penal, it is a civil action, and, as such, may be enforced, as in the case of private wrongs. The Code(l) defines a criminal action to be one prosecuted by the people of the state, as a party, against a person charged with a public offence, for the punishment thereof Where, however, the violation of a right, admits of both a civil and criminal remedy, the right to prose- cute the one is not merged in the other.(2) This provision is substantially the same as that contained in the re- vised statutes, (3) which provides that the right of action of any person injured by any felony, shall not, in any case, be merged in such felony, or be in any manner affected thereby. SECTION III. SPECIAL PROCEEDINGS. In addition to the power conferred by law, upon the courts to enter- tain actions between individuals, and employ its functions and apply the principles of equity and justice to cases where there are or may be conflicting claims and disputed rights, there is another class of rights, which have received the protection of the law, and over which the courts have and still are authorized to exercise jurisdiction. It is not strictly a common law jurisdiction, but rather creations of a statute, and are denominated special proceedings. It will not be necessary, under this head, to do any thing more than briefly designate the class of reme- dies that are embraced under this form of proceeding. They are chiefly of an equitable or summary character, and not being affected in any considerable degree, by the Code of Procedure. The jurisdiction over this class of cases was heretofore vested in the courts of common law and chancery, but now this court and the county courts of the several counties, are clothed with the exclusive power over them. They will be treated of hereafter under distinct heads. The special proceedings which are excepted from the operation of the Code, are such as relate to (1) Sec. 5. (2) Code, sec. 7. (3) 2 R. S. 292, sec. 2. Vol. I. 87 290 SPECIAL PROCEEDINGS. '" Attaclimonts against absconding, concealed and non-resident debtors." 2 Rev. Stat., p. 1. " Custody and disposition of tlie estates of idiot, lunatics, persons of unsound mind and drunkards." Ibid. "Trespass on lands." Ibid. 338. " Proceedings to discover the death of persons, upon whose lives any particular estate may depend." Ibid. 343. " Bringing and maintaining suits by poor persons." Ibid. 444. " Suits by and against executors and administrators, and against heirs, devisees and lega- tees." Ibid. 447. "Proceedings by and against corporations and public bodies, having certain corporate powers, and by and against ofiBcers representing them." Ibid. 457. " Suits against sheriffs, surrogates and other ofBcers on their official bonds." Ibid. 476. " Actions for penalties and foreitures; and provisions for the collection and remission of forfeited recognizances and fines imposed by courts." Ibid. 480. " Proceedings for the admeasurement of dower." Ibid. 488. " Proceedings for the collection of demands against ships and vessels." Ibid. 493. " Proceedings for the recovery of rent and of demised premises." Ibid. 500. " Summary proceedings to recover the possession of lands in certain cases." Ibid. 507. " Distraining cattle and other chattels doing damage, and of distraining in other cases." Ibid. 5 17. "Proceedings, as for contempts, to enforce civil remedies, and to protect the rights of par- ties in civil actions." Ibid. 534. "Arbitrations." Ibid. 541. "Foreclosure of mortgages by advertisement." Ibid. 545. " Proceedings for the draining of swamps, marshes and other low lands." Ibid. 548. "General miscellaneous provisions concerning suits and proceedings in civil actions." Ibid. 550. "Provisions for the better security of mechanics and others erecting buildings and furnish- ing materials therefor, in the several cities of this state, and in certain villages." Ibid. 558. "Writs of habeas corpus and certiorari, in certain cases." Ibid. 559. All tlie foregoiug proceedings and provisions are retained in the statute, and are not affected by the provisions of the Code of Proce- dure, except that when in consequence of any such proceeding a civil action shall be brought, such action must be conducted in conformity to the Code : and except also where any particular provision, before enumerated, is plainly inconsistent with the Code, such provision is deemed to be repealed.(l) In addition to these excepted proceedings and provisions, there are others to which the Code of Procedure is made to apply, such as "pro- ceedings against joint debtors, heirs, devisees, legatees, and tenants, holding under judgment debtor."(2) " Confession of judgment with- out action."(3) Proceedings supplementary to the execution.(4) Special proceedings are usually such as are brought before the court, upon petition or affidavit, in which there is but one party, namely, the person applying. No defence is interposed, but the court take care (1) Code, sec. 471. (2) Code, title XHI., chap. 2. (3) Ibid. chap. 3. ^ (4) Jb?;e5 v. Z-aM?m, 1 Sand. S.C. Rep. 722. LIMITATION OF ACTIONS, &c. 291 that tlie rights and interests of others are not affected. The relief sought is granted to the one applying, without giving notice to any one, except where the rights of another may be impaired, when the court may require notice to be given. There are, however, cases in which there are adverse parties to a spe- cial proceeding ; and Wllhrd, J.,(l) says, "there must be parties to a special proceeding ; and there is nothing in the Code which prohibits the calling of the complaining party by the name of plaintiff, and the adverse party by the name of defendant. CHAPTER II. OF THE LIMITATION OF ACTIONS. Section I. limitation of actions, foe the recovery of real PROPERTY. II. LIMITATION OF ACTIONS, OTHER THAN FOR THE RECO- VERY OF REAL PROPERTY. SECTION I. LIMITATIONS OF ACTIONS FOR THE RECOVERY OF REAL PROPERTY. At common law, no limitation as to the time within which actions might be commenced, existed.(2) The inconvenience resulting from this state of things, and the uncertainty attending titles and claims, by reason of their always remaining open, however, soon suggested the necessity of fixing some period within which, claims, if not asserted, should be disregarded. Various statutes have accordingly been passed in England, from a very early period, which have, with very few excep- tions, been adopted in this state. Those which are now in force, re- lating to real actions, will now be noticed. Actions hy the ijeople or those claiming under them.] At common law, the maxim mdlum tempus occurrit regi, which is one of the attributes of the British crown, was applicable to the people of this state, in relation to all rio-hts vested in them in their sovereign character ; and where (1) Davis V Turner, 4 Pr. R. 190. (2) The People v. Gilbert, 18 Johns. 228 ; Wilcox v. Fitch, 20 Johns. 475. 292 LIMITATION OF ACTIONS, FOR THE they were not specially named in a statute, as was formerly the case in the statute of limitations, they were not bound by it.(l) And this principle still applies to the United States in suits brought by them.(2) It is provided, however, by the Code, that the people of this state will not sue any person in respect to any real property or the issues or pro- fits thereof by reason of the right or title of the people to the same, unless, 1. such right or title shall have accrued within /or^_y years before any action or other proceeding, for the same, shall be commenced ; or unless, 2. the people or those from whom they claim shall have received the rents and profits of such real estate, or of some part thereof, within the space of forty years.(3) And no action can be brought for, or in respect to, real property, by any person claiming by virtue of letters patent, or grants from the people of this state, unless the same might have been commenced by the people as above stated, in case such patent or grant had not been issued or raade.(4) When, however, letters patent or grants of real property shall have been issued or made by the people of this state, and the same shall be declared void by the determination of a competent court, rendered upon an allegation of a fraudulent suggestion, or concealment, or forfeiture, or mistake, or ignorance of a material fact, or wrongful detaining, or defective title, in such case, an action for the recovery of the premises so conveyed, may be brought either by the people of this state, or by any subsequent patentee or grantee of the same premises, his heirs or assigns, within twenty years after such determination was made, but not after that period.(5) Under the first of these provisions which are identical with those contained in the revised laws of 1813,(6) it has recently been decided in the Court of Appeals, (7) that an action by the people to recover lands is not barred by the statute of limitations, unless it be shown that there has been an adverse possession of forty years before the commencement of the suit ; and that \n pleading the statute it is sufficient to say, according to the language thereof in substance, that the title of the people did not accrue within the space of forty years before the commencement of the suit, and that neither the people, nor those under whom they claim have received the rents and profits of the land within the space of forty years ; such an answer amounting to an allegation that the lands have been held in hostility to the title of the plaintiffs. This overrules a contrary doctrine in People v. Van Rensseher.{8) (1) The People v. Gilbert, 18 Johns. 227. (2) United Stales v. White, 2 Hill, 59. (3) Code, sec. "75. (4) Code, sec. 76. (5) Code, sec. 77. (6) 1 R. L. (1813,) 184, sec. 1. (7) People V. Arnold, 4 Corns. R. 508, (8) 8 Barb. S. C. R. 189. RECOVERY OF REAL PROPERTY. 293 By private persons.'] No action for the recovery of real property or the possession thereof, can be maintained, unless the plaintiff or his ancestor, predecessor or grantor was seised or possessed of the premises in question, within twenty four years before the commencement of such action.(l) Nor shall any cause of action, or defence to an action founded upon the title to real property or to any rents or services out of the same be effectual, unless it appear, that the person prosecuting the action or making the defence or under whose title the action is prosecuted, or the defence is made, or the ancestor, predecessor, or grantor of such person, was seised or possessed of the premises in ques- tion, within twenty years before the committing the act, in respect to which such action is prosecuted or defence made.(2) Nor shall any entry upon real estate be deemed sufficient or valid as a claim, unless an action be commenced thereupon, within one year after the making of such entry, and within twenty years from the time when the right to make such entry descended or accrued.(3) But, in every action for the recovery of real property or the posses- sion thereof, the person establishing a legal title to the premises, shall be presumed to have been possessed thereof, within the time required by law ; and the occupation of such premises, by any other person, shall be deemed to have been under, and in subordination to the legal title, unless it appear that such premises have been held and possessed adversely to such legal title, for twenty years before the commencement of such action.(4) Adverse possession.'] But, notwithstanding the title of the claimant, his right may be barred by adverse possession ; — to constitute which, it is necessary, 1. that it be commenced under color and claim of title ;(5) 2. that it be hostile in its inception ;(6) 3. that it be marked by definite boundaries ; and 4. that there be an actual occupancy, — positive, notorious, uninterrupted and continued, — for the space of time required by the statute of limitations.(7) And in all cases of adverse possession, it is a general rule, that an adverse possession will be negatived, 1. when the parties claim under the same title ; 2. when the possession of one party is consistent with the title of the other ; 3, when the party claiming title, has never, in contemplation of law, been out of posses- (1) Code. sec. 18. (2) Code, sec. 79. (3) Ibid, sec. 80. (4) Code, sec. 81. (5) See Van Rensselaer v. Van Wie, 23 Wend. 531 ; Humbert v. Trinity Church, 24 Wend. 587. (6) See Swart v. Service, 21 Wend. 36 ; Jackson v. Camp, 1 Cowen, 605 ; Jackson v. Croy, 12 Johns. 42t ; La Frombois v. Jackson, 8 Cowen, 589. (7) Till. Ballant. 382-410 ; Jackson v. Oltz, 8 Wend. 440 ; Jackson y. Warford, 1 Wend. 62^ 294 LIMITATION OF ACTIONS, FOR THE sion ; and 4. wlien the possessor has acknowledged a title in the claim- ant.(l) As to the claim under title, it is, under the Code of two kinds : 1. under a written title ; 2. under claim of title, ivithout writing. 1. Under a written title. — Whenever it shall appear that the occupant, or those under whom he claims, entered into the possession of any premises under claim of title, exclusive of any other right, founding such claim upon some written instrument, as being a conveyance of the premises in question, or upon the decree or judgment of some compe- tent court ; and that there has been a continued occupation and pos- session of the premises, included in such instrument, decree or judgment, or of some part of such premises, under such claim, for twenty years, the premises so included, shall be deemed to have been held adversely ; except, that where the premises so included, consist of a tract divided into lots, the possession of one lot shall not be deemed a possession of any other lot of the same tract. For the purpose of constituting an adverse possession by any person claiming a title, founded upon some written instrument, or some j udgment, or decree, land shall be deemed to have been possessed and occupied in the following cases : 1. where it has been usually cultivated or improved : 2. where it has been pro- tected by a substantial inclosure : 3. where, although not inclosed, it has been used for the supply of fuel, or of fencing timber, for the pur- poses of husbandry, or the ordinary use of the occupant : 4. where a known farm or a single lot has been partly impi'oved, the portion of such farm or lot that may have been left not cleared or not inclosed, according to the usual course and custom of the adjoining country, shall be deemed to have been occupied for the same length of time, as the part improved or cultivated. (2) 2. Under claim of title, ivithout writing. — Where it shall appear, that there has been an actual, continued occupation of any premises, under a claim of title, exclusive of any other right, but not founded upon any written instrument or any judgment or decree, the premises so actually occupied, and no other, shall be deemed to be held adversely. For the purpose of constituting an adverse possession by a person claiming title, not founded upon a written instrument, or a judgment or decree, land shall be deemed to have been possessed and occupied in the following cases only : 1. where it has been protected by a substantial enclosure ; 2. where it has been usually cultivated or improved.(3) But whenever the relation of landlord and tenant shall have existed between any persons, the possession of the tenant, shall be deemed the (1) Adams on Ejecttn. 47. The authorities, in the American reports, on this subject, which are very numerous, are collected by Mr. Tillinghast, in his appendix to Ballantine on Limitations, 357-435. (2) Code, sees. S2, 83. (3) Ibid. sec. 85. RECOVERY OP REAL PROPERTY. 295 possession of the landlord, until the expiration of twenty years from the termination of the tenancy ; or where there has been no written lease, until the expiration of twenty years from the time of the last payment of rent ; notwithstanding such tenant may have acquired another title, or may have claimed to hold adversely to his landlord. But such pre- sumption shall not be made, after the periods thus limited. (1) In what cases the right of the plaintiff is not impaired hy lapse of time, Cluing to certain disabilities.] If any person, entitled to commence any action for the recovery of real property or to make an entry, or defence founded on the title to real property or to the rents or services out of the same, be, at the time such title shall first descend or accrue, either 1. within the age of twenty-one years ; or 2. insane ; or 3. imprisoned on any criminal charge, or in execution upon conviction of a criminal offence, for any term less than for life ; or 4. a married woman ; the time during which such disability shall continue, shall not be deemed any portion of the time in this chapter limited for the commencement of such action, or the making such entry, or defence ; but such action may be commenced, or entry or defence made after the period of twenty years and within ten years after such disability shall cease, or after the death of the person entitled Avho shall die under such disability, but such action shall not be commenced or entry or defence made after that period.(2) So, whenever any person shall be disabled to prosecute in the courts of this state, by reason of his being an alien subject, or citizen of any country at war with the United States, (3) the time of the continuance of such war, shall not be deemed any part of the respective periods above limited for the making of any entry or the commencement of any action,(4) or, wherever the commencement of any suit shall be stayed by an injunction or statutory prohibition, the time during which such injunction or prohibition shall be in force, shall not be deemed any portion of the time limited for the commencement of such suit.(5) But no person shall avail himself of any disability, unless such disability existed at the time his right of action or of entry accrued :(6) and where there shall be two or more such disabilities, existing at the time the right of action or of entry accrued, the limitations, herein prescribed, shall not attach, until all such disabilities be removed.(7) And if any action shall have been commenced, within the times re- spectively prescribed by the Code, and judgment be given therein for (1) Code, sec. 86. (2) Code, sec. 88. (3) Code, sec. 103. (4) Code, sec. 103. (5) Code, sec. 105. (6) Code, sec. 106. (1) Ibid. sec. 107. 296 LIMITATION OP ACTIONS, the plaintiff, and the same be reversed on appeal, the plaintiff may commence a new action, from time to time, within one year after such judgment is arrested or reversed ; and if the cause of action survive or descend to his heirs, or survive to his executors or administrators, they may, in like manner, commence a new action, within the time herein allowed to such plaintiff.(l) Or if any action shall have been com- menced within the times respectively prescribed by the statute, and the defendant in such suit die before judgment, and if the right of action be such as survives against the representatives of the defendant, the plaintiff may commence a new action against the heirs, executors or ad- ministrators of such defendant, as the cause may require, after the ex- piration of that time and within one year after the issuing of letters testamentary or of administration(2) And if a person entitled to bring an action die before the expiration of the time limited for the com- mencement thereof, and the cause of action survive, an action may be commenced by his representatives, after the expiration of that time, and within one year from his death.(8) Most of the provisions to which I have above adverted, on the sub- ject of the limitation of actions relating to real property, were taken from the revised statutes and are the same, excepting some verbal alter- ations. These provisions were at that time new, not merely in phra- seology, but in substance, and many of them have not yet undergone judicial construction. For this reason, they have been given in full, as they appear in the Code, with general references to the leading cases upon them. There are other cases, to which I shall refer, when consi- dering similar provisions as applicable to actions, other than for the recovery of real property, in the next section. (1) Code, sec. 104. (2) Code, sec. 102. (3) Code, sec. 102. OTHER THAN FOR THE RECOVERY OF REAL FROrERTY. 297 SECTION II. LIMITATION OF ACTIONS, OTHER THAN FOR THE RECOVERY OF REAL PROPERTY. 1. Tlie periods of limitation, prescribed for the commencement of actions. 2. When the statute does not run, or is suspended. 3. How the remedy is restored^ notwithstanding the statute. By tlie 73d section of the Code, tlie provisions contained in the chapter of the revised statutes, entitled " of actions and the times of commencing them," are repealed, and the provisions of Title II. of the Code, substituted in their stead. But such title shall not extend to actions then already commenced, or to cases where the right of action had already accrued ; but the statutes then in force are made applica- ble to such cases, according to the subject of the action, and without regard to the form. As these provisions are for the most part identical with those contained in the revised statutes, I shall as I have occasion, refer to decisions made by the late court, bearing upon the subject. 1. The p>eriods of limitation^ prescribed for the commencement of acti07is, other than for the recovery of real property. Periods of limitation^ The following actions must be commenced within six years after the cause of action shall have accrued, and not after : 1. Actions upon a contract, obligation or liability, express or im- plied; excepting such as are brought upon the judgment or decree of any court of the United States, or of any state or territory within the United States, and excepting such as are brought upon a sealed instrument. Under which provision, as contained in the revised statutes, it was held, that the statute was no bar to an action upon an award, under the hands and seals of arbitrators, although the submission be not under seal, the award being regarded as equivalent to a special- ty ;(1) 2. Actions upon a liability created by statute, other than a penalty or forfeiture ; 3. Actions for trespass upon real property ; (\) Smith V. Lockioood, 7 Wend, R. 241. Vol. I. ^ 38 298 LIMITATION OF ACTIONS, 4. Actions for taking, detaining or injviring any goods or chattels, including actions for the specific recovery of personal property ; 5. Actions for criminal conversation, or for any other injury to the person or rights of another, not arising on contract, and not subse- quently enumerated in the third chapter of the Code ; 6. Actions for relief, on the ground of fraud ; in cases which hereto- fore were solely cognizable by a court of chancery ; in which case the cause of action is not to be deemed to have accrued, until the discovery by the aggrieved party, of the facts constituting the fraud.(l) The following actions must be commenced within three years after the cause of action shall have accrued, and not after : 1. Actions against a sheriff, coroner or constable, upon a liability incurred by the doing of an act in his official capacity, and in virtue of his office, or by the omission of an official duty ; including the non- payments of money collected upon an execution ; but this limitation does not apply to an action for an escape ; 2. Actions upon a statute, for a penalty or forfeiture where the action is given to the party aggrieved, or to such party and the people of this state, except where the statute imposing it prescribes a different hmitation.(2) The following actions must be commenced within two years after the cause of action shall have accrued, and not after : 1. Actions for libel, slander, assault, battery, or false imprisonment; 2. Actions upon a statute, for a forfeiture or penalty to the people of this state.(3) The following actions must be commenced within one year after the cause of action shall have accrued, and not after : 1. Actions against a sheriff or other officer, for the escape of a pri- soner arrested or imprisoned on civil process; (4) 2. Actions for relief not hereinbefore mentioned or specified, must be commenced within ten years after the cause of action shall have accrued, and not after.(5) All the limitations which have been thus far referred to, apply to the same actions when brought in the name of the people of this state, or for the benefit of the said people, in the same manner as to actions brought by private parties. (6) It is provided, also, by that portion of the Code relating to the time of commencing actions for penalties and forfeitures, that all actions upon a statute, for any forfeiture or penalty given in whole or in part (1) Code, sec. 91. (2) Code, sec. 92. (3) Code, sec. 93. (.1) Code, sec. 94. (5) Code, sec. 97. (6) Code, sec. 98. OTHER THAN FOR THE RECOVERY OF REAL PROPERTY. £99 to the people of tliis state, shall be commenced within two years after the offence shall have been committed, and not after.(l) And all actions upon a statute, for any forfeiture or penalty, given in whole or in part to any person who will prosecute for the same, shall be com- menced within one year after the offence shall have been committed, and not after; and in case such action be not commenced within that time, by any private party, then the same may be commenced within two years after that year ended, in behalf of the people of this state, by the attorney-general, or the district attorney of the county where the offence was committed, and not after.(2) And further, that all actions upon any statute made or to be made, for any forfeiture or cause, the benefit and suit whereof is limited to the party aggrieved, or to such party and the people of this state, shall be commenced within three years after the offence committed, or the cause of action accrued, and not after.(3) Under this latter provision, as contained in the revised statutes, the question was formerly discussed in the court of errors, wheth-er it embraced actions for statutory liabilities, (such as are sometimes given against stockholders of insolvent corporations, or the like,) or whether it is limited to actions upon penal statutes, where the penalty is given to the party aggrieved, or where the statutes are penal in their nature^ and the remedy was confined to the party injured ; and although the question was not distinctly decided, yet Nelson^ Ch. J., who delivered the unanimous opinion of the court, expressed himself decidedly in favor of the latter construction. (4) It is further provided by the Code, that none of the limitations, which have been thus far considered, apply to actions brought to enforce payment of bills, notes or other evidence of debt, issued by monied corporations, or issued or put in circulation as money ;(5) nor to actions limited b}^ statute to be brought within a shorter time; (6) nor to actions against directors or stockholders of monied corporations or banking associations, to recover any penalty or forfeiture imposed, or to enforce any liability created by law ;(7) but all such suits shall be brought within six years after the discovery by the aggrieved party of the facts upon which the penalty or forfeiture attached, or the lia- bility was created.(8) Nor do they apply to any action commenced, nor to cases where the right of action had accrued, before they went into effect.(9) (1) Code, sec. 96. (2) Code, sec. 96. (3) Code, sec. 92, sub. 2, (4) Van Hook v. WJiitlock, 26 Wend. 43 ; see Chancellor Walwortli's opinion, contra, S. C. 1 Paige, 376. (5) Code, sec. 108. , (6) Code, sec. 92, sub. 2. C?) Code, sec. 109. (8) Code, sec. 109. (9) 2 Code, sec. 73. 300 LIMITATION OF ACTIONS, Wlien the limitation commeyices.'] Under tlie provision, wliicli fixes the time of the limitation as commencing when the cause of action ac- crued, it has been held, that if a bill of exchange or promissory note be given for money lent, or the like, the time of limitation begins to run, not from the time of the loan, but from the time the bill of exchange or note becomes due ; and in the case of a note, &c., payable after sight, not until after it has been presented for payment. But in the case of a note payable on demand^ the statute commences to run from the day of its date ; but not so as to a note payable at a given day after deraand ; in the latter case, it commences running only from the time of the de- mand.(l) So, on a bill of exchange, the statute commences running, as against the drawer, from non-acceptance.(2) So, if the assumpsit be, to do a thing upon request, or upon the happening of a certain event, the time of limitation does not begin to run, until after a request made, or the event has happened.(3) So, if the consideration be executory, as in the case of contracts for seamen's wages, or the like, the time of limitation does not commence until after the consideration has been executed.(4) So, where- to an action of assumpsit on a parol promise of indemnity, the defendant pleaded non- assumpsit infra sex annos^ that plea was held bad, inasmuch as the statute did not begin to run from the time of making the promise, but from the time the damages were sustained.(5) In all actions brought to recover any balance due upon a mutual, open and current account, where there have been reciprocal demands between the parties, the cause of action shall be deemed to have ac- crued from the time of the last item proved in the account on either side.(6) But one item of an account, within six years before suit brought, will not draw after it items beyond six years, so as to pro- tect them from the operation of the statute, unless there have been mutual accounts and reciprocal demands between the parties ;(7) al- thousfh, where, from the commencement to the termination of an ac- count, charges have been made, at least as often as once in six years, and the last item is within six years anterior to the commencement of the suit, the whole of the account will be allowed, notAvithstanding the (1) Wenman v. Mohawk Ins. Co. 13 Wend. 267. (2) Whitehead v. Walker, 9 M. & "W. 506. (3) Fenton v. Emblers, 1 W. Bl. 353 ; Waters v. Earl of Tltanet, 2 G. &. D. 16G ; S. C. 2 A. & E., N. S. 157 ; S. C. 6 Lond. Jurist, 708. (4) See Hibbert v. Martin, 1 Campb. 539. (5) Eak V. Andrm, 6 Cowen, 225. (6) Code, sec. 95 ; Tucker v, Ives, 6 Cowea, 193. (7) KimhaU v. Brown, 7 "Wend. 322; Sickles v. Mather, 20 "Wend. 72; EaUock v. Lozee, 1 Sand. ; S. C. R. 220. OTHER THAN FOR THE RECOVERY OP REAL PROPERTY. 301 statute of limitations is interposed as a bar. Accordingly, where a de- fendant was sued in 1829, on a demand accruing in 1826, and tie proved an account against tlie plaintiff, by way of set off, consisting of items accruing, some in 1826, others in 1822, and others in 1818, it was held, that the items accruing in 1826 drew after them the previous charges, and saved them from the operation of the statute.(l) In an action for the conversion of personal property, the statute commences to run at the time of the conversion ;(2) and where goods were taken on a void execution, it was held, the statute commenced to operate from the original taking.(3) And in an action for a deceit, the cause of action accrues at the time of the deceit, and the statute ope- rates from that time, although the plaintiff did not discover the fraud, until within six years prior to the commencement of the suit ;(4:) and even although the cause of action be fraudulently concealed by the de- fendant, until after the statute has attached ;(5) or though the fraud be acknowledged within six years before action brought.(6) But with regard to actions for injuries to the person or property where the in- jury is consequential, and not immediate, the statute runs, not on the committing of the act, but on the injury that follows ; for the act itself is not actionable, till the consequences have made it so ;(7) though where the gist of the action is the act itself, of the defend«int, which occasioned the damage, and not the mere consequential injury flowing from the act, the rule is otherwise. Thus, in an action against an at- torney, for negligence, where the declaration stated that the plaintiff retained him to see if a certain security were good, and that he ac- cepted the retainer and neglected his duty, and represented the security to be good, and that the plaintiff advanced his money, the security being, in fact, bad ; by means of which, the plaintiff lost the interest ; the gist of the action was held to be the negligence, and the statute of limitations was considered as running from the time of the negligence, and not from the time of the loss of the interest. (8) So, an action against an attorney, for moneys collected by him, must be brought within six years after the money is received by him, or the plaintiff will be barred ; and the fact that a demand Avas not made within six (1) Chamherlin v. Cuyler, 9 "Wend. 126. (2) Montague v. Lord Sandwich, 1 Mod. 99. (3) Bead v. Ilarkle, 3 Johns. Rep. 523. (4) Troup V. Executors of Smith, 20 Johns. 33. (5) Leonard v, Pitney, 5 Wend. 30 ; Allen v. MiUe, 17 Wend. 202. (6) OotJwut V. Thompson, 20 Johns. 217. (7) Gillon V. Boddington, 1 Oar. & P. 541 ; *S'. C. Ry. & M. IGl. {S) Howell V. Young, 2 Car. & P. 238; S. C. 5 B. &. C. 259; see Morgan v. Flumh, 9 "Wend. 287. 302 LIMITATION OF ACTIONS, 3-ears before suit brought, will not save the statute ; the rule requiring a demand before suit, being merely for the protection of the at- torney.(l) Commencement of the action.'] For the purpose of saving the statute of limitations, it is now provided,(2) that an action is commenced as to each defendant, when the summons is served on him, or on a co- defendant, who is a joint contractor, or otherwise united in interest with him. An attempt to commence an actioil is deemed equivalent to the com- mencement thereof, as above stated, when the summons is delivered, with the intent that it shall be actually served, to the sheriff or other officer of the county in which the defendants, or one of them, usually, or last resided ; or if a corporation be defendant, to the sheriff, or other ofl&cer of the county, in which such corporation was established by law, or where its general business is transacted, or where it keeps an office for the transaction of business. But such attempt must be fol- lowed, in case the summons cannot be personally served within sixty days, by the first publication of the summons, within sixtij da3'S after it is delivered to the officer. These provisions are explicit, and nothing will save a cause of action from being barred by the statute, except by pursuing the mode above prescribed. Hence, when a cause of action is about being out- lawed, and the defendant is not where he can be personally and speedily served, the summons must be placed in the hands of the sheriff, or other ofl&cer of the proper county ; and if it cannot be per- sonally served within sixty days thereafter, an order for publication must be procured, and the summons actually published within that time. 2. When the statute does not run, or is suspended. There are, notwithstanding the general provisions of the statute, certain disabilities upon both parties, which prevent its operation dur- ing their continuance. With regard to real actions, I have before given the limitations prescribed, and the disabilities peculiarly appli- cable to them, (3) and have also adverted to the limitations, generally applicable to actions other than for the recovery of real property. It remains, now, to consider the disabilities, which defeat or prevent the operation of the statute, in relation to such actions. (1) Stafford V. Richardson, 15 Wend. 302. (2) Code, sec. 99. (3) Ante, 295. OTHER THAN FOR THE RECOVERY OF REAL PROPERTY. 303 111 order to understand tlie application of the different statutory pro- visions on the subject of these disabilities, it is necessary to observe, that that portion of the Code, which speaks of the time of commencing civil actions, is divided into four chapters ; — the first of which treats of the time of commencing actions in general ; — the second, of the time of commencing actions for the recovery of real property ; — the third, of the time for commencing actions other than for the recovery of real property ; — and the fourth, containing general provisions ; — some of these disabilities being applicable to all, while others are limited to a portion, only, of these divisions. With regard to the second of these classes, — actions for the recovery of real property, — I have already noticed the disabilities applicable to them. As respects the third, — actions other than for the recovery of real property, — and which comprise all the cases before noticed, under the head of personal actions, except those brought for the recovery of penalties or forfeitures, the provisions peculiarly applicable to them will now be considered. Personal disabilities.'] If any person entitled to bring an action men- tioned in the third chapter, excepting actions for a penalty or forfeiture, or against sheriffs or other officers, for escapes, shall, at the time the cause of action accrued, be either, 1. within the age of twenty-one years ; or 2. insane ; or 3. imprisoned on a criminal charge, or in exe- cution under the sentence of a criminal court, for a term less than for his natural life ; or 4. a married woman ;— such person shall be at lib- erty to bring such actions, within the respective times in this chapter limited, after such disability removed ;(1) the time of such disability being no part of the time limited for the commencement of the action, except that the period within which the action must be brought, cannot be extended more than five years by any such disability, except in- fancy, nor can it be so extended in any case longer than one year after the disability ceases.(2) To entitle a party, however, to the benefit of these provisions, they must be specially pleaded. (3) Death of either party ^ If any person, entitled to bring any such ac- tion, shall die before the expiration of the time limited for the com- mencement of such suit, if such cause of action shall survive to his representatives, his executor or administrator, may, after the expiration of such time, and within one year after such death, commence such action, but not after that period. (-i) And if a person against whom an (1) Code, sec. 101. (2) Code. sec. 101. (3) Hyde v. Stone, 1 Wend. 354. (4) Code, sec. 102. 304 LIMITATION OF ACTIONS, action may be brouglit, die before the expiration of the time limited for the commencement thereof, and the cause of action survive, an action may be commenced against his executors or administrators, after the expiration of that time, and within one year after the issuing of letters testamentary, or of administration.(l) In the case of executors or administrators defendants, the period during which the operation of the statute is suspended by the death of the testator or intestate, varies according to special circumstances. The general rule, as prescribed by the revised statutes, is, that the term of eighteen months after the death of any testator or intestate, shall not be deemed any part of the time limited for the commencement of actions, against his executors or administrators. (2) There is, also, in certain cases, a shorter limitation of actions against executors or administrators, prescribed by statute, for their benefit, with a view to enable them to wind up more speedily, the affairs of the estates of deceased persons. The revised statutes having authorized executors and administrators, at any time within six months after the issuing of their letters, to give notice to the creditors to present their claims within six months, and having provided for a reference of dis- puted claims,(3) go on to provide that if a claim against the estate of any deceased person, be exhibited to the executor or administrator, and be disputed or rejected by him, and the same shall have been re- ferred, the claimant shall, within six months after such dispute or rejection, if the debt or any part thereof be then due, or within six months after some part thereof shall have become due, commence a suit for the recovery thereof, or be forever barred from maintaining any action thereon ; and no action shall be maintained thereon, after the said period, by any other person deriving title thereto from such claimant ; and any executor or administrator may, on the trial of any action, founded upon such demand, give in evidence in bar thereof, under a notice annexed to the general issue, the facts of such refusal and neglect to commence a suit.(4) To entitle himself to the benefit of this provision, however, the de- fendant must bring himself strictly within it, in all respects. Accord- ingly, it is only applicable to cases, where the presentment and rejec- tion of the claim, is after the publication of the notice requiring credi- tors to present their claims, as authorized by the statute.(5) So, if, on a demand being presented to an executor, pursuant to the above pro- vision, he ask time to inquire into and examine it, he will not be (1) Code, sec. 102. (2) 2 R. S. 448, sec. 8. (3) 2 R. S. 88, sec. 34-31. (4) 2 R. S. 89, sec. 38. (5) Whitmore v. Foose, 1 Denio, 159 : 2 R. S. 88, sec. 34. OTHER THAN FOR THE RECOVERY OP REAL PROPERTY. 305 allowed to avail himself of tlie short limitation, without giving decisive evidence of his having rejected it, more than six months before the suit was brought.(l) And the exhibition of a claim to the legal adviser of the executor or administrator in settling claims against the estate, and his rejection of it, is not a compliance with the statute, so as to constitute a defence.(2) Actions against persons out of the state.^ If, at the time when any cause of action shall accrue against any person, he shall be out of this state, such action may be commenced within the terms limited, after the return of such person into this state ; and if, after such cause of action shall have accrued, such person shall depart from, and reside out of this state, the time of his absence shall not be deemed or taken, as any part of the time limited for the commencement of such action.(3) Under the former statute, the proviso of which was the same as the first clause of this section, (4) it was held that non-residents of the state, as well as residents, who were temporarily absent therefrom, were in- cluded.(5) The last clause of the present section is, therefore, declara- tory of the existing law. Under this section, therefore, as under the former statute, the term return means, where the debtor comes within the state publicly, and so that the creditor might, with ordinary dili- gence and due means, arrest him.(6) JEffed of disabilities created hy operation of law.'] The disabilities now to be noticed apply to all the actions to which I have adverted, in- cluding those for penalties and forfeitures, — and are thus defined. If any action shall have been commenced within the times respec- tively prescribed by the statute, and judgment be given therein for the plaintiff, and the same be reversed on appeal, the plaintiff, or if he die and the cause of action survive, his heirs or representatives may com- mence a new action within one year after such judgment is reversed.(7) Whenever the commencement of any suit shall be stayed by an in- junction or statutory prohibition, the time of the continuance of such injunction or prohibition, shall not be part of the time Umited for the commencement of the action.(8) None of these disabilities, however, (1) Reynolds v. Collins, 3 Hill, 36. (2) Whitmore v. Foose, 1 Denio, 159 ; see also, Benjaminv. De Groot, 1 Denio, 151. (3) Code, sec. 100. (4) 1 R. L. of 1813, p. 186, sec. 5. (5) Buggies v. Keeler, 3 Johns. Rep. 263. (6) Fowler v. Emt, 10 Johns. 464. (1) Code, sec. 104. (8) Ibid. sec. 105; Barkery. Millard, 16 Wend. 612. Vol. I. 39 306 LIMITATION OF ACTIONS, prevent the statute from running, or suspend its operation, unless they exist at the time the right of action accrued,(l) Agreement not to plead the statute.'] It seems that an agreement not to plead the statute, may be replied an answer setting up the statute of limitations, where such agreement is made previous to the attaching of the statute. (2) Effect of tivo or more dtsahiltties.] Where two or more disabilities co- exist at the time the right of action accrued, the statute does not attach until they are all removed.(3) 3. How the remedy is restored^ noiwitlistanding the statute. It was decided under the former statutes that the statute of limita- tions did not destroy the debt ; it only barred the remedy ;(4) and this, upon the supposition, after a certain time, that the debt had been paid,(5) It might, therefore, be revived by a subsequent promise within six years before action brought, the original consideration being sufficient to sustain the promise ;(6) or by a subsequent acknowledg- ment of the debt, from which a promise would be implied. The books are full of cases on this subject, some of them going to illustrate this principle, and others, by construction, going far towards depriving de- fendants of the benefits designed by this statute. A reference to the contradictory decisions upon this head is, however, rendered unneces- sary, by the fact, that the Court of Appeals has, in a recent case, over- ruled all the prior decisions of this court, and adopted a different rule from what was before understood, as being the effect of the limitation prescribed by the statute.(7) This was an action brought for the recovery of a debt contracted by the defendants, while partners in trade. After the dissolution of the co-partnership, but within six years before the commencement of the suit, one of the defendants acknow- ledged the existence of the debt, and promised to pay it. The other defendant had plead the statute of limitations, and the distinct question was presented, whether a new promise made by one partner after dis- (1) Code, sec. 106. (2) Gayhrdy. Van Loan, 15 "Wend. 308; see Utka Ins. Co. \. Bloodgood, 4 "Wend. 652. (3) Code, sec. 107. (4) Hancock v. Bliss, 1 "Wend. 268. (5) Dunfortli v. Oulver, 11 Johns. 146. (6) Sandsw Gelston, 16 Johns. 519. (7) Van Keurea v. Parmeke and others, 2 Com. E. 523. OTHER THAN FOR THE RECOVERY OF REAL PROPERTY. 307 solution would bar the statute, and it was decided that it would not. Bronson^ J., says : " The cause of action accrued more than sixteen years before the suit was commenced, and of course, the action is barred. There is but one possible mode of escaping this difficulty ; and that is, by saying, that the plaintiff does not sue upon the note, but upon the new promise ; treating it as a new contract, springing out of, and supported by, the original consideration." And, again, at page 531, " There must be a promise, a new contract, though founded on the original consideration, to take a case out of the statute." " It is the new promise and not the mere acknowledgment that revives the debt and takes it out of the statute." The rule, therefore, which is clearly established by this case is, not as was formerly supposed, that the new promise revives the old debt, but that the new promise constitutes the cause of action, upheld by and having for its consideration the old debt, and that the cause of action is not the old debt, but the new promise, constituting a new contract. Hence it becomes necessary that it should appear upon the face of the pleading that the demand is not barred by the statute, for if it should, it would be good ground of demurrer. Therefore, when a suit is brought upon a demand, or for a cause of action which is barred by the statute, and the party means to rely upon a new promise to save the claim from the operation of the statute, he must found his claim upon, and set forth in his pleading, the new promise as his cause of action. This question was recently presented to this court,(l) and distinctly passed upon. It appeared by the complaint that the cause of action arose more than twenty years anterior to the commencement of the action, and there was no allegation in the complaint showing either that the operation of the statute of limitations had been suspended, or that the cause of action had been revived. The defendant demurred to the complaint, and alleged as the ground of his demurrer, that it did not show facts sufficient to constitute a cause of action. For the plaintiff, it was contended that the objection could only be raised by answer. Edmonds^ J., says, "From the complaint itself, it appears that this is a stale demand of twenty or thirty years standing, and there is nothing averred in the complaint to take the case out of the statute of limitations, except the fact that within ten years the defendants had acted in their representative capacity by bringing a suit. The mere fact of bringing a suit without any averment that by means of it they had received any money, is not of itself enough to avoid the statute. And the case is, therefore, presented to me in the bald aspect as shown (1) Genet v. TaJkmdge, 1 Code Rep. (N. S.) 346. 308 LIMITATION OF ACTIONS, by tlie complaint itself, not only of a stale demand which, under the practice before the revised statutes, would not be enforced, but as one which is barred by the limitations prescribed in the revised statutes. In such a case, it was always competent in equity to raise the question on demurrer. It is so raised here, and there being no doubt that the statute of limitations is a bar, the demurrer must be allowed." This decision, in so far as it upholds a demurrer to a complaint, where it appears that the demand is barred by the statute of limita- tions, would seem to be directly in conflict with a provision of the Code,(l) which says, " Civil actions can only be commenced within the periods prescribed in this title, after the cause of action shall have accrued, &c. But the objection that the action was not commenced loithin the time limited, can only he taken by answer." The part of this section in italics is an amendment to the Code, passed July 10, 1851, and was in force when the case of Genet v. Tall- madge was decided. The plaintiff insisted in that case that the objec- tion could only be taken by answer, but it does not appear, from the report of the case, that this new provision in the amended Code was adverted to, either by the counsel or the court. It is, perhaps, some- what difiicult to reconcile the decision with the explicit language of the amendment, but it seems clear to me that the legislature did not intend to deprive a party of one of the grounds of demurrer which, by another section of the Code, is expressly given to him. Section 144, provides that the defendant may demur to the complaint when it shall appear upon the face thereof, that the complaint does not state facts sufficient to constitute a cause of action. Now, if, as we have seen, by the case of Van Keuren v. Parmelee^i^) the new promise constitutes the cause of action, and does not revive the old debt, and it appears upon the face of the complaint that the claim is barred by the statute, and there is no allegation of a new pro- mise, does the complaint state facts sufiicient to constitute a cause of action ? Certainly not. There is no cause of action, if there is no new promise, it is gone; (for as was said in Sands v. Gelsto7i,{d) "There is no substantial difference between a debt barred by the statute of limi- tations, and a debt for the payment of which the debtor has been exonerated by a discharge under a bankrupt or insolvent act,") and the party cannot sustain any action upon it, and this is ground of de- murrer. There can certainly be no good reason for requiring the objection in such a case to be raised by answer, especially as it affords a license to the pleader to omit the averment of a new promise, thus not only violating the principles established by the case of Van Keuren v. (1) Code, sec. 74. (2) 2 Corns. R. 523. (3) 15 Johns. R. 519. OTHER THAN FOR THE RECOVERY OP REAL PROPERTY. 309 ParmeUe^ but allowing him to come into court without a cause of action. The Code allows a " general denial."(l) Now, the legislature doubtless intended that a defendant should not be permitted under a general denial of indebtedness, to raise the objection that the action was not commenced within the time limited, but should, where a suffi- cient cause of action appeared upon the face of the complaint, set up the statute by a distinct averment in his answer. This is perhaps the only interpretation that can be given to the section referred to, that will reconcile it with other provisions in the Code and the decision of the Court of Appeals, as to the effect of a nevv' promise upon a debt already barred by the statute. The books are full of decisions under the revised statutes, as to the character of the new promise to take the case out of the operations of the statute, and until the adoption of the Code, a parol acknowledgment and promise were sufficient. It now, however, is provided, that no acknowledgment or promise shall be sufficient evidence of a new or continuing contract, whereby, to take the case out of the operation of the statute, unless the same be contained in some writing^ signed by the party to be charged thereby ; but this provision does not alter the effect of any payment of principal or interest.(2) The only change, therefore, is in requiring the new promise or ac- knowledgment to be in ivriting, which before might be by parol, and all the decisions of the late Supreme Court, bearing upon the charac- ter of the promise itself, are applicable now ; and I will, therefore, ad- vert to a few of the most leading ones on this subject. The acknowledgment must be explicit, and without a denial of the equity or legality of the demand ; and hence, if the defendant denies the justice of the demand, it will not be a sufficient recognition of the debt to take it out of the statute, or if such acknowledgment is quali- fied, in such a way as to repel the presumption of a promise to pay, then it will not be evidence of a promise, sufficient to revive the debt, and take it out of the statute.(3) It must also be affirmatively estab- lished by the plaintiff; and if effect can be given to the writing, which may be proved to have been made by a defendant, without referring them to the demand upon which the suit may have been brought, they ought not to be considered as referring to such demand, and as evi- dence of a new promise to pay it. (4) (1) Code, sec. 149. (2) Code, sec. 110. (3) Hancock v. Bliss, 1 "Wend. 268 ; see also Purdy v. Avstin, 3 Wend. 187 Allen v. Web- ster, 15 Wend. 284; Gaylordv. Van Loan, 15 Wend. 308; Stafford v. Richardson, 15 Wend. 302; Adams t. Orange County Bank, 17 Wend. 514. (4) Staffoi-d V. Bryan, 3 Wend. 536. 310 LIMITATION OF ACTIONS, The establishment of this rule, resulted from the favorable spirit with which the courts had regarded this statute, when compared with the aversion which they at one time manifested towards its interposition, and which had almost effected its judicial repeal. In the language of Marcy^ J., in one of the cases before referred to,(l) — "this statute has been looked upon in times past, with disfavor by the courts in England, and their example has been too generally followed in this country. Construction formerly went far towards depriving defendants of all the benefits designed for them by it. A different and better view of this salutary statute, has since been taken, and a more correct and liberal construction is now given to it. Defences under it are not now regard- ed, as they once were, discreditable, or, at least, are not so viewed, to the same extent as formerly.(2) It is assuming, as it was intended it should always have had, the character of a * statute of repose.' If the more recent decisions, in relation to the effect of acknowledgments, are to be sustained, defendants may speak of dormant claims preferred against them, without necessarily losing the benefits of this law." — • These views have also been recently adopted in England, by adjudica- tions giving the statute its full force :(3) and have been further sustain- ed, by a statute similar to ours requiring acknowledgments, to be used for the purpose of defe iting the statute, to be in writing.(4:) To constitute a sufficient acknowledgment or promise, to restore the remedy, however, no precise form of words is necessary. Thus, a pro- mise by the maker of a note, to settle it^ is equivalent to a promise to pay ;(5) and such promise, being a recognition of the legal validity of the note, will inure to the benefit of any other holder.(6) It not unfrequently happens, also, that promises which are given in evidence to take a case out of the statute, are conditional in their na- ture, and depend upon a contingency, such as the ability of the party, or the like. In these cases it is well established, that the burden is upon the plaintiff, of showing the happening of the contingency.(7) And the rule is the same, though the promise was made within six (1) Purdy V. Austin, 3 Wend. 189. (2) Notwithstanding this expression, there are certain cases in which the defence of the statute of limitations is still regarded unfavorably. For example, if a party do not plead it in the first instance, he will not be allowed to amend by adding such plea. {Lovett v. Cow- man, 6 Hill, 223 ; Wolcott v. WFarJan, 6 Hill, 227. (3) See Blanshard on Lira. 3, (1 Law Library.) (4) 9 Geo. IV., ch. 14. The provisions of this act, which was introduced in the house of lords, by Lord Tenterden, and which went into effect on the 1st of January, 1829, are to be found at length, in a note to the case of Roharts v. Roharts, 3 Car. & P. 296. (5) Pinkerton v. Baiky, 8 Wend. 600. (6) Soulden v. Va7i Rensselaer, 9 Wend. 293. (7) Everson v. Carpenter, 17 Wend. 419. OTHER THAN FOR THE RECOVERY OF REAL PROPERTY. 311 years after the cause of action had accrued, and before the statute had barred the demand.(l) But this doctrine, relating to reviving a cause of action which has been defeated by the operation of the statute, does not extend to cases of tort, (2) or even of breach of contract. (3) " To revive a debt, by promise, (says Dallas^ Ch. J.,) and take a case out of the statute, there must be an antecedent debt, and if a promise should be made, where there is no antecedent debt, it would be necessary to frame a special declaration on such a promise."(4:) And in an action on the case, for a deceit in the sale of a slave, where the statute was pleaded, in answer to which a new promise was set up, Spencer, Ch. J., in illustration of this principle, observed: — "A case of this kind does not stand upon the same principle as the acknowledgment of a debt within six years. There, the acknowledgment is evidence of a new promise ; here, it is not evidence of a new trespass, and, therefore, there is no analogy be- tween the two cases. This view of the case satisfies me, that without inverting all the rules of logic, (and special pleading has "been aptly compared to logic,) it is impossible to say, that a confession of a tort is a re-perpetration of it ; and unless it is, the fact asserted in the repUca- tion, that the tort was committed within six years, is not made out by a confession that the tort was committed more than six years ago."(5) Nor will a promise to make a compensation for a trespass, revive the cause of action; the plaintiff being bound, under his replication, to prove a good cause of action within six years before the commence- ment of the suit.(6) A payment of principal or interest will always have the effect of ta- king a case out of the operation of the statute.(7) What has been said, as to reviving the debt by a new promise, ap- plies to promises by the sole debtor himself It is proper, now, briefly to consider the effect of a promise, by one of several joint debtors, or by the representatives of a sole debtor. In this state, it is settled that the acknowledgment of one partner, after the dissolution of the partnership, will not take the case out of the statute.(8) The same principle, that the acknowledgment of one of several part- ners will not avail to take a case out of the statute, may also be applied to the case of one of several joint makers 6i a note, and to one of sev- eral joint debtors. And the acknowledgment or confession of one exe- (1) Tom/pkiiis v. Brown, 1 Denio, 247. (2) GaUigher v. ffoUingsivorth, 3 Harr. & M'H. 122. (3) SJioriY. WCartliy, 3 B. & Aid. 626. (4) Whitehead v. Howard, 2 Br. & B. 312. (5) Oothmit V. Thompson, 20 Johns. 279. (6) Hwst v. Parker, 1 B. & Aid. 92. (7) Code, sec. 110. (8) VmiKewen v. Fa/rmelee,2 Corns. R. 523. 312 LIMITATION OF ACTIONS, &c. cutor, of a debt due from his testator, will not bind a co-executor, in a suit against him. Foreign statutes of limitations?!^ With regard to foreign statutes of limitations, or statutes of other states, it is to be remarked, that in no case do they affect the prosecution of the remedy ; but that the time for prosecuting an action depends upon the lex fori, the law of the place where the remedy is enforced, and not of that where the hability was created.(l) And in a case in Massachusetts, where the statute of limi- tations is nearly the same as in this state, it was held, where a debt was contracted in a foreign country, between subjects thereof, who re- mained there until the debt became barred by the law of limitations of such country, that the statute of limitations of Massachusetts could not be pleaded in bar to an action upon the debt, brought within six yeajs after the parties came into that state.(2) (1) See Andrews v. Herriot, 4 Cowen, 530, note. (2) Bulger v. Roche, 11 Pick. 36. CHAP TEE III. OF THE PARTIES TO THE ACTION AND HEREIN OP PROCEEDINGS UPON THE DEATH, MARRIAGE OR OTHER DISABILITY, OR TRANSFER OF IN- TEREST DURING THE PENDENCY OF THE ACTION. Section I, party plaintiff. II. THE NON-JOINDER OR MIS-JOINDER OF PLAINTIFFS. III. PARTY DEFENDANT. IV. THE NON-JOINDER OR MIS-JOINDER OF DEFENDANTS. V. THE CHANGE OF PARTIES. SECTION I. PARTY PLAINTIFF. The rules wliicli lieretofore governed, in respect to the party plain- tiff, have been materially changed by the Code of Procedure. For- merly in actions at laiv^ the suit could generally be instituted in the name of the party with whom the contract was made, notwithstanding he might have parted with all interest in it. And sometimes it might be brought in the name of a party having no actual interest, as in the case of negotiable notes and bills. In suits, in equity, however, the rule was different, and the person made plaintiff, must have been at the time of the commencement of the suit immediately interested in the subject matter of it, and it was fatal to the bill if filed in the name of a mere nominal complainant. In blending the two systems into one, and removing all distinction between law and equit}'-, the legislature has sought to adopt, as nearly as could be, the rule with respect to parties, that had always subsisted in courts of equity, that is, to require the real parties in interest to be- come the parties to the record. Although, as now required, the action must be prosecuted by the real party in interest, yet this general rule is somewhat restricted, and there are cases where the party who has the real interest in the subject matter cannot prosecute in any of the courts of this state. This, how- ever, is a question of jurisdiction^ inasmuch as the persons alluded to are such as cannot demand the aid or interposition of the state courts Vol. I. 40 314 AS TO PARTIES —PLAINTIFFS. for the enforcement of their rio-hts or tlie redress of their wrono-s. I will therefore briefly enumerate these cases, premising them by the remark that as a general rule, no person or corporation is excluded from the right of prosecuting a civil action in the courts of this state, except- ing in three cases ; — where he has been sentenced upon a conviction for a felony, which according to the revised statutes, is defined to be an offence, for which the offender, upon conviction, is liable to be punish- ed with death, or by imprisonment in a state prison;(l) where he is an alien enemy ; — and where he claims as an executor or administrator, appointed by a foreign jurisdiction. The first two of these exceptions must be understood to apply, however, to actions brought in Jus oion right ; for felons and alien enemies are capable of maintaining actions, which accrued to them as executors, trustees, or otherwise en auter droit.{2) Persons convicted and sentenced for felonies. 1 The disability of a felon commences with the sentence, and is either absolute or limited. If he be sentenced to imprisonment in a state prison for life, he is deemed to be civilly dead :(3) if for any term less than life, the sentence suspends all his civil rights, during the term of such imprisonment.(4) Though, in either case, a pardon will, (with certain limitations, which it is not necessary here to notice,) restore him to his civil rights. And by the statute of limitations, where the party plaintiff shall have been impri- soned on any criminal charge, or in execution upon some conviction of a criminal offence, for any term less than for life, the operation of the statute bar is expressly excepted, during the continuance of such im- prisonment or sentence.(5) If the conviction happen, pending an action, it seems, under the old practice that the fact might, be pleaded, puis darrein continuance^ or in abatement ; if after verdict, the defendant, if the sentence amount to civil death, might perhaps be relieved by audita querela ; but the court would not stay the proceedings, upon motion, particularly if the conviction have been obtained upon the defendant's own evidence.(6) Alien enemies^ With respect to aliens in general, it is to be observ- ed, that, although, by the old law, no alien, whether friend or enemy, could sue in the king's courts,(7) yet, in England, the necessity of trade (1) 2 R. S. 701, sec. 22 ; Ibid. 702, sec. 30. (2) Watford v. Masham, Moor, 431; Brocks v. FhiUips, Cro. Eliz. 684; Villa y. Dimock, Skin, 370; Eix\. Harrison, 3 Bulstr. 210; CaroorCs case, Cro. Car. 9. (3) 2 R. S. 701, sec. 20. (4) Ibid. sec. 19. (5) Code, sec. 101. (6) Symons v. Blake, 4 Dowl. 0. S, 263 ; Lush's Prac. 4. (7) Calvin's co^e, 7 Co. 1; Wells v. Williams, 1 Salk. 46. AS TO PARTIES —PLAINTIFFS. 315 has discouraged and gradually done away with the too rigorous re- straints which formerly existed ; and it is now clear, that an alien born, provided he be not an alien enemy, may sue in the courts of that coun- try, for a cause of action arising therein ; and this, even though he be resident abroad.(l) And this rule was adopted by this court, excepting in the cases already noticed.(2) It is equally well settled, by the com- mon law of England,(3) and the rule has been adopted by the courts of the United Statcs,(4:) and of this state,(5) that an alien enemy cannot maintain an action in his own name, during the war. Nor can a per- son beneficially interested in a suit, if he be an alien enemy, support the action in the name of his trustee, though the latter be not an alien unless he be a trustee of an express trust. (6) As to what constitutes a person an alien enemy, it is settled, that, in addition to what the term itself imports, namely, an alien subject or citizen of a country with which our government may be at war, he. being at the time a resident of such foreign country, (7) — ^the mere cir- cumstance of residing in a foreign country the government of which is at war with this country, and of carrying on trade there, is sufficient to constitute a person an alien enemy, even though he would not other- wise be considered»in that character : and, accordingly, a neutral, or a citizen of the United States, domiciled in the enemy's country, is deem- ed, — not only in respect to his property, but also to his capacity to sue, — as much an alien enemy, as a person actually born under the allegi- ance, and residing within the dominions, of the hostile nation ; because he is lending himself to the purposes of the enemy, by furnishing him with resources. (8) But aliens, resident in the United States at the time of war breaking out between their own country and the United States, (1) Pisani V. Lawson, 6 Bing. N C. 90; S. 0. 8 Scott, 180; ,?. C. 8 Dowl. 0. S. 57. The question was recently presented to this court, whether it could take cognizance of an action for slanderous words spoken in Canada, if the parties were British subjects ; but, as it did not properly arise, the court expressed no opinion upon it. Branson, J. observed: — "As nothing appears to the contrary, these parties must be taken to be citizens of this state ; and if one of our citizens goes into Canada, and slanders his neighbor, there can be no doubt, that an action will lie in this state, when the defendant returns within our jurisdiction." {Lister V. Wright, 2 Hill, 320, 322.) (2) Ante, 223, 224. (3) Bristow v. Toicers. 6 T. R. 35. (4) Crawford v. Tlie William Penn, Peters' C. C. Rep. 106 ; Wilcox v. Henry, 1 Dall. 69 . Mumford v. Mumford, 1 Gall. 366 ; The Emulous, 1 Gall. 563. (5) Bradwell v. Weeks, I Johns. Ch Rep. 206 ; S. G. on appeal, 13 Johns. 1 ; Clarke v. Moreij, 10 Johns. 69; Bell v. Chapman, 10 Johns. 183; Buckley v. Lyttk, 10 Johns 117, Jackson v. Becker, 11 Johns. 418 ; Hamersley v. Lamiert, 2 Johns. Ch. Rep. 508. (6) Crawford v. The William Penn, Peters' C. C. Rep. 106.' (7) Co. Litt. 129, b. ; Brandon v; NesUtt, 6 T. R. 23 ; SparenlurghY. Bannatyne, 1 B. & P. 163 ; Jf Connell v. Hector, 3 B. & P. 113. (8) 1 Kent's Com. 76-80, and cases there cited. 316 AS TO PARTIES,— PLAINTIFFS. ■ — ^or who come to reside in the United States after the breaking out of such war, under an express or imphed permission, — may sue as in time of peace ; and it is not necessary, for that purpose, that such aliens should have letters of safe conduct, or actual licence to remain in the United States ; but a license will be imjolied, from their being suffered to remain, without being ordered out of the United States, by the exe- cutive.(l) The exclusion of an alien enemy from the right to sue in our courts, extends also, not merely to one who is such at the time of the com- mencement of the suit, but if he become an alien enemy after the com- mencement of the suit, the defendant may set it up.(2) But, where the plaintiff becomes an alien enemy, after judgment, the court will not, on motion, stay or set aside the execution.(3) And where an alien obtained judgment, on which a writ of error was brought, and war occurred pending such suit, — judgment was nevertheless affirmed.(4) And it is no objection, after the iua7; that the suit was brought by the plain- tiff, as trustee for an alien enemy.(5) And an answer of alien enemy will be set aside on motion, if the nation in which the plaintiff is alleged to be resident, be at peace with ours ; treaties with foreign nations being a part of the law of the land, of which the cc^rts are bound to take notice.(6) And the effect of such an answer is avoided by a treaty of peace made after it is filed : and the court will notice the fact, though the plaintiff do not reply it.(7) Foreign executors or advainistrxitors^ The remaining class of persons, whose right to sue in the courts of this state, has been denied by re- peated decisions — are, executors and administrators appointed in a foreign country, or in another state ; in respect to whom it has been held, that letters testamentary or of administration, granted out of the state, give them no authority to sue here.(8) But an executor or ad- ministrator, appointed abroad, may maintain an action in his own name, on a note payable to his testator, or intestate or bearer : his right, in this respect growing out of the fact that he is the real owner of the note, and he having a right to sue as bearer, and recover personally in that character. (9) (1) Clarke v. Morey, 10 Johns. 69. (2) Bell v. Chapman, 10 Johns. 183. (3) Buckley v. IjijUle, 10 Johns. 117. (4) Owens v. Hanney, 9 Cranch, 180. (5) Hammersley v. Lambert, 2 Johns. Ch. Rep. 508. (6) Baby v. Dubois, 1 Blackf. 255. (7) Johnson v. Harrison, 6 Litt. 226. (8) Schultz V. Pulver, 11 Wend. 372 ; Campbell v. Todd, 7 Cowen, 64 ; Robinson v. Cran- daU, 9 Wend. 425 ; see Vroom v. Van Home, 10 Paige, 54.9. (9) Robinson v. Crandall, 9 Wend. 425. AS TO PARTIES,— PLAINTIFFS. 317 The states of the unions] The people of this state, in virtue of their sovereign character, and in analogy to the right of the British crown, have, of course, this right ; and may sue as a common person, for any caues of action accruing to them in their corporate character ;(1) but for a public offence or wrong, they must sue by indictment or informa- tion.(2) So also, the United States may sue, in their corporate name, in the courts of this state ; and in this respect, they have been regarded as holding the same prerogative as the British crown, for the purpose of taking, by assignment, the legal interest in a chose in action.(3) So, also, the several states of the union may sue, in their respective politi- cal or corporate names, in the courts of this state.(4) Foreign governments. The question, whether a foreign government may maintain an action in its own name, in our courts, has never been decided in this state : though it would appear to have been discussed, in one case, in which Bronson, J. refrained from expressing any opinion upon it, it having been unnecessary to the decision.(5) It seems to be well settled, in England, however, that a foreign government may sue in the courts of that country, provided it have been acknowledged by the government of that country, but not otherwise ;(6) and the English books are full gf cases in which actions so brought have been maintained without a question, though it was at one time doubted, whether such claims were not matter of application from state to state. As we have before seen the action must be prosecuted in the name of the real party in interest, (7) except where the action is brought by an executor or administrator, or a trustee of an express trust, or where the person suing is expressly authorized by statute, in which cases the action may be brought, without joining with the plaintiff the person or persons for whose benefit the suit is prosecuted :(8) but nothing in this section will authorize the assignment of a thing in action, not arising out of contract, so as to allow the suit to be prosecuted in the name of the assignee. In all other cases, the party who brings the action, must at the time be the owner, either legally or equitably, of the right of action sought to be enforced. The suit cannot be brought in the naine of a fictitious person, or of one who has no interest in the subject matter (1) Com. Dig. Action, B. 1 ; F. N. B. 90, (1.) (2) Eex V. Gregory, 2 Lev. 82. (3) United States v. White, 2 Hill, 59. (4) Delafield y.' State of Illinois, 2 Hill, 159; S. C. 26 Wend. 192; State of Indiana v. Woram, 6 Hill, 33 ; see also, Commonwealth of Kentucky v. Bassford, 6 Hill, 526. (5) Delafield \. State of Illinois, 2 Hill, 162. (6) Bolder y. Bank of England, 10 Ves. 353 ; Dokler v. Lord Huntingfield, 11 Ves. 283. (7) Code, sec. 111. (8j Code, sec. 113. 818 AS TO PARTIES,— PLAINTIFFS. of the controversy : but, as we have seen, it may be by an administra- tor, executor, or trustee of an express trust, or by a person expressly authorized by statute, such as public officers. Other persons acting in a fiduciary capacity cannot sue in their own names, nor can an agent or bailee, unless it be to recover the possession of property unlawfully taken from him, or upon contracts made by him, and in which he is beneficially interested, where the law so far regards him as the owner^ that the suit may be brought in his name. Wlio must he plaintiff.'] — In all cases, the plaintiff on the record must, at the commencement of the suit, have the right of action in himself, and it will not answer if he subsequently acquire it. Actions upon bonds given by administrators which under the revised statutes are required to be given to the people, it has been held must be prosecuted in the name of the people, and not of the parties in in- terest. (1) So, of sheriffs' bond which are required to be sued in the name of the people, but upon the relation of the person aggrieved.(2) Where a broker, as agent of the plaintiff, effected an insurance in his own name upon the property of the plaintiff, and the policy contained a clause that the loss should be paid to the broker, it was held that the principal might sue in his own name, he being the real party in in- terest.(3) Such suit might now, however, be brought in the name of the broker, he being within the meaning of the Code, " a trustee of an express trust."(4) An executor or administrator may sue in his own name for any right of action accruing to him, as such — to recover the assets and property of his testator or intestate ; they belong to him for the purposes of pay- ing debts, legacies and distribution. A trustee of an express trust, in like manner, is vested with the legal estate committed to his care, and is bound to preserve and protect it for the benefit of his ward, and he is, so far, the real jjarty in interest ; and may properly sue to recover its possession, or a debt due on account of it. A trustee of an express trust, within the meaning of this section, in- cludes a person with whom, or in whose name, a contract is made for the benefit of another. In a case in the New York superior court, (5) it was held that mercantile factors or agents doing business for others, but in their own names, were trustees of an express trust. But idiots, lunatics, persons of unsound mind, and habitual drunkards, must sue in their own names, in actions relating to real property ; and it cannot (1) Bos V. Seaman, 2 Code R. 1. (2) 2 R. S. 476, sec. 3. (3) Lane v. Golvmhm Ins. Co., 2 Code R. 65. (4) Code, sec. 113. (6) Grinndly. Schmidt, 2 Sandf. S. C. Rep. 706. AS TO PARTIES,— PLAINTIFFS. 819 be broiiglit in the name of tlie committee,(l) the exceptions before men- tioned not extending to this class of persons, in such actions. By a recent act, (2) it is provided that committees of lunatics and ha- bitual drunkards, appointed bj an order or decree of the court of chan- cery, (of course this now applies to the Supreme Court,) may sue in their own names, for any debt, claim, or demand transferred to them, or to the possession and control of which they are entitled as such com- mittee. And the same act authorizes receivers appointed in like man- ner, to take and hold real estate upon such trusts and for such pur- poses as the court may direct ; and they may sue in their own names, in like manner as committees of lunatics and habitual drunkards. So where a receiver or committee sells a demand, the purchaser thereof may sue and recover therefor in his own name, but may be required by the court in which the action is pending, to give security for costs to the defendant. Corporations and joint stock com.panies and associations.'] Corporations created by the laws of this state, have authority to sue in their own names ; and the power is usually conferred by the express terms of the statute creating them. A special authority is also conferred by statute, upon associations organized under the general banking law, which provides that all suits, actions and proceedings brought or prosecuted by or on behalf of such association, may be brought or prosecuted in the name of the president thereof; and no such suit, action or proceeding shall abate by reason of the death, resignation or removal from office, of such president, but may be continued and prosecuted in the name of his successor in of- fice. (3) But it has been held in the late Supreme Court, that notwith- standing this provision, the suit may be brought in the name of the as- sociation itself.(4:) A similar provision is made with respect to joint stock companies and associations. It being provided (5) that any joint stock company or association, consisting of seven or more shareholders or associates, may sue in the name of the president or treasurer, for the time being, of such joint stock company or association. Nor shall such suit abate by reason of the death, removal, or resignation of such president or treasurer, or the death or legal incapacity of any shareholder or asso- ciate during the pendency of such suit ; but the same may be continued by the successor of the officer in whose name the suit Avas commen- ced.(6) (1) 1 Hill Rep. 91. (2) Laws 1845, p. 90, chap. 12, sec. 2. (3) Laws 1838, p. 250, sec. 21. (4) Delafidd v. Kinney, 24 Wend. R. 345. (5) Laws 1849, p. 389, sec. 1. (6) Laws 1849, p. 389, sec. 2. 320 ^S TO PARTIES,— PLAINTIFFS. And by a more recent act,(l) the provisions of tlie act of 1849, above referred to, are made to extend to any company or association com- posed of not less than seven persons, wlio are owners of, or have an interest in any property, right of action, or dividend, jointly or in com- mon ; and any action authorized by the before mentioned act, may be brought and maintained in the manner therein provided, as well for any cause of action heretofore existing as for any that may hereafter accrue. It is also provided by the revised statutes, that a foreign corporation created by the law of any other state or country, may, upon giving se- curity for the payment of the costs of suit, prosecute in the courts of this state, in the same manner as corporations created by the laws of this state.(2) But where, by the laws of this state, any act is forbid- den to be done by any corporation, or by any association of individu- als, without express authority by law, it shall not be authorized to maintain any action founded upon such act, or upon any liability or obligation, express or implied, arising out of, or made or entered into, in consideration of such act.(3) Married loomen.'] In actions where a married woman is a party, her husband must be joined with her, except where the action concerns her separate property, when she may sue alone, and in actions between the wife and her husband, she may sue or be sued alone.(4) But in cases where her husband cannot be joined with her, she must prosecute the suit by her next friend. By an act passed in 1848,(5) and amended in 1849,(6) it is provided that the real and personal property and the rents, issues and profits thereof, of a married woman, shall not be subject to the disposal of her husband ; but shall be her sole and separate property as if she were a single female, except that it may be liable for the debts of her husband previously contracted. And a married woman may take by inherit- ance gift, grant, devise or bequest, from any person other than her hus- band, and hold to her sole and separate use, and convey and devise real and personal propertj^, or any interest or estate therein, and the rents, issues and profits thereof, in the same manner, and with like effect, as if she were unmarried ; and the same shall not be subject to the disposal of her husband, nor liable for his debts. In all cases, therefore, where the suit concerns her sejoarate property, (and she may, as we have seen, now have separate j^roperty, both real and personal,) the suit may be prosecuted in her name, by her next friend, without joining her husband. And as a general rule, I think (1) Lawsl851,p. 838. (2) 2 R.S.-iSY.sec. 1. (3) 2 R. S. 457, sec. 2. (4) Code, sec. 114. (5) Laws 1848, p. 307. (6) Laws 1849, p. 528. AS TO PARTIES— PLAINTIFFS. 321 it would be improper to join the liusband with, the wife, although the language of the Code is " may sue alone." Such was the practice in equity.(l) So, where the action is between the husband and wife, she must now sue bj her nest friend, even where the action is for a limited or abso- lute divorce.(2) There are, however, a large number of cases where it is necessary to join the husband in the action, even although the wife be the meritori- ous cause of the action. It is necessary to join the wife with the husband, as a party, in those cases where the contract, which is the subject of the action, was made with her before marriage ;(3) or where the cause of action would neces- sarily survive to her.(4) Where from an injury to the 'person of the wife, the husband suffers a consequential damage, he may sue alone ; otherwise they must both join in the action. In all actions, however, brought by a married woman in respect to her separate property, I think it would not be proper to join the hus- band as a party plaintiff; in other words, to bring the action in the name of the husband and wife. If this were otherwise, it would not be necessary to appoint a next friend for the wife, that being required only in cases where the husband cannot be joined. Probably the only cases where the husband cannot be joined, are such as are brought by the one against the other, such as actions for a limited or absolute divorce. There seems to be no good reason existing, why the husband should be joined with the wife in actions concerning her separate property : there are reasons why he should not in some cases, and hence she is permitted to sue alone. The acts of 1848-9, before referred to, vest absolutely in the wife, all her property, both real and personal ; and in cases of marriage, after that act took effect, the husband has no interest whatever in his wife's property, especially during coverture ;(5) and as the suit must be prosecuted in the name of the real party in interest, it seems inconsistent to allow a husband to be joined as plaintiff in a suit where he has no interest. In the case of Coil v. Coit^{Q) it is said the wife need not be joined with the husband, but that she must appear by her next friend. And in Gooh v. Eawdon,{7) it was held, that in a case where the land which was the subject of the action was not the separate property of the wife, no next friend of the wife was necessary. (1) N. A. Coal Go. v. JDyett, 1 Paige's Ch. Rep. 9. (2) Heller V. Heller, 1 Code Rep. (N. S.) 309 ; Shore v. Slwre, 2 Sandf. S. C. Rep. T 15. (3) 13 Wend. 271. (4) 13 Wend. 271 ; 18 John. R. 443. (5) Hurd V. Cass, 9 Barb. S. C. R. 366. (6) 6 How. Pr. R. 53. (7) 6 How. Pr. R. 233. Vol. I. 41 322 ^S TO PARTIES,— PLAINTIFFS. That tlie suit might be brought in the name of husband and wife, and in such case no prochien ami was necessary. But if the suit was for her separate property, she must have a next friend. This certainly is an authority, that it is improper to join the husband in actions con- cerning the separate property of the wife.(l) An assignee of a thing in action, may sue in his own name, but the action thus brought, will not prejudice any set off, or other defence ex- isting at the time of the assignment, or before notice of the assignment is actually given.(2) The assignment here spoken of, is of a thing in action arising out of a contract expressed or implied ;(3) if it arise not out of a contract, it cannot be assigned. Hence a tort is not assignable. The provision that the assignee of a thing in action takes it subject to any set off or other defence existing at the time of the assignment, does not apply to a negotiable promisory note or bill of exchange, trans- ferred in good faith, and upon a good consideration, before due. (4) This was substantially the law as it existed before the Code, and the books are full of cases, holding that the transferee of promissory notes and bills of exchange, transferred for an inadequate consideration, or in bad faith, or after maturity, takes them subject to all the equities or defences existing at the time of the transfer between the original parties. For personal injuries to a child^ such as abduction, beating, seduc- tion, &c., the father may sue if he can show a consequent loss of service to himself, but not otherwise.(5) So of injuries to the person of a servant In both these cases, however, the child or the servant may himself sue. And the right of action in the father or master, arises from the consequent loss of service, and not from the injury itself. Executors and administrators^ Among the class of persons who may sue in their own names, without joining the person for whose benefit the action is prosecuted, are executors and administrators. The re- vised statutes(6) provide, that actions of account, and all other actions upon contracts, may be maintained by executors in all cases in which the same might have been maintained by their testators. So adminis- trators shall have actions to demand and recover debts due to their in- testate, and the personal property and effects of their intestate.(7) So, executors and administrators are authorized to bring actions for tres- pass against any person who shall have wasted, destroyed, taken or carried away, or converted to his own use, the goods of their testator (1) See Willis Y. UnderhiU, 6 How. Pr. E. 396. (2) Code, sec. 112. (3) Cede, sec. 111. (4) Code, sec, 112. (5) 1 Chitt. PI. 70, (ed. of 1844.) (6) 2 E. S. 113. sec. 2. (T) 2 E. S. 113, sec. 4. AS TO PARTIES —PLAINTIFFS. 323 or intestate, in his lifetime. They may also maintain actions for tres- pass committed on the real estate of the deceased in his lifetime.(l) And for wrongs done to the property, rights, or interests of another, for which an action might be maintained against the wrong-doer, an action may be brought after the death of the person injured by his executors or administrators, in the same manner and with the like effect in all respects as actions founded on contracts.(2) But this provision of the statute does not extend to actions for slander, for libel, or to actions for assault and battery, or false imprisonment, nor to actions for injuries to the person of the testator or intestate.(3) If, however, such injury to the person results in the death of the testator or intestate, and is caused by the wrongful act, neglect, or default of another, an action for damages may be maintained by the executor or administrator, for the benefit of the widow and next of kin of the tes- tator or intestate. (4) In actions brought by executors, it is not necessary to join those as parties to whom letters testamentary shall not have been issued, and who have not qualified.(t)) Triistees.'] Another class of persons who may sue in their own names are trustees of an express trust. Uses and trust, except as authorized and modified by the revised statutes, are abolished,(6) The express trusts which may be created, are : — 1, To sell lands for the benefit of creditors : 2, To sell, mortgage, or lease lands for the benefit of legatees, or for the purpose of satisfying any charge thereon : 3, To receive the rents and profits of lands, and apply them to the use of any person, dur- ing the life of such person, or for any shorter term, subject to the rules prescribed by the first article of the same title ; and, 4, To receive the rents and profits of lands, and to accumulate the same for the benefit of one or more persons, (7) All actions growing out of the execution of the foregoing trusts, may be prosecuted in the name of the trustee. But these trusts relate exclusively to real property. There is another class of express trusts relating to personal property, in executing which, the trustee is now authorized to sue in his own name. Such as the trustees of the estates of non-resident, absconding, and concealed debtors ;(8) of the estates of debtors confined for crimes ;(9) of insolvent debtors making voluntary assignments.(lO) In all these cases the trus- tees are authorized to sue in their own names, and recover all the (1) 2 R. S. 113, sec. 5. (2) 2 R. S. 447, sec. 1. (3) 2 R. S. 447, sec. 2. (4) Laws of 1847, p. 575, sees. 1, 2. (5) 2 R. S. p. 113, sec. .3. (6) 1 R. S. 727, sec. 45. (7) 1 R. S. 727. sec. 55" (8) 2 R. S. p. 3. (9) 2 R. S. p, 15. (10) Ibid. p. 16. 324 AS TO PARTIES,— PLAINTIFFS. estate, debts, and things in action, belonging or due to the debtor, in the same manner and with like effect as the debtor might have done, if no trustee had been appointed. (1) So, trustees of school districts, and trustees of gospel and school lots, may sue in their own names, upon any contract lawfully made with them or their predecessors in their ofl&cial character, to enforce any liability or any duty enjoined by law, to such trustees or the body which they represent, and may re- cover any penalties or forfeitures given to such officers, or the bodies which they represent ; and may recover damages for inj uries done to the property or rights of such trustees, or the bodies they represent.(2) In like manner, the supervisors of a county ; loan officers and com- missioners of loans ; county superintendents of the poor ; supervisors of towns ; overseers of the poor ; commissioners of common schools ; and commissioners of highways, may sue in their own names. But in all these cases, the action must be brought in the name of the officer by his title of office, thus : — " James Jackson, overseer of the poor of the town of," &c.(3) A trustee of an express trust is further defined to include a person with whom, or in whose name a contract is made, for the benefit of another. Thus, a factor or agent doing business for another, may sue in his own name upon any contract made by him for his principal, and that too, whether his principal be named in it or not.(4) Thus, in an action upon a contract made in the name of an agent, for the benefit of his principal, even although it did not appear upon the face of the contract that the party making it did so as agent.(5) Persons authorized hy statute^ I have already enumerated a large number of instances in which persons are expressly authorized by stat- ute to bring suits in their own names, such as receivers — committees of lunatics and habitual drunkards — corporations — presidents or treasur- ers of joint stock companies and associations — foreign corporations — executors and administrators — trustees of insolvent and other debtors • — trustees of schools, &c. — supervisors — loan officers — superintendents and overseers of the poor — and commissioners of schools and highways. There is a large number of other officers who, by statute, are expressly authorized to sue in their own name, but it is unnecessary to enumer- ate them. In all these and similar cases, the suit must be brought in the name of his office, with the addition of his office, and not by the title of the office alone. (1) 2 R. S. 41, sec. t. (2) 2 R. S. 473, sec. 106. (3) 2 R. S. 373, sec. 106. (4) Grinnell v. Schmidt, 2 Sandf. S. C. Rep. 706. (5) Ericksony. Cornpton, 6 How. Pr. R. 471. AS TO PARTIES— PLAINTIFFS. 325 Infant^ An infant cannot sue in his own name alone, but must ap- pear by guardian, who may be appointed by the court in which the action is prosecuted, or by a judge thereof, or a county judge. The manner of procuring the appointment of a guardian of an infant, will be treated under a separate head.(l) The rule on this subject is imperative and inflexible ; in no case can a suit be prosecuted for an infant, until a guardian is duly appointed. And I think it is clear, that this rule applies to an infant plaintiff, who is united with other plaintiffs as well as to an infant who is sole plain- tiff. Under the revised statutes, it was only necessary to appoint a guardian for an infant, when he was sole plaintiff, but the language of the Code is, " when an infant is a party^ he must appear by guardian."(2) Hence, whether he be sole plaintiff or coupled with others who are adults, a guardian is necesssary. The practice requires that the guardian should be appointed in the first instance, and before the complaint is verified or the summons issued or served ; in other words, before the commencement of the ac- tion. And where it appeared that the guardian was not appointed until the day of service of the summons and complaint, which were dated, and the complaint verified the day previous, it was held irregu- lar.(3) And it is proper for the guardian to verify the complaint. (4) As a general rule, no person can be appointed guardian for an infant plaintiff, unless he be the general guardian of the infant, or an attorney or other officer of this court, who is fully competent to understand and protect the rights of the infant, and who has no interest adverse to that of the infant, and is not connected in business with the attorney or counsel of the adverse party.(5) Nor can any person be appointed guardian who is not of sufiicient ability to answer to the infant for any damage which may be sustained by his negligence or miscon- duct.(6) But, it has been held (7) that the before mentioned general rule does not prevent the court from appointing some person other than the general guardian, attorney, or other ofl&cer of the court, as guardian of an infant plaintiff. It seems, however, that where a married woman is sole plaintiff, her husband cannot be next friend.(8) Several phiniiffs.'] It is necessary that all persons having an interest in the subject of the action, and in obtaining the relief demanded, (1) See post (2) Code, sec. 115. (3) Hill V. Thatcher, 2 Code Rep. 3 ; 3 Pr. Rep. 407. (4) Ibid. (5) Rule 53. (6) Rule 53 ; Cook v. Bawdon, 6 How. Pr. Rep. 233. (7) Cook V. Rawdon, 6 How. Pr. Rep. 233. (8) Ibid. 325 AS TO PARTIES,— PLAINTIFFS. sliould be joined as plaintiffs.(l) Where, however, a person, who should be joined as plaintiff, refuses his consent to be joined, he may be made a party defendant, the reasons therefor being stated in the complaint.(2) And where the subject of the action is one of a common or general interest to many persons, one or more of the persons interested may sue or defend for the benefit of all, but it must appear that a complete de- termination of the subject in controversy can be made without includ- ing all the persons having a general or common interest therein. So, if it be a case where the parties are necessarily very numerous, the court may, if it appear to be impracticable to bring them all into court, permit the suit to be prosecuted by or against one or more for the bene- fit of the whole.(3) Thus, where there is a large number of owners of a fishery, or of a parcel of land, or of a chattel, in an action in respect to such fishery, land or chattel, it would be proper to institute the ac- tion by or against one or more only of the several owners, for the bene- fit of the whole. But it should distinctly appear in the complaint, that it would be impracticable, upon the score of expense or otherwise, to make them all parties. The foregoing provision of the Code authorizing one of several per- sons to prosecute a suit for the benefit of others, is in analogy to what was the well settled practice in chancery. When, therefore, a bill was filed in chancery by a treasurer and manager of certain works, on be- half of themselves and all other proprietors and partners in the under- taking, a demurrer for defect of parties was overruled.(4) So, one or a few creditors might file a bill on behalf of themselves and the remain- der of the creditors.(5) So, some members of a voluntary society might file a bill against the committee of such society, without making parties of the other members.(6) So, legatees might prosecute in favor of themselves, and all others who might choose to come in under the de- cree.(7) The reason for this rule was, that it avoided the inconvenience which results from numerous parties, as there might be continual abate- ments by death, and no coming at justice. The regulation which does away with a multitude of parties, nevertheless reqiiires there should be a privity between them, so that a complete judgment may be made. Somewhat in analogy to this practice, is that which allows creditors of an absconding, concealed, or non-resident, to come in or participate (1) Code, sec. 111-119. (2) Code, sec. 119. (3) Code, sec. 119. <4) West V. Randall, 2 Mason, 181 ; Colt v. Lasnier, 9 Cow. 320. (5) Brinckerlwffv. Broivn, 6 J. C. R. 139. (6) Coop. Eq. 39, 40. (7) Fish V. Holland, 1 Paige, 20; Priichard v. Hicks, ibid. 270; Boss v. Crary, ibid. 4G1. AS TO PARTIES— PLAINTIFFS. 327 in the fivaila of the attached property.(l) There is, however, a class of cases where it would be improper to join persons as plaintiffs who have a common interest, such as actions which were formerly denominated ex delicto for injuries to the person or to the character. So in this de- scription of actions, one person could not sue in behalf of himself and others, but each must bring a separate action, but partners in respect to their yom;; trade^ must unite as plaintiffs. AVhile, on the other hand, it is now competent for an assignee under a general assignment volun- tarily made for the benefit of creditors, to prosecute in his own name to recover any debt or demand due to his assignor. Non-joinder of 'plaintiffs^ As a general rule, the non-joinder of par- ties as plaintiffs, must be taken advantage of either by demurrer or answer, and cannot, in any other way. If the defect is apparent upon the face of the complaint, the defendant must demur^ for a defect of parties plaintiff. (2) And if he omits to demur, he waives the right to object afterwards, for if he answers the complaint, he will be deemed to have waived the objection.(3) If, however, the defect of parties plain- tiff does not appear by the ' complaint, the defendant may make the objection by answer. I have already considered, (4) who must and who need not be joined as plaintiffs. Death.'] In case of the death of one of several parties, who were united in interest, if the cause of action survive to the others, the sur- vivors may sue alone ;(5) but where the cause of action does not survive, the representatives of the deceased person must be joined as plaintiffs.(6) The provisions of the Code requiring all parties in interest to be joined as plaintiffs, have altogether changed the rules that have hereto- fore prevailed in respect to actions of a merely legal nature. Formerly, an assignee of a personal contract or chose in action, could not sue in his own name, except in some cases, by the custom of merchants or express statutory permission. In courts of equity, however, it was necessary that the complainant should have an interest in the suit, and that interest must have appeared in the bill, or it was ground of ob- jection by demurrer or plea.(7) Action ex delicto.'] There is a class of cases where it is not proper to join persons as plaintiffs, who may have a common interest in the sub- ject matter of the suit. In actions that were formerly denominated ex (1) 2 E. S. 8, sec. 39. (2) Code, sec. 144, sub. 4. (3) Code, sec. 148. (4) Ante, p. 318. (5) 1 Chit. PI. 19. (6) 2 John. Cases, SU. (7) Mitf. Eq. PI. 156-T. 328 NON-JOINDER OR MIS-JOINDER OF PLAINTIFFS. delicU) — for injuries to the person, as slander, battery, or false imprison- ment, several persons cannot sue jointly ; each must bring a separate action ; except in cases of slander of title, and of words spoken of part- ners in respect of their trade.(l) Hence, though the battery or false imprisonment, be of two or more persons at the same time, they must bring separate actions — they are not " united in interest," though the cause of action arose at the same time, and grew out of the same tres- pass. The measure of damages for one might be greater than for an- other, as one might have suffered a greater injury than the other. Mis-joinder of j^lcwitiffs.'] In like manner, if jDersons join as plaintiffs in an action who should not, the defendant may, if the objection ap- pears by the complaint, demur, and if it does not appear, he may take advantage of the defect by answer. SECTION" II. THE NON-JOINDER OR MIS-JOINDER OF PLAINTIFFS. Non-joinder. '\ As has been seen, if it appears upon the face of the complaint that a person has not been joined as plaintiff, who ought to have been, the defendant may demur ; that is the only way in which the defendant can take advantage of the omission. By sec. 144 of the Code it is provided, that the defendant may demur to the complaint '■'■wheii it shall appear on the face thereof^'' that there is a defect of parties plaintiff or defendant. If therefore it appears that there is a defect of parties, the only course for the defendant is to demur ; for if he omits to do so and answers, he will be deemed to have waived the objec- tion.(2) If the defect do not appear on the face of the complaint, the defend- ant may in his answer, take advantage of the objection, and set out the reasons why some other person, having an interest in the subject of the action, ought to be joined with the plaintiffl(3) Mis-joinder.'] The foregoing applies to a non-joinder of parties plain- tiff ; and the same rule is also applicable to a mis-joinder of plaintiffs. No person except the real party in interest can sue, excej)t in the cases to (1) 1 Chit. PL 74. (2) Code, sec. 148. (3) Code, sec. 147. AS TO PARTIES,— DEFENDANTS. 329 which I have heretofore alluded, namely, executors, administrators, trustees of an express trust, and persons exj)ressly authorized by statute, &c.(l) Hence, if a person having no interest in the subject of the action is united with the realf)arty in interest, it is such a "defect of parties" as would be ground of demurrer, if the objection appear upon the face of the complaint. If it do not so appear, the defendant may set it up in his answer, and non-suit the plaintiff on the trial. In like manner, where the non-joinder of a party as plaintiff, does not appear, so as to enable the defendant to demur, the defendant having taken the objection in his answer, may have a non-suit on the trial. If the objection be not taken either by demurrer or answer, the de- fendant will be deemed to have waived his right to mrtke the objection afterwards, in any stage of the proceedings.(2) And he cannot upon the trial raise the question whether the proper parties are before the court. SECTION III. PARTY DEFENDANT. While the general rule, as to those who may be sued, is the same as with respect to those who may sue, in this court, it is modified by ex- ceptions proceeding upon principles of an entirely different character. Thus, for example, the prohibition as to the prosecution of suits by persons imprisoned on convictions for felony, (unless for life, in which case, as has been seen, the party is deemed civilly dead,) and alien enemies, has no application to such persons in the character of defend- ants ;(3) although, in the former case, no person in custody on a crimi- nal charge, can be detained in a civil action, at the suit of another, either on an execution or judicial process, without leave of the court. This is granted as of course, where it would not have the effect of defeating the conditions of a pardon, or preventing the execution of the sen- tence ;(i) and subject to it, an execution against the person may be lodged against a prisoner, though sentenced for a felony, upon which (1) Ante, p. 322, 323, 324. (2) Code, sec. 148. (3) Hastings v. Blake, Noy, 1, 750; Eamsdenv. Macdonald, 1 Wils. 217; 2 Inst. 56; 3 Inst. 215; Lush's Prae. 6. (4) Daintree v. Justice, Ca. temp. Hardw. 190; Ramsay v. Macdonald, Fost. C. L. 61 ; Cojp- pin V. Gunner, 2 L. Eaym. 1572 ; Foxvjorthy's case, 2 L. Eaym. 848. Vol. I. 42 330 -A-S TO PARTIES— DEFENDANTS. lie may be arrested after tlie imprisonment on a criminal cliarge is at an end.(l) So, also, thougli tlie rule is in general the same, as to suing foreign executors and administrators in thia^state, as that which has been seen to be in all cases applicable to them as plaintiffs, yet a difficulty has been found to exist in carrying out the rule, arising out of the claims of the home creditors, which has perplexed courts, in different coim- tries, where the soundness and justice of it have been fully acknow- ledged.(2) And as a means of obviating the injustice of relieving them wholly from liability beyond their own appropriate jurisdiction, it was held, in one case in this court, — where an executor, appointed in Pennsylvania, (where the will had been regularly proved,) had assets, received by him in Pennsylvania, which he brought into this state, and had also collected assets here, — that he was liable as an exe- cutor de son tort., to the amount of the assets received here and in Penn- sylvania, which he had not applied in the due course of administra- tion. (3) But in a subsequent case, against a foreign executor, as such, it was held, that moneys arising from the sale of real estate in another state, were not to be regarded as assets here ; and this case was distin- guished from that last cited, on the ground that in the latter, the executor was sued as an executor de son tort. {4:) Both these cases, it is to be remarked, were decided before the adoption of the revised sta- tutes, which provide, that, no person 'shall be liable to an action as executor of his own wrong, for having received, taken or interfered with, the property or effects of a deceased person ; but shall be respon- sible as a wrong-doer, in the proper action, to the executors, or general or special administrators, of such deceased person, for the value of any property or effects so taken or received, and for all damages caused by his acts, to the estate of the deceased ;(5) and as a consequence, it would seem, that the i^rinciple of the former case is no longer applicable. Besides, in referring to that case, in a recent case in chancery, chan- cellor Wahvorth regarded it as only deciding that a foreign executor or administrator could not be sued, as such, by a creditor of the de- ceased, in a court of law in this state ; and further remarks : — " But even that case shows that the creditors and legatees are not without remedy, in a case where the foreign representative has brought the assets into this state ; though I confess I have some doubt, whether he ought to be called to account therefor, in a court of law, as an executor de son tort. But I can see no valid objection to a suit against him in (1) 3 Inst. 215. (2) Schultz V. Pulver, 11 Wend. 372, and cases there cited. (3) Campbell v. Tomeij, 7 Cowen, 64. (4) Peak v. Mead, 2 Wend. 470. (5) 2 R. S. 449, sec. 17. AS TO PARTIES— DEFENDANTS. 331 this court, where he may have the full benefit of his administration of the estate abroad ; and where full and ample justice can be adminis- tered, without regard to the technical form of the suit." — And accord- ingly, he held, that the court of chancery had jurisdiction to compel a foreign executor or administrator to account for the trust fund Avhich he received abroad, and brought with him into this state ; and that, too, without taking out letters of administration on the estate of the deceased, here ; that, upon a bill filed against such foreign executor or administrator, if he be about to depart and go beyond the bounds of the state, he may be arrested upon a ??e exeat^ and held to equitable bail as in other cases : that in a suit here, against a foreign executor or administrator, for assets received in the country where he was ap- pointed, and brought into this state, the nature and extent of his liability, will depend upon the laws of the state or country where he derived his authority to administer the assets of the deceased ; and that the assets must be applied, in the payment of debts, or be dis- tributed among the next of kin, according to the law of that country, and which would be applicable to the case, if he had been called to account there.(l) Another distinction, as it respects the parties plaintiffs, and the par- ties defendants, exists in reference to this and the other states of the union, collectively and individually, as well as to foreign governments ; there being, in this state, no legal authority on the part of any of our courts to implead them as defendants. On the other hand, in actions against corporations created by the laws of this state, the rule is the same as where they sue as plaintiffs. It is the same, also, in actions against associations under the general banking law ; it being provided by statute, that all persons having de- mands against any such association, may maintain actions against the president thereof ; which suits or actions shall not abate by reason of the death, resignation or removal from of&ce of such president, but may be continued and prosecuted to judgment, against his successor- and all judgments and decrees obtained or rendered against such presi- dent, for any debt or liability of such association, shall be enforced only against the joint property of the association ; and which property shall be liable to be taken and sold, by execution under any such judg- ment or decree.(2) Suits may also be brought in this court on^.y, by a resident of this state, against any corporation created by or under the laws of any other state, government or country, for the recovery of any debt or damages; (1) M'Namara v. Divyer, 1 Paige, 239, 243. (2) Laws of 1838, p. 250, sec. 22. 332 AS TO PARTIES— DEFENDANTS. which may be commenced by attachment.(l) The court, or any judge thereof in vacation, and any officer authorized to perform the duties of such judge, in vacation, niay, on the application of the plaintiff, issue such attachment to the sheriff of the county in which any property of such corporation may be, commanding him to attach and safely keep all the estate, real and personal, of such corporation.(2) The practice on this subject will be hereafter considered. Having thus noticed the general distinction as respects parties plain- tiff and defendant, I shall now consider, in what cases the jurisdiction of the court is taken away, by the existence of a special privilege of the party, but for which he might be proceeded against as a defendant. These exist in the case of foreign ministers, and their domestics, or do- mestic servants, — consuls, — persons liable on bail bonds or recogni- zances of bail, — and persons fraudulently or forcibly brought within the local jurisdiction of the court. Foreign ministers, and their domestics, or domestic servants?^ It is among other things provided by the act of congress, — usually denominated the judiciary act, (3) — that the Supreme Court of the United States shall have, exclusively, all such jurisdiction of suits or proceedings against ambassadors, or other public ministers, or their domestics, or domestic servants, as a court of law can have or exercise, consistently with the law of nations.(4) — This provision of course, takes away all jurisdiction from the state courts, in the cases to which it refers. It only remains, then, to ascertain distinctly, who are the persons thus exempted. As to who are ambassadors or other public ministers, — it is clearly settled, that the courts cannot inquire whether a person recognized by the government, as a foreign minister, was duly appointed as such ; the recognition by the j^resident, being conclusive upon the judiciary. (5) It has been held, also, that a secretary of legation, (6) or an attache, (7) is a public minister, within the statute. (1) 2 R. S. 459, sec. 15 (2) 2 R. S. 459. sec. 16. (3) Laws of U. S. of 1789, cli. 20, sec. 13, (1 Story's Laws, 59.) (4) As to the precise extent of the jurisdiction, which may, in any ease, be exercised over ambassadors, or other public ministers, consistently with the law of nations, it is not witliin the scope of the present treatise to inquire. The subject is fully discussed in the books on international law, to which the student is referred. I, however, refer to the very able opinion of the New York Superior Court, (delivered by Oakley, J.,) in the case of Eolbrook v_ Henderson, in which it was held, that a foreign ambassador accredited by one nation to an- other, and returning home through this, as a neutral country, was exempted from the juris- diction of the courts of this state. (4 Sand. S. C. R. 619.) (5) United States y. Ortega, 4 "Wash. C. C. Rep. 531 ; Torlade v. Barrozo, 1 Miles. 366. (6) Ex parte Cabrera, 1 "Wash. C. C. Rep. 232. (7) United States v. Benner, 1 Baldw. 240. AS TO PARTIES— DEFENDANTS. 333 As to tlie otlier persons named in tlie act, (wliicli, in tLis respect, uses the same phraseology as the English statute exempting them from arrest,)(l) it has been held that it does not extend to consuls or their servants ;(2) nor to persons holding situations inconsistent with the office of such domestic ;(3) nor to any person colorably only, and not honafide^ in the service of such ambassador ;(4) nor to a courier or messenger ; for he is not a domestic.(5) But it is not necessary that the servant should reside in the ambassador's house, provided he do the duties of his office there.(6) And, it seems, that a chorister, hona fide employed by an ambassador in the performance of religious wor- ship in his chapel, is thus privileged; (7) nor is it material, whether the servant be a foreigner, or native of this country.(8) • Consuls^ The act of congress just referred to, confers upon the dis- trict courts of the United States, jurisdiction, exclusively of the courts of the several states, of all suits against consuls or vice-consuls, except- ing for several criminal offences therein mentioned.(9) The conse- quence is, that no state court has jurisdiction of a suit against a consul or vice-consul. (10) And the court will stay proceedings, in any stage of the cause, on its being shown that, for this reason, they have no jurisdiction.(ll) And it having been held by the court of errors of this state, that a consul of a foreign power, sued in the Supreme Court upon a recognizance of bail acknowledged in that court, who appeared and pleaded to the merits, could not, upon a writ of error, assign as an error in faci^ that he was such consul, and therefore allege that the Supreme Court had not jurisdiction ; regarding the action upon the re- cognizance as merely a continuance of the original suit, and deeming him precluded from raising the objection, by his plea to the merits ;(12) the Supreme Court of the United States reversed the judgment, on the (1) 1 Chit. Arch. Tth ed. 466. (2) Viveasli v. Becker, 3 M. & Sel. 284. (3) Masters \. Manly, 1 Burr. 401 ; Barling v. Atkins, 3 Wils. 33. (4) Malachi Carolina's case, 1 "Wils. T8; Lockivoodv. Coysgarne, 3 Burr. 1676. (5) Beserisay v. O^Brien, Barnes, 375. (6) Evans y. Higgs, 2 Str. 797; S. G. nora. Evans v. Hicks, 2 L. Raym. 1524; Wigmo7-ev. Alvarez, Fitzg. 200; see Novello v. Toogood, 1 B. & C. 554; S. G 2 D. & R. 833. (7) Fisher v. Begrez, 1 Cr. & M. 117 ; ,S. C. 1 Dowl. 0. S. 568. (8) Lock wood v. Coysgarne, 3 Burr. 1676. (9) Laws of U. S. of 1789, ch. 20, sec. 9, (1 Story's Laws, 56, 57.) (10) Mannhardt v. Soderstrom, 1 Binn. 138 ; Hall y. Young, 3 Pick. 80; Sartori v. Hamil- ton, 1 Green, 107 ; United States v. Lathro-p, 17 Johns. 10. (11) Manhardt v. Soderstrom, 1 Binn. 138. (12) Davis V, Packard, 6 Wend. 327. 834 AS TO PARTIES,— DEFENDANTS. ground that he had not waived his privilege, but had a right to allege it as an error in fact,(l) With the exceptions which have been just mentioned, any person may be made a defendant, who has or claims to have an interest in the controversy, adverse to the plaintiff; or who is a necessary party to a complete determination or settlement of the questions involved there- in.(2) Care should be taken that the person who has the real adverse in- terest, is selected as the defendant, otherwise the action will fail. An agent is not generally liable, upon contracts made by him, unless he fails to disclose his principal, or does not declare himself to be an agent at the time of making the contract.(3) A feme covert gannot be sued upon a mere personal contract, made by her during covertiu'e, although she live apart from her husband and have a separate maintenance; the suit in such cases must be against the husband alone. Where the contract is joint, all the parties must be made defendants, 23rovided they all be liable as joint contractors. Hence, where a suit was brought against two only of three co-partners, and it appeared that the third was an infant, it was held it was no objection, and the action was well brought ;('i) and the reason is, that the contract, so far as regards the infant being absolutely void or voidable, and such as can- not be enforced against the infant, it becomes the sole contract, for the purposes of the action at least, of the adult parties. Executors or administrators are the proper defendants in actions respecting the personal estate of their testator or intestate ; but where the action relates to the real property, it must be brought against the heir at law. So, in suits against corporations and joint stock companies and asso- ciations of seven or more jDersons, the suit may be brought against the president or treasurer for the time being, nor will such action abate by reason of the death, resignation, or removal from office of such presi- dent or treasurer, but the same may be continued against the successor of the officer against whom the suit was brought.(5) Married Women.'] I have already considered the cases in which a (1) Davis V. Packard, 6 Peters, 41 -,8.0.1 Peters, 276 ; see also, S. C. in the court of errors, on the mandate of the Supreme Court of the United States, 10 "Wend. 50. (2) Code, sec. 118. (3) 13 Johns. R. 58; 15 Johns. 1, 3.' (4) Shcura v. Hooker and another, 6 How. Pr. R. 16. (5) Laws 1849, p. 389, sec. 1. AS TO PARTIES —DEFENDANTS. 835 married woman may sue in her own named, (1) and in the same cases she may hkewise he suecl^ and that too, without joining her husband. The cases are : 1. When the action concerns her separate property ; 2. When the action is between herself and husband. But in all cases where her husband cannot be joined with her, she must defend by her next friend.(2) As has been seen,(3) the laws of 1848-49, give to a married woman all property, both real and personal, which she may receive by inheri- tance, gift, grant, devise or bequest, from any person other than her husband, and which she may hold to her sole and separate use, &c. In cases, therefore, concerning such separate property, the suit should be brought against the wife ; and for the same reasons which are stated with respect to parties plainti£f,(4) it would be improper to join the husband. The husband can have no interest in the event of the suit. Of course, I assume that these laws conferring upon a married woman the right to take and hold property, and which are in derogation of the common law rights of the husband, are constitutional, otherwise the husband would have an interest and would be a necessary party defendant. The only cases in which it is held otherwise is Hurd v. Cass,(5) but in that case the marriage had taken place before the act was passed, and the right of the wife even there to dispose of the estate during her life, by grant or otherwise, is not disputed. But in an action brought against husband and wife to foreclose a mortgage and enforce payment of a bond executed by both, to secure the purchase money of premises conveyed to the wife since the act of 1848, it was held there was no mis-joinder of parties. Both were mort- gagors, and though the bond was void as to the wife, it was valid as to the husband.(6) In case the suit is brought against a married woman, without joining her husband, a next friend must be appointed, and no step or proceed- ing in the action can be taken after the service of the summons until the next friend is appointed. But of this hereafter. Infant.'] As a general rule infants, or persons within lawful age are not liable upon their contracts, and hence infancy is a good defence. Their contracts, however, are not absolutely void, but voidable merely by the infant, and may be aftirmed by him when he arrives at lawful age. But contracts for necessaries are binding upon an infant and they may be sued and charged in execution on such contract, provided the articles were necessary for him under the circumstances and condition (1) Ante, p. 320. (2) Code, sec. 114. (3) Ante, p. 320. (4) Ante, p. 321. (5) 9 Barb. S. C. R. 366. (6) Conde v. Sheimrd, 4 Pr. E. 75. 336 ^S TO PARTIES,— DEFENDANTS. in wliicli lie was placed. So, if an infant pay money without a valuable consideration for it, be cannot recover it back, and where goods were obtained by an infant, under a fraudulent affirmation, that he was of age, though he might avoid payment of the price of the goods, on the plea of infancy, the vendor was held entitled to reclaim the goods, as never having parted with his property in them. But infents are liable in actions for torts, whether founded on posi- tive wrongs, or constructive torts or frauds. In all cases where a suit is brought against an infant, he must before any step or proceeding is taken in the action after the service of the summons, have a guardian appointed for him. All the parties who have a common interest, adverse to the plaintiff, must be joined as defendants, or the defendants sued may demur. It is not necessary that the interest should be direct and immediate, it may be remote and contingent, and if it be of a nature, that it may by possibility attach at a future day, the person having such possible in- terest must be made a defendant, if the relief sought to be obtained by the action, will defeat or destroy such interest, otherwise there would not be " a complete determination or settlement of the questions in- volved therein." Among the cases of remote or contingent mterest, is that of doiver ; which depends upon the wife's surviving the husband — remainder in- terests, which depend upon the termination of a previous outstanding est&te— assignments in trust to pay debts, the interest of the assignor in the trust property, depending upon there being a surplus, after perform- ance of the trusts ; and similar cases. Where it is the design, com- pletely to determine the rights or in any way to affect the rights of others, all such as have any interest or who have a right to be heard, must be made defendants. A ivife cannot be sued alone, upon contracts made by her dum sola. •Her husband must be joined with her.(l) When a contract is several, as well as joint, all the parties to it may be sued jointly or each party separately. (2) It being optional with the plaintiff to pursue one, or all of the contracting parties. And generally tenants in common must all be sued in the same action. Corporators and dormant jMrtners need not be joined, though they may be, where they have become personally liable. An iyifant may be sued alone, but no proceeding can be taken in the suit, after service of the summons, until a guardian has been appointed to appear for him.(3) As to the manner of procuring the apppoint- ment of a guardian, see post (1) 15 John. R. -103 ; 1 Chitt. PI. 57 ; 13 WeudeU 271. (2) 1 Saund. 153. (3) Code, sec. 115. AS TO PARTIES,— DEFENDANTS. 837 It is provided by statute(l) that wliere there are several persons, severally liable upon the same obligation or instrument, including the parties to bills of exchange and promissory notes, they may all or any of them, be included in the same action, at the option of the plaintiff. As a joint judgment against all the parties to an instrument is as effectual as a separate judgment against each would be, it is generally advisable to include all in one action, especially, as no costs, other than disbursements, are allowed to the plaintiff, in more than one action, if he bring several actions against parties who may be joined in one.(2) In actions ex delicto, the general rule is, that the person committing the injury, either by himself or his agent, must be made defendant; the principal being liable for the tortious acts of his agent, if committed, in the prosecution of his business, but otherwise, if the act be wilful and malicious — when the agent alone is liable. The agent or servant also is liable notwithstanding the principal may be.(3) It is not necessary to join all the parties to a tortious act, as defend- ants — one or more, or all, may be sued jointly, or each separate- ly.(4) Where the tort however consists of verbal slander by two or more persons, a separate action must be brought against each ; they cannot be sued jointly. (5) In an action in the nature of a creditor's bill, against the original debtor and his assignees, where it was sought to set aside the assign- ment on the ground of fraud, it was held not to be necessary to join as parties defendants all the creditors of the assignor.(6) The assignees, in such case, represent all the creditors interested in the trust, and they alone are the necessary defendants. It would be otherwise, if the action was to establish and carry out the assignment, or for a portion of the trust fund. (7) By a statute passed in 1837,(8) the heirs of a person dying intestate, are required to be sued jointly and not separately. But in such action they cannot be m&.de jointly liable as joint debtors.(9) So, where an action was brought against ttvo members of a co-part- nership, leaving the third member of the firm out, because he was an infant at the time the contract was made, it was held the action was well brought.(lO) The complaint was against the defendants upon a (1) Code, sec. 120, (2) Code, sec. 304, sub. 4. (3) 8 Wend R., 474. Browne on Actions, 175, ISO. (4) 6 John. R. 26, 31. (5) 6 John. R. 26, 31. (6) Bank of British N. A. v. Suydam, 6 How. Pr. R. 379. (7) Ibid. (8) Sess. Laws 1837, p. 537, sec. 73. (9) Kellogg y. Olmsted, 6 How. Pr. R. 487. (10) Shcumand Walker v. Hooker, &c. 6 How. Pr. R, 167. YoL. I. 43 333 AS TO PARTIES— DEPENDANTS. special contract ; the answer of the defendants alleged that one Patti- sou, at the tune of making the contract, was a partner with them, and jointly interested with them in the contract. The plaintiff replied that Pattison was an infant ; to this reply the defendants demurred. Har- ris^ J., says: "My own conclusion is, that whatever may be the char- acter of the contract between an infant and the party with whom he contracts— whether it is to be regarded as absolutely void, or merely voidable, it may safely be asserted, that when any other person seeks to take advantage of the existence of such a contract, it is sufl&cient to show that it was made by a party whom the law pronounces incapable of contracting. Of course, in a case like that now under consideration, the contract in question is not the less the sole contract of the adult defendants, because another person has joined in it, who is not permit- ted by law to make such contract. The inability to contract being established, he ceases to be a joint contractor; I am of opinion, there- fore, that the action is well brought against the adult contractors only."(l) ^ ^ So, if one of several co-partners or joint debtors be discharged under the bankrupt or insolvent laws, or by a composition with his creditors under the act of 1838,(2) he may be omitted as a defendant in an action against the remaining co-partners or joint debtors. Kor is it necessary to make dormant partners,(3) and nominal partners having no interest, parties defendant. In case of the death of one of several partners or parties to a joint contract, the action must be brought against the survivors^ and cannot be against the survivors and the representatives of the deceased party. (4) But if the contract is several, or joint and several, the representatives may be joined with the surviving parties in the same action. And in case of the death of a sole party, the action must be against his executor or administrator, or in case of a joint contract against the executor or administrator of the survivor. And all the executors or administrators to whom letters testamentary, or of administration, have been issued, who have qualified, must be joined in the action. (1) Browne on Actions, 124; 1 Chitty's PI. 49; 5 Johns R. 159; 14 East, 210; Arch. PI. 67. (2) Sess. Laws 1838, ch. 257, p. 243. (3) 19 Wend. 525. (4) 1 Wend. R. 148. THE NON-J"OINDER OR MIS-JOINDER OF DEFENDANTS. 339 SECTION IV. THE NON-JOINDER OR MIS-JOINDER OF DEFENDANTS. Non-joinder. '] It is essential to the proper determination of tlie sub- ject matter of the action, that the proper person or persons be made defendant, and the same consequences flow from a non-joinder of de- fendants, as from a non-joinder of plaintifls. K, therefore, a person has not been joined, as defendant, who has an interest in the contro- versy ; or if a complete determination or settlement of the questions involved in the action, cannot be made, without joining another person as defendant, it is ground of objection by the defendant, who may insist upon having the proper parties before the court. And when the defect appears upon the face of the complaint, the defendant may de- mur ; indeed, if he would avail himself of the objection, he must demur, if the complaint itself discloses the defectiveness of the parties ; for by answering the complaint, the defendant waives all right afterwards to object for any defect of parties apparent on the face of the complaint, (1) unless he takes the same objection by answer, which would be in legal effect a demurrer. If, however, the objection do not appear on the face of the complaint, the defendant may set it up in his answer, and it will be ground of defence at the triaL(2) Mis-joinder^ K an improper person is made a party defendant, that is, a person who has no interest in the subject matter of the action, or who is not necessary to a complete determination or settlement of the questions involved, it is also ground of objection by the defendant. And when this appears from the complaint, the defendant, if he wishes to avail himself of the objection, must demur. (3) If it do not so ap- pear, the defendant may set it up in his answer, and prove it on the trial as a defence to the action. The same general rules apply as well to mis-joinders as to non-joinders of defendants. If the defendant fails to take the objection to the defect of parties defendant, either by demurrer or answer, the objection will be deemed to be waived, (4) and the defendant will not be permitted afterwards to raise the question. Determining a controversy as to parties.] When the question as to the sufficiency of the parties to the action arises, either upon demurrer or answer to the complaint, the court will sometimes determine the con- (1) Code, sec. 148. (2) Code, sec. 147. (3) Code, sec. 144. (4) Code, sec. 148. 340 NON-JOINDER OR MIS-JOINDER OF DEFENDANTS. troversy involved in the action, when it can be done, without prejudice to the rights of others or by saving their rights ; thus disregarding the objection complained of by the defendant. That is, the court will sometimes permit the action to go on to trial, notwithstanding it may appear that there are other parties who have some interest in the sub- ject matter of the controversy, and who have not been joined in the action, provided it can be done without prejudice to the rights of such parties, or where their rights can be saved. The court will not always arrest the action, and order new parties to be brought in, if the subject of the action or the rights of parties are not prejudiced or destroyed, and the suit can as well be determined without them.(l) But the court may order persons not parties to the action to be brought in, when it appears that they have an interest in the subject of the suit, and a complete and final determination of the controversy cannot be had without them, or when it appears that the rights of such persons may be prejudiced if they are not heard. Still, the court may save or reserve the interests of such persons from the consequences of the action, and thus avoid the necessity of summoning them in the suit.(2) And in an action for the recovery of real or personal property, a person not a party to the action, but having an interest in the subject thereof, the court may, upon a proper application, order him to be brought in by an amendment of the complaint.(3) So, in an attachment suit issued under the Code, which is primarily for the benefit of the attach- ing creditor, other creditors may apply to the court to be made defend- ants in the action.(4) The court say: "a complete determination of the controversy, in respect to the fund which is in court by virtue of the attachment, cannot be had without the presence of the subsequent creditors, and those creditors claim and have an interest in the whole controversy involved in the suit brought by the prior creditors." The late court of chancery, in virtue of its equity powers, frequently was invoked to determine conflicting claims existing between two or more persons, for which purpose a bill of interpleader was filed. This bill was authorized in cases where the complainant claimed no relief against either of the defendants, but where the defendants claimed of him the same debt or duty, by different or separate interests, and the complainant was uncertain with which of the claims he ought to com- ply. He might, in such case, apply to the court of chancery, by bill of interpleader, for leave to pay the money or deliver the property to the one to whom it of right belonged ; and that he might thereafter be pro- tected from the claims of both.(5) The object of the* bill being to pro- (1) Code, sec. 122. (2) Code, sec. 122. (3) Code, sec. 122. (4) Fraser v. GreenhiU, 3 Code Rep. 172. (5) Bedell v. Hoffman, 2 Paige's Ch. Rep. 199 ; Atkinson y. Hanks. 1 Cow. Rep. 691. THE NON-JOINDER OR MIS-JOINDER OF DEFENDANTS. 341 tect a complainant standing in tlae situation of an innocent stakeliolder, and where a recovery against him by one claimant of the fund might not protect him against a recovery by another claimant. (1) And the most usual cases of interpleader, where such as were filed by exe- cutors against two persons claiming the same legacy, or a trustee of a trust fund against two persons claiming the same fund, through differ- ent rights or interests. So, it would lie where a person was taxed in two different towns for the same property, which was only liable to be taxed once ; and where it was doubtful to which town the tax belong- ed, to compel the collectors of the tax to settle the right between them- selves.(2) And this bill might be filed before there was any suit at law. But it was necessary that there should be privity of some sort, between the parties — such as privity of estate, or title, or contract; and the bill was not authorized where the claimants asserted rights under adverse titles. This power of interpleading parties in all those cases where the juris- diction was formerly exercised by the court of chancery, now exists in. this court, by virtue of its equity powers. In addition to the cases which have been mentioned, and the cases which this court has the power to interplead parties for the purpose of determining conflicting claims to the same property or fund,' it is now provided by statute, (3) that a defendant against whom an action is pending upon a contract, or for the recovery of specific, real or personal property, may at any time before he answers the complaint, upon mak- ing an af&davit that a person, not a party to the action, and without collusion with him, makes against him a demand for the same debt or property, may, upon due notice to such person and to the plaintiff, ob- tain an order to substitute such person in his place as defendant, and that he be discharged from all liability to either party ; but the defend- ant must deposit with the clerk of the court the amount of the debt, or deliver the property or its value, to some person to be designated by the court, to abide the event of the action. The application mentioned in the foregoing provision of the statute, is only proper, and cannot be resorted to until after an action has been commenced. The object of this provision, as stated by the commis- sioners, was to save the necessity, in most cases, of an action to compel two parties claiming the same thing, to settle the controversy between them by interpleading.(4) But the statute does not take away the right of interpleading, the remedy beiug merely concurrent. It is so stated by Mr. Chitty,(5) under the statute of England, which is the same as ours. (1) Badeau v. Rogers, 2 Paige's Ch. Rep. 209. (2) M. & E. R. R. Co. V. Clute, 4 Paige, 384; TlwmpUns v. Ebhets, Hopk. Ch. Rep. 272. (3) Code, sec. 122. (4) Report of Commissioners, 613, 614. (5) 2 Chitty's Genl. Pr. p. 345. 342 OP THE CHANGE OP PARTIES, SECTION Y. OF THE CHANGE OF PARTIES, AND HEREIN OF THE EFFECT UPON THE ACTIONS. Formerly, if a sole plaintiff or defendant died hefore verdict or in- terlocutory judgment, the action abated, and the plaintiff or his execu- tors or administrators, had to commence a new action against the de- fendant or his executors or administrators, provided the cause of ac- tion survived to the representatives. But if the event happened after verdict, a judgment might thereupon be perfected. Now, however, it is provided by section 121 of the Code, that " no action shall abate by the death, marriage, or other disability of a party, or by the transfer of any interest therein, if the cause of action survive or continue." This is an important change, and enables the party to proceed with his action, instead of commencing a new one. Sole plaintiff.'] If a sole plaintiff in the action die, at any time during the pendency of the suit, either before or after verdict, and the cause of action survive, a motion must be made to the court in which the suit is pending, to continue it by and in the name of his executors or ad- ministrators. So if a sole defendant die, a like motion must be made to continue the action against his executors or administrators. So if a feme sole, plaintiff or defendant, marry during the progress of the suit, the court, upon motion, will order the action to be continued by or against her husband, or unite her husband, as a co-plaintiff or co-de- fendant, Avith her. But if the action relates to real property, or, in other words, if the subject of the action be such as would go to the heir instead of the re- presentative, the action must be continued against the heir-at-law, and not against the executor or administrator. Thus, in an action to re- cover the possession of land, if the defendant dies intestate, the suit must be continued against his heirs, or if he leave a will, then against the de- visees of the land.(l) As we have seen, (2) the action must be commenced in the name of the real party in interest. Yet such party may, immediately after- wards, transfer his interest to another. The action, nevertheless, does not abate, but may be continued by the successor in interest, for which purpose a motion must be made. (I) Waldoph V. Bortle, 4 Pr. Rep. 358. (2) Ante, p. 313. OF THE EFFECT UPON THE ACTIONS. 343 Transfer of interest.'] In case of any other transfer of interest, tlie ac- tion continues in the name of the original party. The court, however, may allow the person to whom the transfer is made, to be substituted in the action.(l) The power, however, is entirely discretionary, and the court will look into the case to see if it is proper to change the parties, by substituting the assignee. Thus, where, after an action was commenced, the plain- tiff assigned his interest in the claim to another, a motion was made that the assignee be made plaintiff, and the suit continued in his name, and it appeared that the object was to make the original plaintiff a wit- ness, and so sustain a case which it was difficult before to make out, the court denied the motion, upon the ground that such an object ought not to be favored, if it were, any plaintiff might, when he found his case could not be otherwise sustained, thus make himself a witness. (2) Several plaintiffs or defendants^ In the case of the death, marriage, or other disability, or the transfer of any interest, by one of several plaintiffs or defendants, if the cause of action survive to the surviving plaintiffs or defendants, the court will order the suit to be continued by or against the survivors, upon motion for that purpose. (3) So, in case one of several defendants dies, or other disability occurs the action may be continued against the heir, representative or other successor in interest.(4) Upon the happening of either of the events, rendering it necessary to continue the action against those who succeed to the interest of the plaintiff, a motion must be made to the court in which the action is pending. Motion^ when made.] This motion must be made within one year after the happening of the event, and cannot be made afterwards.(5) The affidavit.] For this purpose an affidavit must be drawn, stating the facts, rendering the change necessary, and sworn to by the person who seeks to continue the action. If a sole plaintiff or defendant dies, and the subject of the action be such as passes to the representative and not to the heir, his executor or administrator must make the affidavit : otherwise, if the action be one relating to real property and be such as descends to the heir at law, or passes to the devisee, in which case the affidavit must be made by the heir or devisee. If one of several plain- (1) Code, sec. 121. (2) Harris y. Bennett, 1 Code Rep. (N. S.) 203; 6 How. Pr. Rep. 220. (3) Code. sec. 121. (4) Code, sec. 121. (5) Code, sec. 121. 344 OP THE CHANGE OF PARTIES, &c. tiffs or defendants dies the sui'vivor must make the affidavit, for the suit is to be continued in his name ; if the plaintiff parts with his in- terest in the. subject matter of the suit, the person who succeeds to the interest must make the affidavit. A copy of the affidavit must be served on the attorney for the opposite party, with a notice of motion at the special term for an order to continue the suit by or against the person who survives the plaintiff or defendant, or who succeeds to his interest in the subject matter of the controversy. Motion^ how made.] This motion is made like other special motions, and as the subject of motions is treated of by itself in another part of this work, it is unnecessary to point out at this time, more particularly, the practice. Wio may make the motion.'] It may sometimes arise, that the party or person, whose duty it is to apply to the court to allow the action to be continued by or against the representative or successor in interest, may neglect or refuse to move. This throws upon the opposite party the bur- then of becoming the moving party. He cannot get the suit ' ' out of court" for a want of prosecution, nor can he proceed with the trial. Indeed he cannot take any step whatever m the suit, so long as the disability con- tinues. That must be removed before the action is in a condition to proceed. After waiting a reasonable time for the party whose duty it is, in the first instance, to move, if he neglect, or upon apphcation, refuse to pro- ceed, the opposite party may himself apply to the court, upon an affida- vit of the neglect or refusal, and obtain an order that the action be continued. Action, how continued after one year has elapsed.] Although a motion to continue the action can only be made within one year from the time the disability happens, the party may, after the expiration of a year, obtain the same relief by a supplemental complaint, (1) which then becomes the proper course. A supplemental complaint is in effect, a new complaint embracing the subject matter of the first complaint, with the new parties, and the reasons for continuing the action in their names. It is nevertheless a continuation of the original suit. (1) Code sec. 121. CHAPTEK IV. OF THE PLACE OF TRIAL. Section I. the venue. II. actions which must be tried in the county where THE subject of THE ACTION IS SITUATED. III. ACTIONS WHICH MUST BE TRIED IN THE COUNTY WHERE THE CAUSE, OR SOME PART THEREOF, AROSE. IV. ACTIONS WHICH MUST BE TRIED IN THE COUNTY IN WHICH THE PARTIES, OR ANY OF THEM, RESIDE AT THE COMMENCEMENT OF THE ACTION. V. CHANGING THE PLACE OF TRIAL. SECTION I. THE VENUE. Under tlie former practice, and as it had always subsisted in this state, it was necessary that the action should be tried in certain locali- ties, which depended upon the nature of the action, whether it was local or transitory. And it required that a county should be stated in the declaration as the place of trial. This was called the venue, which sig- nifies the neiglihorhood Avhere the cause of action arose, and from which the jury was to come to try the action. This arose from the belief which was entertained, that a jury of the place would know the parties, and have some acquaintance with the circumstances which gave rise to the ac- tion, and therefore could do better justice between the parties. In later days it has been regarded as an objection to a juror, if he had heard of the case, or knew the parties. The term venue^ which was formerly employed as denoting the place where it was intended the trial should be had, is no longer in use, and the "place of trial" is substituted. The place of trial, therefore, will depend upon the subject of the ac- tion, or where the cause of it arose, or upon the residence of the par- ties, or of some of them. Vol. I. 44 346 ACTIONS WHICH MUST BE TRIED IN COUNTY SECTION II. OF ACTIONS WHICH MUST BE TRIED IN THE COUNTY WHERE THE SUBJECT OF THE ACTION IS SITUATED. It is provided by section 123 of the Code, that "Actions for the fol- lowing causes, must be tried in the county in which the subject of the action, or some part thereof, is situated :" 1. For the recovery of real property, or of an estate or interest there- in, or for the determination, in any form, of such right or interest, and for injuries to real property ; 2. For the partition of real property ; 3. For the foreclosure of a mortgage of real property ; 4. For the recovery of personal property distrained for any cause. Actions for the foregoing causes were always local, and were triable only in the county, were the subject of the action was situated, and could not be tried elsewhere, without the order of the court. The first subdivision embraces what were formerly denominated ac- tions of ejectment, waste, trespass to lands, and the like. Actions for these and similar causes, affecting real property or a right or interest therein, must be tried in the county where the lands are situated. The second and tldrd subdivisions require that actions for the parti- tion of lands and for the foreclosure of mortgages upon real property, should also be tried in the county where the lands are situated. And this, though the cause of the action may have arisen elsewhere. Hence, a mortgage made in one county, upon lands in another, is subject to this rule, and the action must be tried in the county where the land is situated, and not in the county where the mortgage was made, or where the transaction took place, which resulted in the execution of the mort- gage.(l) And in an action brought to determine the conflicting rights of two persons to land, in which the plaintiif prayed that the defendant's rights to such land might be declared to be subordinate to that of the plaintiff, it was held that the county where the land was situated was the proper place for the trial.(2) The fourth subdivision is confined to actions for the recovery of per- sonal property, which has been distrained for any cause, and is similar to replevin for goods taken on a distress, which was local, by the revised (1) Miller v. Hall and Wife, 1 Code Rep. 113, 114. (2) Mairs v. Remsen, 3 Code Rep. 138. WHERE THE CAUSE, OR SOME PART THEREOF, AROSE. 347 statutes.(l) As goods could be distrained only for tlie non-payment of rent, (except distraining cattle doing damage,)(2) it is not probable that an action for such cause will be instituted, as distress for rent is now abolished. (3) These provisions, requiring the action to be tried in the county where the subject of the action or some part thereof is situated, are subject, however, to the power of the court to change the place of trial, in the cases now provided for by statute.(4:) For the manner of procuring the change of the place of trial and the cases in which it will be allowed, see post, p. 351- SECTION III. OF ACTIONS WHICH MUST BE TRIED IN THE COUNTY WHERE THE CAUSE, OR SOME PART THEREOF, AROSE. By section 12-1 of the Code it is provided that " actions for the follow- ing causes, must be tried in the county where the cause, or some part thereof, arose." 1. For the recovery of a penalty or forfeiture imposed by statute. 2. Against a public officer or person, specially appointed to execute his duties, for an act done by him in virtue of his oflEice, or against a person, who by his command or in his aid shall do anything touching the duties of such officer. The actions enumerated in this section, were made local by statute, previous to the Code.(5) The Jirsi subdivision embraces the class of cases, which fall under the denomination of actions for the recovery of a penalty or forfeiture, specially imposed by some statute, and not to penalties or forfeitures imposed by contract of parties. These actions must be tried in the county where the faxt occurred by which the penalty attaches or the forfeiture arises. Thus a penalty of twenty-five dollars is imposed by statute for selling liquor without a license, to be recovered by the over- seers of the poor. In such a case the action must be tried in the county where the liquor was sold, and cannot be tried elsewhere, except by order of the court. And it was held under a similar provision in the revised statutes, (1) 2 Rev. Stat. 430, sec. 3. (2) 2 R. S. 517, sec. 1. (3) Sess. Laws. 1846, 369, chap. 274, sec. 2. (4) Code, sec. 123 ; 2 Rev. Stat. 409, sec. 2. (5) 2 Rev. Stat. 395, sees. 8, 9 ; Ibid. 277, sec. 28 ; Ibid. 330, sec. 3. 348 ACTIONS "WHICH MUST BE TRIED IN THE COUNTY, &c. rendering actions for penalties and forfeitures local, than in an action against a witness for the penalty given by the statute, for his non-attend- ance, the venue was local, and must be laid in the county in which the subpoena was served, but it was transitory if the plaintiff sought merely to recover damages. (1) "Where, however, the penalty or forfeiture is imposed for an offence committed on a lake, river or other stream of water, situated in two or more counties, the action may be brought in any county bordering on such lake, river or stream of water, and opposite the place where the offence was committed.(2) Thus if an offence be committed on the waters of the Hudson Eiver, where it divides two counties, or upon a stream running between two counties, the action can be tried in either county, at the option of the plaintiff. Actions enumerated in the second subdivision of this section, are such as are brought against any public of&cer, for acts done by him virtute officii, and extend to actions against persons, who aid the ofl&cer in the performance of a duty either by or without his command. In the latter cases, the person against Avhom the action is instituted, must have been engaged in aiding the ofiicer while in the discharge of some duty im- posed on the officer by law^ and not to cases where the of&cer acts with- out authority. Thus, the statute, (3) authorizes the sheriff to command the power of his county, to aid him in the execution of process, and every male inhabitant of the county is required to obey the command. If^ therefore, an action is brought against a person for an act done by him while thus aiding a sheriff, he may require the action to be tried in the county, where the act complained of was done. In like manner where the action would be local against a sheriff or other public ofiicer, an action against his representatives, for the official act of the sheriff or other of&cer, would also be local .(4) But where the amount of damages claimed against an ofiicer is so small, that he can be sued only in a justices' court, and he has removed from the county of which he was an ofiicer, the suit may be brought against him in the county in which he resides.(5) And it has been held under the former statute, of which the fore- going section of the Code is nearly a transcript, (6) that the statute, in re- spect to actions against the ofiicer, applies only to affirmative acts, and not to mere omissions or neglect of ofi&cial duty.(7) (1) Cogswell v. Meech, 12 Wend. 147 ; Wilkie v. Chadwick, 13 Wend. 49. (2) Code, sec. 124, sub. 1. (3) 2 Rev. Stat. 441, sec. 80. (4) ElUot V. Cook's admr's. 13 Wend. 35. (5) Hopkins v. Haywood, 13 Wend. 265. (6) 2 Rev. Stat. 277, sec. 28. (7) 13 Wend. Rep. 35, 2G6. ACTIONS TRIED IN COUNTY WHERE PARTIES RESIDE, &c. 349 The same power is given to the court, in these cases, to change the place of trial, in cases now provided for by statute. For the manner of procuring the change of place of trial, see post^ p. 350, 351. SECTION. IV. OF ACTIONS WHICH MUST BE TRIED IN THE COUNTY IN WHICH THE PARTIES, OR ANY OF THEM, RESIDE AT THE COMMENCEMENT OF THE ACTION. By section 125, of the Code, it is provided, that in all other cases, not mentioned in sections 123 and 12 i, the action shall be tried in the county in which the parties, or any of them, reside at the commence- ment of the action. This includes all such personal actions as were heretofore denominated transitory actions. The rule that formerly pre- vailed in respect to the venue in transitory actions, is changed, so fat, as it is now required that some one of the parties, plaintiffs or defend- ants, must reside in the county where it is intended to try the action. It is not necessary that all the parties should reside in the county de- signated in the complaint ; it is sufiicient if one only resides there, and he may be a plaintiff or defendant. Where all the parties, plaintiffs as well as defendants, are non-resi- dents of the state, the plaintiff may designate in his complaint the county in which he desires the trial of the action to be had.(l) But if only the plaintiff is a non-resident, the trial must be had in the county where the defendant resides. All these rules and provisions in relation to the place of trial, are subject, however, to the power of the court, to change the place in cases now provided by statute(2) It is no objection to the complaint, that it designates an improper county for the trial of the action ; the only remedy for the defendant, where it appears from the complaint that the wrong county has been selected, is to demand in writing, which he may do, at any time before the time for answering expires, that the trial be had in the proper county. (3) There may be cases where it would be more convenient to both the parties, to try a local action in a county other than that where the law (1) Code, sec. 125. (2) As to which, see joos^, p. 350, 351. (3) Code, sec, 126. 350 CHANGING THE PLACE OF TRIAL. I'cquiries it to be tried. In sucli cases it may be tried in any county with, the consent of the defendant, which consent will be presumed, if he serves his answer, without serving a demand in writing, that the trial be had in the proper county. The plaintiff, therefore, may in a strictly local action, designate in his complaint an improper county for the trial of the action, subject to having it changed by the defendant's demand. And he may try it in such improper county if no such demand is made ; and it will be valid and effectual to the same extent as if it had been tried in the proper county. SECTION V. CHANGING THE PLACE OP TRIAL. » The statute, Ihnitiug the trial of actions to certain counties, as has been stated, confers upon the court the power to change the place of trial to another county than that selected by the plaintiff and mention- ed in the complaint, in all those cases heretofore provided for by statute. Before adverting to the revised statutes, recourse to which must still be made for some of the cases in which the court may change the place of trial, I will designate the cases provided by the Code,(l) in which this power may be exercised by the court. The court may change the place of trial in the following cases. 1. When the county designated for that purpose in the complaint is not the proper county : 2. When there is reason to believe that an irajDartial trial cannot be liad therein : 3. When the convenience of witnesses, and the ends of justice would be promoted by the change. Until the amendment of the Code by the act of 1851, it was well understood that in case an improper county was designated in the com- plaint as the place of trial, a mere demand in writing by the defendant that the trial be had in the proper county, was not sufficient of itself to change the place of trial, and the penalty visited upon the plaintiff in case he neglected or refused to change the place, was that upon the defendant's proving the demand, upon the trial, the complaint would be Code, sec. 12G. CHANGINa THE PLACE OP TRIAL. 351 dismissed.(l) In suck case the place of trial could uot be changed ex- cept upon an application to the court by one party or the other, and either might do it, but the defendant could not by the mere service of a demand change it.(2) And a motion could not be made in such a case, to change the place until after a written demand requiring the change, had been made.(3) This question has, however, now been put to rest, by the amendment of 1851, before spoken of The 126th section of the Code provides that the trial may still be had in an improper county, unless the defendant demands in writing that it be changed, and unless it be accordingly changed, either by the consent of the parties, or by the order of the court, and this is one of the cases in which the court is authorized to make the change. Hence, if upon a demand being made by the de- fendant, as above specified, the plaintiff consents, such consent should be in writing and filed in the county to which it is proposed to change the trial ; (for, as we shall see hereafter, the venue as well as the place of trial is now changed, and all papers must be transferred to the new county;) if, however, he refuse, the defendant is put to his motion, founded upon an affidavit or other evidence of the fact, that the county named in the complaint is not the proper county. And if the defend- ant under such circumstances make his motion, he cannot afterwards avail himself of the objection. This right on the part of the defendant to require that the trial be had in the proper county, and to move for the change in case of a refusal by the plaintiff, does not prevent the plaintiif from afterwards moving to change the place, either for the convenience of witnesses or to obtain an impartial trial. (4) And in a recent case it has been held that the court will not change the place of trial if it be made to appear that the convenience ofun'tnesses requires that the trial should take place in the county named in the complaint, though otherwise that would be an improper county. (5) And it seems it may also be shown in opposi- tion to the motion that a fair and impartial trial cannot be he had in such county.(6) Still, these objections can only be made after issue is joined, and hence, if the motion on the part of the defendant is made, as it should be, soon after his answer is put in, the plaintift' will not ordinarily be in a position to show, that the convenience of witnesses requires that (1) Hashrook v. McAdam, 4 How. Pr. R. 343. (2) Vermont Gen. R. B. Co. v. Northern R. R. Co., G IIow. Pr. R. 10(3. (3) Ibid. (4) Moore v. Gardner, 3 Code R. 224 ; 5 How. Pr. R. 243. (5) Mason v. Brown, 6 How. Pr. R. 481. (6) Ibid. 352 CHANGING THE PLACE OF TRIAL. the place sliould be retained, or that a fair or impartial trial cannot be had in the other county. All actions are put upon the same footing, and the court now pos- sesses the xJowcr to change the place of trial, as well in actions which were heretofore strictly local^ as in those which were transitory. Concerning actions which might heretofore have been tried in the county where the subject of the action was situated, or where the cause or some part thereof arose, and which were, properly speaking, local actions, it was provided by the revised statutes,(l) that the court might order the cause to be tried in some other county, when it should ap- pear that a fair and impartial trial could not be had in the county which the plaihtiff had designated in his complaint as the place of trial. This statute did not extend to, nor did it authorize the change, in actions against public officers, nor against persons specially ap- pointed to execute his duties, nor against persons aiding the officer ; as to those actions the court had not the power to change the place of trial. Nor could actions of a local nature, such as actions relating to real property or for the recovery of penalties or forfeitures imposed by statute, be tried in any other county than that in Avhich the subject thereof was situated, or arose, unless it appeared that a feir and im- partial trial could not be had therein. That being the only ground upon which to move for a change. But these provisions are, I think, repealed by the amendments to the Code made in 1851. Hence, actions for the recovery of real pro- perty — for partition of lands — for the foreclosure of mortgages, &c., which heretofore were local, and the venue in which could not be changed, except in the single case of its appearing that a fair and im- partial trial could not be had, may now be changed to promote the convenience of witnesses.(2) So of actions to recover penalties and forfeitures. And in actions against public officers, &c., which hereto- fore were, as we have seen, not only local, but the venue in which could not be changed, the court now has the same power to order a change as in any other action. All the actions which I have here enumerated, must be tried in the county where the subject, or some part thereof, is situated, or where the cause, or some part thereof, arose, '■'subject to the power of the court, to change the jjlace of trial in the cases j^ro- videcl hij statuteJ\2,) And it is provided that the court may make the change in cases where an impartial trial cannot be had, or where the convenience of witnesses would be promoted. (4) There is no excep- tion of actions to recover real property, or against public officers ; but (1) 2 R. S. 409, sec. 2, sub. 3. (2) Code, sees. 123, 12G. (3) Code, sees. 123, 124. (4) Code, sec. 126. OHANGlNa THE PLAOE Oi'' TRIAL. 353 all actions are alike within the power of the court to change the place of trial, for any of the reasons above stated. Hence, I think, if an action should be brought against the sheriff of Rensselaer count}^, and it should appear that the witnesses all resided at Greenbush, opposite Albany, or if the witnesses should have removed to Albany, it would be within the power of the court to change the place of trial to Albany county. Hotv obtained.'] A change of the place of trial is obtained by a motion to the court at a special term, upon an affidavit of the facts ren- dering a change necessary or proper, and is conducted in all respects like other special motions. Ground.'] The most usual ground for a change of the place of trial is, that a greater number of witnesses reside in the county to which it is proposed to have the place of trial changed, than in the county designated in the complaint ; and this, ordinarily, is sufficient to pro- cure the order ; it is also proper to state in the affidavit that the trans- action which is the subject of the action occurred in the county to which it is proposed to change the place of trial, which will be prima facie evidence, that the witnesses to it reside there. And it is provided by ruleXl) that in addition to what has usually been stated in the affidavit, either party may state the nature of the controversy, and show how his witnesses are material : and may also show where the cause of action, or defence, or both of them, arose. These facts will be taken into consideration by the court, in fixing the place of trial. The largest number of witnesses will not always govern, unless it clearly appear that they are necessary and material ; for if the party seeking the order to change the place of trial should swear to a hun- dred and sixteen witnesses, in a case where the court could see that such a number could not be necessary or material, the motion would be denied, though the opposite party should swear to but fifteen wit- nesses.(2) And the rule is, that the convenience of witnesses is to be ascer- tained from their residence, and the place of trial will not be changed even although they may have to travel a greater distance than to the court-house in an adjoining county in attending court.(3) But in an- other case, (4) where Madison was the proper county, and the place of trial had been changed there, upon the demand of the defendant, the (1) Rule 45. (2) Wallace v. Bond, 4 Hill's Rep. 536. (3) Pextph V. Wright, 5 How. Pr. R. 23; 1 Hill, G71. (4) Mason v. Broimi, 6 How. Pr. R. 481. Vol. I. 45 354 CHANGING THE PLACE OF TRIAL. court, upon tlic motion of tlie plaintiff, afterwards clianged it to Albany, upon its appearing that the transaction which was the subject of the suit took place at Greenbush, in the county of Eensselaer, and that the witnesses resided there. And the court say : " It has never been held, that in a case like this, where the witnesses reside within a mile of the place where it is sought to have the trial take place, they are to be disregarded in determining the place of trial because they do not reside in the same county." If the ground, upon which the change is applied for, be, that a fair and impartial trial cannot be had, in the county mentioned in the com- plaint, the/acfe upon which the belief is founded, must be stated in the affidavit used for the motion, that the court may judge, if there is suf- ficient reason for supposing a fair and impartial trial may not be had in such county. And a strong case must be made out, and the facts must be such as to induce a reasonable belief, that justice will not be done, if the place of trial is retained. A great excitement, prevailing in the county, in regard to the sub- ject-matter of the action, it has been held was ground for changing the place of trial.(l) But the mere prejudice of the community against turnpike roads, is no ground for changing the place of trial, in a suit by a turnpike company, for running a road parallel to theirs.(2) So, in an action for slander or libel, where it appeared that a strong party spirit prevailed in the county.(3) So, where it was shown that great excitement existed in the county, and that improper influences had been exerted.(4) And in a late case, (5) it was held not to be a sufficient objection to the trial of a cause in the county where all the principal witnesses reside, that the subject-matter of the cause has created much excitement and public and private discussion in the county, and that several respectable individuals in each town of the county had sworn, that for such reasons they believed that it was very doubtful whether a fair and impartial trial could be had in the county. And it was_further held, that an actual experiment should be made in attempting to empannel a jury, or the inability to obtain a fair and unprejudiced jury must be clearly established, by showing facts and circumstances from which the court could see that a fair trial cannot be had, before the place of trial would be changed. When madei] A motion to change the place of trial, may be made at any time before the trial of the action, but not until after the issue (1) 12 Wend. Rep. 203 ; 1 HUl Rep. 119. (2) 3 Caines Rep. 127. (3) 1 Caines R. 487. (4) People v. Webb, 1 Hill, 79. (5) People V. Wright, 5 How. Pr. R. 23. CHANGING THE PLACE OF TRIAL. 355 is joined. (1) But tlic motion sliould be made at the earliest practicable day after issue joined ; for if it is delayed until after answer and the cause should be noticed for trial, the defendant will have to pay the plaintiff's costs of preparing for trial, and perhaps the whole costs of the circuit,(2) and the costs of resisting the motion. Besides, no order to stay proceedings for the purpose of making the motion, will be granted, unless it appears from the papers that the defendant has used due diligence in preparing the motion for the earliest practicable day after issue is joined. (3) It seems, however, that in the class of actions, which are loccd^ such as actions which must be tried in the county in which the subject of the action or some part thereof is situated,(4:) or actions which must be tried in the county where the cause or some part thereof arose, (5) that if the plaintiff has designated an improper county in his complaint, as the place of trial, the defendant before or at the time of serving his answer, should demand in writing that the trial be had in the proper county.(6) And if the defendant omit to do so, and serves his answer, the court will not, upon an application for the purpose, grant the motion upon that ground. At any rate, the defendant would have to pay costs of resisting the motion. Staying proceedings.'] If the defendant wishes to stay the proceed- ings of the plaintiff, in order to move to change the place of trial, he must procure an order from a judge of the court, or from a county judge. This order is usually granted upon the affidavit, to be used on the motion and endorsed upon it. The order staying proceedings will not be granted unless it appears from the affidavit and papers, that the defendant has used due diligence in preparing the motion for the earli- est practicable day after the issue was joined.(7) The judge will not grant an order to stay the plaintiff in putting the cause at issue, or taking any other step except giving notice and subpoenaing witnesses for the trial, unless he inserts in the order a special clause to that effect.(8) If the plaintiff can successfully resist the motion, he may avoid the order staying his proceedings by getting it revoked. To do this, he must present to the officer who granted the order, an affidavit showing such facts, as will entitle the plaintiff, according to the settled practice of the court, to retain the place of trial ; and if the officer is satisfied, that the motion will be, or ought to be denied, he will revoke the (1) Rule 44, and note to rules. (2) 5 Wend. Rep. 102. (3) Rule 45. (4) Code, sec. 123. (5) Code, sec. 124. (6) Ibid. sec. 126. ("?) Rule 44. (8) Rule 44. 356 CHANGING THE PLACE OF TRIAL. order to stay proceedings.(l) The plaintiff must give immediate notice of sucli revocation to the defendant's attorney.(2) Notmthstanding, such order is revoked, the motion may still be made, and the plaintiff must resist it in the usual way : the effect of the revocation being simply to enable the plaintiff to notice the cause for trial. (1) Rule 44. (2) Rule 44. CHAPTER V. OF PLEADINGS. Section I. general rules of pleading. II. WHAT WILL BE SUFFICIENT IN A PLEADING. III. CONSTRUCTION AND EFFECT OF PLEADING. IV. MISTAKES IN PLEADING, AND AMENDMENT OF PLEADING. V. THE JOINDER AND MIS-JOINDER OF ACTIONS. SECTION I. GENERAL RULES OF PLEADING. The most important of all tlie changes produced by tlie Code, un- doubtedly relate to the 'pleadings in the action. No part of the duty of the practicing lawyer is beset with more difficulties, or requires more care, than in framing the issues in the cause, for upon these — their accuracy and sufficiency — depend in a great measure the success of the action or of its defence. In the administration of justice there are always two objects — to ascertain the subject for decision, and to decide. In attaining the former, it of course is necessary that each party should state his own case, that the court may collect from the opposing statements the points of the legal controversy ; and the precision and sufficiency with which these contending statements are made, the principles upon which they are framed, and their truthfulness in fact, will always more or less affect the subsequent proceedings in the cause. At different ages of the civilized world, different forms and modes of making these statements have existed. Sometimes they were per- mitted to be orally made, but most generally they were required to be in writing, and were dependent in a great measure upon certain forms and ceremonies which were from time to time fixed, modified, and changed by the judges. Until the adoption of the Code of Procedure, there were a great variety of forms of actions, each of which possessed its own peculiarities and differences, not, however, so much in \hQ facts which constituted the cause of action, as in the manner in which those ' facts were spread upon the record. Form was quite as essential as substance^ and more skill was required to meet the exigencies of the former than the latter. Pleading had thus become the most difficult, subtle, and perplexing part of the duty of the attorney, and although 358 GENERAL RULES OF PLEADING. latterly the statute of amendments had clothed the court with very ample powers to relieve parties against errors and mistakes in plead- ings, yet the pleader was obliged to be well versed in all the technical forms and rules in which the system was enveloped. It is certainly, therefore, not to be regretted that the legislature have adopted the recommendation of the commissioners appointed to revise the practice, and have at length removed all the distinctions and differences which heretofore existed in the forms of actions. There was certainly great propriety in this change — indeed it was necessary. The constitution had destroyed one, if not all of the distinctions between equity and law, and reposed the administration of both in one tribunal, and the harmony of the system could in no way have been preserved, except by placing all actions upon the same general footing. Otherwise, we should have had suits in equity and actions at law, and as every de- nomination of equitable cause of action was, and would have continued to be a suit in equity, and not an action at law, we should have been compelled to have preserved a distinction which it was manifestly in- tended should no longer continue. It is therefore now provided by the Code,(l) that the distinction between actions at law and suits in equity, and the forms of all such actions and suits heretofore existing, are abolished ; and there shall be in this state, hereafter, but one form of action, for the enforcement or protection of private rights and the redress of private wrongs, which shall be denominated a civil action. And all the /orm.s of pleading heretofore existing, are also abolished.(2) And hereafter, the forms of pleading in civil actions, and the rules by which the sufficiency of the pleadings are to be determined, are those prescribed by the Code. It may be laid down, I think, as a general rule that pleadings are now entirely dependent upon the Code, and that the previous system is al- together abohshed. And it is also, I think, equally clear, that the same principles must govern in respect to pleadings whether the action be one which was heretofore denominated equitable, or one which was heretofore denominated legal. The distinction which it has been at- tempted to draw,(3) in regard to the pleadings between actions of a legal and of an equitable nature, is, I think, without foundation. In confounding the distinction between law and equity, and declaring that there shall be but one form of action and one form of pleading, the legislature could not have intended that a different rule should be ap- plied to the pleadings in an equitable, from what should be in a legal action. It requires different language to set out what was formerly de- nominated an equitable cause of action from what would be employed (1) Code, sec. 69. (2) Code, sec. 140. (3) Rodiester City Bank v. Say dam, 5 How. Pr. R. 216. Wooden v. Waffle, 6 Id. 145. GENERAL RULES OF PLEADING 359 iu alleging what was formerly a legal cause of action, but the same general rules must govern both descriptions.(l) The difficulty upon this subject has arisen in using the word " facts" in the part of the Code which declares that the complaint must state the fojcU constituting the cause of action All agree, that in all cases, whether in actions which were heretofore denominated legal, or in actions which were heretofore denominated equitable, the complaint must state the ^^ fads''' constituting the cause of actions. But the meaning of the word "facts" as thus used, is disputed between judges; some holding that it signifies and is necessarily confined to a statement of hgal con- clusions ; others, that it authorizes a statement of the evidence of facts as well as the conclusion which the law draws from them. Under the late practice, the former definition of " facts" would have been correct as applied to actions at law, and the latter as applied tos uits in equity. But it may be regarded now as well settled, that in pleading under the Code, it is improper to allege the evidence of facts, and this rule should be observed in every description of action, whether of what was for- merly a legal or of an equitable nature.(2) I take the liberty of transferring the opinion of Mr. Justice Harris^ in the case of Williams v. Haynes^ into this treatise, not only as being the most able, clear and correct view of the subject of pleading under the Code that I have met with, but as meetiog my entire approbation : " A prominent object of the reform instituted by the Code was, ' to simplify and abridge pleadings,^ to substitute for the unmeaning forms, and prolix statements with which pleadings, both at law and in equity, had been incumbered, a simple statement of the facts which constitute the cause of action, or the grounds of defence, in such a manner as to present to the court the precise points in dispute, and when the contro- versy is ended, to preserve a record of the precise matters determined. Hence it is specifically required, in respect to all pleadings, that the matter to be alleged shall be stated in ' ordinary and concise language.' The complaint is to contain ' a statement of the facts constituting the cause of action.' The answer, besides a denial of the allegations of the complaint, may contain a statement of any new matter constituting a defence. In like manner the reply, in addition to a denial of the state- ments in the answer, may contain allegations of new matter, in avoid- ance of the answer(8). Whatever statements may be found in either of these pleadings beyond this, are redundant or irrelevant ; and this, too, (1) Shaw V. Jayne, 4 How. Pr. R. 119. Knoivles v. Gee, id. 317. Milliken v. Carey, 5 Id. 272 ; Williams v. Hayes, Id. 470 ; Getty v. Hudson R. R. Co. 6 Id. 271. (2) Floyd V. Dearborn, 2 Code R. 17 ; Pattison v. Taylor, 1 Code R. (N. S.) 174; Shaw V. Jayne, 4 How. Pr. R. 119 ; Milliken v. Co.rey, 5 id. 272 ; Williariis v. Haynes, 5 id. 470. (3) Code, sec. 142, 149, 153. S6V GENERAL RULES OF PLEADING. whatever the nature of the action ; whether under the system, now abohshed, it would have been a case of legal or equitable cognizance, It was the avoAved object of the legislature, in adopting the Code, not only to abolish the distinction between legal and equitable remedies, but to establish an uniform course of proceeding in all cases.(l) Under such a system, neither the rules by which the sufficiency or insufficiency of pleadings in the common law courts, nor those which were applica- ble to pleadings in courts of equitable jurisdiction, can be adopted, as a sure guide. The principle by which questions of this description are to be determined under the present system, has been exceedingly well stated by Mr. Justice Selden^ in Knowles v. Gee.{2) The facts which pleadings under the Code are to contain are, he says, ' issuable factS' — facts essential to the cause of action, or defence, and not those facts and circumstances which merely go to establish such essential facts.'(3) The criterion in every such case is, I think, whether the allegation in question can be made the subject of a material issue. If it can, it has a right to be found in the pleadings ; if not, it ought not to be there. The rule may be illustrated by the case under consideration. A ma- terial fact stated in the complaint is, that the mortgage in question has been paid. Upon this allegation a material issue might be made. Upon this issue, it would be very pertinent to prove another allegation in the complaint, that the mortgagee had in his life time, publicly stated that the mortgage was paid. This would be evidence tending to show that the mortgage was in fact paid ; but could a material issue be made upon the latter allegation ? Whether the mortgagee had said so or not, is only important as it may furnish evidence upon another issue, that is, whether the mortgagee had, in fact, been paid or not. In the language of Justice Selden, ' it is a fact which merely goes to establish the essential fact,^ namel}^, that the mortgagee is really paid. The Code has no where provided that evidence, or, which is the same thing, facts which constitute evidence of an essential fact in the case, may be inserted in any pleading. On the contrary it limits pleadings to the statement of such facts as constitute a cause of action or a de- fence ; or, in case of a repl}'', such facts as will avoid a defence. " The learned judge whose doctrine, as stated in Knoides v. Gee,{^ I am so willing to adopt, has, in a more recent case, himself laid down a different rule. In The Rocliester City Bank v. jSuydam,{5) he has held that " the statement of facts in the complaint, should be in comformity (1) See preamble to the Code. (2) 4 How. Pr. Rep. 317. ■ (3) See also Shaw v. Jaynes, 4 How. 119 ; Glenny v. HitcJwis, id. 98 ; Russell v. Chpp, id. 347 ; Mc Murray v. GifforO., 5 id. 14. (4) 4 How. Pr. 317. (5) 5 How. Pr. 216, GENERAL RULES OF PLEADING. 361 with the nature of the action. If the case and relief sought be of an equitable nature then the rules of chancery pleading are to be applied ; otherwise those of the common law. With great deference, I am con- strained to dissent from this conclusion. It was not the intention of the legislature, in adopting the Code, to continue the distinction be- tween common law and equity pleadings. On the contrary, it was in- tended that there should be but one system of pleadings. It was not intended that the rules of common law pleading should be applicable to one class of cases, and those of chancery pleading, to another. On the contrary, it was intended that neither the rules of common law pleading, nor those of equity pleading, should be exclusively appli- cable to any case of pleading under the Code. In every case the criterion, by which to judge of the suf&ciency or insufficiency of the pleading, is to be the same. Whether the case is one of an equitable nature, or of common law jurisdiction, so far as the pleading states facts essential to the cause of action, or the defence, or to avoid the matter of the defence, so far it is unobjectionable; whatever else it contains, is redundant or irrelevant, and may properly be stricken out. If I am right in this view of the question, it follows that matters of evidence, or as it is expressed by Justice Selden^ ' the facts and circumstances which go to establish the essential facts in the case, ought not to be in- serted in the pleadings.' The very language in which the Code has prescribed what the several pleadings which it allows shall contain, seem to exclude from such pleadings all mere matters of evidence. My own experience, and I think that of every other judge, as well as that of the bar, has proved that it is wise, if not absolutely necessary, if we would give practical efficiency to this novel system, to confine the pleadings to their legitimate office, and whenever the opportunity is presented, to disencumber them of the unnecessary matter, with which they are now so frequently crowded. By this means alone, I am fully persuaded, can the system of pleading be rendered useful or even toler- able, and the end for which it was adopted, that of simplifying and abridging pleadings, be attained. "If the principle stated is to be applied to the case before me, this motion must be granted. Striking out all the matter embraced in this motion, it leaves the complaint still containing a statement of all the facts constituting the plaintiff's cause of action. The matter which it is proposed to strike out, consists of facts and circumstances which, if proved, would tend to sustain an issue upon the material facts alleged ; but which, if denied, would not themselves present a material issue for trial. Some of these facts and circumstances might properly be proved, if issue were joined upon the material facts in the case, and some of them would not be competent even as evidence. Such allegations can render no useful service. They only tend to encumber the pleadings, Vol. I. 46 392 GENERAL RULES OP PLEADING. and render them complex and prolix. They ought, therefore, to be struck out. "I was referred upon the argument to what I have myself said, in Hynds v. G')-isivold,{l) in support of the position, that if, upon the trial, it would be pertinent for the plaintiff to prove the facts alleged, they could be deemed irrelevant. Perhaps the language I have used in that case, requires some qualification. All I intended to assert was, that facts which might be material to the issue, as tending to aggravate or mitigate damages, might properly be stated in the pleadings, though not necessary to constitute a complete cause of action ; or, in case of an answer not constituting a complete defence. The language of that opinion requires to be qualified in another particular. When it is said that before matter can be stricken out of a pleading, it must not only appear to be redundant or irrelevant, but also that some party is ag- grieved or prejudiced thereby, it would seem to be a fair inference that before such a motion could be granted it must be shown, in support of the motion, that some actual injury would result to the moving party, if the matter sought to be expunged was suffered to remain. If such a construction is to be given to the opinion, it is certainly erroneous. I concur entirely in the view taken of this question, by Mr. Justice Hand, in Caiyenter v. West.{2) It is not every unnecessary expression or redundant sentence, which should be expunged on motion. But where entire statements are introduced upon which no material issue can be taken, the opposite party may be " aggrieved" by allowing them to remain in the pleading. If not answered, it may be claimed that such allegations are admitted, and if denied, the record is embarrassed with immaterial issues. In all such cases, it is the right of the adverse party to have the matter, improperly inserted in the pleading, removed so that the record, when complete, shall present nothing but the issu- able facts in the case. This I understand to be the true spirit and gen- eral policy of the system of pleading prescribed by the Code." The pleadings are the written allegations of the plaintiff's cause of action on the one side, and the defence thereto of the defendant on the other. There are four kinds of pleadings allowed in the prosecution and defence of an action, viz : 1. The complaint ; 2. The answer ; 3. The reply ; and 4. The demurrer.(3) These comprise all the pleadings that can be used in the progress of (1) 4 How. Pr.Rep. 69. (2) 5 How. Pr. Rep. 53. (3) Code, sec. 156. GENERAL RULES OF PLEADING. 363 the cause, and their object is to present tlie facts on wliicli the court is to pronounce the law, and to reduce the issue to the real matter in dis- pute. For this purpose it is provided that the pleadings shall contain a plain and concise statement of the facts constituting the cause of action or defence, without unnecessary repetition. It may be stated as a general rule, that in setting forth flicts in a pleading as constituting a cause of action or defence, nothing should be stated that could not by possibility find its way into a special verdict or report oi referees. In these cases the jury find the facts only, and the referees report the facts. This rule will exclude the mere evidence of facts. Again : the facts should be set forth in chronologiccd order ; that is, in the order in which they occur — as for instance, that the defendant gave his promissory note (describing it) to the plaintiff — has failed to pay it, and is therefore indebted, &c. ; or, that the parties made a contract by which the defendant agreed to do certain things ; that he has neg- lected to do them, and the plaintiff has sustained damage — thus alleging the act first, and its consequences afterwards. Noav, it would be manifest- ly illogical, and destitute of proper symmetry, to aver that the defendant had failed to pay his note, before averring that he had made one, or that the plaintiff had sustained damage by reason of the non-perform- ance of a contract, before the contract is mentioned — thus placing the consequences of the act before the act itself. This method of pleading may generally be attained by keeping in view the order in which the facts should be proved upon the trial for the proof should always be directed to the facts in the order in which they occur. As another general rule, it may be observed, that in stating several causes of action in a complaint or several defences or counter-claims in an answer, they should be stated separately ; and the answer should always refer distinctly to the cause of action it is intended to controvert, and where there are several causes of action the defence to each should be so stated that it may be easily distinguished. In addition to this, it is now provided by rule,(l) that in all cases of more than one distinct cause of action or defence, counter-claim or reply, the same shall not only be separately stated, but plainly numbered. In applying these general rules to the several kinds of pleadings, it will be sufficient for the present to confine them to the complaint, answer and reply, leaving a more extended and particular view to a subsequent part of this treatise, when I come to treat of these pleadings separately. Mrst:—The Complaint. This should set forth the facts truhj, and must be varied as the fiicts vary, to meet the cause of action. No (1) Rule 87. 364 GENERAL RULES OP PLEADING, fixed form can be given, nor is any necessary. They should be stated in plain intelligible language, in the order in which they occur. They should be true, and stript of all fictions and technical expressions. And let it always be borne in mind that in speaking of facts, I do not mean the evidence of facts, which in all cases should be carefully excluded from the complaint. In this way the pleader will avoid all danger of having his complaint attacked by reason of its containing irrelevant or redund- ant matter, or of its statements being so indefinite or uncertain, that the precise nature of the charge is not apparent. Second: — The Ansiver. In framing an answer it is improper to express an admission; silence is the only admission under the Code, and hence the answer should never say the defendant admits such and such allegations in the complaint to be true, for it is expressly provided that every material allegation of the complaint not controverted by the answer, shall he tahen as true.il) This was the rule in equity pleading before the Code.(2) There is no such thing as the " general issue." A general denial can be made only, when the defendant can truly say that not a single alle- gation in the complaint, or not a single allegation in one of several causes of action, separately stated, is true. He cannot generally deny a part only of an allegation. The Code says " a general denial, &c. "of each material allegation."(3) It must deny the whole, that is, it should deny each and every allegation contained in the complaint, or it must deny the whole of a separate allegation, otherwise it should specifically deny the part intended to be controverted. A denial must not be to the manner and fi)rm,{4:) but to the substance of the allegation. Hence, it is not enough to say, that a particular alle- gation of the complaint is not true m manner and form as therein stated, but that it is not true in any manner or form, or in any of its particu- lars, as, for example, the defendant did not on the first day of August, 1850, or on any day, promise to pay the plaintiff $1000, or any sum. The answer should deny some allegation oifact in the complaint, and not a conclusion of law, upon those facts.(5) If the conclusions of law are erroneous, the defendant should demur. The defendant must deny either generally or specifically, either positively or of any knowledge or information thereof sufficient to form a belief, or he must allege new matters. He cannot do anything else. He must not expressly confess, — he must not evade, — he must not di- gress — ^he must not answer hypothetically — he must go directly to the point. (1) Code sec. 168. (2) CTwfev. Bool, 8 Paige, Ch. R. 88 (3) Code, sec. 149, sub. 1. (4) Piersonx. Cooky, 1 Code R. 91. (5) McMurray v. Gifford, 5 How. Pr. R. 14 ; Burr v. Squier, 1 Code R. 84. WHAT WILL BE SUFFICIENT IN A PLEADING. 365 The new matter should be stated separatly from the denial, and in a separate proposition or article, so that there can be no doubt what is intended as new matter and what as denial, and it must be plainly numbered.(l) The new matter must be either a defence allowed by law or a coun- ter-claim, as permitted by the Code. The defence and counter-claim should also be separately stated and numbered.(2) Third: — The Reply. It is no longer necessary to reply to any of the new matter set up in the answer, except it be a counter-claim ; the plaintiff may rebut on the trial all the allegations of new matter in the answer. A counter-claim must, however, be replied to. The same general rules before stated, with respect to the answer, are applicable to the reply, when a reply is necessary. I will define what I understand to be the meaning, limit, and extent of a " counter-claim," when I come to treat more particularly of the answer. If a pleading is verified, all subsequent pleadings must also be veri- fied. So, if the plaintiff omits to verify the complaint, the defendant may verify his answer, and that will require the reply to be verified. SECTION II. WHAT WILL BE SUFFICIENT IN A PLEADING. As the design of a pleading is to present to the court a statement of the facts constituting the cause of action or defence, that the issue form- ed may be tried, it is in general sufficient if the pleading on the one side contain a specific averment of the precise nature of the cause of action,(3) and on the other a general or specific denial of the material allegations of the complaint intended to be controverted by the defen- dant, or of any knowledge or information thereof, sufficient to form a belief, or a statement of new matter constituting a defence or counter- claim.(4) And the court are required, in the construction of pleadings for the purpose of determining their effect, to construe the allegations with great liberality, with a view to substantial justice between the parties.(5) It is not necessary to set forth in a pleading the items of an account therein alleged, but the party must furnish the adverse party with a copy of the account which, if the pleading is verified, must be verified by his own oath or that of his agent or attorney, if within the per- sonal knowledge of such agent or attorney, to the effect that he be- (1) Rule 87. (2) Rule 87. (3) Code, sec. 141, 142. (4) Code, sec. 149, sub. 1, 2. (5) Code, 159. 366 WHAT WILL BE SUFFICIENT IN A PLEADING. lieves it to be true, or be precluded from giving evidence thereof. Sucli copy must be furnished within ten days after a demand thereof has been made in writing. And if the account rendered is defective, the court may order a further account or bill of particulars to be rendered. So in pleading a judgment or other determination of a court or offi.- cer, of special jurisdiction, it is not necessary to state the facts confer- ring jurisdiction, but such judgment or determination may be stated to have been duly given or made. If such allegation, however, be con- troverted by the adverse party, the j^arty pleading is bound to estab- lish on the trial, the facts conferring jurisdiction.(i) So in pleading the performance of conditions precedent in a contract, it is not necessary to state the facts showing such performance ; but it may be stated generally, that the party duly performed all the condi- tions on his part ; and if such allegation be controverted, the party pleading is bound to establish on the trial the facts showing such per- formance. And in an action or defence founded upon an instrument for the pay- ment of money only, it is sufficient in the pleading to give a copy of the instrument, and to state the amount that the part}^ claims to be due therein from the adverse party. So, in pleading a private statute, or any other right derived there- from, it is sufficient to refer to such statute, by its title and the day of its passage, and the court will thereupon take judicial notice thereof (2) So, in an action for libel or slander, it is not necessary to state in the complaint, any extrinsic facts, for the purpose of showing the application to the plaintiff, of the defamatory matter, out of which the cause of ac- tion arose. It is sufficient to state generallj^, that the same was pub- lished or spoken concerning the plaintiff"; if the allegation is contro- verted, the plaintiff" must establish on the trial that it was so published or spoken.(3) Under this section, it has been held, (4) that where the words spoken are ambiguous, the necessity of an averment or inuendo is not dispensed with, but that it was intended merely to dispense with the allegation of extrinsic facts, showing the application of the words to the plaintiff". And in such actions, {i. e. libel or slander,) the defendant may, in his answer, allege both the truth of the matter charged as defamatory, and any mitigating circumstances to reduce the amount of the damages, and whether he prove the justification or not, he may give in evidence the mitigating circumstances. So, in actions to recover the possession of propert}" distrained doing damage, an answer that the defendant or person by whose command he acted, was lawfully possessed of the real property upon Avhich the (1) Code, sec. 161. (2) Code, sec. 163. (3) Ibid. 164. (4) Pike v. Yan Warmer, 5 How. Pr. Rep, 111. THE CONSTRUCTION AND EFFECT OF FLKADINGS. 367 distress was made, and that the property distrained was at the time do- ing damage thereon, is good, without setting forth the title to such real property .(1) It is not intended to do any thing more than lay down the general rules of pleading, as applicable to all kinds of pleading, reserving it for another part of this work, to speak of each of the difterent kinds of pleadings in their appropriate order. If, therefore, a pleading contain a good cause of action or defence, it will be regarded as suflEicient, without reference to any form or techni- cal language or expression. The substance of the allegation is the test of its sufficiency, rather than the manner in which it is expressed. SECTION III. THE CONSTRUCTION AND EFFECT OF PLEADINGS. The great reform which the Code has wrought in pleadings, being designed, as we have stated, to simplify the issue to be tried, and strip the case of all the perplexing questions involved in the old system, the legislature, in adopting the Code, have made liberal and enlightened rules for the construction of pleadings, and the effect they are to have upon the issue presented for trial. Accordingly, it is provided, that in the construction of a pleading, for the purpose of determining its effect, its allegations shall be liber- ally construed, with a view to substantial justice between the parties. (2) The great object to be obtained in the judicial construction of a pleading is, if possible, to give legal eft'ect to its statement of facts. The court will, therefore, be liberal in adjudging whether it be sufficient or not to apprise the adverse part}^ of what is intended, or whether the facts as alleged, constitute a legal or equitable cause of action or de- fence ; and the pleading Avill be deemed sufficient, if the party com- plaining of its defects is not injured thereb3\ The objections to it must, in all cases, be substantial, not technical. Notwithstanding the allegations in a pleading are to be liberally con- strued, care must be taken that they contain a sufficient statement of facts to constitute a cause of action or defence, for the court cannot sup- jply facts, thought they can exercise a liberal discretion, in determining the effect of those that appear. The pleading, therefore, must be such, that by a liberal and fair construction, with a view to substantial jus- tice between the parties, the court can give effect to the allegations it contains. (1) Code, sec. 1G6. (2) Ibid. 150. 368 MISTAKES IN PLEADING, AND AMENDMENTS OF PLEADING. SECTION lY. MISTAKES IN PLEADING, AND AMENDMENTS OF PLEADING. It is provided by section 173 of the Code, that the court may at any time, in furtherance of justice, and on such terms as may be proper, amend any pleading, process or proceeding, by addiug ox striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting other allega- tions material to the case, or when the amendment does not change substantially the claim or defence, by conforming the pleading or pro- ceeding to the facts proved. The power here conferred upon the court, covers every case of a mis- take or omission in the pleading or proceeding, and the main question to be determined, is as to the ie7^7ns upon which the amendment may be made. The application for leave to amend, is always addressed to the sound discretion of the court. It is not strictly a right, but a favor, which is demanded. The costs to be paid for leave to amend, are also entirely in the discretion of the court. Ujion ivhai terms.'] The terms upon which a party will be allowed to amend a pleading, will depend upon the stage of the action, and the effect it will have upon the other pleadings and proceedings in the cause. If the motion be to amend the complaint, after the cause is at issue, and a new answer is thereby rendered necessary, the costs of the an- swer will ordinarily be imposed as the terms of granting the amend- ment. And if the cause has been noticed for trial, and a circuit is lost, perhaps the costs of the circuit will be imposed, in addition.(l) So, if the defendant applies for leave to amend his answer, or the plaintiff his reply, after the cause is at issue, and noticed for trial, the costs of the circuit and the cost of opposing the motion will be re- quired to be paid, as the terms of granting the amendment. But where the amendment asked for does not oblige the defendant to abandon his defence, it will be allowed upon the payment of the costs of opposing the motion only ; but if the defendant is obliged to abandon his defence, he is entitled to his costs uj) to the time of the amendment.(2) It is not necessary that every allegation in a pleading should be exactly supported by the proof, on the trial. Hence, no variance be- tween the allegation and the proof, will be deemed a material variance, (1) Brmn v. Babcock, 1 Code R. 66. (2) Chapman v. Webb, 1 Code R. (N. S.) 388. MISTAKES IN PLEADING, AND AMENDMENTS IN PLEADING. 369 SO as to require an amendment, unless it has actually misled tlie ad- verse party to bis prejudice in maintaining his action or defence upon the merits.(l) And where the variance is not material, and the adverse party is not prejudiced, the court will direct the facts to be found ac- cording to the evidence, without regard to the variance, or, for the fur- therance of justice, will allow an immediate amendment of the plead- ing to be made on the trial, without costs.(2) If, however, a |)arty alleges that he has been actually misled by a variance between the pleading and the proof, he must satisfy the court, by affidavit^ in what respect and to what extent he has been misled. The court will not judge from the variance itself, nor determine that the party has been misled from the fact that the proof does not support the allegation in the pleading, but the party must prove to the satis- faction of the court, that he has been actually misled to his preju- dice.(3) Notwithstanding the part}^ may have been misled by a variance, the court may order the pleading to be amended, upon such terms as shall be just,(4) It is in the discretion of the court, however, whether to grant an amendment, or non-suit the plaintiff, or exclude the defence of the defendant. There are a class of what- are termed variances^ which are not reached by the very liberal rules, as above laid down, and which cannot be remedied by an amendment. Properly speaking, however, they are not variances, but an entire failure of proof. It is provided by section 171 of the Code, that where the allegation of the cause of action or of the defence, to which the proof is directed, is unproved, not in some particular or particulars only, but in its entire scope and meaning, it will not be deemed a variance, but a failure ol proof In such cases the court is not authorized to grant an amendment, but must non-suit the plaintiff or overrule the defence, and give judg- ment accordingly. In order to amend, there must be something to amend upon, and it may be done by adding to or taking from the pleading. Thus the plaintiff will be allowed to amend his complaint, by adding a new statement of facts, not inconsistent with his former allegations, analogous to another count, under the former practice. And this will be allowed even after trial, a new trial having been ordered.(5) So an amendment will be allowed on the trial, by striking out the (1) Code, sec. 1G9. (2) Code, sec. 170. (3) Code, sec. 169. (4) Code, sec. 169. (5) Burnham and Babcock v. Hdlloren, 1 Code R. 51. Vol. I. 47 370 MISTAKES IN PLEADING, AND AMENDMENTS IN PLEADING. name of one of the defendants, against whom there is no evidence.(l) The costs of such defendant, however, wall be imposed as a condi- tion.(2) So the plaintiff may amend by adding a party, if it do not change substantially the cause of action or defence, and it appear to be "in furtherance of justice." He, however, must pay costs.(8) Or by striking out a party in a certain case.(4) Where two parties sued as plaintiffs, one as executor and the other as surviving partner, and it appeared on the trial that the surviving partner should have sued alone, it was held the variance was immate- xial and must be disregarded.(5) A complaint may be amended in the amount claimed by the plaintiff in an action on a contract for the recovery of money only, even after a reply.(6) So, where one of several plaintiffs having, after suit brought, been discharged under the two-third act, and assigTied his property to his co-plaintiff, they were allowed to amend by striking out the name of the plaintiff so discharged, and show in the amended complaint the assignment to the co-plaintiflf.(7) So, a plaintiff will be allowed in amending his complaint to change the cause of action.(8) The plaintiff declared for goods sold. The answer set up that they were sold on a credit, which had not expired. The plaintiff moved to amend his complaint by averring that the goods were procured through fraudulent representations of the defendant. This was held to be no change in the nature of the claim. So, it was held to be proper to permit the plaintiff to alter the prayer of his com- plaint, so as to claim the property itself and damages for its detention, instead of simply praying for judgment for the value of the pro- perty.(9) Amendments of course.'] There are certain amendments which may be made of course, that is, without motion. Thus a party may amend a pleading of course, without pay!ng costs, and without prejudice to any proceeding already had, at any time, before the period of answer- ing it shall expire.(lO) (1) Bemis v. Brmison and Crocker, I Codo R. 21 ; Ex,Ws. of Keese v. Fulkrton, ibid. 52. (2) Ibid. (3) Butcher v. Slack, 3 How. Pr. R. 322. (4) Code, sec. 136, sub. 4. (5) Keese v. Fullerton, 1 Code R. 52. (6) Merchant v. N. F. Life Ins. Co. 2 Sand. S. C. R. 66D. (7) Davis V. Schermerhorn, 5 IIow. Pr. R. 440. (8) Chapman v. Webb, 1 Code R. (N. S.) 388. (9) Davis V. Greene, 3 ILow. Pr. R. 378; 1 id. 82; 2 id. 43; 3 id. 148. (10) Code, sec. 172. MISTAKES IN PLEADING, AND AMENDMENTS IN PLEADING. 371 So, after an answer or demurrer lias been put in to a pleading, the pleading answered or demurred to may be amended of course, and without costs, within twenty days thereafter ; but the party cannot so amend more than once. After that, a motion for leave to amend must be made to the court.(l) But such amendment cannot be made of course, if it be made to ap- pear to the court that it was done for the purpose of delay, and the other party will thereby lose the benefit of a circuit or term for which it is or may be noticed ; and if it appear that such amendment was made for such purpose, it will be stricken out, and the party making the amendment will be made to submit to such terms as the court may impose. After the decision of a demurrer, either at a general or special term, the court may, in its discretion, if it appear that the demurrer was in- terposed in good faith, allow the party to plead upon such terms as may be just. And if the demurrer be that several causes of action have been improperly joined, and be allowed, the court may, in its discretion, and upon such terms as may be just, order the action to be divided into as many actions as may be necessary to the proper deter- mination of the causes of action therein mentioned.(2) Under these provisions, allowing amendments of course, that is, with- out applying to the court, it has been held not to authorize the striking out of the name or names of one or more of the parties.(3) Nor will a plaintiff be allowed, under the form of an amendment to introduce a new complaint.(4) Nor can circumstances happening after the com- mencement of the action be brought into the complaint by an amend- ment.(5) In such case a supplemental complaint is necessary. So, where the complaint served was not verified, it was held, the plaintiff could not by way of amendment serve a copy of the original complaint after having verified it ; the verification being no part of the complaint.(6) A plaintiff may amend his complaint by adding other, not inconsis- tent, causes of action.(7) Thus, he may add to a cause of action of a legal nature another of an equitable nature, provided they both be- long to one of the class of actions which may be joined. In addition to the very ample power given to the court to allow amendments to be made, for the "furtherance of justice" in any stage of the action, upon such terms as shall be proper, the court are directed (1) Code, sec. 172. (2) Code, sec. 172. (3) Russell V. Spear, 3 Code R. 189. (4) Dodd v. Astor, 2 Barb. Ch. R. 395. (5) Hornfager\. Eornfager, 1 Code R. (N. S.) 180. (6) George v. McAvoy, 1 Code R. (N. S.) 318. (7) Getty v. Hudson R. R. R. Co. 6 How. Pr. Rep. 269. 372 MISTAKES IN PLEADING, AND AMENDMENTS IN PLEADING. to disregard any error or defect in the pleadings or proceedings, wliich shall not affect the substantial rights of the adverse party ; and it is provided that no judgment shall be reversed or affected by reason of such error or defect.(l) Amendment of summons^ A defective summons cannot be amended of course. The court, however, has the power, it being a ^'■process or proceeding^'' in the action, to grant an amendment, upon terms, in any stage of the suit.(2) The same rules apply to this amendment by the court, as to amendments of pleadings, and it will be allowed upon the same terms. (8) The court may also disregard any error or defect in a summons, which shall not affect the substantial rights of the adverse party. The con- trar}^, however, has been held.(-i) And the court may likewise, in its discretion, and upon such terms as may be just, supply an omission in any proceeding : and where any proceeding taken by a party fails to conform in any respect to the pro- visions of the Code, the court may permit an amendment of such pro- ceeding, so as to make it conformable to the Code.(5) It will be seen that there is no limit as to the time when an amend- ment will be allowed by the court. Where the amendment is "of course," it must be made within the time prescribed, that is, within twenty days after the answer or reply is served. If not made within that time, application to the court for leave is necessary. The right to gTant the amendment rests entirely in the discretion of the court, and when granted is always in the light of o. favor. Hence, the party seeking to obtain this favor, must come in good faith. He must not be guilty of laches. He must not seek to delay or embarrass his adversary, but the earliest practicable opportunity after he has dis- covered a necessity for the amendment, he must make his application, and if it be meritorious, it will always be granted, upon such terms as to costs or otherwise, as to the court shall seem just. (1) Code, sec. 176. (2) McCrane\. Moultan, 1 Code Rep. (N. S.) IST. (3) Dlhhle V. Mason, 1 Code Rep. 37. (4) Ibid. (5) Code, sec. 174. DIFFERENT CAUSES OP ACTION IN ONE COMPLAINT, &c. 373 SECTION V. OF THE DIFFERENT CAUSES OF ACTION THAT MAY BE INCLUDED IN ONE COMPLAINT; AND HEREIN OF THE MISJOINDER OF ACTIONS. The rules heretofore prevailing in respect to the joinder of actions, have been full of subtle distinctions and perplexing difficulties. The greatest care and skill was required on the part of the pleader, to avoid duplicity and surplusage^ and guard against a misjoinder of causes of ac- tions or of inconsistent counts. Actions that may he united in tlie sar)ie complaint.^ Section 167 of the Code provides, that the plaintiff maj unite several causes of action in the same complaint, whether thej be sach as have been heretofore de- nominated legal or equitable, or both, where they all arise out of 1. The same transaction or transactions, connected with the same subject of action : Previous to the amendment of the Code in 1852, by which the fore- going provision respecting the joinder of actions was added to the for- mer provisions, it was an open question, (it having been decided both ways,) whether a cause of action, heretofore denominated legal, could be united to one that was heretofore denominated equitable. The aim of the legislature was, therefore, in the adoption of this amendment, doubtless, directed to settling the vexata questio ; and a plaintiff may now unite both legal and equitable causes of action in one suit, provi- ded they arise out of the same transaction or transactions, and connect- ed with the subject of the suit. The question arose previous to this amendment, in a case(l) where a plaintiff sued several defendants and demanded, upon the facts set forth, First. Judgment against one defendant for $4,000, and interest ; Second. Kemoval of another defendant as assignee; Third. The ap- pointment of a receiver ; and. Fourth. Judgment against the first de- fendant for the deficiency. The defendants demurred, and alleged as ground of demurrer, among others, that the com[)laint improperly unit- ed several causes of action, which could not be joined, and it was held the demurrer was well taken. 2. Contract, express or implied : This covers suits on specialties^ (contracts under seal^) as well as sim- ple contracts, {not under seal.) A claim upon a promissory note, may (1) Alger v. Scoville and others, G How. Pr. Rep. 131. 374 DIFFERENT CAUSES OF ACTION IN ONE COMPLAINT; be united with a claim upon a bond, provided the parties are tlie same : A claim for goods, wares and merchandise sold may be united with a claim arising under a deed, provided the parties are the same ; and it does not require a different place of trial. So, where one defendant had executed a contract to deliver a quan- tity of wheat, and the other defendant had signed an undertaking at the bottom of the contract, guaranteeing the performance of the con- tract, it was held, on a demurrer to the complaint, that there was no mis- joinder of causes of action, and that the two instruments should be con- sidered as one contract, and the defendants as principal and surety.(l) But, where a plaintiff claimed to recover for money had and receiv- ed, and also for a refusal to deliver up promissory notes, it was held to to be a mis-joinder of causes of action, (2) the former being founded upon an implied assumpsit, and the latter being a tort.(3) So, a claim, for the unlawful conversion of goods, and one for money had and received, cannot be joined in the same suit.(4) 8. Injuries, with or without force, to person and property, or either : Such as assault and battery and false imprisonment, both of which may be included in one action against the same person. So, injuries to property, real or personal, such as trespass, may be joined with a cause of action for injury to the person, such being within the letter of this provision. Previous to the amendment of 1852, injuries to the person and inju- ries to property could not be joined in one action, but by the amend- ment they are embraced as one of the class of causes of action which may now be united. No judicial construction has as yet been given to this provision, but it would seem from the language, that a party may sue for an assault and battery, and for a trespass upon land, in the same action, provided the parties were the same, and they did not require a separate place of trial. So, an action for crimmal conversation^ which, it has been held, is an injury to the person^ may be united with an action of trespass to pro- perty ;(5) it certainly is within the Utter of the Code. A claim for injuries to personal property, and a claim to recover pos- session of such property, are different causes of action, and cannot be united in the same suit.(6) (1) Enos V. Thomas, 4 How. Pr. Rep. 48. (2) Galloon v. Bank ofUtica, 4 How. Pr. Rep. 42.3. (3) Todd V. CrookshanJc, 3 Johns. Rep. 452. (4) Cobb V. Bows, 9 Barb. S. C. Rep. 230. (5) Delamater v. Bv^sell, 4 How. Pr. Rep. 234. ost, undur demurrer to answer. (G) Code, sec. IGS. A SPECIFIC DENIAL. 565 A defendant cannot generally deny eacli allegation, or eacli and every allegation in the complaint, if one of the allegations is true. In sucli case, he must use the specific denial ; and it is, therefore, as has already been said,(l) only where the defendant can truly say that not a single allegation in the complaint, or not a single allegation in any one cause of action stated in the complaint, is true — not in the manner and form, but in substance, that this species of denial ought to be used. I do not mean to say that he may not denj^, generallj', a single allegation of the complaint, or of a cause of action in the complaint, but that where the denial goes to a part only of the complaint, it is better to deny specifi- cally. 2. A specific denial. There is no essential difference between a general and a specific de- nial, except in the form or manner of expressing the denial. The effect of the two species of denial is the same, and the rights of the defendant under them, in controverting, by proof, the allegations con- tained in the complaint, I suppose also to be the same. The general denial, as we have seen, (2) goes to the tvliole of the complaint, or to the whole of one or more of the allegations contained in it, and denies them generally ; whereas the specific denial points out by some distinct spe- cification the part of the complaint intended to be controverted. The denial must be specific of each controverted allegation. It cannot be specific without mentioning by some particular mark of distinction, the allegation which it is designed to controvert. Specification, according to AValker, consists in " distinct notation, determination by a particular mark of distinction, particular mention."(3) The denial must be direct without evasion, and not by way, of what was formerly called negative pregnant. Particular and precise charges must be answered particu- larly and positively, and not in a general manner, otherwise it would be a general and not a specific denial. Thus, where the complaint alleged that the defendant " assaulted the plaintiff", and seized him by the collar and shook him violently;" the answer " denied that the defendant did assault the said plaintiff, and seize him by the collar and shake him violently." The answer upon demurrer was held to be insuflicient.(4) The court say : The defend- ant has grouped three of the charges and denied them under oath in such a manner, that if he should be guilty of two, and not guilty of any one, his answer would not be literally untrue. This is not good plead- ing under the Code. The object of the specific denial, and the oath adopted by the Code, is to require the defendant to admit so much of (1) Ante, p. 558. (2) Ante, p. 558. (3) Seiuard v. Miller, 6 How. Pr. Rep. 312. (4) Hopkins v. Everitt, 3 Codo Rep. 150. 566 ^ SPECIFIC DENIAL. tlie cTiarge as lie cannot conscientiously deny, and tlius narrow down the issue to those points which are really in controversy. So, an affirmation in an answer that a defendant " does not recollect " having done an act, is not tantamount to a direct and unequivocal denial, nor to a declaration that he did not beheve that he did it.(l) An answer which professes to deny either generally or specifically, must not evade the facts charged ;(2) but must clearly, distinctly, and positively deny each material allegation of the complaint intended to be controverted. It must go to the substance and not to the r)ianner and form of the allegations ; and hence it was held that an answer which denied that a particular allegation of the complaint was not true " in manner and form as therein stated," was held to be no denial. (3) The specific denial may be of one material allegation only, and im- pliedly admit all the others; and if such allegation be a material issu- able fact, the controversy will be narrowed down to that single point. So, matters which are necessarily implied in a pleading, may be contro- verted by a specific denial. Thus, where the allegation is, that the " plaintiff is seized," &c., it is implied that his seizin is sole^ and the defendant may specifically controvert this.(4) So, where possession is necessary to authorize the instituting a suit, as for partition of lands among tenants in common, it will be presumed or implied from the averment of seizin ;(5) and the defendant may traverse the fact of pos- session, and the plaintiff must make out an actual or constructive pos- session.(6) It is not necessary to traverse an immaterial allegation. Indeed it would be improper to do so. ' Nor are mere inferences or conclusions of law traversable by a specific denial, though a specific or general denial of the facts from which the inferences or conclusions are drawn, will necessarily controvert such conclusions. The prayer for relief in the complaint need not be traversed. It is only \hQ facts which can be put in issue,(7) and the plaintiff can get no relief unless the issue is found in his favor. Although it would not be good pleading to deny, specifically or generally, immaterial matter in a complaint, I do not understand that the defendant may not do so. ISTor do I suppose that the court would strike out such a denial, as either irrelevant or redundant matter.(8) Nor would the denial of an imma- (1) 1 Dana, 56; Nichols v. Jones^ 6 How. Pr. Piep. 355. (2) Hartness v. Bennett, 3 How. Pr. Rep. 288. (3) Fierson v. Cooky, 1 Code Rep. 91 ; ante,.T[}. 36-1. (4) 2 Slack. 629. (5) 3 Paige's Cb. Rep. 242. (6) 9 Cow. Rep. 530. (7) AveriU v. Taylor, 5 How. Pr. Rep. 476. (S) King v. Utica Ins. Co. 6 How. Pr. Rep. 435. DENIAL OF ANT KNOWLEDGE, &c. 567 terial allegation, of itself raise a material issue ; and if the issue of fact thus formed should be found for the plaintiff, he would not for that reason alone be entitled to judgment, and if the other material issues were found for the defendant, he would be entitled to judgment not- withstanding, an immaterial issue had been found for the plaintiff, in analogy to the old motion for judgment non obstante veredicto. The pleader should be careful never to encumber the record with useless, irrelevant or immaterial matter : it is only calculated to em- barrass the trial, and will be discountenanced by the courts. Enough is done if the answer traverses the material and issuable facts set forth in the complaint. And an omission to answer an immaterial averment, or a conclusion of law, or anything not properly in the complaint, is not an admission thereof, and cannot prejudice the defendant on the trial.(l) 8. Denial of any knowledge or information sufficient to form a helief Another mode of denying the allegations contained in the complaint, where the defendant cannot do so positively of his own knowledge, is to deny any knowledge or information thereof, sufhcient to form a belief.(2) The defendant, as we have seen, must answer every allegation which he intends to controvert, either generally, or specifically, or, as I have just stated, of any knowledge or information thereof sufficient to form a belief If he cannot do this, he must allege new matter constituting a defence or counter-claim, otherwise he will be taken to admit as true all the averments in the complaint. And when a defendant undertakes to answer, he must answer fully, but this must be understood to apply only to matters of fact, and which are well pleaded. To matters of law, or inferences of law drawn from the facts, he need not answer. With respect to the branch of an answer, which I am now consider- ing, namely a denial of any knowledge or information sufficient to form a belief, it may be remarked, that in general, where matters charged in the complaint as the act of the defendant himself, are of such a nature, that he can be presumed to have knowledge of them, if they ever took place, a positive answer is rcquired.(3) So, if the complaint averred that the defendant had made and entered into a certain agreement, a simple denial of any knowledge or information thereof, &c. would, I think, be treated as a mere evasion. And in a case in the late court of chancer}^, (-f) where a matter was alleged in the bill as the act or deed of the defendant, it was held that the defendant could not deny any (1) King v. Utica Ins. Go. 6 How. Pr. Rep. 485. (2) Code, sec. 149, sub. 1. (3) Hall V. Wood, 1 Paige Ch. Rep. 404 ; Sloane v. LiUle, 3 id, 103. (4) Utica Ins. Co. v. Ly7ich, 3 Paige Ch. Rep. 210. 5G8 DENIAL OF ANT KNOWLEDGE knowledge or recollection thereof, and tlie allegation was held to be admitted. But as to matters which are not alleged to be the defendant's own act or to be within his personal knowledge, it is sufficient if he deny any knowledge or information (if such be true) of the facts alleged. In respect to answering that the defendant has not any knowledge or information, su£B.cient to form a belief, it is to be observed that the defendant is bound to make use of due diligence to acquire the infor- mation necessary to enable him to answer the allegation of his own knowledge or information. Thus he must answer not only as to all facts within his knowledge, but as to those which he can ascertain from an inspection of books, papers or documents in his possession or under his control. The knowledge or information which the defendant has, must of course be sufficient to "form a belief" He may have no knowledge and his information may not be reliable ; it must be such, therefore, as fixes in his mind a helief'm. its truth and correctness ; and in general, it should seem it must be information derived from some source other than the complaint itself (1) Kthe alleo-ation of a fact be of such a nature that the defendant can easily obtain knowledge of it, he is bound to do so, and cannot deny any knowledge or information thereof, but is required before answering to satisfy himself on the point by making the inquiry. Thus, where a suit was brought on a joint and several bond executed by the defend- ants as sureties, conditioned for the payment to the plaintiff of the amount recovered by him in a suit pending at the time the bond was executed, the complaint, after setting out the bond and condition, alleged that the plaintiff" on a day stated, had recovered final judgment in said action. The defendant answered that he had no " knowledge or infor- mation sufficient to form a belief whether the plaintiff" ever recovered final judgment in said action." On motion that part of the answer was stricken out. (2) The court say : "The judgment is a public record. If the defendant had not thus constructive notice of the judgment, he had the necessary means of information. To permit a party thus circum- stanced, with every means of knowledge within his power, to answer that he has no knowledge or information sufficient to form a belief whether the judgment was recovered, would be to sanction a palpable evasion." So, in another case,(3) the complaint was upon a promissory note, alleged to have been made by the defendants as partners. One of the defendants denied that he had any information or knowledge (1) Tradesman's Bank v. Hyatt, 2 Edw. V. 0. Rep. 195. (2) Eance v. Reimning, 1 Code Rep. (N. S.) 201. (3) Mott V. Barnett and Leamy, 1 Code Rep. (N. S.) 225. OR INFORMATION SUPPICIENT TO FORM A BELIEF. 569 wliereon to found a belief, whetlier tlie note was made by the defendants or either of them. This answer was stricken out. He was one of the defendants and certainly knew whether he made the note or not. Such an averment of the want of knowledge was false upon its face. He says he had neither knowledge nor information whether the note was made by either of the defendants The means were within his power of ascertaining whether the note was signed by his partner and co- defendant, or not. So, where the complaint was for an assault and battery, charging that the defendant spit in the plaintiff's face. The defendant answered that he had not knowledge or information sufficient to form a belief, whether he did spit in the plaintiff's face or not, and therefore he de- nied the same.(l) A motion was granted striking out the answer as sham or frivolous. The court say : " The motion gives rise to this question, whether the defendant may put in an answer in this form to a fact which is presumptively within his own personal knowledge. We think that, as a general rule, he cannot. There may be causes in which, although apparently within his knowledge, he does not know or re- member the facts alleged. If so, he must, in his answer, or in the affi- davit verifying it, state the lapse of time or other circumstances, which he supposes will warrant the qualified denial permitted by the Code, when the party has not knowledge or information sufficient to form a belief." It may be stated, therefore, as a general rule, that to authorize a de- nial of any knowledge or information sufficient to form a belief of any allegation of fact contained in the complaint, it must be of matters : 1. which are not presumptively yjiihixx the knowledge of the defendant; and 2. of which he cannot, by the exercise of due diligence and resort- ing to the means within his power or under his control, obtain the necessary information. In either of these cases a defendant is not per- mitted to make this qualified denial. The proper mode of pleading this species of qualified denial is to state, "that as to each and every allegation contained in the complaint, the defendant has not any knowledge or information thereof sufficient to form a belief, and therefore denies the samef^ or perhaps it would be sufficient to say that the defendant " denies any knowledge or informa- tion of each and every allegation," &c. There must be a denial of the allegations, and it is not enough to say that the defendant has not any knowledge or information, &c., without accompanying it with a denial of the facts intended to be controverted. Without such denial, as (1) Richardson v. Wilton, 4 Sandf. S. C. Rep. 708. YoL. I. 72 570 STATEMENT OF NEW MATTER. I stated in tlie first edition of my Practice, (1) the case is left witTi the plaintiff, (who of course must establish bj proof every averment in his complaint,) and the defendant will not be permitted to introduce evi- dence to disprove them. This was so held substantially in a case in this court.(2) This was a motion for judgment upon the complaint on the ground of the insufl&ciency of the answer. The defendant, without denying anything, said, "that as to each and every allegation in the complaint set out, the defendant has not any knowledge thereof suffi- cient to form a belief." The court say : " The defendant by this de- nial has put the plaintiff to the proof of them." I meant, and now mean to be understood, as I formerly stated, that the defendant must not only aver that he has not any knowledge, &c., but he must accom- pany it by a denial, in order to introduce evidence to disprove it. I seem to have been misapprehended in a recent treatise on plead- ing.(3) 4. Statement of new matter. A further mode of making a defence, is by a statement in the answer of any new matter constituting a defence.(4) The statement of the new matter is, as a general thing, analogous to the statement of the cause of action in the complaint, and for the most part, the same rules which apply to the latter, also apply to the former. The Code simj)ly requires that the statement of new matter shall be made "in ordinary and concise language, without repetition." I have already(5) given, somewhat at length, my views of the effect of a general or specific denial, and the right of the defendant to give evidence under it of any matter which goes to show that no sufficient cause of action ever existed, and it is unnecessary here to repeat any part of what was there said. The question is one of great difficulty and of much doubt, and I have been compelled, in the absence of any decision bearing directly upon the subject, to leave it an open question ; recommending, however, as being the safer and more prudent course, in all cases to set out all the facts going to show the plaintiff had no cause of action, as new matter in the answer. The case of Benedict v. Seymour, {Q) may be thought an authority (1) MoneU's Fr. p. 146-7. (2) Genesee Mut. Ins. Co. v. Moynihen, 5 How. Pr. Rep. 321. (3) Van Santvoord's PI. 248. (4) Code, sec. 149, sub. 2. (5) Ante, p. 559. (6) 6 How. Pr. Rep. 298 ; ante, p. 000. STATEMENT OF NEW MATTER. 571 against tlie right to set out as new matter anything wMcli may be proved under a general denial. If there is any analogy between the general denial prescribed by the Code and the general issue as permit- ted by the late practice, there can be no doubt on the subject ; for very many of the defences which might be given in evidence under the general issue, might also, at the option of the defendant, be specially pleaded. Thus infancy, lunacy, coverture, insufficiency of consideration, duress, the statute of frauds, usury and the like ; all these the defendant had his election to plead specially, or give them in evidence under the general issue. I think that it would not be improper, and certainly, until the ques- tion is fully determined by the court, it will be safer, to set out as new matter all such defences, and not rely upon being permitted to prove them under the general denial. The same remarks which have previously been made,(l) with respect to the disseverance of law and equity, in stating the facts constituting the cause of action in the complaint, apply to the statement of new mat- ter in the answer. There is now no difference or distinction whatever, in stating the defence between actions which were heretofore denomi- nated legal, and such as were heretofore denominated equitable. The rule is the same in both cases. All that is required is, that the new matter shall be stated in ordinary and concise language, without repeti- tion. And whether the action is to be adjudged upon the milder prin- ciples of equity or the sterner rules of the common law, the pleading will be the same. It is clear that where it is necessary to set out new matter in the answer, the defendant cannot give it in evidence unless it is so set out ; nor can the defendant avail himself of any defence not taken by an- swer, except that he may attack the complaint, for want of showing jurisdiction, or for not showing a sufficient cause of action. Thus, it was held that the defendant could not give evidence of a matter not set up in his answer.(2) Here the allegation in the answer was, that the property ''was very poor and of very little value," and the defendant was not suffered to prove that it was worth nothing at all. Nor is it enough for a defendant to spread out certain portions of what may be the evidence in the cause, and rely upon that as an an- swer.(3) This case, which was an action for the foreclosure of a mort- gage, the defendant set out in his answer certain facts and circum- stances going to raise the presumption of payment, such as a jDurchase (1) Ante, p. 471. (2) Diefendorffv. Gage, 1 Barb. S, C. Rep. 18. (3) Fattison v. Taylor, 8 Barb. S, C. Rep. 250. 572 STATEMENT OF NEW MATTEE. of the mortgaged premises from the mortgagor without notice of the mortgage, and a quiet possession, claiming as owners for more than twenty years before the suit was brought ; and the court held that the defendant should have set up payment, and not the facts from which it was claimed the presumption of payment arose. And this species of answer was obnoxious to another objection, namely, that it stated the evidence of facts and not the fact itself. An afiirmative independent fact, in no wise connected with the de- fence set up, cannot be given in evidence unless pleaded.(l) Thus in an action on a covenant against the assignee of a lease for rent, the defend- ant under a denial of the execution of the lease and of the assignment to him, can set up no other defence, and will not be permitted on the trial, to prove that before the rent became due, he assigned all his interest to a third person, who entered into possession and was in pos- session at the time the rent became due.(2) So, a nonjoinder or defect of parties not appearing upon the face of the complaint must be specially pleaded — it cannot be given in evidence under a general or special denial. So, where two persons sued in an action for injury to personal pro- perty, and the answer alleged that the plaintiffs were not joint owners, it was held this was "new matter," within the meaning of the Code,(3) And where several defendants were sued as partners, on a contract, the allegation by one defendant that he "never was a partner," was held to be a good answer. (4) In actions for lihel or slander the defendant may allege both the truth of the matter charged as defamatory and any mitigaiiug circumstances to reduce the amount of damages ; and whether he prove the justifica- tion or not, he may give in evidence the mitigating circumstances.(5) But the defendant cannot deny the speaking of the words, and also allege circumstances in mitigation of the damages.(6) If a justification is pleaded the answer must contain an admission of the speaking of the words.(7) But it is said, that the defendant may by separate answers, first deny the speaking or publishing, and secondly admit and justify. (8) This conflicts with the decision in Meyer v. Schultz, just quoted, which seems to me to be the correct rule. In Buddington v. Davis, the court (1) Van Santvoord's PI. 264. (2) Kdtktas v. Mayhee, 1 Code Rep. 363. (3) Walrod v. Bennett, 6 Barb. S. C. Rep. 145. (4) Corning v. Haight, 1 Code Rep. 12. (5) Code, sec. 165. (6) GraJiam v. Stone, 6 How. Pr. Rep. 15 ; Meyer v. ScMdiz, 4 Sandf. S. C. R. 664. (7) Broivn v. Orvis, 6 How. Pr. Rep. 376. (8) Buddington v. Davis, 6 How. Pr. Rep. 401. STATEMENT OF NEW MATTEK. 573 say : " tlie defendant may set forth as many defences as lie may have ; but each defence must be separately stated. He may in a case like this deny any or all the allegations of the complaint, and then by a separate statement in the same answer, allege the truth of the statements con- tained in the libelous publication ; but he cannot in the same defence deny the allegations of the complaint and set up new matter to avoid their effect," If it is improper to state it in the " same defence," it is difficult to see upon what principle it becomes proper to state it in separate defences. It is not sufficient to allege generally that the words are true, but the defendant must state such facts as will show the plaintiff' guilty of the offence imputed to him.(l) The matter which it is intended shall go in mitigation of the dama- ges, must not be stated in justification ; the matter in justification and in mitigation, must be distinct, and separately stated.(2) The same rule, as respects the answer, has been held to prevail in actions for an assault and battery. The defendant cannot first deny the assault and then justify it by alleging that the plaintiff first assaulted him. (3) But it seems that in this action mitigating circumstances may be given in evidence on the trial without being set up in the answer.(4) A defendant may set forth as many defences as he may have :(5) and hence he may admit one or more allegations in the complaint, deny others, and allege new matter as to the residue. But the facts admitted must not be of themselves sufficient to authorize a recovery by the plaintiff's, otherwise, he will be entitled to enter judgment at once.(6) An answer which seeks to avoid the complaint by new matter, should confess directly or by implication, that, but for the matter in avoidance, the action could be maintained.(7) But it is to be observed that this does not mean that the defendant should confess other parts of the complaint not controverted, as it is always improper to express an admission, silence being the only admission required by the Code.(8) The new matter must be such as constitutes a legal ground of defence, and where there are several distinct grounds of defence, they must be separately stated, and must refer to the causes of action, which they (1) Anon. 3 How. Pr. Rep. 406; Sayles v. Wooden, 6 id. 84; AnaUe v. Hunter, id. 255; Fry V. Bennett, 1 Code, Rep. (N. S.) 238. (2) Brown v. Orvis, 6 How. Pr. Rep. 316. (3) Schneider v. Schultz, 4 Sandf. S. C. Rep. 664. (4) Ibid. (5) Code, sec. 150. (6) Genesee Mut. Ins. Co. v. Moijnihen, 5 How. Pr. Rep. 321. (7) McMurray y. Gifford, 5 How. Pr. Rep. 14 ; Buddlngton v. Davis, 6 Id. 401. (8) Ante, p. 364. 574 STATEMENT OP NEW MATTER. are intended to answer, in sucli a manner, as tliat they may be intelli- gibly distinguished. (1) The facts must not be stated hypothetically, nor in the alternative, nor can mere conclusions of law be stated, nor need such matters if contained in the complaint, be answered by the defendant.(2) It may be stated as a general rule that in setting out new matter in an answer in avoidance of the plaintiff's cause of action, the same rules apply as in stating the facts constituting the cause of action in the com- plaint.(3) All the facts must be pleaded, which the defendant will be bound to establish by evidence to constitute the bar, but the facts themselves, and not the evidence should be pleaded. (4) And where such facts are insufficiently pleaded, or where they do not constitute a defence, the plaintiff may move to strike them out as irrelevant or redundant : but it seems he cannot demur.(5) And although the court may, and indeed are bound to disregard many omissions and defects in a pleading,(6) yet they are so far restricted that 'they may not overlook them, where the allegation in the pleading to which the proof is directed, is unproved, not in some particular, or particulars only, but in its entire scope and meaning. This is what is denomina- ted " a failure of proof;" and the court would be bound to shut out the evidence. So, they cannot disregard an error or defect, when by so doing a substantial right of the adverse party would be affected.(7) As has been said, all distinction between law and equity is abolished, and it is now provided by the Code, (8) that the defendant may set forth as many defences and counter-claims as he may have, whether they be such as were heretofore denominated legal or equitable, or both. By this provision, which was enacted in the amendments to the Code, passed in 1852, the question which had been so frequently discussed, whether a defendant could interpose a purely equitable defence to a legal cause of action is put to rest. So that now the defendant may set up as new matter in his answer facts which constitute either a legal or equitable defence to the plaintiff's cause of action. Nor does this provision stop here. The defendant may also have positive or ajfinna- tive relief ; that is, where prosecuted for one thing, he may not only defeat the plaintiff's action, but have a judgment in his favor for an- other thing. Thus, Avhere an action was brought to have a bond and (1) Code, sec. 150. (2) Boyce v. Brown, 1 Barb. S. C. Rep. 80 ; Barton v. Sackett, 3 How. Pr. Rep. 358. (3) See ante p. 357, 467. (4) Yau Santvoord's PL 274. (5) Thomas v. Harper, 7 How. Pr. Rep. 57. (6) Code, sec. 171. (7) Code, sec. IT 6. (8) Code, sec. 150. STATEMENT OE NEW MATTER. 575 mortgage delivered up and cancelled, the defendant, the holder of the bond and mortgage, having made out a sufficient case, had an affirma- tive judgment of foreclosure.(l) It has been said in one or two cases, (2) that in setting out an equita- ble cause of action, a different rule of pleading is to be observed, than in stating a legal cause of action. But I have already stated all that is necessary to say on this subject ;(3) and I think it may be regarded as well settled that there is now no such distinction, and that there is, or should be, in reality, if not in practice, a uniformity of pleading in all cases. Therefore, in stating new matter in an answer, whether it be such as would heretofore have been denominated a legal or equitable defence, it is necessary that material and issuable facts alone should be stated, and not facts which are incapable of trial, or which would not, upon being controverted, form a material issue. The answer should contain a statement of such facts only as are constituted a defence ; all beyond this will be regarded as irrelevant or redundant matter, and will be stricken out on motion. In regard to such matter in an answer, the court has the same power to expunge it as in the case of a complaint ;(4) but, as will be presently seen, (5) the plaintilf cannot demur to an answer for irrelevancy or re- dundancy, nor for insufficiency even, except to such part as sets up a counter-claim. So, an answer in alleging new matter, should state facts and not the mere evidence of facts. And the court will remove all such matters from the pleading. Thus, in one case, (6) the court struck out a large portion of an answer, embracing the details of evidence relied on to sustain a charge of fraud. The action was for trespass in cutting and carrying away grain, and the answer setting up that the plaintiff's deed for the land was obtained by fraud, went into a history of the transaction between the parties, with the circumstances in detail of the alleged fraudulent procurement of the deed. The objection here was, that the evidence of the fraud was spread out at great length, and it was very properly sustained. Had the facts merely going to show in what the fraud consisted been stated, it would have been proper, for it is not sufficient to allege fraud gen- erally.{7) (1) Averill v. Taylor, 5 How. Pr. Rep. 476. (2) Rochester City Bank v. Suydam, 5 How. Pr. Rep. 216. (3) Ante, p. 357, 378, 379. (4) See ante, p. 529. (5) See post, demurrer to answer. (6) Knoioles v. Gee, 8 Barb. S. C. Rep. 300. (7) McMurray v. Thomas, 5 How. Pr. Rep. 14. 576 STATEMENT OP NEW MATTER. But there are cases in wliicli it may be proper to allege facts and circumstances with more particularity than in others. Thus facts which may have an influence in giving or withholding costs, may be alleged, and it would seem that they will not be stricken out as irrelevant or re- dundant.(l) The new matter which may thus be set up in an answer, must not only be such as will, if sustained, constitute a defence to the action, but it must not be inconsistent with the general or specific de- nial of other parts of the complaint. The defendant cannot, as a gene- ral rule, deny the whole complaint, and also avoid it by new matter. He must confess and avoid. Hence, he cannot deny the utterance of the words alleged to be slanderous, and also justify them.(2) Nor can he deny the assault and battery, and also aver that the plaintiff com- mitted the first assault upon him. (3) An answer must not be hypothetical nor in the alternative, and not only must the new matter alleged be consistent with the previous parts of the answer, but it must also be consistent with all the defences in- terposed. Although a defendant may make as many defences as he may have, and these may be such as were heretofore denominated legal or equitable, or both, yet they must all be consistent with each other ; for if inconsistent, one or the other will be stricken out as irrelevant, or at least the court will compel him to elect which he will have re- rnain.(4) So, where a defendant undertook under pretence of setting forth several separate defences, to set forth the same defence in different forms, the court ordered all except one to be stricken out, leaving, however, the defendant to elect which one should remain. (5) As in the complaint,(6) so in the answer, matter of which the court will take judicial notice need not be stated; such as public statutes and the like ; nor is it proper to state matter which would properly come from the other side ; nor to allege what is presumed in law ; nor what is necessarily implied. In stating several defences, it is to be observed, that they must be stated separately, and must refer to the causes of action which they are intended to answer, in such a manner that they may be intelligibly distinguished.(7) The court has provided by rule(8) that each cause (1) See ante, p. 351. (2) Meyer v. Schultz, 4 Sandf. S. C. Rep. 664. (3) Ibid. ; and see ante, p. 000. (4) Porter y. McCready, 1 Code Rep. (N. S.) 88. (5) Stockhridge Iron Co. v. Mellen, 5 How. Pr. Rep. 439. (6) Ante, p. 467, 468, (7) Code, sec. 150. (8) Rule 87. COUNTER-CLAIM. 577 of action or defence in a pleading shall not only be separately stated, but sliall he plainly numbered ; and if the recommendation, which I made in a speaking of pleadings general ly,(l) to number each allegation is followed, there will be little difficulty in referring to the particular cause of action intended to be controverted. An appropriate mode of stating a separate defence is to say, "and for a further defence, &c. ;" or where it is intended to apply to one only of the causes of action set forth in the complaint, to say, "and for a defence to the causes of action in the complaint secondly set forth, the defendant says, &c." If the defendant, instead of stating his defences separately, mingle them together, the court will order the whole to be stricken out ;(2) for, as has been well remarked, the burthen of analyzing the defence is not to be thrown on the court at the trial, nor is the plaintiff bound to take notice of it at his peril. And the same consequences would fol- low the omission to refer in the answer distinctly to the cause of action, it is intended the particular defence shall controvert. Or at least the defendant could be compelled under another section of the Code(3) to make his answer more definite and certain by amendment.(4) 5. Counter-claim. Until the amendments to the Code passed in 1852, there was no statutory provision authorizing the defendant to set up a cross-demand as a defence to an action, except in regard to a set-off, which was regu- lated by the revised statutes, and to which I shall have occasion, pre- sently, to advert. The provision in the Code is, therefore, new. But though there was no statutory provision on the subject, it had for many years been a well established principle in equity, and of late years equally as well settled in common law courts, that the defendant in either of those courts might interpose a cross-demand existing in his favor against the plaintiff, as a defence to the action. In courts of equity it was called a cross-hill^ and in courts of law it was denominated recoupment. As the theory and practice of these species of defences is now con- tinued in the Code, under the title of "counter-claim," with the addi- tions, alterations or modifications, which will presently be pointed out, it will be useful to examine briefly the meaning, extent and effect, 1. of (1) Ante, p. 411. (2) Benedict v. Seymour, 6 How. Pr. Rep. 301. (3) Code, sec. 160. (4) Van Santvoord's Tl. 293. Vol. I. 73 57S COUNTER-CLAIM. a cross-bill in equity ; 2. of recoupment at common law ; and 3. of set-off. A cross-bill in equity was brought by a defendant in a suit against tlie plaintiff in the same suit, or against other defendants in the same suit, or against both, touching the matters in question in the original bill.(l) The object of the bill was either, 1. to obtain a necessary dis- covery of facts in aid of the defence to the original bill ; or 2. to obtain full relief to all parties, touching the matters of the original bill.(2) With a cross-bill for a discovery we need have nothing to do, inas- much as all actions to obtain a discovery under oath, in aid of the pro- secution or defence of another action is now abolished, (3) and a pro- vision for the examination of a party substituted in its stead. (4) It was a general rule that a cross-bill could not introduce subjects of litigation between the parties, new and distinct from those which were in controversy in the original suit.(5) And so, if the defence could be taken and made available by answer, a cross-bill would not be permit- ted.(6) A cross-bill was proper where the original bill was for the specific performance of a contract, which the defendant, at the same time, in- sists ought to be delivered up or cancelled.(7) So, where a bill was filed by one tenant in common of the legal estate against another for partition, it was a good defence by the latter, that he had acquired a good equitable title to the whole premises. But if he should farther wish to have af&rmative relief on his part, or a decree that the plaintiff should convey his legal title to him (the defendant) in conformity to his equitable title, he must have filed a cross-bill for the relief, for under the bill for partition no such relief could be had.(8) So, a cross-bill was also proper in adjusting equities between defend- ants, as where questions arose between defendants to a bill, and the court could not make a complete decree without bringing every matter in dispute completely before the court, to be litigated by the proper parties, and upon the proper proofs.(9) So, a defendant was sometimes obliged to resort to a cross-bill in cases where, by the rules of pleading in equity, he would not be able (1) Story's Eq. PI. sec. 389; Cooper's Eq. PI. 89; Mitf. Eq. PL 80. (2) Piggott v. Williams, 6 Madd. Rep. 95 ; Cooper's Eq. PI. 85. (3) Code, sec. 389, (4) Ibid. sec. 390. (5) Gallatin v. Erwin, 1 Hopk. Ch. Rep. 48. (6) Ward v. Eyles, Mosely, 382. (7) Cooper's Eq. PI. 85, 86. (8) German V. Mackin, 6 Paige's Ch. Rep. 288. (9) Mitf. Eq. PI. 81 ; Cooper's Eq. PL 85; FattisoJi v. HulL 9 Coweu's Pep. 1i1. COUNTER-CLAIM. ,579 to avail himself of the matter of liis defence in any other way. Thus, if the matter of the defence arose after the cause was at issue, as if the plaintiff had given the defendant a release, or a certijficate of bankruptcy obtained after issue joined, (all of which were at law the subjects of a plea puis darrein continuance^) a defendant in equity could not avail himself of either of these defences by plea or answer, and therefore had to make them the subject of a cross-bill. But it was a general rule on this subject, that if the defence could be taken and made available by an answer, a cross-bill would not be permitted. In short, a cross-bill was always proper, where the defendant desired some afiirmative relief which could not have been given to him, in the event of his success, without it. Enough, therefore, has been said to illustrate the nature and uses of a cross-bill in equity ; and hence, I will proceed to speak of the next element which now forms a part of the counter-claim, namely, "re- coupment," at common law. The object of the statutes of set-off, to which I shall presently advert, was to settle mutual accounts and debts, wrongs and torts done, and unliquidated damages claimed, were never permitted to be set off. The same reasons which led to the adoption of the statute of set-off, have also introduced the practice of recoiqwient. Mr. Barbour in his treatise on Set-off, (1) in speaking of recoupment, says this species of defence is somewhat analogous in its character to set-off. He says it arises where the defence is not presented as a mat- ter of set-off arising on an independent contract, but for the purpose of reducing the plaintiff's damages, for the reason that he himself has not complied with the cross-obligations arising under the same contract. Thus, in an action to recover compensation for services rendered, the employer is entitled to show by way of recoupment of damages, loss sustained by him through the negligence of the person employed ; and so in regard to a breach of warranty. The question seems first to have been agitated in this state, in a case(2) where the suit was for deceit and warranty in the sale of the art of manufacturing potashes in a new and improved mode. And again, in a subsequent case, (3) the defendant was permitted to show negligence of the plaintiff as attorney. So, in an action for the pur- chase-money of a mare, the defendant was permitted to prove that the plaintiff was guilty of deceit, in falsely representing the mare to be sound, when she, in fact, had a disease of which she afterwards died.(4) (1) Law of Set-oft; by Barbour, p. 26. (2) Jones v. Scriven, 8 Johns. Rep. 353. (3) Banyan v. Nichols, 11 Johns. Rep. 5-46. (4) Benton v. Stewart, 3 Wend. Rep. 23G; SpaUing v. Vandercook, ibid. 431. 580 COUNTER-CLAIM. A distinction was drawn by tlie court in this case, wliicli however wag afterwards disregarded, that if it was shown that the mare was entirely tviihout value, the testimony was admissible, but if it appeared that she was of some value, the evidence would not be proper. But it was not until a more recent case,(l) that the rule was definitely settled in this state. The salt was for the price of a cooking stove. The defendant gave notice with his plea, that he would prove that the plaintiff warranted the stove to draw and cook well ; that it did not an- swer the warranty ; that he had offered to return it ; but that the plaintiff refused to take it back. In this case, the rule was stated to be, that such a defence was permitted to be made in all cases to avoid circuity of action ; and it was equally allowable in a case of warranty bona fide^ as of a warranty mala fide. Subsequently the rule was extended to a great variety of cases. Thus, it was applied to the case of a suit brought by the master of a sloop for wages, and the owner was allowed to "recoup" the damages sustained by him in consequence of the plaintiif 's negligence, in laying the sloop in such a way that she was run into and sunk.(2) And in an action for the price of a steamboat, the doctrine of Reah v. McAlister, " that proof of any damages arising from a plaintiff's breach of the contract on which he sues, may be received to reduce his claim," was again recognized. So, where covenant was brought on a sealed instru- ment, to build a certain wall, the defendant offered to show that the work was not equal in quality to what the contract required.(3) The court said, " The offer came under the category of recoupment. Re- coup is synonymous with defalk or discount. It is now uniformly applied where a man brings an action for a breach of contract between him and the defendant, and the latter can show that some stipulation in the same contract was made by the plaintiff, which he has violated ; the defendant may, if he choose, instead of suing in his turn, recoup his damages arising from the breach committed by the plaintiff, whether liquidated or not." So, where a suit was brought on a promissory note given for wood, which had been destroyed by reason of the payee of the note having burned over a piece of fallow ground, adjacent to the lot where the wood lay, and against the consequences of which, at the time of giving the note, he had undertaken to guaranty the defendant.(4) The court in allowing the defence say : " When the demands of both parties, (1) McAlister v. Real), 4 Wend. Rep. 483 ; and the same case in error, 8 Wend. Rep. 109. (2) Stilly. Hall, 20 Wend. Rep. 51. (3) Ives V. Van Ejpps, 22 Wend. Rep. 155. (4) Batterman v. Pierce, 3 Hill Rep. 171. COUNTER-CLAIM. 581 spring out of the same contract or transaction, tlie defendant may recover altliougli the damages on both sides are unliquidated." It is unnecessary to extend the review of the cases on this subject, decided in this state, more especially as Mr. Sedgwick,(l) has with ad- mirable system, and great perspicuity collected all the law to be found in the reports, and I can with confidence refer to his excellent treatise, for the rule as it now prevails in this state upon the subject of recoup- ment. After reviewing the cases on this subject, he concludes by saying that "in New York it may now be safely said, that whether in cases of sales of chattels, contracts for labor and materials, or for professional services, whether the action be for the original contract price, or on a security given therefor, and also in actions for rent, it is competent for the defendant to give in evidence in diminution or recoupment of dam- ages, any fraud, breach of warranty, or negligence, growing out of and relating to the particular thing in question, by which he has been in- jured, and the whole matter is to be submitted to the jury. For dama- ges not arising, however, out of the contract of the parties, and entirely independent of their respective covenants or agreements, there can be no recoupment ; and so in an action for rent upon a lease which provi- ded for the landlord's entering on the premises to make repairs during the term, the tenant cannot recoup damages occasioned by negligent and tortuous behavior of the landlord and his servants in making such repairs.(2) " So where there are distinct sales they cannot be regarded as one transaction, so as to entitle the defendant in an action for the price of the last parcel delivered to recoup his damages growing out of the previous deliveries.(3) Nor can there be any recoupment of damages sustained subsequent to the commencement of the suit."(-i) The mode of setting up a defence of recoupment it was well settled, was by the general issue if the evidence to support it went to destroy the whole cause of action ; if however it was only partial, a notice was required specially setting out the nature and extent of the defeuce.(5) It was also well settled that recoupment could go no farther than to defeat the plaintiff's suit, and though the defendants damages far ex- ceeded the plaintiff's claim, he could not have a judgment for the balance. (1) Sedgwick on the Measure of Damages, (2nd ed.) 427. (2) Cram v. Dresser, 2 Sandf. S. C. 120. (3) Seymour v. Davis, 2 Sandf. S. C. 2tQ.' (4) narger v. Edmonds, 4 Barb. S. C. R. 256. (5) Mayor of Albany v. Trowhridge, 5 Hill Rep. T6. 582 COUNTER-CLAIM. The tMrd element wliicli enters into and forms a part of tlie " counter- claim," is set-off. It is unnecessary to do anything more than to refer briefly to the sections of the revised statutes, by which alone set-off was allowed. It is provided in the revised statutes,(l) that a defendant may set-off demands which he has against the plaintiff, in the following cases : 1. It must be a demand arising upon judgment or upon contract, express or implied, whether such contract be written or unwritten, sealed or without seal ; and if it be founded upon a bond or other contract having a penalty, the sum equitably due, by virtue of its condition, only, shall be set off. 2. It must be due to him in his own right, either as being the origi- nal creditor or payee, or as being the assignee and owner of the demand. 8. It must be a demand for real estate sold, or for personal property sold, as for money paid or services done ; or if it be not such a demand, the amount must be liquidated, or be capable of being ascertained by calculation, 4. It must have existed at the time of the commencement of the suit, and must then have belonged to the defendant. 5. It can be allowed only in actions founded upon demands which could themselves be the subject of set-off according to law. 6. If there be several defendants, the demands set off must be due to all of them jointly. 7. It must be a demand arising against the plaintiff in the action, unless the suit be brought in the name of a plaintiff who has no real interest in the contract upon which the suit is founded ; in which case ■no set-off of a demand against the plaintiff shall be allowed, unless as hereinafter specified. 8. If the action be founded upon a contract other than a negotiable promissory note, or bill of exchange, which has been assigned by the plaintiff a demand existing against such plaintiff, or any assignee of such contract at the time of the assignment thereof, and belonging to the defendant in good faith before notice of such assignment may be set off to the amount of the plaintiff's debt, if the demand be such as might have been set-off against such plaintiff or such assignee while the con- tract belonged to him. 9. If the action be upon a negotiable promissory note, or bill of ex- change, which has been assigned to the plaintiff after it became due, a set-off to the amount of the plaintiff's debt may be made of a demand existing against any person or persons who shall have assigned or (1) 2 Rev. Stat. 354, sec. IS. COUNTER-CLAIM. 553 transferred sucli note, or bill, after it became due, if tliis demand be such as might have been set off against the assignor, while the note or bill belonged to him. 10. If the plaintifl'be a trustee for any other, or if the suit be in the name of a plaintiff who has no real interest in the contract upon which the suit is founded, so much of a demand existing against those whom the plaintiff represents, or for whose benefit the action is brought may- be set off as will satisfy the plaintiff's debt, if the same might have been set off in an action brought by those beneficially interested. 11. But if such action be brought by the assignee of an insolvent, imprisoned, absent, concealed or absconding debtor, no set-off shall be allowed of any debt, unless in the cases provided in the fifth chapter of the second part of the revised statutes. And by another provision,(l) it is provided that in suits for the pay- ment or recovery of money set off shall be allowed (in suits in chancery) in the same manner, and with the hke effect as in actions at law. The particularity with which the right to make a set-off, is defined by the revised statutes renders it unnecessary to say anything farther here on the subject. Having thus stated the three kinds of defences which, prior to the Code, were permitted to be made, and the manner of making them, namely, by a cross bill in equity, recoupment at common law, and set- off under the statute, it remains to be seen what is a "counter-claim" as expressed in the Code. The answer of the defendant, in addition to all other defences, of which I have before spoken, may also contain a statement of any new matter constituting a cou7iter-daim,{2) which is defined to be,(3) a claim existing in favor of a defendant, and against a plaintiff, between whom a several judgment might be had in the action, and arising out of one of the following causes of action. 1. A cause of action arising out of the contract or transaction set forth in the complaint as the foundation of the plaintiff's claim, or connected with the subject of the action. 2. In an action arising on contract, any other cause of action arising also on contract, and existing at the commencement of the action. It will readily be perceived that this provision of the Code is suffi- ciently comprehensive to embrace all the subjects of a cross-bill in equity — of recoupment at common law; — and of set-off under the revised statutes ; and an application of the principles which I have heretofore stated with respect to these different species of defence will readily furnish us with all the light we may need in order to a full (1) 2 Rev. Stat. 114:, sec. 40. (2) Code, sec. 149. (3) Ibid, sec. 150. 584 COUNTER-CLAIM. understanding of tlie meaning, extent and effect of a counter-claim under tiie Code. But a counter-claim, as we shall presently see, is more comprehensive in some respects than either of the cross-demands, which might formerly be litigated in the same action. It is what its name imports, a claim set up by the defendant counter to the claim of the plaintiff : a claim for which the defendant might have hrought a suit against the plaintiff whether such claim be such as here- tofore was denominated legal or equitable, or whether its results be to affect the plaintiff's demand or to establish an independent demand against the plaintiff. The word is of more general signification than set-off and recoupment, counter-claim being the genus and set-off and recoupment the sjjecies. Formerly an independent demand could be set up by the defendant to defeat the plaintiff's recovery, only in virtue of the statute of set-off. This right is now enlarged by the Code, and it extends to all actions whether they arise on contracts or are for tort, and whether the damages are liquidated or unliquidated. The cross demand, however, must arise out of the same matter, with that, out of which the plaintiff claims. This perhaps enlarges the cases of recoup- ment to cases of claims for breaches of separate covenants in the same contract ; cases of equitable claims, where formerly bills would have been filed in equity to vacate or modify a recovery at law ; in short, to all cases where under the old system the defendant might have brought a separate suit against the plaintiff at law or in equity, upon the same contract or transaction or connected with the same subject. In all such cases the defendant may now set up such matter as a defence, and if sustained by proof, not only defeat the plaintiff's claim, but obtain himself affirmative relief. One or two examples will illus- trate this. In a suit between partners. The plaintiff seeks to recover damages for the breach of the partnership articles. The defendant sets up another breach by the plaintiff and calls for a dissolution of the copartnership and an account of the co-partnership effects. Or, a suit upon a con- tinuing policy of insurance for a partial loss, the defendant sets up a mistake in executing the jDolicy and claims to have it reformed, &c. If the cause of the plaintiff's action arise out of contract^ then the defendant may set up any other cause of action also arising on contract and this too whether the contract be express or implied by parol or in writing, under seal or without seal. Thus in a suit on a promissory note the defendant can set off damages for the non-performance by the plaintiff of a contract for the sale of real property, or for the foreclosure of a mortgage the defendant may set up a claim for damages for a breach of the covenant of seizin in the deed from the plaintiff to the defendant convcviu"- the land. COUNTER-CLAIM. 585 So, wliere tlie action arises out of a contract or for a tort or any other cause of action, the defendant may in like manner set up as a counter- claim and defence any matter arising out of the same contract or trans- action set forth in the complaint, or connected with the subject of the action. The only dif&culty in determining the species of counter-claim -vvhich will be allowed is in ascertaining if it is connected with the contract or transaction set forth in the complaint, or with the subject of the action. Where the action is on contract, and the counter-claim is on contract, there will be no difiiculty : it is only where the counter-claim is not upon contract, that the difiiculty will present itself; and in this respect every case will stand by itself The only guides which can be furnished are those to which I have heretofore adverted, namely a cross- bill in equity, recoupment at common law and set off. There is this one and perhaps only difference, that formerly the defendant could do no more than defeat the plaintiff' 's action, and though his claim for damages far exceeded the demand of the plaintiff and was sustained by proof, he could not have the balance certified in his favor. In such case he was obliged to bring a cross-suit. Now, however, the defendant is not thus restricted. He may not only defeat the plaintiff's recovery, but he may himself have affirmative relief, and may recover the excess of his damages, beyond the plaintiff's demand. The provision in the Code, that the counter-claim must be one "existing in favor of a defendant and against a plaintiff between whom a several judgment can be had in the action," was doubtless intended for the pur- pose of preventing a plaintiff of depriving a defendant of his counter- claim by bringing in other parties. Hence, whenever any plaintiff may recover judgment against any defendant, that judgment may be affected by a counter-claim between those parties. But I do not understand that there is any authority under the provision allowing a counter-claim for litigating cross demands between two defendants. And section 274 of the Code which provides that the judgment may determine the ulti- mate rights of the parties on each side as between themselves, can have no bearing on the subject. Unless the counter-claim be such as is provided for in section 150 of the Code, it cannot be allowed at all. These remarks are not intended however, to apply to other defences, for it is incompetent for the court to settle and adjust the equities in some cases between defendants.(l) The same rules are to be observed in stating a counter-claim in an answer as in stating other new matter, and it is unnecessary to repeat here what has already been said on that subject.(2) (1) Woodworth v. Bellows, 4 How. Pr. Rep. 24. (2) Ante, p. 5*70. Vol. I. 74 586 COUNTER-CLAIM. The defendant may set forth as many counter-claims as he may have, and like other new matter they must be separately stated, and if the answer contain more than one defence of new matter or counter-claim, they must each be plainly numbered.(l) As we have seen, (2) the defendant may demur to part of the com- plaint, and answer another part. It is necessary that the answer should controvert every material alle- gation in the complaint, that it is intended to controvert, for if it do not, such allegations will be taken as true, and the defendant will not be permitted to disprove them on the trial. But by answering them, he is not concluded from insisting on the trial that the facts stated in the complaint are not sufficient to constitute a cause of action. (3) If the action be upon a contract, the defendant, when he serves his answer upon the plaintiff, may also give a written notice to the plaintiff, containing an offer, that if the defendant fail in his defence to the action, the damages which the plaintiff may be entitled to recover, may be assessed at a sum to be specified in the notice. The plaintiff, having received the notice, may, when he notices the cause for trial, or at any time before, give notice in writing to the defendant's attorney, that he accepts the offer. In case the verdict upon the trial be for the plaintiff, and he shall have accepted the offer, the damages shall be assessed at the sum specified in the offer of the defendant.(4) If the plaintiff does not accept the offer, by giving notice of his acceptance, as above stated, he must prove his damages on the trial, in the same manner as if the offer had not been made, and the plaintiff cannot give the offer in evidence. But he is not restricted in his recovery to the amount specified in the offer ; he may recover a larger sum, in which case he will be entitled to recover the costs of the action. If, however, his recovery do not exceed the amount specified in the offer of the defendant, the defendant will recover the expenses incurred by him in consequence of any necessary preparation for, or in making a defence in respect to the question of damages. In such a case, the expenses, to which the defendant is entitled, must be ascertained at the trial. Verifying answer^ If the complaint is verified, then it is necessary to verify the answer ; otherwise not. The mode of verifying the answer, when necessary, is the same as the manner of verifying the complaint. (5) The defendant may verify his answer, notwithstanding the complaint (1) Ante, p. 572, and Eule, 87. (2) Ante, p. 552. (3) Code, sec. 148. (4) Code, sec. 383, and ante, p. 500. (5) As to which see ante, p. 478. SHAM ANSWERS. 587 is not, and tlie effect of it will be, not to make it evidence, but to com- pel the plaintiff to verify liis reply, if one is put in. Sham ansioers.'] If the answer served by the defendant be clearly frivolous, that is, raising no issue of law or olfact^ and be put in merely for delay, the proper course is to make a motion to the court in which the action is pending, to have it stricken out.(l) The words of the Code are, that " sham and irrelevant answers and defences may be stricken out on motion." In one case, it was said that "sham" was not here used as synonymous with "false," and that it was only where it took issue upon some immaterial averment of the com- plaint, or set up new and irrelevant matter, that it could properly be called a sham answer.(2) A sham answer and a frivolous answer are the same thing ; both words describe the same kind of a defence, but where an answer denies, in the manner jDrescribed in the Code, a material allegation in the complaint, it is neither "frivolous" nor "sham." So, where the action was against the acceptor of a draft, and the de- fendant denied " that the defendant in said complaint mentioned did, as therein alleged^ accept the draft, &c." The court struck out the an- swer as a sham defence, it appearing that the draft was accepted by the defendant's agent.(3) I have already considered(4) what is and what is not irrelevant and redundant matter in a pleading, and the mode in which it is to be expung- ed from the record ; but a sham answer or defence differs from such mat- ter, in this, that the whole answer or defence must be sham and frivo- lous; for if a part only of an answer or defence is sham, it must be stricken out as irrelevant. The distinction between a "sham" answer or defence, and irrelevant matter in a pleading is well considered by Mr. Justice Barculo^ in a recent case.(5) A sham pleading, he says, according to Webster, means, a "false, counterfeit, pretended" pleading; and Mr. Chitty says it " is the pleading a matter known by the party to be false, for the purpose of delay, or other unworthy object, "(6) " We thus learn that the essential element of a sham plea, is its falsity. For although some of the cases speak of its being also interposed as a sham plea for the purpose of vexation and delay, yet it is obvious that (1) Code, sees. 152, 247. (2) Davis V. Potter, 4 How. Pr. Rep. 155 ; 2 Code Rep. 99. (3) Mier v. Cartledge, 4 How. Pr. Rep. 115, 116. (4) Ante, p. 529. (5) Niclwls V. Jones, 6 How. Pr. Rep. 355. (6) 1 Chittj's P]. 541. 588 SHAM ANSWERS. tliis is a necessary inference from its known falsity. A defendant must have some sucli 'unworthy object' in view, when he dehberately puts in a plea which he knows to be false. It seems to me, therefore, that the true rule to be adopted under the Code which has abolished the general issue is, to strike out all answers or defences as sham, when they appear clearly to be false, whether they be good in point of law, on their face or not." This accords with the reason given by Judge Savage^ in Brewster v. Bosticick^{V) where he says : "The great object is to prevent delay and expense to the plaintiff; and consuming the time of the courts in passing upon pleas, which are a mere fiction, an un- seemly and exjDcnsive incumbrance upon the record, and a fraud upon the rule that allows double pleading. "Whatever be their legal merit, we cannot sit here to pass upon them, or any question growing out of them, nor should they be retained on the record." The only difficulty in applying this rule is in determining what shall be deemed conclusive evidence of the falsity of a pleading, and I sup- pose the falsity must be admitted or clearly established ; and it seems such evidence must also be undisputed. And in a still later case, (2) "sham" pleadings are defined to be such as are fictitious or imaginary, devised by the ingenuity of the pleader, without regard to the facts really existing in the case. The practice of striking out sham answers and defences was never applied to a pleading which, without alleging new matter, merely de- nied some allegation in the pleading which it purported to answer. The mode of striking out a sham answer or defence is by motion, and it seems(3) that it may be founded on the affidavit of the plaintiff and other proof showing its falsity. In addition to this, an affidavit must be made of the receipt of the answer, and a copy, with notice of the motion, must be served upon the defendant's attorney, at least Jive days before the time S23ecified for making the motion, stating in the notice the time and the jolace, and court before whom the motion will be made.(4) This motion may be made to the court in which the action is pend- ing at any of its special terms, as in case of other motions, or may be made before a judge at chambers. If the court or officer is satisfied that the answer is a sham one, he will make an order striking it out, and the plaintiff may enter judg- ment in the action, as upon failure to answer. (1) 6 Cow. Rep. 34. (2) Wliite, Receiver, v. Bennett, 1 How. Ft. Rep. 59. (3) Ibid. (4) Code, sec. 247. ANSWER. 559 If tiie answer contains more than two folios, tlie defendant's attorney must distinctly number and mark each folio in the margin thereof, and all copies, either for the parties or the court, must he numbered or marked in the margin, so as to conform to the original draft.(l) Irrelevant and redundant matter in an answer.'] If the answer contain matter redundant or irrelevant to the issue intended to be raised by the complaint, the plaintiff may apply to the court to have it stricken out. The motion for this purpose must be made like the motion to strike out a sham or frivolous answer,(2) and must be made within twenty days after the service of the answer.(3) As to irrelevant or redundant matter in an answer, see ante, p. 529. In cases of sham answers, it seems that the plaintiff does not, by re- plying, lose the right to move afterward, to have it stricken out.(4) So, if the allegations in the answer of new matter are so indefinite or uncertain that the precise nature of the defence is not apparent, the court, upon the motion of the plaintiff, which is conducted like other special motions, may require the answer to be made definite and certain by amendment.(5) But this motion must be made within twenty days after the answer is served.(6) Filing and serviny ansiuer.'] The answer having been drawn and verified, when a verification of it is proper or necessary, it should be filed in the ofiice of the clerk where the action is pending, although it is not absolutely necessary to file it in the first instance. If the filing is omitted, it may be compelled by the plaintiff, in the same manner that the filing of the complaint may be enforced ; as to which see ante^ p. 485. A copy of the answer must then be served upon the plaintiff's attorney, within twenty days from the service of the summons and complaint, unless the time has been enlarged. Enlarging time to anstoer.'] If the time allowed, (^. e. the twenty days,) is not sufficient for the defendant's attorney to prepare and serve the answer, he should apply to a judge of the court in which the action is pending, or to a county judge, and obtain an order enlarging the time.(7) For this purpose an afiidavit must be prepared, stating the reasons for requiring more time. Take the affidavit to the judge, and get the order, serve the original affidavit or a copy of it, with a copy (1) Rule 41. (2) Code, sec. 160. (3) Rule 40. (4) Stokes v. Eager, 1 Code Rep. 84. (5) Code, sec. 160. (6) Rule 40. (7) Code, sec. 405. 590 DEMURRER TO ANSWER. of tlie order upon the plaintiff's attorney. The plaintiff's attorney may disregard tlie order, if the original or a copy of the affidavit is not served. Ansiuering the amended complaint^ As we have seen,(l) the plaintiff, if he conceives it necessary, may, after he receives the answer, amend his complaint. If he do so, a copy of the amended answer is served upon the defendant's attorney. The defendant must then put in a de- murrer or answer, in the same manner that he would to the original complaint, and it must be served within the same time that is allowed to answer or demur to the first complaint. Demurrer to answer. The Code, as originally adopted, did not authorize a demurrer to an answer in any case ; as amended in 1849, a demurrer was allowed to an answer containing "new matter" for insufficiency, and the same provision was continued by the amendments of 1851. But by the amendment passed in 1852, and which is now alone in force, the right to demur has been greatly abridged ; so that now no part of an answer except such parts as set up new matter constituting a " counter-claim^'''' can for any cause be demurred to.(2) Therefore, the plaintiff cannot demur to a general or specific denial, nor to any new matter in the answer, be it never so insufficient as con- stituting a defence, unless it sets up a counter-claim. I have already(3) defined what I understand to be a " counter-claim," within the meaning of the Code, and if the statement of new matter be insufficient as constituting a cross-demand, either as not being permit- ted by the Code, or as being insufficient in itself, the plaintiff may raise the objection by demurrer, A recent work on pleading(4) takes a different view of this question, and holds that a demurrer may be taken for insufficiency to any new matter set up in an answer, and that it is not confined to new matter constituting a counter-claim. But I think upon a careful reading of section 156 of the Code, it will be found that this is incorrect. It says : "When the answer contains new matter constituting a counter-claim, the plaintiff may, &c. reply to such new matter, &c. and he may allege, &c. any new matter, &c. constituting a defence to such new matter in the answer, (referring to the counter-claim ;) or he may demur to the same, for insufficiency, &c." (1) Ante, p. 48]. (2) Code, sec. 153. (3) Ante, p. 580. (4) Tan Santvoord's PI. DEMURRER TO ANSWER, 591 The only autliority given for a demurrer to an answer is to be found in this section, and it is clear that it is here confined to the new matter constituting a " counter-claim." I am strengthened in this view, by a recent decision in this court,(l) which, although probably decided under the Code of 1851, fully sus- tains me. It is there held that unless the new matter set up in the answer as constituting a defence, is such as requires a "reply," the plaintiff cannot demur. Now, no part of an answer setting up new matter not constituting a counter-claim, need be replied to ; it being provided in the Code,(2) that "the allegation of new matter in the an- swer, not relating to a counter-claim, &c. is deemed to be controverted by the adverse party, as upon a direct denial or avoidance, as the case may require." If, therefore, the statement of new matter in the ansvv'cr, not relating to a " counter-claim," be not such as constitutes a defence to the action, the plaintiff's remedy (if there be nothing else in the answer) is to move for judgment, as if there was no answer ; or if the other parts of the answer raise an issue, to move to strike out such new matter as irrelevant. He cannot demur. The only ground of demurrer, where one is allowed, is for "insufii- ciency," and the grounds of the demurrer must be distinctly stated, with as much precision and clearness, as is required in demurrers to a complaint.(3) I cannot subscribe, for the reasons which I have heretofore stated, (4) to the rule laid down in one case, (5) to allege as ground of demurrer to an answer, " that it does not state facts sufficient to constitute a defence," is enough, without pointing out ivherem it is insufl&cient. This is contrary to the letter as well as the sjyirit of the Code, and is opposed to numerous cases, and among them to a very recent one.(6) It is the duty, therefore, of the pleader to set out specifically and particularly the grounds of his objection to the answer. Other- wise, if the case of Anihal v. Hunter is to be followed, it would be enough to say, that "the defendant demurs to the answer for wzsz/^*- ciency^^^ that would be stating the ground of the demurrer quite as specifically as was done in that case. The plaintiff may demur to a part of the defences of matter consti- tuting a counter-claim, if there be more than one, and may reply to the others. And the plaintiff is obliged to demur, if he wishes to object to (1) Tliomas v. Harper, 1 How. Pr. Rep. 51. (2) Code, sec. 168. (3) See ante, p. 548, (4) Ante, p. 548, 549, &c. (5) Anibal v. Hunter, 6 How. Pr. Rep. 255. (6) Ficrdy y. Carpenter, 6 How. Pr. Rep. 361. 592 THE REPLY AND ITS INCIDENTS. it as being insufficient, for by not demurring, lie waives tlie rigbt to object to the insufficiency of the defence set up, on the trial of the cause, as an issue of law, can only be raised upon a demurrer. (1) SECTION II. THE KEPLY AND ITS INCIDENT.S. The cases in which the plaintiff is obliged to reply to the answer of the defendant have, by the recent amendments to the Code, been re- duced to a single class. Under the Code, as originally adopted, and which remained unchanged until the amendments passed in 1852, the plaintiff was required to reply to all " new matter " set up in the an- swer. It is now provided,(2) that when the answer contains new matter constituting a " counter-claim,^'' the plaintiff may, within twenty days, reply to such new matter, &c. I have already defined(3) what I understand to be a counter-claim, and it is unnecessary to repeat here what was there said. Whenever, therefore, the answer sets up a cross-demand against the plaintiff, as authorized by the Code, or asks any affirmative relief, the plaintiff must reply to such matter. The reply, like the answer, may be general or specific, that is, it may deny generally or specifically each allegation of such new matter in the answer, controverted by the plaintiff, or the plaintiff may deny any knowledge or information thereof sufficient to form a belief. The same general rules which are made applicable, as before stated,(4) to the general and specific denial, or of any knowledge, &c. in an answer, will also apply to those different species of denials in a reply. The plaintiff may also allege, in ordinary and concise language, with- out repetition, any new matter not inconsistent with the complaint, constituting a defence to such new matter in the answer.(5) The statement of new matter is made in the same manner as is re- quired in an answer, and it will be sufficient to refer the reader to what has already been said on that subject.(6) (1) Code, sec. 249, sub. 1. (2) Code, sec. 153. (3) Ante, p. 580. (4) Ante, p. 557, 565, SGT. (5) Code, sec. 153. (6) Ante, p. 570. THE REPLY AND ITS INCIDENTS. 593 Verifying rejjly.'] The same rules prevail in regard to verifying the reply, that exist in regard to the answer. If the preceding pleading is verified, then it becomes necessary to verify the reply. This is done in the same manner that the complaint is verified. (1) The plaintiff may verify the reply, notwithstanding the preceding pleading is not, but as the reply is the last pleading of fact that is allowed in an action, nothing would be gained by verifying it, in cases where it is not rendered necessary by the preceding pleadings. Irrelevant and redundant matter in a reply.'} The same rules exist in regard to irrelevant and redundant matter in a reply, that prevail in regard to answers.(2) The plaintiff in his reply, must negative the allegations of new matter constituting a counter-claim contained in the answer. He must deny generally or specifically each allegation intended to be controverted by him : or aver that he has not any know- ledge or information thereof sufficient to form a belief; or, he may admit the truth of the allegations and allege any new matter in avoidance of them. But the allegation of new matter must not be inconsistent with the complaint. In alleging new matter, in avoidance of the answer or of any defence setting up a counter-claim therein, it must be done in the same manner as is required in respect to stating the cause of action in the complaint or the defence in an answer, that is, it must be stated " in ordinary and concise language, without repetition."(3) If, however, the reply contain any irrelevant or redundant matter, the defendant may apply to the court or a judge thereof, by motion, upon notice to the plaintiff", to have such matter stricken out of the reply ; or if the allegations are indistinct and uncertain, he may in like manner apply to have them made distinct and certain, or if they be insufficient in law to avoid the defence, the defendant may demur. (4) The motion above mentioned is conducted like other special motions, but must be made within twenty days from the time of its service.(5) Enlarging time to reply.'] As the reply must be served within twenty days from the time the answer is received, the plaintiff", if there be not time to do so, may get the time extended in like manner as the time to answer may be.(6) If the reply contains more than two folios, the attorney must distinctly number and mark each folio in the margin thereof; and all copies either (1) As to which see ante, p. 4'? 8. (2) Ante p. 589. (3) Code, sec. 153, (4) Ante, p. 590. (5) Rule 43. (6) As to which see ante, p. 589. YoL. I. 75 594 THE REPLY AND ITS INCIDENTS. for the parties or the court, must be numbered or marked in the margin, so as to conform to the original draft.(l) Filing and serving reply.'] The reply having been drawn and verified when a verification of it is proper or necessary, it should be filed in the of&ce of the clerk of the county where the action is pending. As, in the case of the complaint and answer, it is not absolutely necessary to file the reply. If omitted the filing may be enforced, in the same way that the filing of the complaint may be enforced.(2) Effect of reply?^ The reply being the last pleading of fact that is allowed, it is intended that thereby the issue between the plaintiff and the defendant will be complete. And ordinarily it will be so ; and the issue thus made is to be tried by a jury, or by the court without a jury, or by a reference. But it may be, that the plaintiff, in his reply, has alleged some new fact, not inconsistent with the complaint, in avoidance of one or more of the defences of counter-claim interposed by the defendant and which the defendant wishes to controvert. Under the former practice, the pleading did not terminate, until the last pleading took issue with the immediately preceding one, by a simple denial. Hence to the reply there was a rejoinder., to that a rebutter., and to that a surrebutter. But now, in analogy to the practice of the late court of chancery, the pleadings end with the reply, and the defendant cannot controvert, by a pleading, any new matter of fact, set up in the reply. The defendant, however, is not concluded, by any new matter alleged in the reply. But on the trial he may countervail it by proof, either in direct denial or by way of avoidance.(3) Effect of not replying^ If new matter constituting a counter-claim, be set up in the answer, the plaintiff, if he do not demur to it, must reply ; for if he fail to do so, the defendant may apply to the court or to a judge thereof, for such judgment as he may be entitled to upon the complaint and answer ; for the effect of not replying is to admit the allegations contained in the answer, to be true. (4) For this purpose a notice for the motion must be served upon the plaintiff's attorney at least ten days before the time specified for making the motion, stating the time and place and the name of the court before which the motion will be made. The object of the motion must be stated in the notice, namely, that it is for judgment for the defendant upon the complaint and answer, for want of a reply. (1) Rule, 41. (2) As to which see a«fe, p. 485. (3) Code, sec. 1G8. (4) Code, sec. 154. THE REPLY AJND ITS INCIDENTS. 595 If tTie court is satisfied that the defendant is entitled to a judgment, an order may be entered accordingly, and the defendant may enter such judgment as he is entitled to, or if it be necessary, a writ of inquiry of damages may be ordered, and the defendant's damages are assessed by a jury as in other cases. To new matter set up in the answer not constituting a counter claim, it is not necessary to re^^ly, it being provided, (1) that the allegation of new matter in the answer, not relating to a counter-claim, is to be deemed controverted by the adverse party as upon a direct denial or avoidance as the case may require. So that upon the trial of the cause, the plaintiff may give evidence either in denial or avoidance of the new matter set up in the answer. Replying to amended ansiver.'] The defendant after receiving the reply is allowed to amend his answer,(2) which he must do within twenty days, and serve a copy upon the plaintiff's attorney. If he do so, the plaintiff ma}^ demur or reply anew, in the same manner that he could to the first answer. The demurrer or reply must be served within the same time and in the same manner, that is required in the case of a demurrer or reply to the first answer. Demurrer to reply.'] The reply of the plaintiff having been put in, the defendant's attorney should examine it, in order to see if the alle- gations of new matter contained in it are sufficient in point of law, to enable the plaintiff to sustain his action. For although the defendant may not controvert the /acfe alleged in the repl}^, \iY pleading a fact, yet, if such facts do not in law avoid the defence interposed by the defend- ant, he may demur. The defendant can only demur to the reply for insufficiency,{o) and he may demur to a part or the whole of it. He is obliged to demur, if he intends to object to the reply as being insufficient ; for by not demurring, he waives all right to object to the insufficiency of the allegations in the reply, on the trial. The grounds of the demurrer to the reply, like the grounds of demurrer to any other pleading, must, in like manner, be clearly and distinctly specified, and it may be set aside as frivolous, upon mo- tion.(4) (1) Code, sec. 168. (2) See ante, p. 368. (3) Code, sec. 153. (4) As to which see ante, p. 590. CHAPTER VI. THE PROCEEDINGS TO TRIAL, VERDICT AND JUDGMENT. Section I. the issue. II, THE examination OF WRITINGS. III. THE EXAMINATION OF WITNESSES DE BENE ESSE, AND UPON COMMISSION, AND OF PARTIES BEFORE TRIAL. IV. THE PREPARATION FOR TRIAL. Y. ENFORCING THE ATTENDANCE OF WITNESSES. YI. COPY OF THE PLEADINGS FOR THE COURT. YIT. ENTRY OF THE CAUSE FOR TRIAL. YIII. THE JURY PROCESS. SECTION I. OF THE ISSUE. The pleadings in the action having terminated either by a demurrer or by a reply, so that there is an issue of law or of fact, or both, to be tried, for the purpose of settling the questions involved in the action, the first step to be taken is to determine the manner in which the issue is to be disposed of In order to determine the manner of disposing of the case, it will be necessary to look into the pleadings to ascertain what the issue is, whether of law or of fact. Issues arise only upon the pleadings ; for as we have before seen, the object of the pleadings being fo bring before the court the precise nature of the plaintiff's claim, and of the defend- ant's defence thereto. Issues arise upon the pleadings when a fact or conclusion of law is maintained by the one party, and controverted by the other They are of two kinds.(l) 1. Of law; and, 2. Of fact. As the issue of law, if one arises, must ordinarily be disposed of, before the issue of fact, it will be proper to speak of the former issue first. \l) Code, sec. 248. OF THE ISSUE. 597 Issues of law I] An issue of law arises, upon a demurrer to the com- plaint, answer or reply, or to some part thereof. There may be a case where issues of law and of fact both arise, as where there is a demurrer to a part of the complaint, and an answer to the residue. Here the demurrer raises a question or issue of law, and the answer a question or issue of fact. In such a case they cannot be tried at the same time, but the demurrer should be first disposed of (1) There are other cases, besides demurrers, where questions of law may arise on the pleadings, as where the complaint does not state facts suflfi.- cient to constitute a cause of action, or where the court has no juris- diction of the person of the defendant or the subject of the action ; in these cases, as we have seen, the party may demur, or he may take advantage of the objection upon the trial. In the latter case it is a question of law, and is generally tried at the same time with the issue of fact. The court has the power to direct the issue of fact to be first disposed of, and in some cases will do so, for the convenience of the parties. Thus the court will direct, in some cases, that the damages in the action be assessed, reserving the question of law to be afterwards deter- mined(2) In a case where there were issues of law and of fact, and both parties noticed the cause for trial on the issue of fact, and the issue of fact was tried without objection, before the issue of law, it was held by the K. Y. Superior Court, that the trial was regular ; that both parties having noticed the issue of fact for trial, they had consented to its being first tried, and must be deemed to have been first tried by order of the court.(3) And the practice now established by that court, and which would seem to be the correct practice, is that where a cause having issues of law and fact, is moved on for trial, and the issue of law is pending, the court will then determine whether the issue of fact shall be first tried or not, and that it is not necessary to obtain a previous order on the subject. Issues of fact.'] Issues of fact arise whenever a material allegation in the complaint is controverted by the answer, or where new matter, by way of defence, is set up in the answer, and controverted by the reply, or where new matter, not inconsistent with the complaint, is set up in the reply. If, however, the new matter set up in the reply is demurred to as insufficient, then, as to that, an issue of law and not of fact, is formed. (1) Code, sec. 251. (2) Code, sec, 251. (3) Warner v. Wigera, 2 Sandf. S. C. Rep. 635. 598 EXAMINATION OF WITNESSES —ON COMMISSION. As we have seen, in general, the issue of fact is not to be tried, until after the demurrer or the issue of law is tried. But the court may order them to be tried at the same time. SECTION IL OF THE EXAMINATION OF WRITINGS. In order to avoid the expense of proving a paper material to the ac- tion, it is provided, (1) that either party may exhibit to the other, or to his attorney, at any time before the trial, any paper material to the ac- tion, and request an admission in writing, of its genuineness. If the adverse party, or his attorney, fail to give that admission within four days after the request, and if the party exhibiting the paper be after- wards put to ex]Dense in order to prove its genuineness, and the same be finally proved or admitted on the trial, such expense to be ascer- tained at the trial, shall be paid by the party refusing the admission ; unless it appear, to the satisfaction of the court, that there were good reasons for the refusal. I have already treated fully on this and the kindred subjects of pro- curing the inspection of writing, and the production of books and docu- ments ;(2) so that it is unnecessary for me to do any thing more than refer the reader to what is there said. SECTION in. EXAMINATION OF WITNESSES DE BENE ESSE AND UPON COMMISSION, AND OF PARTIES, BEFORE THE TRIAL. Examination on commission. In case a witness, whose testimony may be deemed material, reside out of the state, either party desiring to obtain his testimony, may ap- ply to the court in which the action is pending, or to a judge thereof, for a commission, to be directed to one or more competent persons to (1) Code, sec. 388. (2) Ante, p. 514. EXAMINATION OP WITNESSES,— ON COMMISSION. 599 take the testimony of such witness on oath, upon interrogatories to be annexed to the commission. The application for a commission cannot be made until after the an- swer is put in, but it should be made the earliest opportunity after the issue is joined, for if it is delayed, the court or judge to whom the mo- tion is made, may not stay the trial to have the commission returned.(l) In tvhat case?^ Whenever an issue of fact shall have been joined in any action, and it shall appear on the application of either party, that any witness not residing within this state, is material in the prosecution or defence of such action, the court may, upon such terms as it shall think proper, award a commission to one or more competent persons, authorizing them, or any one of them, to examine such witness on oath, upon the interrogatories annexed to such commission, to take and cer- tify the depositions of such witness, and to return the same, according to the directions given with such commission.(2) This provision is substantially the same as that contained in the old act, (3) with the ex- ception that the motion cannot now be made until after issue joined, whereas, formerly, it could have been made at any time, without regard to the state of the pleadings.(4) And a commission may issue, to take the testimony of a witness residing out of the state, though his domicil be here, he being regarded as a resident out of the state, within the meaning of the statute, which was intended to facilitate the obtaining of the testimony of witnesses who were beyond the reach of the pro- cess of our courts, and whose personal attendance on the trial could not be enforced.(5) Formerly, a commission could only be taken out where an issue in fact had been joined : now, however, where interlocutory judgment has been obtained in any action, a commission may be awarded, on the ap- plication of the plaintiff, in the like cases, and in the same manner as if an issue of fact had been joined ; and the depositions taken thereon, may be used in evidence, on any proceeding to assess the plaintiff's damages, with the like effect, as in case of trial.(6) Motion for comynission.'] An application for a commission is a non- enumerated motion, (7) and must be founded on an affidavit, stating that the cause is at issue, or that the time for answering has expired and no answer received, as the case may be. It must likewise state the names of the witnesses ;(8) and that thej^ are material as the party is advised (1) 2 R. S. 315, sec. 19. (2) 2 R. S. 393, sec. 11. (3) 1 R. L. of 1813, p. 519. (4) 1 Wend. 18. (5) 1 Weud. 65. (6) 2 R. S. 396, sec. 24. (7) 2 Gaines, 260. (8) 2 Johns. Oas. 68, 285. 600 EXAMINATION OP WITNESSES,— ON COMMISSION. by counsel and verily believes, and are without the state ;(1) and where the application is on the part of the defendant, it must also state, (pro- vided the party asks for a stay of proceedings, until the return of the commission, but not otherwise, (2) that he has a good and substantial defence on the merits, as advised by counsel. (3) And an affidavit was held to be defective, which omitted this clause, although it detailed the probable testimony of the witness, but not in a sufficiently explicit manner, to enable the court to judge that it would amount to a good defence.(4) But it need not add, "that he cannot safely proceed to trial, without the testimony of such witness, as he is advised by coun- sel and verily believes."(5) And the affidavit of a third person, cogni- zant of the facts, is sufficient, without showing an excuse for its not being made by the party himself (6) And where the affidavit is made by the attorney, it need not state the advice of counsel, as to the ma- teriality of the witnesses.(7) It has also been held, in a case in the New York Superior Court, that where a party, upon an affidavit sets forth the facts which he wishes to establish, under a commission to a foreign country, and shows that those facts can only be proved by per- sons in the employ of his antagonist, whose names are unknown to him, the court will permit the commission to issue generally^ without the names of the witnesses, or will grant a stay of proceeding, until their names can be ascertained.(8) According to the former practice of this court, a commission duly issued, was per se a stay of all proceedings, until the return, provided it were obtained within the first four days of the term after issue joined, unless sooner vacated by the order of the court, which was done after a reasonable time, and no sufficient case shown.(9) If, after the four days had elapsed, it did not stay the proceedings, unless so directed by the court, on the application for that purpose.(lO) There is now, how- ever, no rule or practice of the court, by which a rule for a commission in any case operates as a stay of proceedings ; and unless it be so or- dered by the court, it will not operate as a stay, but will issue accord- ing to the statute,(ll) upon such terms as to the court shall seem reason- able.(12) The only rule, therefore, which can be laid down, in order to entitle a party to stay, is, that the application must be made with due and rea- sonable diligence, of which the court will judge ; and in a former case, (I) 1 Wend. 65. (2) 9 Wend. 444. (3) 2 Johns. Cas. 285. (4) 1 Wend. 27. (5) 1 Cowen, 209. (6) 1 Cowen, 210; 2 Johns. Cas. 69. (7) 7 Wend. 513. (8) Schaffer andAssur v. Wilcox, 2 Hall, 502. (9) 2 Johns. Cas. 70. (10) 18 Johns. 136. (II) 2 E. S. 393, sec. 4. (12) 7 Wend. 520. EXAMINATION OF WITNESSES— ON COMMISSION. GOl a commission with stay of proceedings was allowed, notwithstanding the application was not made until the fourth special term after issue joined.(l) And if the motion be on the part of the defendant, he should give notice before the cause is noticed for trial, if possible; but if he wait until he receive notice of trial, before he gives notice of his appli- cation, he must pay the costs to that time ;(2) and, in such case, he should, with his notice of motion, stipulate to pay the plaintiff's costs of preparing for trial, otherwise he will be compelled, also, to pay the costs of opposing the motion. (3) In all cases, however, where costs have been ordered to be paid, they have been so ordered, upon the ground that the defendant did not use due diligence, in giving notice of his motion ; and, therefore, where notice of trial had been served with the replication, and the defendant gave as early notice as possible thereafter, he was held to be entitled to his motion unconditionally, and that the costs must abide the event of the cause.(4) In granting or refusing a commission, with a stay of proceedings, (for without a stay it woiild seem to be a matter of course at any time, at the peril of the party,) the court have a right to exercise a sound discretion, according to the circumstances of the case, and as it may tend to the discovery of truth, on the one hand, and the prevention of delay on the other. It is, therefore, competent for the opposite party to resist the application, if he can show reasonable grounds on which it ought to be denied ;(5) and, in such case, the court will order the party applying for the commission, to disclose by affidavit, what he expects to prove, and may then, in its discretion, grant the rule, either absolutely or con- ditionally, unless the adverse party will admit what is sought to be proved ; by which is meant, however, an admission of the facts, and not merely that the witness would, if present, testify to those facts. {Q) But the court will not refuse a commission with a stay, upon an afl&davit that the witnesses named are interested in the cause, but will leave their competency to be determined at the trial.(7) It would seem, also, that the rule with regard to putting off a trial, is fully applicable in the case of a commission, namely, that the court will not require a specification of the testimony, unless circumstances of suspicion are made to appear. And, in a former case, it was held, that on a motion for a commission to examine witnesses, with a stay of pro- ceedings where doubt was cast upon the hona fides of the application, the commission would not be granted on the common affidavit • but if (1) "7 Wend. 513. (2) 1 Johns. Cas. 391; S. C. Coleman, 100; 1 How. Pr. Rep. 58. (3) 2 Wend. 242. (4) 1 Wend. 283. (5) 3 Johns. Cas. 13Y. (6) t Cow. 369. (7) 11 Johns. 200. Vol. I. 76 602 EXAMINATION OF WITNESSES —ON COMMISSION. at a subsequent term, a 2^ri'ma facie case for a commission be made out, the motion would be granted.(l) It would seem, also, that tlie court^ in granting a commission witb a stay of proceedings, may, under the provision of the statute authorizing it to impose such terms as it shall think proper, (2) impose terms for the preservation of the rights of the other party, in the same manner as upon an application for the postponement of a trial. As respects the nomination of commissioners, the notice of motion should contain the names of one or more persons for that purpose, and if there be no opposition, those named by the party applying, will of course be appointed. The opposite party may, however, in all cases, object ta any commissioner, on showing sufiicient cause by afiidavit;(3) but it seems he has not an absolute right to name one of the commis- sioners ; a substitution will be made, only on cause shown against one or more of the commissioners named by the party moving. (4) The commission may also be directed to persons residing within the state.(5) By^icliom granted.'] Formerly, the right of granting a commission in cases in this court, was vested in the court alone. Now, however, in any suit pending in this court, any justice of the court may, in vacation of the said court, grant an order that such commission issue, upon proof that due notice of application for such order has been served on the adverse party, at least ten days before the time of making such appli- cation. But this power cannot be exercised by any recorder of a city,(6) but may be by a judge of any county courts.(7) Such order shall be filed in the ofl&ce of the clerk of the court, and shall be granted only in the like cases, and upon the same terms, that the Supreme Court would award such commission, and shall be subject to the control of the court in all respects.(8) A motion for a commission will not be entertained by the court after an apphcation, for that purpose, to a judge, which he refused,(9) Though, if he were improperl}^ to refuse a commission, this court could no doubt correct his decision by mandamus. It seems, also, that a party, who attends before a judge out of court, on a notice of motion for a commission, and succeeds in opposing such motion, is not entitled to a rule for costs, but can only recover them in his general bill, in case he succeed in the final result of the suit.(lO) (1) T Wend. 514. (2) 2 R. S. 39.3, sec. 11. (3) 1 Gaines, 5 ; 3 Johns. Rep. 250. (4) 2 Wend. 627. (5) 3 Gaines, 105. (6) 2 R. S. 393, sec. 12. (7) Code, sec. 403. (8) 2 R. S. 394, sec. 13. (9) 12 Wend. 202. (10) 9 Wend. 4G4. EXAMINATION OF WITNESSES,— ON COMMISSION. 603 Second commisssion, when allowed^ If a witness, in his testimony under a commission, disclose a collateral fact, to wliicli tke inquiry was not directed, a second commission may issue, to inquire as to tliat foct;(l) and even after a trial, wliere the jury were discharged without agreeing on a verdict, the court allowed a second commission, to ex- amine the same witnesses, it appearing that some of the doubts which existed, would probably be removed by such re-examination.(2) So, if a witness die before his examination, the court will allow a new commission, to examine other witnesses, but they will not permit the name of another witness to be inserted in the old commission. (3) Interrogatories^ how and luhen settled^ The interrogatories to be an- nexed to the commission shall be settled by a judge of the court in vacation, or if the action be in the Supreme Court, by a justice thereof, county judge, or other officer authorized to perform the duties of such judge, upon such notice as shall be established by the practice of the court ;(4) and which, in this court, is eight days.(5) As to the form of the interrogatories, they must of course, embrace the subject of inquiry, and in doing so, must be governed by the rules applicable to oral examinations. The parties are, however, authorized to insert a general interrogatory, whether the witness knows of any other matter, or thing, material to the party, beside what he has been particularly interrogated unto ; under which the witness may state facts not previously called for under the particular interrogatories. (6) And if this interrogatory be not answered, the deposition cannot be read ; it being an undoubted principle, that the witness must answer, substantially, all the interrogatories, as it is otherwise impossible to say that he has told the whole truth.(7) Nor is it an objection to a depo- sition, that a material part of the evidence comes out under the general interrogator3^.(8) In settling such interrogatories, either party shall be allowed to insert any question, pertinent to the cause, which he shall propose. The offi- cer settling the same, shall endorse his allowance thereof, and annex them to the commission. Upon the commission, he shall direct the manner in which it shall be returned, and may, in his discretion, direct the same to be returned by mail, addressed to the clerk of the court, out of which it shall issue ; or if issued out of the Supreme Court, ad- dressed to the clerk of the county in which the place of trial in such (1) 1 Gaines, 345. (2) 17 Johns. 343. (3) 3 Gaines, 321. (4) 2 R. S. 394, sec. 14. (5) Code, sec. 413. (6) 18 Johns. 257. (7) 4 Wash. C. C. Rep. 324 ; 3 ibid. 109. (8) 4 "Wash. C. C. Rep, '7 16. Q04: EXAMINATION OP WITNESSES,— ON COMMISSION. action shall be laid, designating tlie name of sucli clerk, and his resi- dence.(l) Execution and return of the commission.'] The persons to whom such commission shall be directed, or any one of them, unless otherwise expressly directed therein, shall execute the same as follows : 1. They or any one of them shall publicly administer an oath to the witnesses named in the commission, that the answers given by such witnesses to the interrogatories proposed to them, shall be the truth, the whole truth, and nothing but the truth ; although in a late case, under a commission, the depositions of witnesses were received in evi- dence, though the oaths to the witnesses were not administered by the commissioners, it appearing that they were prohibited from adminis- tering them, and that they were, in fact, administered by the local authorities of the place where the commission was executed. (2) 2. They shall cause the examination of each witness to be reduced to writing, and to be subscribed by him, and certified by such of the commissioners as are present at the taking of the same.(3) 3. If any exhibits are produced and proved before them, they shall be annexed to the depositions to which they relate, and shall, in like manner, be subscribed by the witness proving the same, and shall be certified by the commissioners; this section must be understood to refer to such papers as can be produced upon the examination; if, however, the paper referred to be a record, not subject to the control of the party, or the commissioners, it will be sufficient to annex a copy, and the original may be produced on the trial, separate from the com- mission. (4) 4. The commissioners shall subscribe their names to each sheet of the depositions taken by them ; they shall annex all the depositions and exhibits to the commission, upon which their return shall be en- dorsed ; and they shall close them up under their seals, and shall ad- dress the same, when so closed, to the clerk of the court from which the commission issued, or to the clerk of the county in which the venue shall be laid, as shall have been directed on the commission, at his place of residence. 5. If there is a direction on the commission to return the same by mail, they shall immediately deposit the packet so directed, in the near- est post office. 6. If there be a direction on the commission to return the same by (1) 2 R. S. 394, sec. 15. (2) G Wend. 4l6. (3) Vide 2 Jolms. Rep. 41'7 ; 4 Johns. 130 ; 4 Day, 121. (4) 6 Cow. 444. EXAMINATION OF WITNESSES,— ON COMMISSION. 605 an agent of the party wlio sued out tlie same, tlic packet so directed shall be so delivered to such agent. And a copy of this section must be annexed to every commission issued under these provisions.(l) In executing the commission, it has been held by the United States Supreme Court, that it is immaterial in whose handwriting the deposi- tions are ; and that the commissioners have a right to employ a clerk,(2) although they are not bound to do so.(3) Nor is it necessary that the form of the oath administered to the witnesses, should be returned.(4) In all cases, however, the power conferred on a commissioner to take testimony, is strictly personal ; especial confidence is presumed to be reposed in the person appointed, and he cannot delegate his autho- rity.(5) If the packet be delivered to an agent, he shall deliver the same to the clerk to whom it shall be directed, or to one of the judges of the court in which the action is pending, who shall receive and open the same, upon such agent making affidavit, that he received the same from the hands of one of the commissioners, and that it has not been opened or altered since he so received it.(6) If such agent be dead, or from sickness or other casualty unable to deliver such package personally, as in the last section directed, the same may be received by the clerk or judge, from the hands of any other person, upon such person making- affidavit that he received the same from such agent, that such agent is dead, or otherwise unable to deliver the same, that it has not been opened or altered since such person received it ; and that he believes the same has not been opened or altered, since it came from the hands of the commissioners.(7) The clerk or judge receiving and opening such commission and return, shall immediately file the same in the office of the clerk of the court from which it issued ; or if the action be pending in the Supreme Court, in the office of the clerk of the county in which the venue in the action is laid. (8) Under the provision in the old statute on this subject, (9) whicli was substantially, and almost in terms, the same as the provisions just cited, it was held, that a commission, issued to take the testimony of foreign witnesses, must not merely be returned and delivered to a judge, but must be actually filed in the clerk's office, before the depositions under it could be read in evidence ; and where a commission was delivered by the agent, to a judge at the circuit, who took tlie affidavit of the (1) 2 R. S. 394, sec. 16. (2) 3 Peters, 8. (3) 2 Har. & Johns. 442. (4) 3 Peters, 1 0. (5) 1 Har. & Gill, 154. (6) 2 R. S. 395, sec. H. (7) 2 R. S. 395, sec. 18. (8) Ibid. sec. 19. (9) 1 R. L. of 1813, p. 520. QQQ EXAMINATION OP WITNESSES,— ON COMMISSION. agent, as to tlie manner of his receiving it, after tlie caiise was called, but before the trial was commenced, the court held that the depositions annexed to the commission so opened by the judge, Avere not legal evi- dence. " When a statute," says Piatt, J., " makes innovations on the common law rules of evidence, its positive requirements must be strictly complied with. In this case, the legislature have wisely provided against frauds and abuses, by prescribing the manner of taking such testimony, and the channel through which it shall be returned. The commissioner, or a special agent, is to deliver the sealed enclosure to the judge, who is to take proof that it has been sent in the regular chan- nel, and that it has not been opened or altered; the judge is then to open the enclosure, for the specified purpose of endorsing on the commis- sion a certificate that such proof was made before him, so as to autho- rize the filing of the commission and depositions ; and the judge is then required to deposit them in the clerk's of&ce. And after these positive injunctions, the statute declares, that 'every such, deposition being so taken and returned, shall be allowed and read as evidence,' &c. ' Being so returned,^ means not only that it shall be so delivered to the judge, but that it shall be so authenticated by his endorsement, and actually deposited by him in the clerk's office. The judge is made one of the agents, for compelling the return ; and in legal signification, as well as in common parlance, a writ, or a commission from a court of record, is not returned, until it is deposited in the office of the clerk of the court in which it is returnable. And there is good reason for requiring the de- positions to be actually filed, before they are used as evidence. They are often prolix and voluminous, so that, without time to take a copy, and to examine it deliberately, it is impossible to apprehend the testi- mony correctly, or to take the proper exceptions. Besides, the party suing out the commission generally knows pretty accurately, what his witnesses have sworn, before the commission is opened ; and if he, or his ao-eut who brings back the commission, may withhold it till after the trial has commenced, it would give to such party an unfair advan- tage, and enable him to surprise his adversary. It is the right of either party, to move the court to suppress the depositions, for fraud, partially or irregularly, and this cannot be done at nisi prius, nor until the de- positions are filed."(l) The commission may also, as we have seen, be returned by mail, in which case, the clerk to whom the same shall be addressed, shall re- ceive the same from the post-office, and open and file it in his office.(2) The former act contained no provision, other than that the commission might be forwarded by mail,(3) and was silent as to the mode in which (1) 20 Johns. 3G1. (2) 2 E. S. 395, sec. 20. (3) Laws of 182G, p. 35Y. EXAMINATION OF WITNESSES,— ON COMMISSION. 607 it should be delivered from tlie post-office. Under tliat provision, tliis court held, that the mode of transmission from the one ofi&ce to the other, was to be left to the usual course of delivery, by the penny post, or to a messenger.(l) In doing so, however, they advert to the silence of the former act on this subject, and perhaps, on that account, this de- cision cannot be considered as, in principle, applicable to the present statute. But, whether the court would insist on a literal compliance with this provision, may well be doubted. In addition to these modes of returning a commission, the parties or their attorneys, may in writing, agree on the manner in which a com- mission for the examination of witnesses may be returned ; and on filing such agreement with the clerk of the court, the attorney for the party suing out the same, may endorse thereon a direction according to such agreement ; and such commission shall be returned accordingl3\(2) Depositions^ how to be kept.l The commissions, returns, depositions, and exhibits thereto annexed, shall remain on file, in the office of the clerk to whom the same were addressed, unless the court, by a special order, shall direct them to be filed in the office of some other clerk. They shall, at all times, be open to the inspection of the parties, who shall be entitled to copies of such parts thereof as they may require, on payment of the fees allowed by law. (3) Depositions, ivhen evidence?^ The examinations and depositions, taken under a commission, issued, executed, and returned, as herein directed, or an exemplification thereof, when the originals are filed in any other county than that in which the cause shall be tried, may be oflered and used in evidence, on the trial of the cause, by either party ; and every objection to the competency or credibility of a witness so examined, or to the competency or relevancy of any question put to him, or of any answer given by him, may be made in the same manner, and with the like effect, as if such witness were personally examined at such trial.(4) If the witness should come into the state, after being examined on a commission, he may of course be examined on the trial.(5) Proceeding to tried, notwithstanding commission^ If a stay of proceed- ings have been granted with the commissiou,(6) which has been issued on the part of the defendant, the plaintiff, after the expiration of a rea- sonable time, may move for leave to go to trial.(7) But if, without (1) 6 Cowen, 161. (2) 2 R. S. 395, sec. 21. (3) 2 R. S. 395, sec. 22. (4) 2 -ti. S. 396, sec. 23 ; see 8 Pick. 51. (5) 17 Johns. 345. (6) As to which see ante, (7) 2 Jolms. Gas. 70. 608 EXAMINATION OF WITNESSES— ON COMMISSION. obtaining sucli permission, he go to trial, and tlie defendant appear, and examine witnesses, it is a waiver of the commission, and the verdict will be allowed to stand. (1) If the commission have been sued out by the plaintiff, the court will, in like manner, permit the defendant to move for judgment as in case of nonsuit, and compel the plaintiff to stipulate, as in ordinary cases ;(2) and if the plaintiff still neglect to go to trial, the court upon a reasonable excuse, will permit him to stipulate again, on payment of costs.(3) Where both parties have joined in the commission, the court will not, on the plaintiff's application, vacate the rule, but will grant him leave to go to trial, notwithstanding the com- mission. (4) And it is no objection to such an application, that a rea- sonable time has not elapsed ;(5) the defendant having a right to show that for cause, at the circuit, for putting off the trial.(6) As to what shall be considered a reasonable time, no general rule can be laid down ; this must, in all cases, depend upon the remoteness or proximity of the residence of the commissioners and witnesses, and the frequency and facilities of intercourse. It was at one time held, that eight months from the obtaining of the rule, was a sufficient period for the return of a commission from Great Britain, and that three months was a sufficient time for executing and returning a commission, actually arrived in London.(7) Perhaps, now that the facilities of inter- course between the two countries are so much greater, a much less period might be deemed sufficient. Although, in a case in the New York superior court, that court refused a vacatur, where a commission to Liverpool had been forwarded by one of the packets, which had re- mained there a month, and returned to New York, and where four months had elapsed, from the issuing of the commission.(8) So, where a commission, which had issued on the part of the defendant, proved ineffectual, and a second commission was issued, after which the plain- tiff obtained leave to go to trial, on the defendant's showing, that the testimony of the witness to be examined, would be almost conclusive on the question, and that the first commission had been sent, without a knowledge of the exact spot where the witness was, the rule for per- mitting the plaintiff to go to trial was vacated, and further time was allowed, for the return of the commission. (9) The motion for leave to proceed, notwithstanding the commission, may also be resisted, on the ground that the delay of its return has been occasioned by the opposite party ; but this must be clearly shown ; (1) 1 Gaines, 13. (2) 1 Gaines, 517. (3) 2 Gaines, 47. (4) 1 Gaines, 115, 503. (5) 2 Gaines, 46. (G) 1 Gaines, 503. (7) 1 Gaines, 517. (8) HesMh v. Muhch MS., Oct. terra, 1830. (9) 2 Gaines, 47. EXAmNATIOX OF WITNESSES— DE BENE ESSE. 609 and an affidavit, stating merely the belief of tlie defendant's counsel, that the return of the commission was delayed by the acts of the plain- tiff, without setting forth any information, or facts, on which that belief was founded, was held to be too uncertain, to prevent the court from interfering.(l) Costs of the commission^ The former practice of the court allowed, as against the opposite party, the costs of suing out the commission merely, such as the affidavit, notice and motion, drawing, engrossing, and sealing the commission, but not the expenses of its execution.(2) This construction, however, grew out of an old act, much narrower in its terms than that of 1813,(3) or the present,(4) both of which allow, for drawing and copying entries or proceedings in a cause, according to the course and practice of the court; while the old act,(5) confined the allow- ance to certain specific drafts and copies, and other necessary entries. In this view of these provisions, this court have held the party suing out the commission, to be entitled to charge for the draft, and copies of the depositions.(6) Now, however, the party suing out the commission, will not be enti- tled to charge any costs, and can only recover, as the general costs in the cause, the disbursements incurred in executing the commission. Examination de hene esse. Where a witness whose testimony is important on either side, is about to leave the state, either not to return at all, or not to return in season to be examined on the trial : or if a witness is so sick or infirm as to render it improbable that he will be able to appear on the trial, either party, desiring to obtain the testimony of such witness, may apply to the court in which the action is pending, or to a judge thereof, for per- mission to take the testimony of such witness, de hene esse, that is, con- ditionally ; to be used only in case the personal attendance of such wit- ness cannot be procured on the trial. This motion may be made at any time, after the action is com- menced.(7) In what cases.'] It has been the practice in this state, from a very early period, where a material witness was about to depart the state and there was no probability of his returning, so as to appear at the (1) 2 Johns. Rep. 196. (2) 2 Johns. Rep. 107. (3) 2 R. L. of 1813, p. 15. (4) 2 R. S. 633. (5) 2 K. & R. 72. (6) 1 Cowen, 157. (7) 2 Rev. Stat. 312, § 1, 2. YoL. I. 77 610 EXAMINATION OF WITNESSES— DE BENE ESSE. trial, to allow his testimony to be taken de bene esse, before a judge or commissioner of the court at chambers. This practice, which has always received the sanction of the court, as tending to prevent unne- cessary delay and expense,(l) and which grew up without any statutory provision, and from analogy to the practice of the English courts of examining witnesses, when going abroad, upon interrogatories, provided the parties consented, and has been recently incorporated into the sta- tutes of that country,(2) is now with us, also, the subject of statutory regulation. It has been accordingly provided, that whenever any action pending in any court, being a court of record, shall have been commenced, by the actual service of process, or where the defendant shall have appeared to the action, either party may have the testimony of any witness taken conditionally, to be used in the cases and under the circumstances therein prescribed ;(3) and it seems that the examination may be in any stage of the cause, even while a demurrer is pending and undeter- mined (4) " One important object, (say the court in this case,) of these examinations de bene esse, is, to enable the party to secure evidence at any time in the progress of the cause, to be used on the trial, if the witness shall happen then to be without the jurisdiction of the court, or unable to obey its process. The rule would be of but little use, if confined to any particular stage of the cause. It is generally applied, to secure the testimony of transient or foreign witnesses, who are here accidentally, or come for the purpose of being examined, on the request of the party. The deposition may be taken, before there is an issue of any kind. "(5) Examination, how obtained.'] The party desiring the examination of a witness, may apply to any judge of the court, upon an affidavit which shall state, 1. The nature of the action, and the plaintiff's de- mand : 2. If the application be made by the defendant, the nature of his defence : o. The name and residence of the witness : 4. That the testimony of such witness is material, and necessary for the party making such ajDplication, in the prosecution or defence of such suit, as the case may be : and 5. That such witness is about to depart from this state, or that he is so sick, or infirm, as to afford reasonable grounds for apprehension, that he will not be able to attend the trial of such suit.(6) Under the English statute, which is almost verbatim the same as ours, in this respect, it was doubted, whether pregnancy or imminent delivery, be a cause for the examination of a witness de bene esse; but (1) 7 Cowen, G3, 60 ; 1 Johns. Cas. 14t. (2) 1 Chit. Archb. 297. (3) 2 R. S. 391, sec. 1. (4) 7 Cowen, 489. (5) Ibid. 490. (6) 2 R. S. 392, sec. 2. EXAMINATION OP WITNESSES,— DE BENE ESSE. 611 it seems, at all events, if it be a sufficient cause, the affidavits of com- petent persons should be produced, showing that the delivery would probably happen about the time of trial,(l) If the officer to whom such application is made, shall be satisfied that the circumstances of the case require the examination of such witness, in order to obtain justice between the parties, he shall make an order requiring the adverse party to appear before such officer, and attend the examination of such witness, at such time and place as shall be therein specified ; which time shall not exceed twenty days from the date of such order, and shall be as much shorter, as the exigency of the case may require, and the residence of the adverse party, or his attorney will allow, in order to afford sufficient opportunity to attend such examination, (2) The adverse party may show cause against pro- ceeding in such examination, by proof that such witness is not about to depart from this state, or that he is not sick or infirm, or that the application for his examination is made collusively, to avoid his being examined on the trial of the cause ; and upon any such cause being shown, the officer shall dismiss such application. (8) It would also, perhaps, be sufficient cause against examining the witness, if it should appear, that the application were delayed, with a sinister intention to prevent the cross examination of the witness, until a very short time before his departure ;(4) more especially, as the officer is required by the spirit of the above statute, to allow a reasonable time for the ex- amination of the witness. If no sufficient cause be shown, upon due proof of the service of such order, and a copy of the affidavit upon which the same was granted, the officer granting the same shall proceed to the examination of such witness, and shall take his deposition ; in which deposition shall be inserted any answer or declaration of such witness, which either of the parties shall require to be included therein.(5) Such deposition shall be carefully read to and subscribed by such witness, shall be certified by the officer taking the same, and within ten days thereafter, shall be filed in the office of the clerk of the court in which such action shall be depending.(6) In respect to all these requirements, it seems, also, that the statute must be strictly pursued.(7) (1) 8 Bing. 274; S. C. 1 Mopre & Scott, 384; 1 Dowl. Pr. Gas. 2G6. (2) 2 R. S. 392, sec. 3. (3) 2 R. S. 392, sec. 4. (4) 8 Bing. 143 ; S. C, 1 Moore & Scott, 22.3 ; 1 Dowl. Pr. Gas. 252. (5) Ibid. sec. 5. (6) Ibid. sec. 6. (7) 20 Johns. 361. 612 EXAMINATION OP WITNESSES ~DE BENE ESSE. Examination, tuJien evidence, and its effect] Sucli deposition, or a certified copy thereof, may be given in evidence by either party, on the trial of the cause, or upon the assessment of damages therein by the clerk, or by virtue of any writ of inquiry of damages, after it shall have been satisfactorily proved, that such witness is unable to attend such trial or assessment of damages, persoually, by reason of his death, insanity, sickness, or settled infirmity, or that he has continued absent out of this state, so that his attendance at such trial or assessment of damages could not be compelled, by the ordinary process of law.(l) As to what shall be considered sufficient proof of the absence of a witness, examined de lene esse, to entitle his deposition to be read, it has been held, that where a witness was examined before a judge upon interrogatories, his deposition could not be read, whilst he continued in England.(2) But when he had actually sailed on his voyage, the depo- sitions were allowed to be read, although the vessel in which he sailed was driven back into port, by contrary winds.(3) But the deposition of a witness, who had been examined on interrogatories, before a judge at chambers, was rejected, for want of sufficient proof of his being out of the country, where it was sworn that he Avas a seafaring man, be- longing to a vessel lying in the Thames, but of what nature this vessel was, or whither she was bound, it did not at all appear. Lord Ellen- borough was, however, disposed to receive the deposition, upon this evidence of the witness's absence from the kingdom, if it could be fur- ther shown, that any efforts had been recently made to find him ; but nothing of this kind being proved, he thought the evidence of the wit- ness being beyond the jurisdiction of the court, too vague to admit his written deposition. (4) And in all cases, where a deposition taken de lene esse is offered in evidence, the party offering it must prove, that he has used due diligence to procure the attendance of the witness, and particularly, that he has made inquiries at the last place of abode of the witness, in order to have him served with a suhpoena.{b) And in a late case, in this court, evidence preliminary to the introduction of a deposition taken de bene esse, that the party offering it believed that the witness was absent from the state, that the witness told the party, at the time of the examination, that he expected to leave the state, that previous to his examination the party was in the habit of seeing him, but since had not seen him, was held to be sufficient, it appearing that the witness was a journeyman carpenter, without a fixed habitation, and in pursuit of employment.(6) (1) 2 E. S. 392, sec. 7. (2) 2 Salk. 691. (3) 6 Esp. 92; 1 Taunt. 461. (4=) 1 Camp. ITI. (5) 4 Wash. C. C. Rep. 219. (6) 1 Wendell, 26. EXAMINATION OP WITNESSES— DE BENE ESSE. G13 This preliminary proof may, it seems, be made by a party to, or one interested in the snit ;(1) and the deposition of a foreign witness may be read, though it appear that he came to this state on the request of the party, for the purpose, and that he is at home in a foreign country, and might have been examined on a commission, and even though a commission may have been obtained, for the purpose of examining him at his foreign residence.(2) But the party, against whom such deposi- tion is to be used, may prevent the reading thereof, by satisfactory proof that sufficient notice was not given him, to enable him to attend the examination of such witness, or that such examination was not in all respects fair, and conducted as herein prescribed. (3) It would seem, however, that the party cannot object that the notice of the ex- amination was too short, where he appears before the officer, and omits to object for that reason, there, but puts his objection on other grounds.(4) Such deposition shall have the same effect, and no other, as the oral testimony of the witness would have, if given on such trial or assess- ment, and every objection to the competency or credibility of such witness, and to the competency or relevancy of any question put to him, or of any answer given by him, may be made in the same man- ner as if such witness were personally examined on such trial, or as- sessment.(5) Compelling the attendance of witnesses^ The officer granting such order, upon the application of the party desiring the examination of a witness, may compel the attendance of such witnesses, by issuing a summons'^for that purpose, (6) which shall be served by, 1. showing to the witness the original summons, under the hand of the judge or officer issuing the same : 2. delivering to such witness, a copy of the summons, or a ticket containing its substance : and 3. paying or ten- dering to such witness, the fees allowed by law, for travelling to, and returning from the place where he is required to attend, and the fee allowed for one day's attendance.(7) Every person who shall be duly summoned to attend before any judge or officer, or before any commis- sioner, as above provided, shall be bound to attend according to such summons, and for every failure so to attend, without a reasonable ex- cuse, shall be responsible to the aggrieved party, for the loss and hindrance sustained by such failure, and for all other damages sus- tained thereby, and shall forfeit to such aggrieved party, fifty dollars, (1) T Cowen, 59. (2) 7 Cowen, 69. (3) 2 R. S. 393, sec. 8. (4) 7 Cowen, 59. (5) T Cowen, see. 9. (6) 2 R. S. 393, sec. 10. (1) 2 R. S. 401, sec. 44. 614 EXAMINATION OF PARTY. in addition to sucTi damages.(l) He may also be punished, by attacli- ment, for a contempt.(2) In addition to these modes of proceeding, it is further provided, by statute, that in case of the failure of any witness so to attend, as above provided, the judge or officer issuing the summons, upon due proof of the service thereof, and of the failure of such witness, shall issue his warrant, to the sheriff of the county, to apprehend such witness, and bring'him before such judge or officer, to be examined, or to bring him before any persons named in a commission issued by a court of any other state or country, to take testimony for the like purpose.(3) If any witness attending before any judge officer, or commissioner, pur- suant to a summons, or brought before them or either of them, shall without reasonable cause, refuse to be examined, or to answer any legal and pertinent question, or to subscribe his deposition after the same has been reduced to writing, the ofiicer issuing such summons shall, by warrant, commit such witness to the common jail of the county in which he resides, there to remain, until he submits to be ex- amined, or to answer, or to subscribe his deposition, as the case may be, or until he be discharged according to law ;(4:) and the warrant shall state the cause of the commitment, and if for refusing to answer a question, the question shall be stated in the warrant ;(5) and it shall be directed to the sheriff of the county where the witness may be, and be executed by him, in the same manner, as process issued by courts of record.(6) Examination of a party. The right to examine a party to the action, as ^ witness against him- self, was never allowable before the act of 1847.(7) It is now incorpo- rated in the Code. Heretofore, when it was important to compel the adverse party to dis- close facts, necessary to sustain the action or the defence, it could be obtained only by a bill of discovery, filed in the court of chancery in aid of the prosecution or defence of the action at law. In such a case, a bill might be filed, praying for a discovery upon oath from the adverse party of the facts alleged in the bill, to be within the personal knowledge of such adverse party, and an answer under oath could be required. Upon the trial of the action at law, the answer could be read in evidence. No bill can now be filed, or action instituted to obtain a discovery under oath, in aid of the prosecution or defence of another action. (8) (1) 2 R. S. 401, sec. 45. (3) 2 R. S. 401, sec. 46. (5) Ibid. sec. 48. (7) Sess. Laws. 1847, p. G30. (3) 2 R. S. 535, sec. 1, subd. (4) 2 R. S. 401, s. 47. (6) 2 R. S. 402, sec. 49. (8) Code, sec. 389. EXAMINATION OF PARTY. 615 Instead, however, of a bill of discovery, as formerly used, the exami- nation of the party either before or at the trial is now allowed. For this purpose it is provided,(l) that " a party to an action may be examined as a Avitness, at the instance of the adverse party or of any one of several adverse parties." If the adverse party, whom it is desired to examine reside out of the state, his testimony can only be procured upon a commission. The commission is procured, as in other cases of non-resident witnesses, and the proceedings under it are in all respects the same.(2) The examination of a party is conducted in the same manner, and is subject to the same rule as in the case of any other witness. The party seeking the examination of the adverse party, goes through with the examination, and then he may be examined in his own behalf, in respect to any matter pertinent to the issue, that is, he may be exam- ined upon a matter which the party calling him has not gone into, provided it be pertinent to the subject of the action and the issue formed between the parties. In like manner as other Avitnesses, he may be cross-examined by his own attorney or counsel, as to the matter of his direct examination. If, however, in testifying to any new matter, his answers are not responsive to the inquiries put to him, by the party calling him ; that is, if it be upon a new subject, not gone into by such party ; or, if his answers are not necessary to explain or qualify his direct examination, then the party calling him may offer himself as a witness on his own behalf, and may be examined in respect to such new matter. Thus, if the defendant calls the plaintiff as a witness in an action arising on contract, to prove that the promise was not made within six years next before the commencement of the suit, the plaintiff's attorney or counsel may cross-examine him, as to such fact, and then may prove by him that the defendant made a new 'promise within the six years. This would be nev.^ matter, and the defendant would be authorized to offer himself on his own behalf, and be examined as to the new promise. In case of two or more plaintiffs or defendants, if one of the plaintiffs desires to examine his co-plaintiff, or one of the defendants desires to examine his co-defendant, he may do so, as to any matter in which he is not jointly interested or liable, with such co-plaintiflf or co-defendant, and as to which a separate and not joint verdict or judgment can be rendered. (3) The examination is conducted in the same manner as other witnesses, and the same rules govern. But such examination or evidence cannot (1) Code sec. 390. (2) Brockley v. Stanton. 1 Code Rep. 128 ; see ante, p. 599. (3) Code, sec. SgT. QIQ EXAMINATION OF PARTY. be used on behalf of the party examined. And where there are several plaintiffs or defendants who are joint contractors or are united in interest, and only one of such plaintiffs or defendants is examined at the instance of the adverse party, the remaining co-plaintiffs or co-de- fendants may be examined in their own behalf to the same cause of action or defence.(l) Thus in an action brought by co-partners, who are united in interest, and one of the co-partner plaintiffs is examined as a witness by the defendant, the other co-partner plaintiffs may offer themselves as witnesses and be examined in respect to the cause of action, for which the suit is brought. So, a person for whose immediate benefit the action is prosecuted or defended, though not a party to the action, may be examined as a wit- ness, in the same manner, and subject to the same rules of examination, as if he were named as a party. Examination hefore the trial.'] If the party whose examination as a witness is sought to be had, reside out of the state, it can, as we have seen, (2) only be had upon a commission issued in the ordinary way. If such party reside in some county other than that in which the trial is to be had, he cannot be examined hefore the trial in any other county than that of his residence, or where he may be at the time he is sum- moned to appear. Thus, if the action is to be tried in Greene county, and the party to be examined, resides in Schoharie county, he cannot be compelled to attend and be examined in Greene. If, however, he can be found in Greene county, he may then be summoned to appear before the judge in that county, and submit to his examination. (3) If the party wishes the examination before the trial, he must give a notice in writing to the adverse party of at least five days before the time specified in the notice for the examination to take place, requiring such adverse party to appear before a judge of the court in which the action is pending, or before a county judge, and submit to an examina- tion. The notice must state the time and place and name of the j udge before whom the examination will be had. This notice must be served upon the party and it is not sufficient to serve it upon his attorney. And where there are several adverse parties, the notice must be served upon all, notwithstanding it is the intention to examine only one. As has been before stated, the party to be examined, cannot be required to attend before a judge out of the county of his residence or where he may be at the time the notice is served upon him. (1) Code, see. 397. (2) Ante, p. 615. (3) Code, sec. 391. EXAMINATION OP PARTY. G17 The examination. The examination of a j^arty before trial, is to be conducted in all respects as the examination of a witness de bene esse.i^) It should be reduced to writing by the judge, and carefully read over to the party, who then must subscribe it. The judge or officer who takes the examination, should certify to it, and deliver it to the attorney of the party who applied for the examination, and direct it to be filed in the proper county. The examination thus taken, subscribed and certified, should be.filed with the clerk of the county where the action is pending, within ten days afterwards. (2) The testimony of the party thus taken, may be read as evidence on the trial, notwithstanding he may be present. It does not j^revent^ how- ever, his being examined at the trial, if the adverse party desire to examine him. But the adverse party cannot do both ; that is he can- not read his testimony taken before the judge, and examine him at the trial. His examination before the judge being taken conditionally ^{^) it cannot be used for any purpose, if he is examined at the trial. Examination at the trial.~\ The attendance of the party for the j^ur- pose of testifying at the trial, is compelled in the same manner as other witnesses. For which purpose, a summons to testify is served upon him, and his fees for attendance and travel should be paid. If the party refuse to attend and testify, either at the trial or before the judge, he may be punished as for a contempt, and upon proof of the service of the notice or summons, the court or judge will grant an order to arrest and bring before the court or judge such party, who may be punished by fine, or imprisonment in the county jail, in the discretion of the court or judge.(4) Uffect of examination of party.'] The testimony of a part}^, whether taken before a judge, or at the trial, is not conclusive upon the party who obtained the examination, but like other testimony, it may be rebutted by adverse testimony. And the examining jDarty will be allowed, on the trial, to disprove the evidence of the party he has examined, in the same manner that he may disprove the testimony of a witness called by himself, although he will not be permitted to impeach the credibility of the party he has examined. (5) By the provisions of the Code, the examination of a party, as a wit- ness in the action, at the instance of the adverse party, is placed upon an equal footing with the examination of ordinary witnesses ; and it may in general be said, that with the exceptions which have been above (1) Ante, p. 609. (2) 2 Rov. Stat. 313, sec. 6. (3) Code, sec. 390. (4) 2 Rev. Stat. 278, sees. 10, 11 ; id. 400, sees. 43, 4t. (5) Code, sec. 393. Vol. I 78 618 OF THE PREPARATION FOR TRIAL. stated, all the rules tliat have heretofore prevailed in respect to the examination of ordinary witnesses, are made to apply to the examina- tions of parties. As that is a subject more properly belonging to a treatise on evidence, than to a work on practice, any further notice of it here, can well be dispensed with. SECTION IV. OF THE PREPARATION FOR TRIAL, As has been seen, all issues must be tried by the court, or by a jury, or by a reference. If the issue be one of laiu^ it must be tried by the court; if of fact^ it may be tried by the court without a jury, or by a jury, or by a reference. These different modes of trial will be subsequently noticed, under separate heads. Issues how tried.'] If the action be for the recovery of money only, or for the recovery of specific real or personal property, or for a divorce from the marriage contract on the ground of adultery and there is an issue of fact formed by the pleadings, it must be tried by a jury, unless a jury trial is waived, which may be done, in the manner hereafter stated under the head of " Trial by the court without a jury,"(l) or a reference is ordered. The class of actions which must thus be tried by a jury, unless a jury trial is waived, or reference ordered are such as arise upon contracts, express or implied, for the payment of money only, and actions sounding in damages, for torts, such as trespass to property or to the person, libel, slander, malicious prose- cution, and the like, and actions for the recovery of real or personal property. All other issues, whether of law or fact, are triable by the court without a jury. The court may, however, order the whole issue, or any part of it, or any specific question of fact involved therein, to be tried by a jury, or may order it to be referred.(2) All issues, whether of law or fact, and whether triable by the court or by a jury, must be tried before a single judge. Issues of fact are to be tried at the circuit court, and issues of law are to be tried at a cir- (1) See post (2) Code, sec. 251. OP THE PREPARATION FOR TRIAL. 619 cuit court, or special term only.(l) And unless tlie court otlierwise direct, liave a preference on tlie calendar. Trial of issues of fact Notice of trial.'] Having determined where tlie issue is to be tried, i. e., at what circuit court, the next step to be taken, is to prepare the notice of trial. Either party may notice the cause for trial. The notice.'] The notice of trial must be in writing, and must be served at least ten days before the first day of the court, at which such trial shall be intended to be had ;(2) and the day on which a notice of trial may be served shall be included, in computing the time ; so that a notice served on the first for the eleventh of any month, shall be deemed sufficient. (3) But a notice of trial served on the last day of noticing, at half past ten, P. M,, which did not come to the knowledge of the plaintiff's attorney till the next day, was held insufficient.(4) But, under peculiar circumstances, the service of a notice of trial as late as eleven o'clock at night of the last day for such service, has been held good. Thus, where special pleas were served late on that even- ing, (which was the last day for pleading,) with an evident view to pre- vent a notice of trial in time, — and as soon as possible thereafter, the replication and notice of trial were prepared for service, but the defend- ant's attorney closed his office, and his clerk, who slept in a room ad- joining the same, fastened the door and retired to bed earlier than usual, in order to prevent the service of the replication and notice of trial ; but the door being accidentally opened, by another clerk, who was in the office with a light, the messenger who made the service was enabl- ed to enter the office without violence, at eleven at night, offering the papers first to the latter clerk, but on his denying himself to be a clerk, delivering them to the other who was in bed ; — the service was, imder the circumstances, deemed sufficient, and an inquest taken in pursuance thereof was regarded as regular.(5) "Where the service is by mail, double the time is required.(6) And if double the time be not given, the verdict will be set aside, even although the attorney received the notice, more than ten days before the circuit.(7) The notice of trial should state the circuit at which, and the time when, the cause will be brought to trial, and must also define the cause (L) Code, sec. 255. (2) Code, sec. 25G (3) Code, sec. 407. Formerly, the day of service and the first day of the circuit were both excluded. {Columbia Turnpike Eoad v. Hayivard, 10 Wend. 422 ; Smallv. Edrick, 5 Wend. 137; Gra.Prac. 2d. ed. 262.) (4) BoweiiY. ClarJc, 2 Wend. 249. (5) Miller \. Stocking, 22 "Wend. 623. (6) Code, sec. 412. (7) Pitcher y. Clark, 2 Wend. 631. Q20 OF THE PREPARATION FOR TRIAL. witli certainty ; thus, where there are two actions depending between the same parties, one of which only is noticed for trial, the notice must specify the action intended to be tried, or it will be considered insuffi- cient.(l) And if the notice be irregular or insufficient, and the plaintiff obtain a verdict, the court, upon application, will set the verdict aside. But in determining the sufficiency of the notice, it is a general rule, that the court will inquire whether the party has been really misled by the defect.(2) Thus, where the name of one of the parties was misre- cited, as Jeunis for Teunis, it was held sufl&cient.(3) So, where a notice of trial at the circuit, was for the right day of the month, although the day of the week was incorrectly stated ;(4) or for the third Monday, in- stead of the third Tuesday, the party not being misled ;(5) or for the circuit in the county, generally, without naming the time or place, it will be sufficient.(6) So, where a printed blank notice of trial was served, for a circuit, to be held on the fourth • day of April, (the circuit being appointed for the fourth Monday of April,) it was deemed sufficient to inform the defendant's attorney, that the cause would be brought to trial at that circuit ; and it was said by Jewett, J., that at all events, if the defendant's attorney considered it irregular, it was his duty to have returned it immediately, which he had not done.(7) It would seem, also, that the cause must be noticed for the particular circuit at which it is intended to be tried ; and if not then tried, from circuit to circuit, until the trial ; and that a notice for a particular cir- cuit, and that if not then tried, the cause would be continued on the calendar from circuit to circuit until it should be tried, is insufficient.(8) But the plaintiff may, if he choose, before the close of a circuit at which the cause has been noticed and is on the calendar, notice it for a subse- quent circuit ; but a reservation should be inserted in such last notice, to the effect, in case the cause he not tried at the present circuit ; and if such reservation be not expressed, and an inquest be taken at the for- mer circuit, such inquest will be set aside, for irregularity.(9) If the plaintiff intend to take an inquest, which he is allowed to do at the opening of the court on any day after the first day of the circuit, (1) Lisher v. Parmelee, 1 "Wend. 22. (2) Banders. Covill, 4 Cowen, 60 ; Bomu v. Rice, 11 Wend. ITS. (3) Quick V. Merrill, 3 Gaines, 133. (4) Wolfe V. Eorton, 3 Gaines, 86. (5) Bander V. Covill, 4 Gowen, 60; and see TytcY. Steventon, 2 W.Bl. 1298. (0) Jack-Sony. Brownson, 4 Gowen, 51. (7) SilUman v. Clark, 2 How. Sp. T. Rep. 160. (8) Beekmanv. Reed, 5 Cowen, 23. (9) Faulkner v. Tlie Mayor of Brooklyn, 2 How. Sp. T. Rep. 151 ; Carpenter v. Taffs, 2 How. Sp. T. Rep. 166. OF THE PREPARATION FOR TRIAL. 621 if an affidavit of merits be not filed and served, he must express Lis in- tention of taking such, inquest, in the notice of triaL(l) Notice of trial must be given in all cases ; even where the plaintiff is under a stipulation to try at the next circuit, or the like ;(2) or where the trial is put off, by rule of court, from one circuit to another ;(3) or notwithstanding a special day be fixed for the trial, by rule of court.(4) And if no notice of trial be given, when necessary, and the plaintiff jDroceed to trial and have a verdict, the court will set aside the verdict, upon motion. By rvhom.'] Heretofore, as a general rule, the plaintiff was the only person authorized to notice the cause for trial, except in replevin^ in which either party might do so.(5) If the plaintiff did not notice the cause, the defendant was entitled to move for judgment, as in case of non-suit ; and in replevin, where neither party had noticed the cause for trial, the defendant might move for judgment, as in case of non-suit, in the same manner, and with the like effect, as in personal actions.(6) Either party might also notice a feigned issue for trial.(7) So, also, either party might notice for trial, an issue on error in fact ; but if it have been noticed by the plaintiff in error only, and not brought to trial, when called on the calendar, the defendant was entitled, on motion, to the costs of the circuit and of the motion.(8) ISTow, however, it is provided,(9) that eitlie}^ P'^^i-ty giving the notice may bring the issue to trial, and in the absence of the adverse party, unless the court for good cause otherwise direct, may proceed with his case, and take a dismissal of the complaint, or a verdict or judgment, as the case may require. Notwithstanding either party, plaintiff or defendant, may now notice any action for trial, yet it is the duty of the plaintiff to do so, and the de- fendant may, if he choose, omit doing so. If the plaintiff fail to bring the cause to trial, according to the course and practice of the court, the defendant may move for the dismissal of the complaint, with costs.(lO) If, however, it be made to appear to the court, on the motion that the neglect of the plaintiff to bring the action to trial, was not unreason- able, the court will permit him, on payment of costs, to bring the action to trial at the next court where the same is triable.(ll) (1) Rule 12. (2) Ifield v. Weeks, 1 H. BJ. 222. (3) Jacks V. Mayer, 8 T. R. 245. (4) Ellis y. Trusler, 2 TV. Bl. 798. (5) 2 R. S. 530, sec. 46. (6) 2 R. S. 530, sec. 46. (7) Bassett v. Osborne, 5 Moore, 513 ; Bogers v. Tiff, 17 Johns. 267. (8) Toivnsendy. Cowen, 19 Wend. 639. (9) Code, sec. 258. (10) Rule 21. (11) Rule 21. g22 ENFORCINa THE ATTENDANCE OF WITNESSES. Notice of couniermand?\ There does not seem to be any provision in the Code, or rule of coart upon the subject of countermanding a notice of any kind, but the practice on this subject, as it prevailed before the Code took effect, must be deemed to apply now, under the provision, (1) that the former rules and practice of the courts consistent with the Code, shall continue in force, &c. Under the former rules and practice, the plaintiff (and now the de- fendant also) was at liberty to countermand his notice of trial, even in the case of a trial at bar. The notice for this purpose must be in writing, and must be served at least six days, (2) or, in case of service by mail, twelve days(3) before the day for which the notice was given. But whenever a cause shall be noticed for trial, and such notice shall be countermanded, the de- fendant shall be entitled to all the costs actually incurred by him, pre- vious to the service of such countermand ;(4) and a rule to show cause why the plaintiff should not pay them, will be granted on application ;(5) and this, though the notice of countermand be served six days before the circuit ;(6) and even though it appear that the cause could not have been tried, by reason of the state of business at the circuit, had no no- tice of countermand been given. (7) It seems, also, that although a defendant undertake to accept short notice of trial, the plaintiff must not give less than the usual notice of countermand. (8) SECTION, y. ENFORCING THE ATTENDANCE OF WITNESSES. The subject of evidence being one of which a mere cursory notice would be of no utility, will not be discussed. Nor is it intended in this place, to treat of the different modes of procuring the testimony of witnesses, either when absent from or about to leave the state. Those subjects have been heretofore adverted to.(9) I shall now briefly con- sider the method of compelling the attendance of witnesses at the trial, and of punishing their disobedience. (1) Code, sec. 469. (2) Rule 22. (3) Rule 8. (4) 2 R. S. 618, sec. 36. (5) Morse v. La Farge, 2 Wend. 241. (6) Bostwick v. Hunger, 1 Wend. 97. (7) Anonymous, 1 Hill, 168 ; S. G. nom. Jennings v. EoThert, 1 How. Sp. T. Rep. 66. (8) Robinson v. Taylor, 5 Dowl. 0. S. 518 ; Evans v. Barnard, 3 M. & W.-276. (9) Ante, p. 599. ENFOROINa THE ATTENDANCE OP WITNESSES. 623 Process against loilnesses.'] If you arc not certain that your witnesses will attend at the trial voluntarily, and give evidence, you must sub- poena them ; for it has been holden that even a person actually present at the trial, may refuse to be sworn as a witness, unless he have been duly subpoenaed.(i) This must be done as follows : 1. The original writ under the seal of the court issuing the same, shall be exhibited to the witness ; 2. A copy of such writ, or a ticket containing its sub- stance, shall be delivered to the witness ; 3. The fees allowed by law to such witness for travelling to, and returning from the place where he is required to attend, and the fees allowed for one day's attendance, shall be paid or tendered to such witness.(2) The fees are thus pointed out by statute : — For each witness, fifty cents, for each day while at- tending any court or officer ; and if the witness resides more than three miles from the place of attendance, travelling fees at the rate of four cents per mile going and returning.(3) But no counsel or attorney in any cause, shall be allowed any fee for attending as a witness in such cause.(-i) Although, where G., a counsellor of this court, while attend- ing the circuit pursuant to a subpoena on the part of the defendant, was retained by him to try the cause, and did try it, (the counsel pre- viously retained for that purpose not being in attendance,) it Avas held, that the defendant was entitled to be allowed in the taxation of costs, the fees for G.'s attendance as a witness.(5) These expenses must be either paid or tendered to the witness, and the sum tendered must be sufficient, otherwise he is not bound to at- tend ;(6) and if the witness be a married woman, the money should be tendered to her, and not to her husband.(7) The tender must also be made at the time of serving the subpoena ; for where a witness, who was subpoenaed, but to whom his expenses were not tendered, attended at the trial, but refused to be sworn, although his expenses were then tendered to him, the court refused to grant an attachment against him.(8) But if at the time of the service of the subpoena, a less sum than he is entitled to be tendered to him, and he accept it without ob- jection, he cannot avail himself of the insufficiency of the amount ten- dered, as an answer to a motion for an attachment.(9) If, however, he attend, without his fees having been paid to him, or for a greater num- ber of days than need be tendered to him, he may recover his fees by action against the party subpoenaing him, and not against the attorney, (1) Bowles V. Johnson, 1 W. Bl. 36. (2) 2 R. S. 400, sec. 42. (3) Laws of 1840, p. 33], sec. 8. (4) 2 R. 651, sec. 25. (5) Reynolds v. Warner, 1 Hill, 144. (6) CJuqmian v. Pointon, 2 Str. 1150. (7) 1 Chit. Archb. 8th ed. 329. (8) Bowks v. Johnson, 1 W. Bl. 3G, (9) Goffv. Mills, 2 Dowl. & L. 23. 624 ENFORcma the attendance of witnesses. unless the latter have personally undertaken to pay them.(l) And lio may do this, if he attend at the trial, and even though he have refused to give evidence, unless his expenses are paid, and he is thereupon not examined, j^et he may maintain assumpsit for these expenses against the party who subpoenaed him.(2) But he cannot recover anything for his expenses, or otherwise, beyond what the statute allows him.(3) These fees may be also taxed against the opposite part}', if he be un- successful, as part of the costs ; but fees paid to witnesses who do not attend in obedience to a subpoena, cannot be so taxed ; the remedy of the i^arty, in such case, being by a suit to recover back the money paid.(4) Where, however, the defendant, on the first day of the cir- cuit, obtained a postponement till the next circuit, on payment of costs, and the plaintiff's witnesses, who lived at a great distance, had left home in time to arrive on the opening of the court, pursuant to the subpoena, but were accidentally detained, without any fault on their part, so that they did not arrive till the morning of the second da}'', which was before the cause had been reached on the calendar ; it was held, that the witnesses' fees were taxable as part of the plaintiff's costs of the circuit. (5) The subpoena must also be served a reasonable time before the trial ; and where it is necessary for the witness to travel, he is entitled to a reasonable time for that purpose, availing himself of the ordinary modes of conveyance ; but he cannot be required to travel on Sunday.(6) "Wliether it has been so served, is, upon an application for an attach- ment, a question for the court.(7) What is a reasonable time, depends upon the circumstances of each particular case. Thus, where a witness was served at twelve o'clock, while he was standing on the steps of the court house, and Avas told that the trial would come on the same day, which it did, at five o'clock ; it was held, that the service was suffi- cient.(8) So, where the attorney of the defendant was served just be- fore ten o'clock at night, at his residence at Chelsea, to produce papers which were at his chambers in Symond's Inn, on the trial of the cause, which stood on the list for trial on the following day, next after a spe- cial jury cause, which, it Avas believed, would last a considerable time ; (1) Evans v. FhillpoUs, 9 Car. & T. 2T0; Andrews v. Baks, 5 Johns. 351 ; Watts v. Van Ness, 1 Hill, 16. (2) nalleit v. Hears, 13 East, 15. (3) Fuller v. ^lattice, 14 Johns. 351. (•1) EJile V. Bingham, 4 Hill, 495. (5) Anonymous, 3 Hill, 457. (6) Wilkie v. Chadwicl; 13 Wend. 49; Hammond v. Slcivart, 1 Str. 510. (7) Barber v. Smith, 2 Man. & R. 172. (8) Maunsell v. Ainsworth. 8 Dowl. 0. S. 8G9. ENFORCING THE ATTENDANCE OF WITNESSES. 625 and the attorney, being clerk to the board of guardians, had pre- viously made arrangements to perform his duty in that capacity, and was absent when the cause came on the following morning, in consequence of the unexpected termination of the special jury cause ; it was held, that these facts were no sufiicient excuse, and that an attachment might issue against him.(l) So, where a })erson sub- poenaed was placed in charge of a quantity of malt in the process of manufacture, by his master who w^as a malster resident at a considerable distance, with strict injunctions not to leave it night or day, as it required constant watching ; it was held, that this was not a reasonable excuse for disobeying the subpoena, although it was served on him so short a time before the trial, as not to admit of his commu- nicating with his master.(2) The principle, in all these cases, is, that a witness, duly subpoeaed to attend a circuit, is bound to make extra- ordinary efforts to obey the writ, and that nothing but extreme poverty and utter inability to attend, or sickness of himself or family, conclu- sively proved, will excuse his non-attendance.(3) Subpoena duces tecum.'] If a person who is not a party to the cause, have in his possession any written instrument, &c., which could be evi- dence for either party at the trial, instead of the common subpoena, he must be served with a subpoena duces tecum, commanding him to bring it with him and produce it at the trial. It must be signed, sealed, and a copy served, in the same manner as the common subpoena. Upon being served w^th a copy of this subpoena, he must attend at the trial with the instrument required and produce it in evidence, unless he have some lawful or reasonable excuse for withholding it; of the validity of which excuse, the court and not the witness is to judge.(4:) And the witness has no right to have the question of his liability to produce, argued by counsel retained for that purpose.(5) Nor if the judge im- properly overrule a privilege claimed by a witness, and compel him to produce documents in evidence, which are good evidence in the cause, can the court in banc review the decision of the judge, at the instance of a party to the suit.(6) It is no excuse that the legal custody of the instrument belongs to another, if it be in the actual jDossession of the witness ;(7) or that the (1) Jackson v. Seager, 2 Dowl. & L. 13 ; S. C. 8 Lond. Jurist, 710. (2) GuffY. Mills, 13 Law Jour. N. S., Q. B. 227. (3) The People v. Davis, 15 Wend. 603. (4) Amey v. Long, 9 East, 473; and see Pearson v. Fletcher, 5 Esp. 90. (5) Doe V. Earl of Egremont, 2 M. & Rob. 386. (6) Doe V. Date, 3 A. & E., N. S., 609; see Doe v. James, 2 M. & Rob. 47. (7) Amey v. Long, 9 East, 473; S. G. 1 Campb. 14, 180, note I; S. G.Q Esp. 116 ; Coisen V. Dulois, Holt, N. P. 239. YoL. I. 79 (526 ENFORCING THE ATTENDANCE OF WITNESSES. production of tlie instrument is not material.(l) But if the instrument required to be produced would, if disclosed, subject the witness to a criminal charge, or penalty, (2) or if it be his,(3) or, (if he be an attor- ney,) his client's(4:) title deed, or if he have a hen upon it,(o) the witness cannot be compelled to produce it. So, also, if a paper be in the pos- session of the attorney of the opposite party in the cause, the only way in which it can be availed of, is by notice to produce it or by compelling a discovery from the client ; the party cannot have the benefit of the evidence, by subpoenaing the attorney to produce it, and compelling him to testify, if it was delivered to him by his client as supporting the action or defence.(6) It seems, also, that counsel, intrusted by his client with papers relating to the action, is not obliged to produce them, nor can he be compelled, as a witness, to state their contents.(7) So also, (for the reason that the obligation to produce papers, &c., on a suhxicena duces tecum, depends on the question whether they are in the possession or under the control of the witness,) if a clerk in a bank,(8) or cashier, (9) be required to produce the bank books or papers, by a subpoena duces tecum, the court will not compel him to produce them. So, if he be a clerk in a public ofiice, and he is called upon to produce an ofl&cial paper, which his principal has not given him leave to produce, the court will not compel him to produce it.(lO) In order to the better security of certain public records, it is provi- ded by statute, that no record of conveyance of real estate, or other record, whereof a transcript duly certified may by law be read in evi- dence, shall be removed by virtue of any suhpcBna duces tecum, from the proper office in which such record shall be kept ; and no such record shall at any time be removed from such of&ce, except when tempora- rily removed by the clerk having such record in custody, to the courts of which he is clerk, and to the courts held in the city or village where the office of such clerk is situated, unless by order of some court of record, made in open court and entered in the minutes thereof; which (1) Doe V. Kelly, 4 Dowl. 0. S. 273. (2) Roe V. Harvey, 4 Burr. 2489; Wliitaker v. Izod, 2 Taunt. 115. (3) Pickering V. Noyes, 1 B. & C. 263; S. C. 2 J). & R. 386; Rex v. Upjyer BoMington, 8 D. & R. 126; Doe v. James, 2 M. & Rob. 47; Doe v. Owen, 8 Car. & P. 110; Hodgson v. Warden, 1 Dowl. & L. 286. (4) See Harris v. Hill, 3 Stark. Rep. 140 ; S. C.\ D. & R., N. P. C, 17 ; Ditcher v. Kenrick, 1 Car. & P. 161. (5) Doe V. Ross, 7 M. & W. 102 ; see also, Kemp v. King, 1 Car. & M. 396 ; Thompson v. Mosely, 5 Car. & P. 501. (6-) M'Pherson v. Rathhone, 7 Wend. 216. (7) Jackson v. Dcnison, 4 Wend. 558. (8) Bank of Utica v. Hillard, 5 Cowen, 153. (9) Bank of Utica v. Hillard, 5 Cowen, 419. (10) Austin y. Evans, 2 M. & G. 430 ; S. G. 9 Dowl. 0. S. 408. ENFORCING THE ATTENDANCE OP WITNESSES. §27 order shall specify that the i^roduction of such record, instead of such transcript, is necessarj.(l) If the witness, instead of bringing the papers, &c., required, deliver them to the opposite party, by whom they are withheld, the court will allow secondary evidence of their contents to bo given, without a no- tice to produce the originals.(2) And it seems, that if a person having the custody of papers, be subpoenaed to produce them on the trial, he may be called on to produce them, without being sworn as a witness.(3) And where a witness producing a document was sworn, but by a mis- take, and a question asked, but to which he made no answer, it was held, that the opposite party had no right to examine him, by way of cross-examination.(4) A witness being sworn, and having a document in his possession, was holden bound to produce it, although he had not been served with a subpcena duces tecum.{5) Where the loitness is in custody.'] If the witness be in custody at the time of the trial, the only way of bringing him into court to give evi- dence, is by habeas corpus ad testificandum. This may be obtained in the case of a witness in custody for any cause, except a sentence for a felony. (6) Every such application shall be veriliod by affidavit, and shall state, 1., the title and nature of the suit or proceeding, in regard to which the testimonj^ of such prisoner is desired : and 2., that the tes- timony of such prisoner is material and necessary to such party, on the trial or hearing of such suit or proceeding, as he is advised by counsel and verily believes. But if the application be made by the attorney- general or the district attorney, it shall not be necessary to swear to such advice or counsel.(7) Such writ may also be issued by any justice of the Supreme Court, or any officer authorized to perform the duties of such justice, upon the like application of a party to any suit or proceeding pending in a court of record, or pending before any officer or body who may be authorized to examine wit- nesses in any suit or proceeding.(8) Such writ may also be issued by any of the officers aforesaid, upon the application of a party to a suit before any justice of the peace, to bring any prisoner confined in the jail of the same county, or the county next adjoining that where such justice may reside, before such justice, to be examined as a witness.(9) Upon the receipt of the writ, and the tender of the fees allowed by (1) Laws of 1838, p. 90, ch. 129, sec. 1. (2) Leeds v. Cook, 4 Esp. 255. (3) Dmls V. Djle, 4 Car. & P. 335; S. C. 1 M. & M. 514; S'xnimirs v. Moseley, 4 Tyrwli. 158; Ferry v. Gibson, 1 A. & E. 48; S. a 3 N. & M. 462. (4) Bush V. Smith, 1 C, M. & R. 94. (5) Snelgrove v. Stevens, 1 Car. & M. 508. (6) 2 R. S. 359, sec. 1. (7) 2 R. S. 559, sec. 2. (8) Ibid. 559, sec. 3. (9) Ibid. sec. 4. 628 ENFORCING THE ATTENDANCE OP WITNESSES. laAV,(l) which arc one doHar and fi% cents, and for travelhng each mile from the jail, t^Yelve and a half cents,(2) (which is to be computed both going and returuing,)(3) and on executing a bond, in a penalty double the amount of the sum for which the prisoner may be obtained, if he be detained for any specific sum of money, and if not, then in the pen- alty of one thousand dollars, conditioned that such person will pay the charges of carrying back such prisoner, if he shall be remanded, and that such prisoner will not escape by the way, either in going to, or re- turning from, the place to which he is to be taken, (4) it becomes the duty of the officer to obey and return the writ.(5) And the omission of the words " to testify" is not material ; if it have words equivalent, it is sufficient. So, though it do not specify a place of return within the county, as at the office of the first judge, — for this is to be intended. And the alteration of the writ after it is executed, without the know- ledo-e or privity of the sheriff, will not deprive him of the right to give it in evidence for his justification, though such alteration be made by the deputy who executed it. If a habeas corpus ad testificandum be issu- ed by an officer of competent authority, and be not void on its face, the sheriff is bound to obey it.(6) Proceedings against a witness, for disobeying a subpoena.'] There are three ways of proceeding against a person who refuses or neglects to attend a trial, after being regularly served with a subpoena for that pur- pose ; by attachment, — by action on the statute, — and by action at com- mon law. With regard to the proceeding by attachment, it is the one most commonly resorted to, because it not merely punishes the witness for his disobedience, by the imposition of a fine equal to the costs of ob- taining it, but it enforces his actual attendance at the trial. In respect to this remedy, it is provided by statute, that whenever any person who shall have been duly subpoenaed to appear at a circuit court, to testify in any cause to be tried therein, shall neglect or refuse to attend, in pursuance of such writ, the justice or judge holding such circuit court, shall have power to award an attachment against such person, and to proceed thereon to punish such misconduct.(7) And the court will grant an attachment against a witness, if he, in contemptuous disregard of the process of the court,(8) do not attend a trial, when duly served (1) 2 K S. 585, sec. 82. (2) 2 R. S. G46, sec. 38. (3) The Utica Bank v. Kibhe, T Cowen, 424. (4) Ibid. 574, see. 78. (5) 2 R. S. 5" 5, sec. 82. (6) Wattles v. Marsh, 5 Cowen, 176. (7) Ibid. 540, sec. 34. (8) See Chapman v. Scott, 3 M. & G. 609; S. C. 4 Scott, N. R. 319 ; S. C. 1 Dowl. N. S. 239; Schoks v. Hilton, 10 M. & M. 15 ; S. C. 2 Dowl. N. S. 229. ENFORCING THE ATTENDANCE OF WITNESSES. 629 ■with a suhjjcena for that purposc,(l) whether the cause were called on or not, (2) provided the subpoena were served a reasonable time before the trial, and that the witness were personally served with it, and that his reasonable expenses were paid or tendered to him at the time of service,(3) and that there have been no unreasonable delay in applying for the attachment.(4) And where a trial took place on the 11th of December, and the application was not until the 23d of April, an at- tachment was re fused. (5) It seems to have been at one time held, that an attachment for dis- obeying a subpoena would not in any case be granted, unless the wit- ness was regularly called in court, upon his suhpoena ;(6) but the later and more reasonable practice has been, to grant the attachment, though the witness were not called on his subpoena^ if it be clearly shown that he was absent at the time his testimony was required. (7) Every fact must be shown, also, by the afiidavii; on which the mo- tion is founded, such as the due service of the suhpoena., and the neglect of the party to attend, and the like ;(8) and it must also be shown, that he is a material witness.(9) And if it clearly appear that the subpoina was served merely for the purpose of vexation and annoyance to the witness, and that his presence would have been of no use to the party subpoenaing him, an attachment will be refused. (10) Nor will an at- tachment be granted, if it appear that leave of absence was given him, by the attorne}^ of the party who subpoenaed him.(ll) With respect to the action on the statute : — it is provided, that every person who shall be duly subpoenaed to attend as a witness, any court within this state, or to attend any officer of any court of record empow- ered to receive evidence, or an}^ commissioner appointed by such court (1) Hammond v. Stewart, 1 Str. 510 ; Wyat v. Wingford, 2 Str. 80 ; S. G. nom. Wyat v. WM-ford, 2 Ld. Rayin. 1528 ; Doe v. Andrews, Cowp. 843; Pearson v. lies, 2 Doug. 536. (2) LamontY. Crook, 6 M. &. W. 615 ; S. C. 8 Dowl. 0. S. 137 ; & a 4 Lond. Jurist, 489 ; Barrow v. Humphreys, 3 B. & Aid. 598. (3) Ante, 622, 623. (4) 2 Tidd, 723. (5) Eex V. Stretch, 4 Dowl. 0. S. 30 -,3.0.1 M. & W. 322 ; & C. 3 A. & E. 506. (6) Ibid. ; Malcolm v. Ray, 3 Moore, 222 ; Re Jacobs, 1 Har. & Wol. 123 ; Ex parte 0' Con- nell, (B. C. Trin. Term, 1839,) 3 Lond. Jurist, 980. (7) Lamont v. Crook, 6 M. & W. 615 ; S. C. 8 Dowl. 0. S. 737 ; S. 0. 4. Lond. Jurist, 489 ; Todd v. Emly, 11 M. & W. 1 ; ^. C. 2 Dowl. N. S. 570 ; S. C. 1 Lond. Jurist, 496 ; Gough V. Miller, or Goffy. Mills, 2 Dowl. & L. 23 ; S. C. 8 Lond. Jurist, 758. (8) Garden v. Cresswell, 2 M. & W. 319; S. G. 5 Dowl. 0. S. 461. (9) Dicas V. Lord Brougham. 1 Gale, 14; Dicas v. Lawson, 5 Tyrwli. 235, 769 ; »?. C. \ C, M. & R. 934; S. C. 3 Dowl. 0. S. 427. (10) Dicas V. Lawson, 5 Tyrwh. 235, 709. (11) Farrah v. Keat, 6 Dowl. 0. S. 470 ; see also, Rex v. Sloman, 1 Dowl. 0. S. 618 ; Bland- ford V. Be Tastet, 5 Taunt. 260, 263 ; 5. C. 1 Marsh. 42. 630 ENFORCINa THE ATTENDANCE OF WITNESSES. to take testimony, or any referees appointed by sucli court to hear any cause or matter, shall be bound to attend according to the command of such subpoena; and for every failure so to attend, without a reasonable excuse, shall be deemed guilty of a contempt of the court out of which such subpoena issued, shall be responsible, in the proper action, to the aggrieved party, for the loss and hindrance sustained by such failure, and for all other damages sustained thereby, and shall forfeit to the ag- grieved party the sum of fifty dollars, in addition to such damages, to be recovered in a separate action, or in the same action commenced for the recovery of such damages.(l) And an action will lie, although, in consequence of the witness' absence, the cause was not called on, or the jury sworn. (2) But where a plaintiff voluntarily submitted to a non- suit, on account of the non-attendance of a witness, where he had other proof of the same fact for which the witness was subpoenaed, at hand, it was held he could not recover.(3) The place of trial in the action for the penalty is local, it being pro- vided by the Code, that every action for a penalt}^ or forfeiture shall be brought in the county where the act was done, upon which such penalty or forfeiture attached ; and if brought in the Supreme Court, the place of trial in such action shall l)e laid in such county.(i) But the action for damages, under the statute, is transitory, though where the claims for the penalty and damages are joined in one action, the whole action is local. And where a demand for damages sustained was join- ed in the same action with a demand for the penalty, and the judge non-suited the plaintiff, for the reason that the venue was not laid in the proper county as to the action for the penaltj^, it being local^ by statute, this court refused to set aside the non-suit, although the action r.s to the damages was transitory ; holding, that the plaintiff ought to have made his election at the trial, to abandon his count for the penal- ty-(5) Or, instead of this action on the statute, the party injured may have an action against the witness, at common law, for his nonattendance,(6) or for his not producing papers required of him by a subpoena duces t€cum.{7) (1) 2 R. S. 400, sec. 43. (2) Mulktt V. Hunt, 1 Cr. & M. 752 ; Ropper v. Smith, 1 M. & M. 115 ; Lamont v. Crook, 6 M. & W. G15 ; S. C.8 Dowl. 0. S. 737 ; S. C. A Lond. Jurist, 489 ; overruling Bland v. Swaf- ford, Peake's Cas. 60. (3) Eeermans v. WiUiams, 11 Wend. 636. (4) Code, sec. 124, sub. 1 ; WUkie v. Chadwick, 13 Wend. 49 (5) Cogswell V. Meech, 12 Wend. 147. (6) Pearson v. Mes, 2 Doug. 556. (7) Amey v. Long, 9 East, 473 ; S. C. I Campb. 14, 180, a. COPY OF THE PLEADINGS, FOR THE COURT. 631 SECTION VI. COPY OF THE PLEADINGS, FOR THE COURT. By the early practice of this court, which was borrowed in this re- spect, from that of the court of king's bench in England, it was incum- bent on the plaintiff, in preparing the case for trial, on an issue triable by the country, to make out and file an issue-roll, containing the plead- ings, with proper notice of the intervening terms, and which consisted of the caption, warrants of attorney, the memorandum^ the declaration, the imparlance, plea, replication, and other pleadings, award of the venire and continuances, with such suggestions as might arise out of any peculiar state of circumstances in the cause, such as the death or mar- riage of a party, or the like.(l) Where the trial was to be had at the circuit or sittings, and not at the bar of the court, it was necessary that the plaintiff should, from the issue roll, transcribe what was called the nisi prius roll, which was the judge's authority to try the cause. This was made out by the plaintiff's attorney, except where the defendant went to trial by proviso ; a return was endorsed upon it, briefly stating the circuit or sittings at which the cause was intended to be tried, and the roll having been sealed by the clerk of the Supreme Court, was, in strictness, required to be filed with the clerk of the circuit or sittings, on or before the first day of the court of nisi prius ; otherwise the de- fendant might have entered a ne recipiatur with the clerk at nisi prius, and thus prevented the trial of the cause.(2) In process of time, the issue roll was abolished, and the nisi prius roll alone required,(3) and its use continued until the adoption of the re- vised statutes, which abolished it, and provided that the party entitled to bring the cause to trial at a circuit court or sittings, should make out a transcript of the pleadings in the cause relating to such issue, with an entry therein, that the issue or issues so joined were ordered by the court to be tried at the circuit court or sittings, at Avhich the same might be triable, without any respite of the jury, or award of process for their appearance at the next or any other term of the Supreme Court, and without any nisi prius clause; and that such transcript should be denominated a circuit roll, and should be filed with the clerk of the court at which such issue or issues were to be tried ; but that no such transcript should be necessary, unless the cause was to be tried at (1) Wycliel's Prac. 146—148. (2) Duul. 564, 574. (3) Dunl. 565. 632 ENTRY OF THE CAUSE FOR TRIAL. a circuit court, nor should a seal to sucli roll, in any case^ be neces- sarj.(l) The circuit roll has likewise been abolished, by the fee bill of 1840, which provided that the attorney should be entitled to a fee of three dollars, for a copy of the pleadings to be used by the court, upon the trial of a cause, but that no more than one copy should be allowed in any one cause, and that circuit rolls are thereby abolished ;(2) and which further provided, in lieu of the postea formerly endorsed upon the 7iisi lirius and circuit rolls, showing the result of the cause at the circuit, that in case of a trial at the circuit, the copy of the pleadings furnished for the court upon the trial, with a certified copy of the minutes of the trial annexed, without ^ny postea thereon, should be filed, and thereupon judgment should be rendered for the party entitled thereto.(3) The effect of these provisions was of course, to abolish, not merely the formal parts of the circuit roll, as they existed, at the time of their enactment, namely, the placita, memorandum, imparlances, award of trial and continuances, but also the suggestions, which, as have been seen, were formerly inserted, to inform the judge of such proceedings as were not embraced in the pleadings, and as were deemed necessary to enable him to understand the effect and true character of the issue he was required to try. In analogy to the statute of 1840, just adverted to, it is now provi- ded by the Code,(4) that when the issue shall be brought to trial by the plaintiff, he shall furnish the court with a copy of the summons and pleadings, and with the offer of the defendant, if any shall have been made. When the issue shall be brought to trial by the defendant, and the plaintiff shall neglect or refuse to furnish the court with a copy of the summons and pleadings and the offer of the defendant, the same may be furnished by the defendant.(5) SECTION VII. ENTRY OF THE CAUSE FOR TRIAL. Note of issue^ After the cause has been duly noticed for trial, the next step is to j)ut it upon the calendar. For this purpose a note of (1) 2 R. S. 410, sec. 5, 6, As to the form of the circuit roll, see Gra. Pra. 2d ed. 268— 271. (2) Laws of 1840, p. 328. (3) Laws of 1840, p. 334, sec. 21. (4) Code, sec. 259. (5) Ibid. THE JURY PROCESS. 633 issue must be filed with the clerk of the circuit in which the cause is to be tried, at least four days before the opening of the court, (1) contain- ing the title of the cause, a brief note of the pleadings, the date of the issue, and the names of the attorneys on both sides. Tlie calendar.'] From the notes of issue delivered to the clerk, he makes out a calendar of the causes noticed for trial, arranging them ac- cording to the dates of their issues ; and where there are several causes of the same issue, according to the priority of time when the notes of issue were filed. Where the reare several issues joined at different times in the same cause, its order on the calendar is determined by the date of the first issue ;(2) although the correction of the calendar belongs exclusively to the circuit judge, and this court will not interfere with his rules of practice on this head. (3) The date of the issue is the time when the last pleading was served.(4) The causes are called for trial, according to their order on the calen- dar, and tried accordingly. Except such issues, as have, in practice, a preference ; as actions against corporations, on a note or other evidence of debt, for the absolute payment of money on demand, or at any par- ticular time ;(5) but a suit on a policy, against an incorporated insur- ance company, is not entitled to such a preference. (6) SECTION yiii. THE JURY PROCESS. Jary^ how summoned^ Before the revised statutes, the party brino-- ing the cause to trial, was obliged to issue a venire to the sheriff of the county where the cause was to be tried, requiring him to summon a jury for that purpose. This is now, however, dispensed with, in all cases except where a foreign jury is ordered ;(7) and the manner of sum- moning jurors, as prescribed by the statute, is as follows : Fourteen days before the holding of any circuit court or sittings, or of any spe- cial court of oyer and terminer, when no circuit is appointed to be held at the same time, or of any court of common pleas or mayor's court and in the city and county of New York, before the holding of the (1) Code, sec. 255. (2) Griswold v. Steiuart, 3 Cowen, 16. (3) AUen v. CalJioun, 6 Cowen, 32. (4) Code, sec. 256. (5) 2 R. S. 458, 459, sec. 8, 11. (6) Anonymous, 6 Cowen, 41. (7) 2 R. S. 410, sec. 9. Vol. I. 80 g34 THE JURY PROCESS. superior court of law, or of the court of general sessions, the clerk of the county in which such court is to be held, shall draw the names of thirty-six persons to serve as jurors at such court, and any number in addition thereto, that shall have been ordered according to law.(l) At least sis days notice of such drawing shall be given by such clerk, by publishing the same in a newspaper of the county if there be any, and if not, by affixing such notice on the outer door of the house where the court for which such jury is to be drawn, is about to be held; a copy of such notice shall also be served on the sheriff of the county, and upon the first or some other judge of the county courts, at least three days previous to the time appointed therein for drawing.(2) At the time so appointed, it shall be the duty of the sheriff of the county, in person, or by his under-sheriff, and of the first or other county judge on whom such notice shall have been served, to attend at the clerk's office of the county, to witness the drawing of such jury.(3) If the she- riff or county judge, so notified, do not appear, the clerk shall adjourn the drawing of such jury to the next day, and shall by written notice, require the dehnquent sheriff or judge, or some other county judge, or any two justices of the peace, to attend such drawing on the adjourned day.(4) If, at the adjourned day, the sheriff or under sheriff and a county judge or justice of the peace appear, or if any two county judges or justices of the peace appear, but not otherwise, the clerk shall pro- ceed, in the presence of the officers so appearing, to draw the jury. (5) The clerk shall conduct such drawing as follows: — 1. He shall shake the box containing the names of jurors returned to him, so as to mix the slips of paper on which such names were written as much as pos- sible. 2, He slmll then publicly draw out of the said box, as many of the said slips of paper containing such names, as there shall be jurors required by law, or specially ordered for such court. 8. A minute of the drawing shall be kept by one of the attending officers, in which shall be entered the name contained on every slip of paper so drawn, before any other slip shall be drawn. 4. If, after drawing the whole number required, the name of any person shall appear to have been drawn, who is dead, or become insane, or who has permanently remov- ed from the county, to the knowledge of the clerk, or any other attend- ing officer, an entry of such fact shall be made in the minute of draw- ing; and the slip of paper containing such name shall be destroyed. 5. Another name shall then be drawn in place of that contained on the slip of paper so destroyed, which shall be in like manner entered in the minutes of the drawing. 6. The same proceedings shall be had as (1) 2 R. S. 413, sec. 24. (2) 2 R. S. 413, sec. 25. (3) Ibid. sec. 26. (4) Ibid. sec. 27. (5) 2 R. S.414, sec. 28. THE JURY PROCESS. 635 often as may be necessary, until the wliole number of jurors required shall have been drawn. 7. The minute of the drawing shall then be, signed by the clerk and the attending officers, and shall be filed in the clerk's office. 8. A list of the names of the persons so drawn, with their additions and places of residence, and specifying for what court they were drawn, shall be made and certified by the clerk and the at- tending officers, and shall be delivered to the sheriff of the county.(l) The sheriff shall summon the persons named in such list, to attend such court, at least six days previous to the sitting thereof, by giving per- sonal notice to each person, or by leaving a written notice at his place of residence, with some person of proper age. He shall return the said list to the court at the opening thereof, specifying those who were sum- moned, and the manner in which each person was notified.(2) Whenever, in the opinion of any justice of this court, more than thirty- six jurors shall be required to attend any circuit court or court of oyer and terminer, he may, by an order under his hand, direct such addi- tional number of jurors as he shall deem necessary, not exceeding twenty -four to be drawn ;(3) or in the city of New York, not exceeding forty-eight.(4) Such order shall be served on and filed with the clerk of the county in which such court is to be held, at least twenty days previous to the day appointed for the commencement thereof; and the said clerk shall thereupon draw the number specified in such order, in addition to the number of thirty-six, and shall proceed therein, in all respects in the same manner above prescribed.(5) With regard to the city of New York, it is provided, that any judge holding any sittings or circuit court in the city and county of New York, the judge or judges holding the superior court of law, the judge holding the court of common pleas, or holding the court of general sessions of the peace in the said city and county, may, during the continuance of any such court, as often as it may be necessary, order a new panel of thirty-six jurors to be drawn to attend such court. Upon such order being served on the clerk of the city and county of New York, he shall pro- ceed to draw the j urors so ordered, and deliver a list of the names drawn, to the sheriff, in the same manner as above provided in rela- tion to other jurors.((3) The sheriff shall summon such jurors in the manner above directed respecting the first jury drawn, and shall in like manner return the names of those summoned, to the court. (7) Upon the attendance of such new jurors, the former jurors shall be discharged, and all trials and proceedings in such court shall be had (1) 2 R. S. 414, sec. 29. (2) 2 R. S. 414, sec. 30. (3) 2 R. S. 417, sec. 41. (4) Laws of 1843, p. 247, eh. 188, sec. 1. (5) 2 R. S. 417, sec. 42. (6) 2 R. S. 417, sec. 43. (7) 2 R. S. 417, sec. 44. ^36 THE JURY PROCESS. before sucli new jurors, iu tlie same manner as the same might have been had, before such former jurors.(l) Foreign juries:] Whenever a foreign jury shall be ordered, a venire for that purpose shall issue to the sheriff of the proper county, who shall give notice of the same to the clerk of such county, at least twenty days before the return of such venire.{T) The clerk, to whom notice shall have been given, shall draw the names of twenty-four per- sons from the lists returned to him by the town officers, in the same manner as directed with respect to ordinary juries, and shall deliver a certified list of the names so drawn, to such sherift; who shall summon them as in other cases.(3) Special juries?^ Whenever it shall appear to the Supreme Court, or to any county court in which any cause shall be pending, that a fair and impartial trial will be more likely to be obtained by hav- ing a struck jury, or that the importance or intricacy of the cause requires such a jury, such court shall order a special jury to be struck for the trial of such cause.(4) This must be on application to the court in the usual manner, founded on an affidavit showing its neces- sity, of which I shall hereafter treat. The party obtaining an order for a struck jury, must give notice, eight days previously, of the time when he will attend before the clerk of the county in which the place of trial in such action is laid, for the purpose of having such jury struck.(5) At the time appointed, the clerk of the county shall attend at his office, with the original lists of the jurors, returned to him by the officers of the several towns, who are then liable to serve, and in the presence of the parties or their counsel, shall proceed to strike a jury as follows: 1. The clerk shall select from such lists, the names of forty-eight persons whom he shall deem most indif- ferent between the parties, and best qualified to try such cause. 2. The party on whose application such struck jury was ordered, or his attorney, shall then, first strike out one of the said names, and the opposite party, or his agent shall strike out another of such names, and so alternately, until each party shall have stricken out twelve names. 3. If either party shall fail to attend at the time and place of striking such jurors, or shall neglect to strike out any names according to the foregoing provisions, the clerk shall strike for such party. 4. The clerk shall thereupon make out a list of the names of the twenty-four (1) 2 R. S. 417, sec. 45. (2) 2 R. S. 410, sec. 10. (3) 2 R. S. 410, sec. 11. (4) 2 R. S. 418, sec. 46. (5) 2 R. S. 418, sec. 47. THE JURY PROCESS. 637 persons not stricken out, and certify the same to be the persons drawn to serve as jurors, pursuant to the order of the court, and shall deliver such list, so certified, to the sheriff of the county.(l) The sheriff shall summon the persons, whose names are contained on the lists so de- livered to him by the clerk, in the same manner as other jurors are required to be summoned, and shall return the names of those sum- moned, to the court at which they are required to appear as jurors.(2) A jury shall be formed in the manner directed with respect to other jurors, from the persons so summoned and appearing, who shall try the cause in which such struck j ury shall have been ordered ; but the court shall have the same power to excuse or discharge any such juror as in other cases.(3) If it shall appear to the court to which any application for a struck jury shall be made, that the clerk of the county is interested in the cause, related to either of the parties, or not indifferent between them, such court shall appoint two proper persons to strike such jury. The persons so appointed shall possess all the powers conferred upon the clerk, in relation to the striking, certifying, and delivering to the sheriff the names of the persons struck as jurors, and the sheriff shall in like manner summon the persons so selected.(4) The expense of striking a jury shall be paid by the party applying for the same, and shall not be taxed in the costs of the suit.(5) (1) 2 R. S. 418, sec. 48. (2) 2 R. S. 418, sec. 49. (3) Ibid. sec. 50. (4) Ibid. sec. 51. (5) Ibid. sec. 52. CHAPTER VII. PROCEEDINGS FROJI THE AFFIDAVIT OF MERITS, TO THE VERDICT, IN- CLUSIVE. Section I. affidavit of merits. II. TRIAL OR INQUEST, AT THE CIRCUIT. III. THE JURY. IV. VERDICT. SECTION I. AFFIDAVIT OF MERITS. It is provided by tlie rules of this court, that inquests in causes may be taken at the circuit, out of their order on the calendar, at the open- ing of the court, on any day after the first day of the circuit, provided the intention to take an inquest is expressed in the notice of trial, and a sufficient affidavit of merits shall not have been filed and served.{l) The nature, form and incidents of the affidavit of merits thus required, are now to be considered. By whom to he 7n0.de,'] As a general rule, the affidavit of merits must be made by the defendant.(2) And it has been held to be a compli- ance v^^ith this rule, that the affidavit was made by one who m^arried a feme defendant, pending the action ; he being deemed, for this purpose substantially a defendant.(3) Where there are several defendants, the affidavit may be made by any one of them. But where a maker and endorser of a note are sued in one action, an affidavit of merits by one of them will not prevent an inquest against the other, unless it appear that the defence of both is identical.(4) Though if that fact appear, even though they be not sued in the same action, it would seem to be sufficient. Thus, where several suits were brought against the maker and endorsers of the same note, an affidavit of merits to set aside the inquest in all the cases, made by the maker, was deemed sufficient, it being shown that he was acquainted with the facts, and that the defence (1) Rule 12. (2) See Cannon v. Titus, 5 Johns. 355. (3) Roosevelt v. Dale, 2 Cowen, 581. (4) Clark v. Parker, 19 "Wend. 125. AFFIDAVy' OP MERITS. 639 was tlie same in all the causes.(l) So also, an affidavit of merits may be made by one, who, though not a party to the record, is the real de- fendant and party in interest; and an inquest, taken after such an affi- davit of merits has been filed and served, will be set aside.(2) It may also be made, under certain circumstances, such as the absence or other disability of the defendant, by his attorney or counsel ;(3) but, for this purpose, the affidavit must contain a reasonable excuse for being made by the attorney or counsel, and not by the party.(4) So also, it may be made by the agent of the defendant, if a sufficient excuse be shown for its not being made by the defendant. And an affidavit sworn to by the defendant's general agent stating that such agent signed the note on which the suit was brought, and knew the facts of the case, and in other respects complying with the rule, but which gave no excuse why the affidavit was not made by the defendant, was deemed insufficient, and an inquest taken in disregard of it was held regular.(5) When to he made.'] The affidavit may of course be made at any time when it is necessary to file and serve it, to which I shall presently refer. It must not, however, be made before the party may be supposed to be fully apprised of the cause of action against him ; and therefore, an affidavit of merits made before the return of the writ, or the filing of the declaration was held not to be sufficient to prevent an inquest.(6) It is enough, also, that one affidavit of merits to prevent an inquest be made, though the cause be several times noticed for trial and inquest ; and if filed and served on the plaintiff's attorney for a circuit in one county, it is sufficient though the place of trial be afterwards changed to another county, and the cause be tried in the latter.(7) But an affi- davit of merits made and used for one purpose in a cause, cannot be used for another ; as, for example, an affidavit to change the place of trial will not be received as the foundation of a motion to set aside a judgment for want of an answer ; and for the same reason where an affidavit of merits was served with the defendant's plea, pursuant to the rule requiring pleas in certain cases to be verified, (8) it was held (1) Ontario Bank v. Baxter, 6 Cowen, 395 ; seo per Bronson, J., in Clark v. Parker, 19 Wend. 126. (2) Miller v. Hooker, 2 How. Sp. T. Rep. 124. (3) Phillips V. Blagge, 3 Johns. Rep. 141 ; Geib v. Icard, 11 Johns. 82 ; Scott v. Gihbs, 2 Johns. Cas. 116; S. C. Golem. 128; 1 How. Pr. Rep. 62, 2 Id. 124. (4) Roosevelt v. Dak, 2 Cowen, 583. (5) Mason v. Bidleman, 1 How. Sp. T. Rep. 62. (6) Geib v. Icard, 11 Johns. 82. (7) Prescotty. Roberts, 6 Cowen, 45; see Van Rensselaer v. Hamilton, 4 Cowen, 539, 540. (8) See ante. g40 AFFIDAYIT Of MERITS. not to be sufficient to prevent the taking of an inquest in the cause, out of its order on the calendar.(l) WJuit it must contain.'] It was formerly sufficient to state in an affi- davit of merits, that the defendant had " a good and substantial defence on the merits, as he was advised by counsel and verily believed."(2) In order to obviate the looseness with which these affidavits were made, and to increase the responsibility both of making and advising them, the existing rules of this court provide, that whenever it shall be necessary, in any affidavit, to swear to the advice of counsel, the party shall, in addition to what has usually been inserted, swear that he has fully and fairly stated the case to his counsel, and shall give the name and place of resideuce of such counsel.(3) The effect of this rule is, of course, to require an affidavit in this language, namely, that the defendant "has fully and fairly stated the case to , of , his counsel, and that he has a good and substantial defence on the merits in the said cause, as he is advised by his counsel and verily believes to be true." As to the first branch of the affidavit, — the fact of the statement of the case to counsel, — this court have, (as in all other cases where the form of an affidavit has been prescribed by their rules or practice,) re- quired a very strict adherence to the rule. Thus, they have held, that an affidavit that the party has stated his defence to counsel, is insufficient, as only implying that he has stated one side of the case ; though an affidavit that he had fully and fairly stated this case, or ids case, to coun- sel, has been deemed sufficient, as fairly implying that he had stated the whole case.(-i) So, an affidavit that he had stated the facts of his case, has been deemed insufficient.(5) Nor will the party be permitted to qualify the requisition of the rule, by adding, so far as the facts have come to his knowledge, unless perhaps an excuse be shown.(6) "I do not say, (says Cowen, J., in this case,) that special circumstances may not exist, under which a compliance with the exact terms of the rule may be out of the reach of ordinary diligence. On this being shown, the general rule, like all others, must give way. But the ex- cuse should be laid before us. Prima facie the party is capable of fully and fairly stating his case ; the words of the rule must be followed, and we cannot accept even an equivalent phrase, without the departure (1) Cutlery. Biggs, 2 Hill, 409; see also, Albeiii v. Peck, 1 How. Pr. Rep. 230; Cok- . gate v. Marsh, 2 How. Pr. Rep. 137. (2) Cannon v. Titus, 5 Johns. 355; Wilkes v. Eotchkiss, 5 Johns. 3G0; Bruen v. Adams, 3 Caines, 97; Lusher y. Walton, 1 Caines, 151, note; Siuartivout v. Uoage, 16 Johns. 3. (3) Rule 36. (4) Browndl v. Marsh, 22 Wend. 636; Brovm v. Masten, 2 How. Pr. Rep. 187. (5) Richmond v. Cowles, 2 Hill, 359. (6) Brown v. Tousey, 19 Wend. G17, 619, AFFIDAVIT OF MERITS. 641 being expressly excused." So, an affidavit will be deemed defective, which omits to state that the defendant has fairly stated the case, &;c., although it be averred that he has stated it fully. iX) In regard to that portion of the affidavit which swears to the advice of counsel, it is safer to follow the form as above given, and as uni- formly sanctioned by the court. JEven according to the practice ia England, where an affidavit of merits is only known as connected with a motion to set aside a default or other proceedings regularly taken on the part of the plaintiff, very slight departures have been deemed fatal. Thus, an affidavit merely that the defendant is advised and believes he has a good and meritorious defence^^i^) or that he hath merits, and good cause of defence to this action,{S) or that he is informed and believes, that he has a good, substantial and available defence to tliis action, {^ or that he has merits to defend, or a good defence to the action,{b) has been deemed insufficient to satisfy the condition of a rule requiring the defendant to swear to a good defence on the merits. So, where the affidavit did not clearly show, that the defence was to the particular action in question.(6') It has however been held, that though the affidavit omit to state the defence to be on the merits, yet if it distinctly set forth the facts consti- tuting the defence, it is sufficient.(7) So also, in this state, where the affidavit detailed the facts, and then stated that the defendant had a good and substantial defence, &c., but did not show that he had been so advised by counsel, it was held sufficient, on a motion to set aside a default.(8) None of these cases, however, apply to an affidavit of merits put in to prevent an inquest. And although in respect to them, the court was at one time somewhat liberal, yet of late, great strictness has been required in adhering to the form prescribed by the practice. Thus, it was at one time held that the words, a good and substantial defence, meant a defence on the merits, and that such an affidavit was sufficient.(9) In later cases, however, affidavits of merits have been deemed insuffi- cient, upon much slighter grounds. As, for instance, where the state- ment was thus : " this deponent is advised by his said counsel, that said defendants have a good and substantial defence to said suit, upon the merits, which advice this dej^onent believes to be true."(10) So, in an (1) Bleecher Y. Stonns, 2 How. Pr. Rep. IGl; and see Gary v. Livermore, 2 How. Pr. Rep. 170. (2) Bower v. Kemp, 1 C. & J. 28'7 ; S.C.I Dowl. 0. S. 282. (3) Lane v. Isaacs, 3 Dowl. 0. S. 652. (4) Page v. Smith, 7 Dowl. 0. S. 412. (5) Pringle v. 3farsa/:k, 1 D. & R. 155. (G) Tate v. Bodfield, 3 Dowl. 0. S. 218. (7) Johns v. Nevison, 2 Dowl. 0. S. 260. (8) Wilkes v. Hotchkiss, 5 Johns. 360. (9) Briggs v. Briggs, 3 Johns. Rep. 449, explaining Jackson v. Stiles, 3 Gaines, 93. (10) Brittan v. Peahody, 4 Hill, 61. Vol. I. 81 (JJ.2 AFFIDAVIT OF MERITS. action of debt on bond, an affidavit of tlie defendant tliat he Lad " a good and substantial defence to tJie hond,''^ &c., was deemed insufficient.(l) So, an affidavit \Yas held insufficient wliich stated that the defendant, " bad a good and valid and sufficient defence, &c., to iJie plaintiffs declaration filed in this suit.''\2) So also, an affidavit was held insuffi- cient, which stated that the defendants had a good and substantial defence, &c., to the tvhole or some part of tlte said plaintijf^s demand upon which tlte action is hroiight,^^ &c.(3) And an affidavit was likewise held defective, which stated that the defendant had a " good and substantial defence, &c. to the plaintiffs demand on the promissory note on 'which this action is broitght,^^ &c.(4) As respects the necessity of stating the advice of counsel, it would seem to have been at one time supposed, that where the party making the affidavit was an attorney the advice of counsel need not be stated. (5) But, in a very late case, it has been held, that the advice of an attorney^ is not the advice of counsel, within the meaning of the rule ; and such affidavit might be invalidated by showing that the person who gaye the advice, and who was described as counsel, was an attorney merely, and not a counsellor. {6) Now, however, it would seem to be different, inasmuch as an attorney is also a counsellor.(7) Filing and service of affidavit.'] The affidavit must be filed either with the clerk of the circuit, where the cause is to be tried, and though, in strictness, it should be filed and served on or before the first day of the circuit, yet as a general rule, it is enough if it be filed and served at any time before an inquest is taken. But where its service is delayed until the day on which the inquest may be and is regularly taken, and the plaintiff's attorney, without knowledge of the service of it, takes the inquest on that day, the inquest will be upheld as regular, though in fact taken after the service of the affidavit ; and where an affidavit of merits was served on the second day of the circuit, by leaving it at the office of the plaintiff's attorney, no one being therein at the time, and he took an inquest a few minutes afterwards, but without knowing that the affidavit had been served, it was held that his proceedings were regular. It seems, also, that an affidavit of merits sometimes may, and at other times should be served in a different manner from what is required in relation to other papers. Where it is served at the circuit. (1) Meech v. Calkins, 4 Hill, 534. (2) Iloiue V. Hashrouck, 1 How. Pr. Rep. 68. (3) Chemung Canal Bank v. Supervisors of Chemung, 1 How. Pr. Pep. 162. (4) Mason y. Moore, 2 How. Pr. Rep. 70; See, as to affidavits verifying pleas, ante, 651, 652. (5) Beall v. Dey, 13 "Wend. 513. (6) M Garry v. Hart, 7 Hill, 176; ^S". C. nom. Hart v. M Garry, 1 How. Pr. Rep. 74. (7) Ante, p. 103, 211. TRIAL OR INQUEST AT THE CIRCUIT. 643 and the iDlaintiff 's attorney is not present, it may be delivered to the counsel having charge of the cause ; but if not served at tlie circuit, it must be served in such a way, that it will probably come to the know- ledge of the attorney, in season to enable him to communicate with the counsel, before the inquest is taken.(l) SECTION II. TRIAL OR INQUEST, AT THE CIRCUIT. The cause having been duly noticed and placed upon the calendar for trial, at the circuit,(2) in the county in which the place of trial is laid, the next step is to bring it to trial. If, as has been already seen, no sufficient affidavit of merits have been filed, the plaintiff may take an inquest ;(3) but if such affidavit have been filed, the case will be tried in its regular order on the calendar, unless it be entitled to a priority. These subjects will now be considered. 1. Inquests. 2. Trial of an issue of fact. 1. Inquests. Unless an affidavit of merits be filed and served, the plaintiff ma}'-, at the opening of the court on any day of the circuit after the first, take an inquest in the cause out of its order on the calendar, provided the intention to do so be expressed in the notice of trial. (4) But this right is confined to taking an inquest at the opening of the court in the morning, and previous to the trial of a litigated case ; the object of the rule, in this respect, being, that parties who are desirous to attend the taking of inquests, shall not be obliged to be in constant attendance.(5) The inquest ordinarily consists in the plaintifl^'s proving his demand, and taking a verdict for the amount to which he is entitled. But, for this purpose, he must prove his demand in the same manner in all (1) Brainard v. Ilanford, 6 Hill, 368. (2) As to the circuit courts and sittings, and by whom and how and when held, see ante, p. 21. (3) Ante, 638. (4) Rule, 12. (5) Newcomh v. Johnson, 9 "Wend. 451. 644 INQUESTS. respects, as if an affidavit of merits were filed and the cause defended.(l) And the defendant lias the right to appear upon the inquest.(2) It was at one time supposed, also, that he had the unqualified right to defend the cause ;(3) and in one case, it was said, that all a party loses, who has omitted to file an affidavit of merits, when an inquest is taken against him in a cause, out of its regular order on the calendar, is his right of challenge of the jury, and to produce testimony and examine witnesses on his part ; he is entitled to appear and cross-examine the plaintiff's witnesses, — to object to evidence, to raise objections to the plaintiff's right of recovery, and to take exceptions to the decisions of the judge. And accordingly, where, upon an inquest, the defendant's counsel asked leave to cross-examine the plaintiff's witnesses, and to take exceptions to the proof adduced, but was not permitted by the circuit judge to do so, though he was allowed, as amicus cuince^ to sug- gest his objections to the court, — the inquest was set aside.(4) This rule, however, so far as i^elates to the extent to which the defendant may cross-examine the plaintiff's v/itnesses, has since been qualified, so as to allow him so to cross-examine, only for the purpose of controvert- ing the evidence given to sustain the action, but to prohibit him, under color of this right, from showing, aliunde^ a substantive defence. Thus, where, on an inquest upon a note, the defendant offered to show, by the witness who proved the note, that the suit was prose- cuted by a person who had no interest in the note, for his own benefit, and not for the benefit of the plaintiff, who he also offered to prove had absconded, which the judge at the circuit refused to permit, on the ground that no affidavit of merits had been filed, this court refused to set aside the inquest ; and Marcy^ J., observed : "I am of opinion that the right of a defendant on an inquest does not extend so far as to allow him to introduce a substantive defence, that is, a defence which does not controvert the evidence given on the part of the plaintiff to sustain his action. If the defendant could have shown, by a cross-ex- amination of the witness, that the note had not in fact been made, or made under circumstances which did not render it obligatory upon the maker, he had a right to do so; but he proposed to go further; he offered to show matter in defence. This is not allowed to a defendant when an inquest is taken. He may overthrow, by a cross-examination, what has been testified to by the witness on his direct examination ; but he cannot, by the witness called for the plaintiff, establish a sub- (1) Mott V. Sixth-street Baptist Church, MS., N. T. Superior Court, Feb. 4, 1845. (2) Mirwan v. Ingersol, 3 Cowen, 361. (3) Starkweather v. Car swell, 1 Wend. *l1. (4) Green v. WiUis, 1 Wend. 18. TRIAL OF AN ISSUE OF FACT. 645 stantive defence. The very object of tlic rule, in reference to inquests, is to preclude a defence. If there be a defence, an inquest must be prevented by filing an affidavit of merits."(l) And where, in replevin, the cause was reached in its regular order on the calendar, and the de- fendant refused to appear, — whereupon the plaintiff entered his default, and the cause proceeded, both parties treating it as an inquest ; and during the trial, the defendant's counsel, in cross-examining one of the plaintiff's witnesses, put to him a question which did not go to contro- vert the evidence which had been given by the plaintiff, but went to show a substantive defence, aliunde^ which the judge at the circuit re- fused to permit ; it was held, on a bill of exceptions taken for the ex- clusion of such inquiry, that the defendant had no right to put the question, and that he could not be allowed to change his ground, and claim rights beyond what are incident to an inquest.(2) It is not necessary to empanel a jury in order to take an inquest, unless the defendant appears and claims the right, or refuses to waive a jury trial. By not appearing, a jury trial is waived,(3) and the in- quest may be taken before the court without a jury. It has been held, however,(4) that an inquest cannot be taken by the court without a jury, on the defendant's failing to appear, after the jury have been discharged for the term, 2. Trial of an issue of fact. Calling cause for trial.'] Where an aflEidavit of merits has been regu- larly filed and served, the cause is called for trial in its regular order on the calendar, unless it have a priority either by statute or by the practices of the court ;(5) in the former of which cases, it may be called at any time during the circuit, at the ojjtion of the plaintiff, and in the latter, at such time as the judge (usually with the assent of both par- ties) may designate. Empanelling the jury ?^ The next step is to empanel the jurj', Avhich, together with the subject of challenges, will be considered presently. Opening the cause ; and herein., of the right to begin.] The cause must be opened to the jury (which is usually done, by a brief statement of the issue to be tried, and of the evidence to be adduced) by the counsel for the party who begins the case by evidence. On this subject, it may (1) Hartness v. Boyd, 5 Wend. 563, 564. (2) Kerker v. Carter, 1 Hill, 101. (3) Code, sec. 266, sub. 1. (4) Dickinson v. Kimball, 1 Code Rep. 83. (5) Ante, p. 633. 646 TRIAL OF AN ISSUE OP FACT. be laid down as a general rule, that tlie party wlio lias to maintain the affirmative of the issue must begin. If the affirmative of the issue be on the plaintiff, therefore, he is entitled to begin. Thus, where, on an issue from chancery, to try whether A. B. was at a certain time of sound mind, the plaintiff was held to be entitled to begin, as he affirmed the soundness.(l) So, in replevin, where the defendant avowed for rent, and the plaintiff pleaded in bar an agreement to set off another sum against the rent, and issue was taken on that plea ; the plaintiff was held entitled to begin.(2) So, where, in replevin, there was a cognizance for rent in arrear, to which there were two pleas, the one stating that a certain agreement had been entered into between the landlord and tenant, and that the tenant was subsequently induced by the landlord to enter into another agreement, which second agreement was the demise in the cognizance mentioned, and that this latter agreement had been abandoned by mu- tual consent, before any rent became due, and the other plea was simi- lar, except that it averred that the tenant was induced to enter into the second agreement by fraud ; and there was a replication to the first plea, denying the abandonment, and to the other, denying the fraud ; it was held, that on these pleadings the plaintiff had a right to begin.(3) And if, in replevin, the defendant avowed for rent in arrear, and the plaintiff replied riens in arrear, the plaintiff had to begin. (4) If the affirmative of any one material issue be upon the plaintiff, and he un- dertake to give evidence upon it, he is entitled to begin. (5) The fact of the defendant being under an obligation to admit the plaintiff" 's case, does not preclude the plaintiff from his right to begin. (6) Nor does the admission by the defendant's counsel at the trial of all the facts, the proof of which is on the plaintiff, have that effect.(7) In like manner, if the affirmative of the issue be with the defendant, and there be not a judgment by default as to part,(8) he is to begin.(9) Thus, where the general issue, or common plea in denial, was not pleaded, but issue was joined on a collateral fact, as the execution of a release in assumpsit or debt, the fact of payment in assumimtilQ) or (1) Frank v. Franlc, 2 M. & Rob. 314. (2) Curtis V. Wheeler, 4 Car. & P. 196 ; S. C. I M. & M. 493. (3) Williams v. Thomas, 4 Car. & P. 234. (4) Cooper v. Egginton, 8 Car. & P. 748. (5) Raivlins v. Deshorough, 2 M. & Rob. 328; see also Crij^ps v. Wdls, 1 Car. &. :M. 489. (6) See Thwaites v. Sainshury, 5 Cnr. & P. 69; TurberviUev. Patrick, 4 Car. & P. 557. (7) Pontifex v. Jolly, 9 Car.&P. 202. (8) Wood V. Rug, 1 M. & Rob. 271. (9) Cotton V. James, 1 M. & M. 275 ; /SI G. Z Car. & P. 511 ; Roxdand v. Bernes, 1 C. & K. 46 ; Hogarth v. Peimy, 1 C. & K. 608. (10; Coxhead v. Euish, 7 Car. & P. 63. TRIAL OF AN ISSUE UF FACT. 647 debt^{l) or on a plea of solvit ad diem in debt on bond, (2) the proof of which rested on the defendant, it was held that he was to begin. So, in covenant, if the defendant plead affirmative pleas, he was, in general, entitled to begin. (3) So, he was to begin, in an action of trespass quare clausmnfregit^ or for injuring personal property, where there was a plea of justification only.(4) And where, to a declaration in trespass, the defendant pleaded — as to coming with force and arms, and what- ever else was against the peace, — not guilty, and as to the residue of the trespass, a right of way ; — Bayley, J., held that the defendant should begin, because the first part of the plea was not a general issne, and did not throw the necessity of any proof upon the plaintiff.(5) So, in trespass quare clausum fregit^ where liherum tenementuvi alone was pleaded, the defendant was held entitled to begin. (6) But, in considering which party ought to begin, it is not so much the form of the issue which is to be regarded, as the substance and effect of it; and the judge will take into view, for this purpose, what is the substantial fact to be made out and on whom it lies to make it out. (7) And, it seems, that as a general rule, the party is entitled to begin, who would fail if no evidence were given on either side.(8) Ac- cordingly, where in an action upon a covenant to repair, the breach was, that the defendant did not repair, but suffered the premises to be- come ruinous, &c., and the defendant pleaded that he did repair, and did not suffer the premises to become ruinous, &c., it was held, that on this issue, the plaintiff must begin. (9) To the rules as thus stated, an exception exists in England, which has never been adopted in this state, arising from the resolution of the English judges, that in cases of slander, libel, and other actions for per- sonal injuries, where the plaintiff seeks to recover actual damages of an unascertained amount, he is entitled to begin, although the affirma- (1) Birt V. Ldrjh, 1 C. & K. Gil ; Smart v. Rayntr, 6 Car. & P. '721 ; Richardson v. Fell, 4 Dowl. 0. S. 10. (2) Sandford v. Bunt, 1 Car. & P. 118. (3) Lewis V. Wells, 1 Car. & P. 221 ; and see Reeve v. Underhill, G Car. & P. 773. (4) Ootton V. Jaines, 1 M. & M. 273; S. C. 3 Car. & P. 505; Fish v. Travers, 3 Car. & P. 578 ; Bedell v. Russell, Ry. & M. 293 ; Marris v. Nugent, 7 Car. & P. 572. (5) Hodges y. Holder, 3 Campb. 366 ; Jaclcson v. Heslceth, 2 Stark. Rep. 518. {&) Pearson v. Coles, I M. &. Rob. 206. (7) Soioardv. Leggatt, 7 Car. & P. 613 ; Ridgway v. Ewhank, 2 M. & Rob. 217. (8) Belcher v. M'Intosh, 8 Car. & P. 720 ; Doe v. Roiulands, 9 Car. & P. 734 ; and see Oshorn v. Thompson, 9 Car. & P. 337 ; S. C. 2 M. & Rob. 254; Cooper v. Egginton, 8 Car. & P. 748 ; Hudson v. Brown, 8 Car. & P. 774; Amos v. Hughes, 1 M. & Rob. 464; Birty. Leigh, 1 C. & K. 611 ; Ridgtvay v. Eivlank, 2 M. & Rob. 217. (9) Soward v. Leggatt, 7 Car. & P. 613 ; Doe v. Rowlands, 9 Car. & P. 734 ; Belcher v. M'Intosh, 8 Car. & P. 720. (348 TRIAL OV AN ISSUE OP FACT. tivc of the issue may, in point of form, be with tlie defendant.(l) This resolution, being a mere arbitrary reguhition, is of course of no effect in this state. But it would seem, that independently of, and in cases not coming within it, where the affirmative of the issue is in point of form with the defendant, it is to be left to the judge to decide, in each par- ticular case, whether a substantial question is the assessment of dam- ages ; and if it be, the plaintiff is entitled to begin.(2) Where, upon a question whether the plaintiff or defendant has the right to begin, the judge at the circuit has decided manifestly wrong, the court will grant a new trial.(3) It is proper to remark, also, that all testimony in chief' and especi- ally that which goes to establish any affirmative matter in favor of the party, should, as far us possible, be introduced by the opening of counsel. And, as a brief, perspicuous and pertinent statement of the pleadings, and proofs proposed, by the counsel entitled to begin, is always a very useful step in the conduct of a trial, so, on the other side, any matter in avoidance should properly be opened by the coun- sel, in the same way. And the court may require the latter as well as the former.(4) In England, this rule is enforced, with great strictness, and the courts there, will not in general allow counsel to prove any other case than that stated to the jury -,(5) but it has been held by this court, that a judge has no right to reject evidence offered by the plain- tiff, pertinent to the issue, merely because it is not embraced by the case stated in the opening. (6) On the other hand, the opening of counsel will not be allowed to prejudice his client, nor will the judge take notice of facts stated in such opening. And accordingly, where it was essential, to entitle the defendant to notice of an intention to bring the action, that cattle should have been distrained, Pollock, Ch. B., refused to take that fact from the opening of the opposite counsel, Avho had stated that the cattle were distrained, — observing : "I cannot take the facts from the opening of counsel. The object of an opening is, to give the jury a general notion of what will be given in evidence, so as to enable them to understand the evidence, when it is given. "(7) (1) Carter v. Jones, 6 Car. & P. 64 ; S. C. I U. & Rob. 211 ; 1 Chit. Archb. 8th ed. 369. (2) Hogrjett v. Exley, 9 Car. & P. 324 ; -S. C. 2 M. & Rob. 251. (3) Huckman v. Fernie, 3 M. & "W. 505; Chairman v. Emden, 9 Car. & P. 712 ; Doe v. JRoivlands, 9 Car. & P. 736 ; but see Burwelly. Nicholson, 1 M. & Rob. 304. (4) Cowen & Hill's notes to Phill. Ev. 711. {5)Fatersan v. Zachariah, 1 Stark. Rep. 71; see also, Kirkman v. Davis, 7 Dowl. 0. S. 678; Duncombe v. Daniel, 8 Car. & P. 222. (6) Nearing v. Bell, 5 HiU, 291. (7) Machell v. Ellis, 1 C. & K. 082, 684. TRIAL OF AN ISSUE OF FACT. (349 The evidence.'] The subject of evidence generally, is so wliolly be- yond the scope of the present treatise, as not to admit of even a cur- sory notice of the rules by which it is governed. I propose therefore, only to allude to the practical rules on the subject of the examination and cross-examination of witnesses at the circuit, referring the student, for the principles of the law of evidence, to the elementary works on that subject. In respect to the examination of witnesses, it is provided by the rules of this court, that on the trial of issues of fact, one counsel on each side only shall examine or cross-examine a witness.(i) In con- ducting the examination, the witness is first examined by the party producing him, after which, the other party is at liberty to cross- examine ; whereupon, the party producing him may re-examine. In strictness, also, on the examination in chief, you are bound, at your peril, to ask all material questions in the first instance, and if you omit this, it cannot be done in reply ; nor can any new question be put in reply, unconnected with the subject of the cross-examination, and which does not tend to explain it.(2) The severity of this rule has, however, been much relaxed in this state ; and it has been held by this court, that a witness may be re-examined by the party calling him, even after a cross-examination, as well for the introduction of matter new in itself, as for the purpose of explaining the expressions or mo- tives of the witness, where the omission to examine him as to such new matter, when first called, arose from inadvertence on the part of coun- sel, or other cause to be approved by the court ; and although, as a general rule, this is a matter for the discretion of the judge at the trial, (3) yet, where a re-examination was refused under the circum- stances above stated, this court granted a new trial on that ground.(4) The plaintiff, or party holding the affirmative, having closed his testimony, the counsel for the opposite party opens his case, and pro- duces his testimony, the examination of which is governed by the rules above stated. The plaintiff, if he have any rebutting testimony, then introduces it, and the opposite party in turn adduces testimony in reply, and so on, until the evidence in the case is entirely closed. In this respect, it was formerly the practice in this state, for each party to introduce his evidence in what order he pleased, to rest as often as he saw fit, and to call and recall witnesses until the whole testimony on both sides was exhausted, without regard to any prescribed order, or to the question whether the testimony introduced by the one party, (1) Rule 13. (2) 3 Stark. Ev. 1151, cited in Cowen & Hill's notes to Pliill. Ev. 111. (:!) TJie People v. Mather, 4 Wend. 249. (4) ClarJc v. Vorce, 15 Wend. 193 ; and see the remarks of Savage, Ch. J. p. 196, lOl. 82 050 TRIAL OF AN ISSUE OF FACT. after Lis adversary had rested, was cumulative or rebutting in its character. This court has, however, of late years, adopted the English practice on the subject, namely, that the party holding the affirmative of an issue is bound to introduce in the first instance all the evidence on his side, except what operates merely to answer or qualify the case as sought to be established by his adversary, at which alone the testi- mony in reply must be pointed ; though from this rule, departures may be made, in the discretion of the judge at the circuit.(l) But the party cannot claim such departure, as a matter of right.(2) And it has been said by this court, that though evidence which is merely cumulative, and not strictly rebutting evidence, may be received, in the discretion of the judge, even without any special reason, such a step should be avoided out of regard to its ill effect as a precedent.(3) It follows from the fact that this is a rule of discretion merely, that the court will not in general set aside a verdict or entertain an appeal, in consequence of its exercise.(4:) Though, where the plaintiff on the trial of the cause had announced his intention of resting, and the defendant moved for a nonsuit, whereupon the court recalled and interrogated a witness of the plaintiff, and in doing so drew out a new fact tending against the plain- tiff on the leading point in controversy, it was held, that the court were bound to hear further testimony on the part of the plaintiff in reply, and that, for their refusal to do so, error would lie.(5) It is a general rule also, that a plaintiff who has given evidence in support of his action and rested, will not be permitted, after the defendant has in- troduced his evidence, to change his ground and produce evidence showing a right to recover, variant from that originally given ; but in this respect also, the judge at the trial has a discretion, with which this court will not, as a general rule, interfere, either upon a motion for a new trial or on appeal ; though if the proper order in which the evi- dence should be produced on the trial, and which the pleadings and nature of the controversy plainly indicate, should be violated, and the rights of the parties suffer by reason thereof, this court would no doubt interfere.(6) But a judge has no right to reject evidence offered by the plaintiff, pertinent to the issue, merely because it is not embraced in the opening of the plaintiff's counsel. Thus, where, on a trial for (1) Eastings x. Palmer, 20 Wend. 225; Shepard v. Potter, 4 HiU, 202. (2) Fm-d V. Niles, 1 HiU, 300. (3) Leland v. Bennett, 5 Hill, 286, 289. The English cases on this subject, which are very numerous, and somewhat conflicting, are referred to in the cases above cited, and are fully collected in Cowen & Hill's notes to Phill. Ev. 712-720. (4) Shepard v. Potter, 4 Hill, 202 ; Wright v. Henry, 4 Hill, 205, note. (5) Shepard v. Potter, 4 HiU, 202. (6) Vcv Nelson, Ch. J. in Moiris v. Wadswoiih, 17 Wend. 118, 119 : LeUnd v. Bennett, 5 nm, 286. TRIAL OF AN ISSUE OF FACT. 651 slander, tlie plaintiff's counsel opened by stating, that his client had already obtained one judgment against the defendant, for similar words, and that the object of the present suit was to recover damages for a repetition of them since the former trial ; and the first witness being asked, what he had heard the defendant say of the plaintiff, the circuit judge observed that the answer must be confined to the case presented in the opening ; whereupon the counsel proposed to modify his opening, so as to embrace words spoken since the commencement of the first suit, but hefore the trial thereof, and offered evidence accord- ingly, which the judge refused to admit ; it was held, that his discretion did not extend so far, and a nonsuit granted for the want of evidence coming within the opening, was set aside.(l) The judge at the trial has also a discretion, under certain circumstan- ces, as to the number of witnesses to be examined by the respective parties. Thus, where an equal number of witnesses had been sworn on each side, to impeach and sustain the character of the plaintiff, in an action of slander, and the defendant offered to produce other and further witnesses in impeachment, but the judge refused to hear any farther testimony on the subject, it was held, that he had properly exercised his discretion.(2) He may also, upon his own motion, exclude evidence which is irrelevant, and is not bound, although the opposite party do not object, to hear testimony which can have no legal bearing upon the question to be tried.(o) With regard to closing the examination of witnesses, it is likewise discretionary with the judge at the trial, whether, after the witness is dismissed from the stand, he may be recalled for further examination ; and accordingly, this court refused a new trial, even where a witness was recalled and re-examined after several others, and after a lapse of twenty-four hours after his being dismissed from the stand,(4) This discretion extends, also to later stages of the trial, and may be exercised as well in regard to the re-examination of witnesses already examined, as to the introduction of other witnesses under peculiar circumstances, after the counsel have summed up the cause, and even after the judge has charged the jury. As to the recalling of witnesses already examined, in a case, where a witness was called to prove usury in a note and it was material whether his testimony related expressly to the time of giving the note, or left it open for the jury to infer that it might have related to a time subsequent, and the court in their charge stated it in the latter sense, upon which the defendant's counsel insisted the evidence was misunder- (1) Nearing v. Bell, 5 Hill, 291. (2) Bissell v. Cornell, 24 Wend. 354. (3) Cooper v. Barber, 24 Wend. 105. (4) The People v. Mather, 4 Wend. 249. Q52 TRIAL OP AN ISSUE OF FACT. stood, and proposed to re-examine the witness upon the point which the court refused to do, — this court held such refusal to be erroneous and reversed the judgment.(l) But their judgment was subsequently reversed by the court of errors, upon the ground that it would not have been a proper exercise of discretion in the court below, after the ques- tion had been submitted to the jury, and after it had been seen, that the case turned upon a point, depending on a confession in a particular form, as to the existence of the usury, and which was necessary to make it conclusive evidence to defeat the action, to permit the witness to remould it into that form.(2) And in a later case, it was held by this court, that the refusal of the judge at the trial, to permit a witness to be recalled to re-state his testimony, after the cause has been summed "up and the jury charged, is a matter of discretion appertaining to the judge before whom the trial is had, with the exercise of which a court of review wnll not interfere.(3) As it respects the introduction of new witnesses, after the cause has rested, — it not unfrequeutly happens, that, from the absence of wit- nesses or from other causes where no blame is attributable to the party, counsel are obliged to close the case without having introduced all the evidence material to their side of the issue. In such cases, it is discre- tionary with the judge, whether the testimony shall be re-opened for the purpose of supplying the defect. In some of the earlier cases in this court, while the existence of this discretion was admitted, it was regarded as being entirely subject to their control. Thus, where an application was made for a new trial, because the judge had refused to receive a witness for the defendant, after the counsel had commenced summing up, this court, though they said it was not a matter of strict right with the party, but of discretion in the judge, according to cir- cumstances, went into an examination of the circumstances, and denied a new trial, on the ground that the judge had exercised a due discre- tion.(4) And in another case, where, after the defendant's counsel had •summed up, and while the plaintiff's counsel was summing up, the defendant's counsel discovered some written evidence which he wished to submit to the jury, and which the judge refused ; on an application for a new trial, this court said the evidence offered was material, that the judge had a discretion to admit it, and that it ought, in the exercise of a sound discretion, to have been received, and granted a new trial on that ground.(5) And in a later case, where, after the regular exami- nation of the witnesses vv^as through, and while the defendant's counsel (1) Merrills, v. Law , 9 Cowen, 65. (2) Law v. Merrills, G "^"end. 268. (3) The People v. Rectiyr, 19 Wend. 5Y0, 577, 578. (4) Alexander- v. Byron, 2 Johns. Cas. 313. (5) Mercer v. Sayre, 7 Johns. 306. TRIAL OP AN ISSUE OF FACT. g53 was summing np to the jury, the plaintiff's counsel offered further evi- dence upon a material point, which the judge refused to receive, on the ground that it was too late ; this court seemed to regard their right to review the discretion of the judge, as beyond dispute, but denied a new trial, on the ground that they could not say it was improperly exer- cised.(l) More recently, however, the right to review, on error or bill of exceptions, the exercise of such discretion, seems to have been doubted ; and even where the judge at the trial, had refused to permit the defendant to examine witnesses, who came into court about the time the plaintiff's counsel began to address the jury, this court, though they regarded the request as reasonable, and thought that the judge should have heard the testimony, expressed a doubt whether they would have granted a new trial on that ground.(2) And in later cases, it has been regarded as settled, that the court will not correct the erroneous exercise of such discretion, upon bill of exceptions or writ of error ;(3) and that where a party excepts to a decision of this character, the judge should strike the exception from the bill, before affixing his seal to it.(4) The judge at the trial has also a discretion, to restrict counsel from questioning before the jury, the proof of a fact, which has been assumed during the progress of the trial, where the raising of the question in that stage of the cause, would work injustice, and where the objection could be obviated by recalling the witnesses. Thus, where, on the trial of an action of ejectment, the defendant introduced a deed to show title in himself, but omitted to prove that the deed covered the premises in question, and no objection was taken to the defect of evidence, until the summing up of counsel, and the judge thereupon refused to permit the party to insist upon such defect, it having been taken for granted, in the progress of the trial, that the deed covered the premises, this court held that the judge had a discretion in this respect, with the exercise of which they would not iuterfere.(5) But a judge at the cir- cuit is bound to notice a substantial and material variance between the complaint and the evidence, though the objection be not made till after the defendant's counsel has closed his summing up to the jury, provided it be such as could not not have been obviated by proof (6) The judge at the trial has also a discretion to suspend a trial, after it has been commenced, where a witness who has been duly subpoenaed, either neglects to attend, or leaves court after the commencement of the (1) Jackson v. Tallniadge, 4 Cowen, 450. (2) Leggelty. Boyd, 3 Wend. 376. (3) Barthelemy v. The People, 2 Hill, 249; see also, 27*6 People v. Rector, 19 Wend. 5T0. (4) Rapelye v. Prince, 4 Hill, 119. (5) Dibble v. Rogers, 13 Wend. 536. (6) Mills V. iPCoy, 4 Cowen, 406. 654: TRIAL OF AN ISSUE OF FACT. trial, — until tlie witness can be brouglit in ; but in tliis, as in otlier cases of discretion already referred to, liis decision cannot be reviewed upon exceptions or appeal. (1) It is to be observed also, tliat wliile in all tliese cases of the exercise of a discretionary power on the part of a judge at the trial, his decision cannot be reviewed on appeal or exceptions, yet it has never been decided that it may not be inquired into upon a case. Eeserving for future consideration, the distinction between a exceptions and a case, it is sufficient for the present purpose to remark, that the latter is itself addressed to the sound discretion of the court, and proceeds upon the ground that substantial justice has not been done by the verdict ; and that, therefore, where the exercise of discretion complained of has resulted in injustice, the court would, as in other cases falling within that principle, grant a new trial upon that ground.(2) Summing up^ After the evidence is closed, the next step is the summing up of the cause by the counsel on both sides, unless, as is not unfrequently the case, it is submitted to the jury, under the charge of the court, without summing up. By the rules of this court, two coun- sel only, on each side, shall sum up the cause to the jury, unless the judge who holds the circuit shall otherwise order.(3) There being numerous parties, does not, it would seem, alter the rule that but two counsel are to be heard; a greater number will not be heard, unless there are separate defences. (4) As to the order of summing up, the party who opens, has also the right of closing the case, and the counsel for the other party of course commences the summing up. Where two counsel on each side are heard, the practice is for the counsel to alternate in summing up. The judges charge^ After the cause has been summed up by the counsel on both sides, the judge charges the jury. In doing so, it is his duty to instruct them on the question of law in the case, or on the legal results of the evidence. It is, however, the exclusive province of the jury, to pass upon questions of fact ; and although the judge may advise them, he is not authorized to give them any positive direction, on such questions. Ad quesiiones facti, non respoyuleiit judices ; ad ques- iiones legis non respondent juratores.{5) It is for this reason, that, as will (1) Rapehje v. Prince, 4 Hill, 119. (2) See the observations oi Branson, J., in Rapelye v. Prince, 4 Hill, 123, 124. (3) Rule, 13. (4) Allen v. Seioall, 3 Wend. 335; see also, Cldjwndale v. Ma-son, 4 Campb. lU; Sparlcs V. Barren, 8 Car. & P. 442. (5) Co. Lit. 295. TRIAL OF AN ISSUE OF FACT. 655 be seen liercaftcr, an exception can, only be taken to tlie opinion of the judge, upon a question of law, and that the court will not interfere with the verdict of a jury, on account of the erroneous opinion of the judge, upon matter of fact, where he leaves it to the jury to draw their own conclusions.(l) If, therefore, the judge omit to notice material testi- mony in his charge, (2) or even a question of law, to which his attention was not drawn, the verdict will be allowed to stand.(3) But, if he com- ment upon a piece of testimony given to the jury, and leave it generally to them, to pass upon, without adding such views as to its credibility, as the law requires the jury to consider, the verdict will be set aside ;(4) although, if he instruct them positively upon testimony, which in strict- ness should be left to them, yet where it is plain, that the jury must have come to the same result, a new trial will not be granted.(5) If the jury desire any information upon a question of law, either be- fore they retire or upon their return, it is the duty of the judge to com- municate it. And, it seems, he is bound to inform them, in an action for assault and battery, or the like, where the damages are peculiarly within their province, what amount of damages will carry costs.(6) Other proceedings incident to the cause, between the opening and the ver- dict.'] There are several classes of proceedings, incident to the cause, between the opening and the verdict, which, as they do not constitute a portion of the regular proceedings in the cause, will be merely alluded to here, reserving their consideration for a subsequent part of the work. I refer to matters of defence arising after issue joined, and after the last pleading ; demurrers to evidence ; non-suit ; withdrawing a juror ; dis- regarding variances between the pleadings and proof; allowing, in cases of tort, the issue as to one of the defendants to go to the jury, and a ver- dict of acquittal to be rendered in his favor, before the general submis- sion of the cause, so as to render him a competent witness for his co- defendants; and discharging the jury, without a verdict. The subject of the verdict itself will be considered hereafter. (1) Solarte v. Melville, 1 Man. & R. 198; >S'. C. 1 B. & C. 430. (2) Ex parte Baily, 2 Cowen, 479. (3) Dunlop V. Patterson, 5 Cowen, 243. (4) Dunlop V. Patterson, 5 Cowen, 243. (5) Woodheck v. Keller, 6 Cowen, 118;.aud see Dean v. Uewit, 5 Wend. 267 ; Graham on New Trials, 261-325. (6) Elliott V. Brown, 2 Wend. 497. 656 WHO ARE COMPETENT TO SERVE AS JURORS. SECTION III. , THE JURY. 1. Who are competent to serve as jurors. 2. Callirig and swearing the jury. 3. Challenges. 1. Who are competent to serve as jurors. Qualijicatlons of jurors:] The qualifications of jurors, as pointed out by statute, are, — 1., that tliey be male inhabitants of the town in which they are required to serve ; 2., that they be over twenty-one, and under sixty years of age ; 3., assessed for personal property, belonging to them in their own right, to the amount of two hundred and fifty dollars, or have a freehold estate in real property, in the county, belonging to them in their own right, or in the right of their wives, to the value of one hundred and fifty dollars ; 4., in the possession of their natural faculties, and not infirm or decrepit ; and 5., free from all legal exceptions, of fiiir character, of approved integrity, of sound judgment and well informed.(l) Nor can aliens in any case be jurors ;(2) the provision which at one time ga\e foreigners the right of a jury de medietate linguce^ being now abolished. (3) In the counties of Niagara, Erie, Chatauque, Cattaraugus, Allegany, Genesee, Orleans, Monroe, Livingston, Jefferson, Lewis, St. Lawrence, Steuben, and Franklin, the qualifications, in the third subdivision of the section first above cited, are dispensed with ; and a person who is quali- fied in all other respects, and who shall have been assessed, on the last assessment roll of the town, for land in his possession, which he holds under contract for the purchase thereof, upon which improvements shall have been made, to the value of one hundred and fifty dollars, and who shall own such improvements, shall be deemed qualified to serve as a juror.(-i) Exemptions of jurors:] The court shall discharge any person from serving on a jury, in the following cases : 1., when it shall satisfactorily appear that such person is not, at the time, the owner in his own right, or in the right of his wife, of a freehold estate in real property situated within the county, of the value of one hundred and fifty dollars, and is not the owner of personal property, to the value of two hundred and (1) 2 R. S. 411, sec. 13. (2) 1 R. S. 721, sec. 20. (:;) 2 R. S. 419, sec. 53. (4) 2 R. S. 2d cd. 332, sec. 14. WHO ARE COMPETENT TO SERVE AS JURORS. QfyJ fifty dollars ; and in the counties specified in tlic preceding fourteentli section, that such person is not possessed of the property qualification therein required : 2., when it shall appear that such person is under twenty-one or over sixty years of age ; or that he is not in possession of any of his rational faculties : 3., wlien there is any legal exception against such person : 4., when such person is a non-commissioned officer musician or private, of any uniformed company or troop, and is duly equipped and uniformed, according to law, and shall claim such ex- emption. The evidence of such exemption, shall be the certificate of the commanding of&cer of the company or troop, that the person claim- ing the same is a member of such company, and is duly equipped and uniformed according to law ; such certificate must be dated within three months of the time of presenting the same ; and the signiture must be verified by oath. Every such certificate shall be filed with the clerk of the court to which it shall be offered : 5., when such person is a member of any company of firemen, duly organized according to law : 6., when such person is in the actual employment of an}^ glass, cotton, linen, woollen or iron manufacturing company, by the year, month, or season : 7., when such person is a superintendent, engineer, or collector of any canal authorized by the laws of this state, any portion of which shall be actually constructed and navigated : 8., when such person is a minister of the gospel, or teacher in any college or academy, or when such per- son is, or shall be especially exempted by law from serving on juries.(l) And when the court shall have discharged any juror, for any of the causes in the last section specified, the clerk shall destroy the ballot containing the name of such juror.(2) There are certain matters, however, which only form the ground of temporary exemption ; as, 1., that a person summoned as a juror is a practising physician, and has patients requiring his attention : or, 2. that he is a surrogate, or justice of the peace, or executes any other civil office, the duties of which are, at the time, inconsistent with his at- tendance as a juror : 3., that he is a teacher in any school, actually em- ployed and serving as such : 4., when, for any other reason, the inte- rests of the public, or of the individual juror, will be materially injured by such attendance ; or his own health, or that of any member of his family requires his absence from such court. (3) In these cases, the court is authorized to excuse him, but his name must be returned to the general box of jurors of the town. (4) How punished for non-attendance.'\ The court may im|30se a fine uioon (1) 2 R. S. 415, sec. 33. (2) 2 R. S. 415, sec. 34. (3) Ibid. SCO. 35. (4) Ibid. sec. 35. Vol. I. 83 658 GALLING AND SWEARING THE JURY. any juror neglecting to attend, without reasonable cause, not exceeding twenty-five dollars each day, if he have been personally summoned ;(1) but if he have been only notified by a written summons, he shall be di- rected to show cause at the next county court of the county,and if no sufficient cause be shown, the fine will be directed, and anorder made, which the district attorney is required to prosecute. (2) These provisions, however, do not apply to the city and county of New York ; in relation to which it is provided by statute, that it shall be the duty of the clerks of the several courts of record in the city and county of New York, within twenty days after the adjournment of their respective courts, to deliver a list of the persons upon whom fines shall have been imposed by the said court, for their non-attendance as jurors, togeiiher with the amount of such fine, to the clerk of the court of com- mon pleas, in and for the said city and county of New York.(3) It is, therefore, made the duty of the clerk of the court of common pleas, to deliver to the district attorney of the said city and county, the names of all persons who have been fined for their non-attendance as jurors, and whose fines have not been remitted by the said court of common pleas ; and the said district attorney may proceed to collect the same, by an action of debt to be brought in the said court of common pleas ; and judgments may be entered for the amount of such fine and costs of suit.(4) 2. Calling and swearing the jury. At the opening of the court, the clerk is required to cause the names of the persons returned as jurors to be written on separate pieces of paper, and folded alike as nearly as possible, so that the name be not visible, and deposited in a box.(5) When the cause is called for trial, the clerk shall draw out a sufficient number of ballots to form a jury ;((>) and the first twelve persons drawn who shall appear, shall compose the jury.(7) The ballots containing the names of the persons so sworn, shall be kept in another box, until such jury be discharged ;(8) and after they are discharged, shall be returned into the first box.(9) If a cause come on for trial, while a jury remains empanelled in another cause, the jury shall be drawn from the ballots remaining undrawn ; but in all other cases, all the ballots shall be in the box before a jury (1) 2 R. S. 415, sec. 32. (3) Laws of 1830, p. 399, sec. 52. (5) 2 R. S. 420, sec. 59. (7) Ibid. sec. 61. (9) 2 R. S. 421, sec. 63. (2) 2 R. S. 483-48 V, sec. lG-42. (4) Laws of 1830, p. 399, sec. 52. (6) 2 R. S. 420, sec. 60. (8) Ibid. sec. 62. CALLING AND SWEARING THE JURY. ^59 shall be drawu.(l) Before a jury shall be drawn, the ballots must be shaken, and then drawn out by the clerk, without seeing the names ;(2) and if a juror be absent, or set aside, or excused, his name shall be folded up, and returned to the box of undrawn ballots, as soon as the jury shall be sworn.(3) These provisions are regarded, however, as merely directory to the clerk; and where no abuse or injury to the party is pretended, and no objection made at the time, or where the court see that the party can- not have been prejudiced, the mistake of the oflBcer is not a ground for setting aside the proceedings. Thus, where a motion was made to set aside a verdict, on the ground that the ballots containing the names of the jurors were not folded at all, but were put open into the box, in such a manner as that the names might easily have been seen by any person drawing them ; and on the other hand, the affidavit of the clerk who drew the jury was produced, stating distinctly that he did not see the names of the jurors until they were drawn; this court refused, on the ground above stated, to set aside the verdict.(4) So, also, in a capital case, where, after twenty-eight jurors had been called, eleven of whom were approved and sworn, and seventeen peremptorily chal- lenged, it was discovered that the ballot containing the name of a juror who had answered on the calling of the general panel, was not in the box containing the names of the jurors returned for the court, and which, on search, was found and put into the box, and drawn out of it by direction of the court, and the juror sworn to serve on the jury ; it was held, that the irregularity or neglect of the clerk was not such as to entitle the prisoner to a new trial ; it appearing to the court, that the omission to put the ballot into the box, proceeded from neglect, and not from design. (5) In drawing a jury, if any juror does not appear when drawn, and his name called, he may be refused a place in the box, though he after- wards appear and answer, before a full jury is drawn; or, it seems, he may be received, in the discretion of the court.(6) If any person appear upon the jury, whose name is not in the panel, and be not objected to during the trial, the court will not, on this ac- count, set aside the verdict, as for a mis-trial ; but where the irregular- ity is noticed before verdict, the verdict will be set aside.(7) Nor will (1) 2 R. S. 421, sec. 64. (2) 2 R. S. 421, sec. 66. (3) Ibid. sec. 67. (4) Cole v. Pemy, 6 Cow. 584. (5) The Peo2ole v. Ransom, 7 "Wend. 417 ; see, also, Graham on New Trials, 35-40. (6) The People v. Vermilyea, 1 Cowen, 369. ■ (7) Came y. Nicell, 3 Dowl. 0. S. 115 ; Hill v. Yates, 12 East, 229; Dove7j v. Hobson, 6 Taunt. 460; S. C. 2 Marsh. 154. ggQ CHALLENGES. the court set aside a verdict, on tlie ground of an objection to a juror, wliicli was properly a ground of challenge.(l) Tales:] If, by reason of their being empanelled, or for any other reason, there shall not remain any ballots undrawn, or if, in conse- quence of jurors being set aside, no juror can be obtained from the list of those returned by the sheriff, for the trial of any issue, the court may, as in other cases, order the sheriff, or if he be a party in such issue, some other person to be appointed by the court, to summon jurors from the by-standers, or other persons, who shall be returned and sworn as before directed, and shall be a competent jury for the trial of such issue, notwithstanding there may be none of the panel of jurors returned by the sheriff, upon such jury.(2) If, however, neither party pray a tales, the cause goes off for want of jurors.(3) It was at one time held, that in a special jury cause, the plaintiff could not have a tales, without the consent of the defendant ;(4) but according to the more recent practice, it would seem that he can. (5) 3. Challenges. When a full jury appear,(6) either party may challenge them for cause, — as well the talesmen, as the jurors originally returned. Challenges are of two kinds ; to the array, or to the polls ; and each of these is again subdivided into principal challenges, and challenges to the favor. In this order they will now be considered. To the array?^ A challenge to the array is an objection to all the jurors returned by the sheriff, collectively, (7) not for any defect in them, but for some partiality or default in the sheriff, or his under offi- cer who arrayed the panel.(8) This is either a principal challenge, or a challenge to the favor. At common law, the causes of principal challenge to the array ex- (1) Seacordy. Burling, 1 How. Pr. Rep. IV 5. (2) 2 R. S. 421, sec. 65. This section was introduced, in order to obviate a prevalent idea at the circuits, that in order to have a jury of tales, there must be at least one of the regular jurors. Such is not now the rule, if it ever was so. (2 R. S. 2d ed. 744.) (3) Jenkins v. Parcel, 1 Str. 707; Peelers v. Opie, 2 Saund. 349, note 1. (4) Trustees of the British Museum v. White, 3 Car. & P. 289. (5) Gatliff V. Browne, 2 M. & Rob. 100. (6) See Rex v. Edmonds, 4 B. & Aid. 471. (7) Co. Lit. 156, 158; see also, O'Connell v. Reginam, 11 CI. & Fin. 155: S. C. 9 Lond. Jurist, 25. (8) 3 Bl. Com. 359. CHALLENGES. 661 tended to a great variety of cases, implying necessarily, a bias on the part of the sheriff or returning officer ; as, that the officer, who made the arra}', was of kindred or affinity to either party, within the ninth degree; that one or more of the jury were returned at the nomination of the plaintiff or defendant; that an action of battery was pending at the suit of the plaintiff or defendant against the sheriff, or at the suit of the sheriff against the plaintiff or defendant ; that an action of debt was pending at the suit of the plaintiff or defendant against the sheriff, but not if by the sheriff against the plaintiff or defendant ; that the sheriff or returning officer held land, depending upon the same title with that in litigation between the parties ; that the sheriff, &c. was ■under the distress of the plaintiff or defendant ; that the sheriff", &c. was counsel, attorney,(l) officer, servant, or gossip of either part}^ ; or was an arbitrator in the same matter, and had treated thereof.(2) These grounds of challenge do not appear, however, now to be ap- plicable, in conseqnence of the safeguards interposed by statute, against the possibility of abuse ;(3) and, it is consequently provided, that it shall not be a cause of challenge to any panel or array of jurors in any cause, that the clerk of the county who drew them was a party or in- terested in such cause, or Avas counsel or attorney for, or related to either party therein ;(4) nor shall it be a good cause of challenge to the panel or array of jurors, in any cause, that they were summoned by the sheriff, who was a party or interested in such cause, or related to either party therein, unless it be alleged in such challenge, and be satisfac- torily shown, that some of the jurors drawn by the clerk, were not summoned, and that such omission was intentional. (5) And, in penal actions for the recovery of any sum, it shall not be a good cause of challenge to the jurors summoned, or to any officer summoning them, that such juror or officer is liable to pay taxes in any town or count}-, which may be benefitted by such recovery. (6) Nor is it a cause of challenge to the array, that two sets of jurors are drawn at the same time, from the jury box, for two distinct courts, if they are kept en- tirely separate, and a distinct panel of each is given to the sheriff.(7) Nor that the jurors are drawn more than fourteen days before the sit- ting of the court, at which they are to serve.(8) But where the clerk had given public notice, of less than six days, of his intention to draw a jury for a court of oyer and terminer ; it was held, by Kent^ (Circuit (1) BaylL^ v. Lucas, Cow. 112. (2) Co. Lit. 156. (3) 2 R. S. 413, 4U, sec. 24-30 ; see ante, G33-635. (4) 2 E. S. 420, sec. 56. (5) Ibid. sec. 57. (6) Ibid. sec. 58. (7) Cranev. Bygert, 4 Wend. 675. (8) Ibid. ; see also. The People v. Jeioett, 3 Wend. 314. ^ 662 CHALLENGES. Judge,) to be a good cause of cliallenge to tlie array, on tlie ground that the object of the statute in requiring such notice, was to enable parties interested to attend the drawing of jurors ; and that the party might be deprived of that right, if a strict adherence to the requirement of the statute were departed from.(l) The right of challenge to the array, must also be understood as ap- plying only to common, and not to special juries; for it seems very doubt- ful, whether the array in special jury cases can be challenged.(2) Nor, indeed, are challenges to the array very usual, in common jury cases ; for if their be an objection to the sheriff, you may have the jury sum- moned by the coroner.(3) And although alienage is, in the case of a common juror, a ground of challenge to the polls, yet in the case of a special juror, it must be made when the jury is struck, or it is too late.(4) To the 2^oIk.'] A challenge to the polls, is an exception to one or more of the jurors who have appeared, individually ; and this is either a principal challenge, or a challenge to the favor. The causes of prin- cipal challenge to the polls, may be classed under the following heads. 1. Challenge propter lionoris respectur)i.{b) This is inapplicable here however, being founded on a title of nobility, which, with us, has no esistence.(6) 2. Challenge propter defectum: that the juror is not qualified to serve upon a jury. Thus, that he has not sufficient property, or is not other- wise qualified, as required by statute, in which case he shall be dis- charged, if the court be satisfied of the fact ; (but this does not extend to special jurors ;) that he is an alien, (7) although this cannot be object- ed to a special juryman, after the jury is struck ;(8) that he is within the age of twenty-one ; (9) or that he is an idiot or lunatic ;(10) so if a woman be empanelled, she may be challenged propter defectum sexus^{ll) unless empanelled on the writ de ventre inspicien do. (12) But a matter which merely exempts a man from serving on a jury, and does not in- capacitate him, can never be a cause of challenge. (1) TliePeophY. Bodine, MS., Oy.& Term., Richmond Co., November Term, 1844. (2) Rex V.Johnson, 2 Str. 1000 ; Eexv. Burridge, 1 Str. 593 , S. 0.2 Ld. Raym. 1364. (3) Baylisx. Lucas, Cowp. 112. (4) RexY. Sutton, 8 B. & C. 417 ; Rex v. Despard, 2 Man. & R. 406. (5) Co. Lit. 156; 2 Curvv. Hawk. 572. (6) Const. U. S., art. 1, sec. 9, pi. 7. (7) Co. Lit. 150. (8) Rex V. Despard, 2 Man. & R. 406. (9) Co. Lit. 157. (10) Gibb. C. B. 95. (11) 3 Bl. Com. 362. (12) See Wmouglibie's Case, Cro. EI. 56G. CHALLENGES. 663 If a juror be erroneously named in the panel, and sworn by sucli wrong name, and the error be in the christian name, it amounts only to matter of challenge, and cannot be objected after verdict ;(1) if in the surname, (particularly where the person serving, is not the same that was intended to be summoned,) the court have, in such a case, set aside the verdict.(2) But the king's bench have held, that it was discretion- ary with them to grant a new trial in such case or not ; and that they would not do so unless the mistake, as to the juror, had been produc- tive of some injustice.(3) And where E., the elder was summoned on a special jurj^, and E., the younger was sworn and sat as one of the jury, he not being qualified to sit either on a special or common jury, it was held, that it was discretionary with the court to grant or refuse a new trial ; and it appearing that the clerk of the defendant's attorney was present at the trial, and knew of the mistake, and that the attorney himself did not make afiidavit that he was ignorant of it, the court re- fused a new trial, on that ground.(4) So, where a trial was had, and a verdict rendered, without any objection to any of the jury, and it afterwards appeared that one of the jury was over sixty years of age.(5) this court refused to set aside the verdict on that ground.(6) But where an infant, under the age of twenty-one years, not qualified by propert}^, nor having been in fact summoned, personated his father as a juror, and joined in a verdict of guilty against a person indicted for perjury, it was held, that this was a mis-trial, and in the absence of all fraud or j^ractice on the part of the defendant, a new trial was granted to him.(7) 3. Challenge propter ajfectum ; which is, according to Sir William BlacJcstone^ for suspicion of bias or partiality,(8) This is the most usual of all the forms of challenge given to the parties in a cause, whether civil or criminal, and in the application of the rules by which it is go- verned, has given rise to a greater amount of discussion, and to more diversity of opinion, than perhaps any other branch of the practice. It would be foreign to the purposes of the present work to go into a full discussion of the cases on the subject, which, both in England and the several states of the Union, present a great want of uniformity ; but as the practice respecting it, which has been adopted in this state, has been the theme of much criticism, arising mainly from the fact that it has (1) Wrayy. Thomas, Willes, 488; EHIy Yates, 12 East, 230, a.; 2 Burn, J., 856. (2) Norman v. Beaumont, Willes, 484 ; S. 0. Barnes, 453 ; Dovey v. Hohson, 6 Taunt. 4G0 ; S. G. 2 Marsh. 154; and see BussellY. Ball, Barnes, 455. (3) EiUv. Yates, 12 East, 229; see Tlie People y. Ransom, 1 Wend. 417. (4) Earl of Falmouth v. Roherts, 1 Dowl. N. S. G33 ; >S. C. 9 M. & "W. 469. (5) See ante, 656. (6) Seacordv. Burling, 1 How, Pr. Rep. 1*75. {l)Rexv. Tremaine, T D. & R. 684: Graham on New Trials, 21-24. (8) 3 Bl. Com. 363. 664 CHALLENGES. not been correctly understood, I propose to examine it witli more par- ticularity than would otherwise be necessary. This form of challenge has its origin in the rule, that every man, whether in a civil or criminal case, is entitled to an impartial jury ; a right, which according to Wood- wo)-ih, J., is embraced within the spirit of, though it is not guaranteed in express terms by, the provision of the constitution which declares that the right of trial by jury shall remain inviolate forever.(l) Its object is, to enable either party to avail himself of any objection to an individual juror, on the ground of such bias or partiality as defeats the right just referred to. In reducing its application to practice, it is di- vided into two kinds of challenge ; which differ from each other, ac- cording to the degree of certainty or probability of the existence of bias on the part of the juror. The Ji^-st of these is denominated a,prinapal challenge, and is based upon the allegation of a fact, which carries with it, prima facie, evident marks of suspicion either of malice or favor, and is sufficient of itself to exclude the juror, without leaving anything to the conscience or discretion of triers, or of the court. Where, therefore, the fact alleged as ground for a principal challenge, is found to be true, and is such as to raise a legal presumption of bias, the court has no dis- cretion to admit or reject the juror, but is bound ex dchito justitice, to re- ject him. The second is denominated a challenge to the favor, and is of the same nature with the principal challenge propter affectuvi, but of an inferior degree ; and is to be resorted to, where, though the juror is not so palpably partial as to give cause for a principal challenge, yet there are grounds to suspect that he will act under some undue influ- ence or bias. The causes of this challenge, according to Lord Coke, are infinite ; and where the matter which is alleged, does not, in judgment of law, imply a disqualifying bias, it must be left to the conscience and discretion of the triers, upon hearing the evidence, to find the juror favorable or not. The question for the triers is, whether the juror is, as he assuredly should be, altogether indifferent, and if they find that he is not, it is their duty to reject him.(2) In such cases, the facts re- lied on to sustain the challenge generally consist of slight circumstances, respecting which, the law has not laid down any certain rule, and in regard to which, therefore, the judgment of the triers is conclusive.(3) In regard to principal challenges, if the fact alleged be in itself in- suflBcient, in judgment of law, to establish a disqualifying bias, the op- posite party should demur, and the court will of course, upon such de- (1) Ex parte Vermilyea, 6 Cowen, 562 ; Const, art. 7, sec. 2. (2) The People v. Bodine, 1 Denio, 304, 305 ; Hie People v. Mather. 4 "^A^eud. 329 ; Ryl. Cr. Cir. Comp. 117; 1 Inst. 157, b.; 1 Chit. Cr. Law, 544, 549, 4tli Am. ed. ; 1 Trials per Pais, 195. (3) Ex imrte Vermilyea, 6 Cowen, 557. CHALLENGES. mo murrer, overrule the challenge. If he take issue upon it, and the facts alleged are sufficient and not disputed, the court, as matter of law, must exclude the juror. If however, thej be disputed, the issue upon the challenge, should regularly be tried by triers, as will hereafter be seen, or as some of the cases show, may, by consent, be determined by the court. In either event, if they are found to be true, the court must sustain the challenge and exclude the juror. As to the grounds of principal challenge, it is laid down, that it is a sufficient ground of ex- ception to a juror, that he is of kin to either party, Avithiu the ninth degree.(i) Or that there is affinity, (or relationship by marriage,) be- tween the juror and one of the parties, provided it be a subsisting affi- nity at the time of challenge ; though it is not absolutely necessary that the marriage should remain, the affinity being continued by there being- issue of the marriage.(2) Thus, if the juror's wife be the sister of the wife of either of the parties, the juror is disqualified.(3) But where the juror's father had married the defendant's brother's widow, the father being dead at the time of the trial, it was held, that there was no sub- sisting affinity between the defendant and the juror, which could ope- rate as a principal cause of challenge.(4) The affinity which disquali- fies, however, is defined to be the relation contracted by marriage be- tween a husband and his wife's kindred, and between a wife and her husband's kindred, in contradistinction from consanguinity or relation by blood.(5) And although a husband is related by affinity to all those to whom his wife is related b}^ blood, and on the other hand the wife is of affinity to all her husband's blood relations, yet the consanguinei of the husband are not all related to the consanguinei of the wife ; and hence, where the brother of the juror is the husband of the plaintiff's sister, the juror is competent.(6) In all these cases, however, such facts may be given in evidence in support of a challenge to the favor. So also, it is a ground of principal challenge, that the juror has been an arbitrator on either side, though not if he were chosen indifferently by both parties ; that he has an interest in the cause,(7) that he has taken money for his verdict ; that he has formerly been a juror in the same cause, or upon the same title or matter, though between other parties ; (1) Finch, 401 ; 3 Bl. Com. 303 : 3 Steph. Com. 600; see Onions v. Naish, 7 Price, 263 ; Hewitv. Ferneley, 7 Price, 234. (2) CarmanY. NeweU, 1 Denio, 25 ; Co. Lit. 156, a. ; Mounson v. West, 1 Leon. 88; Cain V. Ingham, 7 Co wen, 479, note, and cases there cited. (3) Foot V. Morgan, 1 Hill, 654. (4) Cain v. Ingham, 7 Cowen, 478. (5) Per Jewett, J., in Carman v. Newell, 1 Denio, 26. (6) Highe v. Leonard, 1 Denio, 186; see ante, 43. (7) Wood V. Stoddard, 2 Johns. Rep. 194. YoL. I. 84 QQQ CHALLENGES. tliat he is counsellor, servant, or of fee of either party ;(1) that he is tenant of either party ;(2) that the juror is godfather to the party's cliild, or the party godfather to the juror's child ; that there are actions pend- ing between the juror and party challenged, which imply malice, ill will, or revenge, as slander, assault and batter}^, or the like.(o) But, that the juror is a fellow servant with a party to the suit, or that a party is tenant to the juror, or that the juror is indebted to the party, or, in an action to which a bank is a party, that the juror has endorsed a note to the bank, is no ground of jjrincipal challenge, but goes to the favor onl3'.(4) It has been said also, by Sir William Blackstone, that it is a cause of principal challenge, that the juror is of the same society or cor- poration with either party ;(5) and in this, he has been followed by all the English writers on the subject.(6) It has been held by this court, however, that it was no cause of principal challenge to a juror, that he was a freemason, where one of the parties to the suit was a freemason and the other was not ; and in delivering the opinion of the court, Sewage, Ch. J., regards the remark of Sir William Blackstone as a dictum, unsustained by authority and unsound in principle, and holds that it is no ground of principal challenge, that the juror and either party are members of the same society or coi^poration.(7) It is a good ground of principal challenge, also, that the juror is a stockholder in a bank which is a party to the suit.(8) But it is not a ground of such challenge, that a jury called in an action by or against an insurance company, is himself an underwriter ; though it ma}^ go to the favor, and might in such case be deemed a sufficient ground of ex- clusion, by the triers ;(9) nor, in an action against a banking company, is it a sufficient reason to exclude the juror on principal challenge, that he is a drawer or endorser of a note in the bank of the defendants ; though it may be shown in support of a challenge to the favor.(lO) And under an act providing for the assessment of damages on the route of a railroad, b}^ " competent and disinterested jurors," to be drawn from the gi'and jury box ; it was held to be no objection to the competency of a juror, that he had been an appraiser of damages upon another railroad (1) Co. Lit. 157. (2) Gibb. C. B. 95. (3) 77(6 Peojjle v. Bodine, 1 Denio, 305; 1 Inst. 157, b. ; 1 Trials per Pais, 188, 194; The Earl of SJirewsburi/s case, Bulstr pt. 1, p. 10. (4) The People v. Bodine, 1 Denio, 305, 306, and cases tliere cited. (5) 3 Bl. Com. 863. (6) 1 Chit. Arclib. 8th ed., 425 ; 3 Steph. Com. 600. (7) Purple V. Ho^-ton, 13 "Weud. 22, 23. (8) Milligan and WelchmarCs case, 6 C. H. Rec. 69. (9) Steinbach v. Colwabian Ins. Co., 2 Caines, 133. (10) Mechanics' and Farimrs' Bank of Albany v. Smith, 19 Johns. 115, 121. CHALLENGES. 667 in tlie same county, or that he was a stockholder in another railroad company, which had long before acquired the lands necessary for its use.(l) Under the rule that very slight grounds of interest are sufficient, on a challenge to a juror, it was at one time held, that in a qui tarn suit, under an act for preventing usury, which gave a moiety of the sum re- covered to the poor of the town where the offence was committed, it was a good cause of challenge against the jury, that they were inhabit- ants of the town ; the court observing: " The relaxation of the rule, as to questions of interest, has never been extended to jurors. They must be omni exceptione majores ; free from every objection and wholly disin- terested."(2) It is now, however, provided by statute, that on the trial of every action in which a town shall be a party or be interested, the electors and inhabitants of such town shall be competent witnesses and jurors: except that in suits and proceedings by and against towns, no inhabitant of either town shall be a juror.(3) So also, on the trial of every action in which a county shall be interested, the electors and in- habitants of such county are competent witnesses and jurors.(4) Nor is an inhabitant of any town, city or county, disqualified as a juror or witness, in any cause brought to recover any penalty or forfeiture is to be applied for the benefit of such town, city or countj^, or for the bene- fit of the poor thereof; nor is any officer, on such ground, disqualified from serving any process for the summoning of a jury in such case.(5) Nor, in penal actions for the recovery of any sura, is it a good cause of challenge to the jurors summoned, or to any officer summoning them, that such juror or officer is liable to pay faxes in any town or county, which may be benefitted by such recovery. (6) The next ground of principal challenge, and by far the most frequent in practice, is the formation or expression of an opinion upon the case, on the part of the juror. The old rule on this subject was, that if the juror had said he would pass with the one party, for the knowledge that he had of the matter and of the truth, he was indifferent ; but if he had said so, for any affection of the party, he was favorable.(7) And, ac- cording to Hawkins, it was allowed a good cause of challenge, that the juror had declared his opinion beforehand, that the party was guilty, or the like; yet, if it should appear that the juror made such declaration from his knowledge of the cause, and not out of any ill will to the party, (1) The People v. The First Judge of Columbia, 2 HQl, 398. (2) Wood V. Stoddard, 2 Johns. Rep. 19i. (3) 1 R. S. 357, sec. 4; see also, ibid. sec. 5. (4) 1 R. S. 384, sec. 2. (5) 2 R. S. 551, sec. 2. (6) 2 R. S. 420, see. 58. (7) 7 H. 6, fol. 25. ggg CHALLENGES. it was no cause of cballenge.(l) And this rule is acted upon in England, to this day ; it having been held by the court of king's bench, in a very modern case, which was much considered, that expressions used by a juryman are not cause of principal challenge, unless they are to be re- ferred to something of personal ill will towards the party challeng- ing.(2) In this state, a much more enlarged and just principle has been acted upon, from the earliest reported case to the present time. Eegarding it as the legal and constitutional right of parties that their cause should be tried by an unbiassed and impartial jury, and applying, as the test of that impartiality, the rule as laid down by Lord Coke, that " the juror must stand indifferent, as he stands unsworn, "(3) this court has gone be- yond the question of the motive of maUce or ill will, and has establish- ed the rule upon a basis, the soundness of which, whatever may be said in regard to the inconvenience of its application in extreme cases, can- not be successfully disputed. In one of the cases on the subject, al- ready cited, Woodworth, J., after adverting to the rule that an impar- tial jury is the right of every man, whether in a civil or criminal case, observes : — " The only question is. as to the application of that princi- ple. Can a juror be impartial or indifferent to the question, who, from a knowledge of the facts, confesses that he has made up his mind, that the accused is guilty ? It is a fallacy, to suppose such a man stands impartial, merely because he has no malice or ill Avill against the de- fendant."(4) Again, he says : — " It seems to be admitted in some of the old cases, that an opinion formed and expressed, is good cause of challenge. Upon what is this founded? On the supposition that it creates a bias. All experience goes to prove the infirmity of hu- man nature is such, that we cannot at pleasure get rid of pre-conceiv- ed opinions. The question is, not how great is the bias, but does any exist? The least is sufficient to exclude. Can the source from wdience it is derived be material? As to the accused, it is the same thing, whether the bias proceeds from a pre-conceived opinion, or malice and ill will ; be it either, he is equally affected. Why then superadd the necessity of malice or ill will ?"(5) These views were expressed by Woodworth, J., upon granting a com- mon law certiorari, to bring up for review a demurrer to a challenge for principal cause, based upon the fact, that a juror had expressed an opinion as to the guilt of the defendants, on an indictment for a con- spiracy. The juror, upon his examination, had testified that he had (1) Hawk. b. 2, ch. 43, sec. 28. (2) Bex v. Edmonds, 4 B. & Aid. 470. (3) Co. Lit. 155, b. (4) Exparte Vermilyea, 6 Cowen, 562, 563, (5) Ibid. p. 563, 564. CHALLENGES. QQQ heard all the evidence given on a former trial of the cause, at which he was present ; that he had made up his opinion perfectly, on the evi- dence, that the defendants were all guilty, and had frequently express- ed his opinion to that effect. Upon being inquired of by the district attorney, he stated that he had no bias or partiality against any of the defendants ; that if the testimony given on this trial should appear as it did on the former, he should certainly find the defendants all guilty ; and added, that he thought he felt competent to give a verdict accord- ing to his oath, and the evidence as it should appear. The court of oyer and terminer, (to review whose decision in this respect, the certio- rari was asked for,) decided that the juror stood indifferent, and that the challenge was not true, and the juror was accordingly sworn, and sat on the trial. The certiorari having been allowed, the case subse- quently came before this court, which, upon full argument and con- sideration, reiterated and enforced the views formerly taken of the mat- ter by Woodworth, J., and granted a new trial ; thus establishing the rule, that a challenge, because the juror has expressed an opinion, is a challenge for principal cause, and need not be accompanied with per- sonal malice or ill Avill towards the party challenging, to render it valid.(l) The same rule, though not so fully considered, had nevertheless been acted upon and applied by this court in previous cases. Thus, in the earliest reported case in this state on the subject, where, in an action before a justice for taking excessive toll on a turnpike road, on the jurors being called, the defendant below objected to one of them, alleg- ing as a cause of challenge, that the juror had previously expressed his opinion that the toll taken by the defendant was unlawful, and not authorized by the act, the truth of which challenge he offered to verify by proof, but the justice overruled the objection, and allowed the juror to be sworn; and a verdict was found for the plaintiff; this court re- versed the judgment, holding that the opinion expressed by the juror disqualified him from acting.(2) In Burell v. Mosher,{8) a juror was objected to on a trial in a justice's court, because he had said, in a con- versation about the controversy, that the defendant was wrong and the plaintiff was right ; but it was also proved that he, at the same time, said, that he had no personal knowledge of the matter in dispute, but that if the reports of the neighbors were correct, the defendant Avas wrong and the plaintiff was right. The justice admitted the juror as competent; and upon certiorari, this court held that he had been pro- perly sworn, for the reason, that he had given no decided opinion on (1) The People v. Vermilyea, 1 Co wen, 108. (2) BMe v. fspaugJi, 1 Johns. Rep. 316. (3) 8 Johns. 445. QfQ CHALLENGES. the merits of tlie cause, and that his declaration was hypothetical, and amounted to more than saying, if the defendant had done an illegal act, let him answer for it ; which was no evidence of partiahty.(l) Down to the period embraced by these cases, therefore, the rule in this state was considered to be, that an expression of an opinion upon a case, adverse to the party challenging, by a person called as a juror, whether proceeding from malice or ill will or not, if it were an absolute opinion, and not hypothetical merely, was a good ground of principal challenge.(2) It remained in doubt, however, whether or not, in order to disqualify the juror, his opinion must have been based, either upon a personal knowledge of the facts, or upon information from those acquainted with the facts; and this doubt was not removed by either of the cases above referred to. On the contrary, it was strengthened by the apparent conflict between two manuscript opinions of Spencer, Ch. J., which are referred to by Woodworth, J., in delivering his opinion in Ex parte Vermihjea.[S) The first of these was Colemaji v. Hagerman, which was an action of an assault and battery of an aggra- vated character, and in which a verdict was rendered for the plaintiff of $4000 damages. A motion was made for a new trial, on the ground that a challenge to one of the jurors had been improperly overruled. It appeared that the juror had made use of language, indicating an opinion that the defendant ought to be exemplarily punished ; but that he was wholly unacquainted with the parties until after the trial, and that the opinions expressed by him were founded on newspaper publica- tions. He swore that he had no bias against or partiality for either of the parties, and personally knew nothing of the assault and battery complained of; yet the court unanimously awarded a new trial, on the ground that he did not stand indifferent, in consequence of the opinions he had expressed. The second was the case of The People v. Van Alstyne, for the murder of one Huddlestone. In that case, the court held, at the trial, and their opinion was approved of by this court, that if a juror had formed or expressed an opinion for or against the priso- ner, on a knowledge of any of the facts attending the murder, or from information from those acquainted with the facts, it was good cause of challenge; but if the opinion of the juror was formed on mere rumors and report, such opinion did not disqualify the juror. In the more recent case, however, of The People v. Mather,(4:) the question as to th54nateriality of the grounds upon which the opinion (1) See per Woodworth, J., in Ex parte Vermilyea, 6 Cowen, 564. (2) See also, Pringk v. Huse, 1 Cowen, 432. (3) G Cowen, 564, 565. (4) 4 Wend. 231. CHALLKNGES. 671 expressed by the juror rested, so far as they affected the competency of the j uror, Avas fully considered ; and it was held, that there is no distinction as to the grounds of the opinion formed by the juror; and that whether it be founded on being an eye-witness, or on hearing the testimony of those who were present at the transaction, or whether it be based on rumors, reports or newspaper publications, it is, in either case, good cause of principal challenge. And, accordingly, in that case, a challenge to a juror for principal cause was sustained, where, in support of the challenge, it appeared that the juror had said that he believed the defendant was guilty, although he testified that he had no fixed opinion upon the subject of the defendant's guilt ; that he only entertained opinions derived from history and common reports, mean- ing thereby, printed statements in papers and reports in conversation ; that he had never heard witnesses to the transaction testify, nor say anything on the subject in question ; if the evidence supported the cir- cumstance he had heard, he had a fixed belief respecting the guilt of the defendant; if those circumstances should be done away by evi- dence, he should not consider him guilty ; if those circumstances should not be proved, his present belief would be removed. Nor is the disqualification of a juror, on principal challenge, confined to the expression of an opinion upon the case, adverse to the party chal- lenging. In the case of The People v. Rathhun,{V) it was held, that the mere forming^ without expressing an opinion, is a cause of principal challenge. As to the degree or strength of the opinion which disqualifies, on principal challenge, — whether merely formed, or in addition to being formed, actually expressed by the juror, — no certain or definite crite- rion can be laid down, beyond that on which this court has proceeded in the cases already cited, namely, that it must not be hypothetical merely, and that it is enough if it be such a one as must be removed, either by the absence of evidence to support, or the presence of evi- dence to refute it ;(2) and that it is no answer to its effect in excluding the juror, that the juror, notwithstanding, considers himself capable of deciding fairly and impartially upon the case. " Too much stress," says Marcy, J., in the case just cited,(3) "ought not to be laid on the juror's declaration, that if the circumstances on which his opinion was founded, should not be supported by the evidence, his opinion of the defendant's guilt would be removed. The disqualifying bias which the law regards, is one which, in a measure, operates unconsciously on (1) 21 Wend. 542. (2) See per Marcy, J., in The Penplc v. Mather, 4 Wend. 244. {?,) Ibid. 244, 245. g72 CHALLENGES. the juryman, and leads him to indulge his own feelings, when he thinks he is influenced entirely by the weight of evidence,(l) If he is sin- cerely determined to discard his prejudices, he is not to be received, because the law does not hold him capable of doing so. 'He will listen,' as Ch. J. Marshall has correctly observed, ' with more favor to that testimony which confirms, than to that which would change his opinion. It is not to be expected, that he will weigh evidence or argu- ment, as fairly as a man whose judgment is uot made up in the case.' " It has been supposed, that the very recent case of The People v. Bodine,{2) has carried the doctrine in relation to the disqualification of a juror, by reason of the formation or expression of an opinion, beyond any of the earlier cases on the subject, and even to the length of decid- ing that a juror was disqualified, if he had formed or expressed any opinion whatever on the subject matter of the suit; and that its effect is to exclude from the jury box, in any case of a character calculated to attract, in a great degree, the attention of the public, all that class of the community, who are in the habit of reading the newspapers of the day. There is, in fact, nothing in the opinion of the court, in that case, which establishes any such doctrine, or which can, by any fair reasoning, lead to such a result. In that case, there was not a single principal challenge, but all the challenges, which the court were called upon to examine, were challenges to the favor. Upon the trial of the cause, the circuit judge had excluded a great variety of questions tend- ing to show the condition of the mind of jurors challenged, in respect to the case of the prisoner, and had, as matter of law, charged the triers, that in order to form such opinion as disqualifies, two things were necessary, — a belief in the truth of the facts upon which the opinion was founded, and a conclusion founded on such belief; — that there were two questions ; first, had the juror then such an opinion, as to the truth of the facts he had read or heard ? second, had he an opinion as to the guilt or innocence of the prisoner? — that a mere faint impression, founded on either personal knowledge of the circumstances, or on a relation of them by those who had such knowledge, or on mere rumor or report, was not such an opinion as disqualified ; that it must be a Jixed and decided opinion, such as it would require evidence to remove. He was then requested, by the prisoner's counsel, to charge the triers, on separate propositions : 1. that the formation of an opinion, as to the guilt or innocence of a prisoner, is conclusive evidence of bias ; 2. and this, though the juror swear he has no bias ; 3. and although he swear the opinion once formed has been removed ; and 4. that an (1) 1 Chit. Cr. Law, 443 ; Bac. Abr. tit. Juries, E. 5. (2) 1 Denio, 281-31G. CHALLENGES. 673 opinion as to guilt or innocence, founded on hearsay or newspaper reports of the circumstances of the case, is such a one as disqualifies, even though the juror formed no belief as to the truth of the hearsay or reports. The judge charged, as requested, on the first three pro- positions, adding the remark, as to each proposition, " if the opinion be such a fixed opinion as I have already described in my charge ;" and he declined to charge as requested in the fourth proposition. The prisoner's counsel requested the judge further to charge the triers, that any im- pression entertained by the juror as to the guilt or innocence of the prisoner, disqualified him from serving as a juror. The judge charged that the law was so, if, by impression^ was meant such an opinion as he had already described, and he refused otherwise to charge. Upon the trial of a challenge to another juror, to the favor, he swore, that he had formed impressions as to the guilt or innocence of the pri- soner, and expressed them, but could not distinctly recollect where or to whom. He said, his mind was not what it would have been, if he had not read what he had read. On his cross-examination, he said it would require strong counteracting testimony, to put his mind back where it was. The judge inquired, from what that state of mind was derived ; and he said it was from what he had heard and read of the statements at the time of the arrest, and from reading some portion of the testimony at the former trial. He said, his impressions were not so strong, as to justify him in acquitting or convicting, on what he then knew. The judge charged the triers, that the last remark of the witness would make him a good juror. After this charge had been given, and before the verdict of the triers, the juror added, in explanation of his testimony, that he had conversed about this matter, in his family, and had no doubt but that he had expressed a decided opinion, but did not then recollect any particular occasion on which he had done so. The prisoner's counsel than requested the court to decide, or to charge the triers, that this last evidence of the juror rendered him incompetent. The judge refused so to charge ; but, on the contrary, charged the triers that it was not sufficient to exclude him.(l) Upon this state of facts, the only questions argued by counsel, and considered by, the court, were, first, whether, on a trial of a challenge to the favor, the questions put to the jurors on their examination as witnesses to prove the challenge, were admissible ; and second, whether upon such a challenge, the test laid down by the circuit judge, as to the character of the opinion which was sufiicient to exclude the juror was correct. On the first question, it was held, that upon a challenge to a juror. (1) The People v. Bodine, 1 Donio, 285-287. Vol. I. 85 674 CHALLENGES. ioT favor ^ any fact or circumstance, from wMcli bias or prejudice may justly be inferred, altbougb weak in degree, is admissible evidence be- fore the triers ; that upon tbe trial of such a challenge, it is erroneous to reject all evidence except such as goes to establish a fixed and abso- lute opinion touching the guilt or innocence of the prisoner ; that a fixed opinion of the guilt or innocence of the prisoner, need not be proved, where the challenge is for favor, but that a less decided opinion may be shown to the triers, who must determine upon its effect ; that a juror challenged for favor, who is examined before the triers, may be asked whether he ever thought the prisoner guilty, or what impressions, state- ments which he had heard or read respecting the evidence, had made upon his mind ; and that an opinion imperfectly formed, or one based upon the supposition that facts are as they have been represented, may be proved before triers upon such a challenge. As to the second point, it was held, as has been already remarked, (1) that the causes of chal- lenge for favor are various, and not subject to precise definition ; and that upon such a challenge, the qnestion is to be submitted as a ques- tion of fact, upon all the evidence, to the conscience and discretion of the triers, whether the juror is indifferent or not. And in delivering the opinion of the court, upon this point, Beardsley, J., observed : "A fixed and absolute opinion may be necessary to sustain a challenge for principal cause ; but not so, where the challenge is for favor. In the first species of challenge, the result is a conclusion of law^ upon ascer- tained facts ; but in the latter, the conclusion is a matter of fact, to be found by the triers. No certain rule can be laid down for their gui- dance. They are sworn to try whether the juror challenged stands in- different ;{^) and this must be determined upon their conscience and discretion, in view of the facts and circumstances in evidence before them. It is competent to prove, that the juror challenged and the op- posite party are in habits of great intimacy ; that they are members of the same society, partners in business, or the like. The feelings of the juror may also be shown, and that whether they amount to positive partiality or ill will, or not ; as his views and opinions also may be, whether mature, absolute or hypothetical. Indeed, any and every fact or circumstance, from which bias, partiality or prejudice may justly be inferred, although very weak in degree, is admissible on this issue ; and the inquiry should by no means be restricted to the isolated question of a fixed and absolute opinion as to the guilt or innocence of the pri- soner."(3) (1) Ante, 664, 665. (2) Gra. Prac. 2d. ed. 307; 1 Trials per Pais, 205; Anonymous, 1 Salk. 152, jjI. 1 ; Bac. Abr. Juries, E. 12, notes. (3) The People v. Bodine, 1 Dcnio, 307, 308. CHALLENGES. 675 Before leaving this brancli of tlie subject of challenges, it is necessary to refer to the case of Rogers v. Rogers,{V) decided by this court, about five years after that of Tlie People v. Mather, before cited, (2) and which is so anomalous in its character, and so entirely at variance with all the cases to which I have referred, and with the whole current of the law as established and practised upon in this state, as to warrant its being wholly disregarded. It was an action of trespass, in a justice's court in Suffolk county, for wasting ashes belonging to the plaintiff", deposited by him within a hundred feet of the defendant's house. The cause was tried by a jury, and one of the jurors was challenged by the defendant, for principal cause, as not indifferent. The juror stated upon oath, that the plaintiff had told him that he had laid down three loads of ashes in the highway against the fence of the defendant, and that the defend- ant threw a part of the ashes into his, the defendant's lot, and the plain- tiff asked him his opinion. That he told the plaintiff, if his story ivas correct, he thought the defendant could he made to pay for the ashes he had de- stroyed; that he himself was road-master, but he should not dare to do such a thing. The justice decided that the juror was indifferent, and he was accordingly sworn to serve as a juror. A verdict was found for the plaintiff, on which the justice rendered judgment. The common pleas of Suffolk, on certiorari, affirmed the judgment of the justice ; and the defendant sued out a writ of error to this court, upon the hearing of which, the judgments of both the courts below were reversed. Sutherland, J., who delivered the opinion of this court, observed : — ■ *' The challenge to the juror was well taken, and should have been al- lowed by the justice. The opinion expressed by the juror was not founded upon a mere loose rumor of the facts, but upon information derived from the party himself, who, of all other persons, may be sup- posed the best acquainted with them. This brings the case precisely within the principle established in Ex parte Vermilyea,{3) and the pre- vious cases there referred to. In BlaJce v. MiUspaugh,{4:) the juror had expressed an opinion, that the act of the defendant for which he was sued was unlawful, and he was held incompetent. In Dwell v. Mo- sher,{5) the juror, at the same time that he expressed his opinion, stated that he had no personal knowledge of the matter, but if the reports of the neighbors were correct, the defendant was wrong and the plaintiff was right. The juror was held to be competent; his opinion was founded upon mere rumor. In Van Alstyne v. Huddlestone,{Q) stated in the case of Vermilyea, Chief Justice Spencer applied the same rule, and (1) 14 Wend. 131. (2) 4 Wend. 229. (3) 6 Cowen, 555; see ante, 668. (4) 1 Johns. Rep. 316; see ante, G69 (5) 8 Johns. 445 ; see ante, 669. (6) Cited ante, 610, nom. The People v. Van Alstyne. 676 CHALLENGES. recognized the distinction taken in Dwell v. Moslier. In tlie case of Vermilyea^ the opinion of the juror was formed and expressed from having heard a previous trial of the same cause ; he was held incom- petent. In The People v. Mather^{}.) the right of challenge was, I think, carried somewhat farther than in the case of Vermilyea ; but the pre- vious cases fully cover this. The juror should have been excluded."(2) This case, it cannot fail to be observed, comes in direct conflict with two principles, which have already been shown to be well settled in this court. In the first place, it alludes to the exploded notion, as if it were still the laAV, that an opinion formed upon personal knowledge or upon information derived from those who have a knowledge of the facts, will alone exclude the juror ; while, as has been seen, it is abundantly established, both by previous and subsequent cases, that it is wholly immaterial, upon what sources of information the opinion is founded, in determining its effect. In the second place, it directly con- flicts with the case of Durell v. Mosher,{S) in excluding a juror, for the expression of a mere hypothetical opinion, and erroneously attributes to the court in that case, the exclusion of the juror, on the ground that " his opinion was founded upon mere rumor ;" while in point of fact, he was excluded because his opinion was hypothetical merely. In that case, the juror had said, that " if the reports of the neighbors were correct, the defendant was wrong and the plaintiff was right ;" — in the present, he had " told the plaintiff, if his story was correct, he thought the defendant could be made to pay for the ashes he had destroyed ;" the opinion in both cases being equally hypothetical, and in fact being almost identical both in language and idea. The fallacy of the opinion of Sutherland, J., in Jhgers v. Rogers, aside, therefore, from its de- parture from the doctrine that the foundation or source of the opinion is immaterial, is plainly this, that it assumes the declaration of the juror to amount to an expression of opinion, whereas, in no sense can it be regarded as such, consistently with the doctrine that a merely hypothetical opinion is no opinion at all. As it respects the mode of proof by Avhich the challenge is to be sus- tained, whether it be for principal cause or to the favor merely, it is of course competent for the party challenging to introduce any testimony in itself legally admissible, for the purpose of maintaining the issue. The only question on this subject, upon which a contrariety of opinion has existed, is as to the competency of the juror challenged, as a wit- ness to support the challenge. The rule has always been well settled, that he may be called to testify to any matters not tending to his own (1) 4 Wend. 229; see ante, 670. (2) Rogers v. Rogers, 14 Wend. 131-133. (3) 8 Johns. 445 ; see ante, 669, 675. CHALLENGES. 677 dishonor. Thus, tie may be called to show his interest in the smt.(l) It was at one time held, however, that he could not be called to prove the fact of the expression of an opinion upon the case.(2) This rule, however, was based upon the principle already referred to, and which has been shown no longer to exist in this state,(3) that such opinion did not disqualify him, unless it proceeded from or evidenced malice or ill will towards the party challenging, Now, however, the reason of the rule ceasing, (namely that the juror was, in that view of the matter, called to testify to his own dishonor,) the rule itself has ceased ; and the juror himself may be called as a witness to prove either a prin- cipal challenge or a challenge to the favor, founded upon the fact of the formation or expression of an opinion. (4) 4. Challenge propter delictum ; when, for some act of the juror, he has ceased to be, in consideration of law, pi'obus et legalis hovio. Thus, that he has been convicted of treason, felony, &c., or has received judgment for any crime which is infamous.(5) The juror himself cannot, of course, (for the reason that he will not be permitted to be examined, as to a matter tending to his dishonor,) be examined as a witness, in support of this challenge, and parol evidence is inadmissible to sustain it.(6) It is necessary to prove the record of the judgment, as well as of the conviction ; and it would seem, that even the admission of the juror would not suffice.(7) Challenges, when ayid how to he made.'] No challenge, either to the array or to the polls, can be made, before a full jury have appeared.(8) It is immaterial which party challenges first ; but the party who be- gins to challenge must finish all his challenges, before the other begins ; otherwise he is precluded from making any further challenges. And the challenges of the party who challenged first, shall be first tried.(9) The challenge to the polls is made ore tonus ; and it is not, in gene- ral, required that the party challenging shall immediately declare his cause of challenge, unless there be not a sufficient number of jurors re- (1) Meclianics and Farmers'' Bank of Albany, v. Smith, 19 Johns. 115. (2) Rex V. Edmonds, 4 B. & Aid. 470. (3) Ante, GQl, 663. (4) Fringlev. lime, 1 Cowen, 432 ; The People v. Vermilyea, T Cowen, 108; The People y. Mather, 4 Wend. 229 ; The People v. Rathhun, 21 Wend. 509 ; The People v. Bodine, 1 Denio, 281. (5) Note to Pringle v. Euse, 1 Cowen, 438. As to whether petit larceny is an infamous crime within this rule, see Carpeyiter v. Nixon, 5 Hill, 260 ; Ward V. The People, 3 Hill, 395 ; S. C, in error, 6 Hill, 144. (6) Hilts V. Golvin, 14 Johns. 182. (7) The People v. Whipple, 9 Cowen, 708, 709. (8) Ante, 661. (9) Trials per Pais, 144. (378 CHALLENGES. maining on tlie panel, or tliat the other side cliallenge touts j)aravail{l) But if the juror were formerly sworn in the same cause, and be now challenged, (in which case the cause of challenge must have arisen since the juror was before sworn,) or if, after a challenge to the array is tried and overruled, the party challenge to the polls, the party must declare his cause of challenge presently. If a juror be challenged, and the challenge tried and overruled, he may still be challenged by the opposite party.(2) The challenge to the array must be in writing. It may be in the following form : " A7id now at this day, to loit on , come as well the aforesaid J. S., as the aforesaid J. N'., by their respective attorneys ; and the jurors of the jury empanelled, heing summoned, also come; and hereupon the said J. N. chalhngeth the array of the said panel, because he saith, that,''^ [here set forth the matter of challenge, with certainty and precision.] ^' And this lie is ready to verify. Wherefore lie prayeth judgment, and that the said panel he qiiashedr Iloia tried.] As to challenges to the array, it lies entirely in the dis- cretion of the court, how they shall be tried ; sometimes they are tried by two of the coroners, sometimes by two of the jur3^(3) If the chal- lenge, however, be a principal challenge, it may be tried by the court itself, without the aid or intervention of triers. If the array be quashed as to the sheriff, a new venire shall be awarded to the coroner ; if quashed as to the coroner, then the venire is awarded to persons appointed by the court for that particular pur- pose, called elisors, to whose array no challenge is allowed.(4) If the array be not quashed, the party may then make his challenges to the polls. If the challenge to the polls be to the favor, it is thus tried ; if two jurors have been already called, and take the box without challenge, they shall try the challenge ; if not, the court appoint two indifferent persons to try it, and who are thence named triers. If the triers try one juror, and he be found indifferent, he and the two triers shall try the next.(5) And when two jurors shall be sworn upon the jurj-, they become triers in the case of all subsequent challenges, and supersede the persons previously sworn as triers.(6) The following oath is pre- viously administered to those who try the challenge: "You shall well and truly try, whether A. B., (the juror challenged,) stands indifferent between the parties to this issue : so help you God."(7) More than (1) Trials per Pais, 143. (2) Co. Lit. 158. (3) 2 Hale, P. C. 275. (4) Co. Lit. 158. (5) Co. Lit. 158. (6) 1 Bl. Com. 3G3. (7) Anonymous, 1 Salk. 152. CHALLENGES. g79 two triers, or two jurors, cannot be sworn to try a cliallenge, except in the single case before mentioned. It is sometimes the case, that the parties consent, upon a challenge for principal cause, where a question of fact is involved, ujoon which triers may be demanded, to substitute the court in the place of triers, to try the challenge. Where such is the case, the consent thus given cannot afterwards be revoked, and a demand made that the challenge be passed upon by triers, especially after the challenge has been passed upon by the court.(l) If the challenge be for principal cause, it may, as has already been seen, be demurred to, or issue in fact taken upon it.(2) Where the facts are admitted and referred to the court, this is in substance a de- murrer, and should be entered on the record as such ;(3) and as such may be reviewed on appeal. (4) Where, however, the challenge, whether a principal one or to the favor, is tried by triers, exceptions may be taken to any decision of the court, either in admitting or overruling evidence, or in charging the triers.(5) And exceptions lie, also, where triers may rightfully be demanded, and are refused. (6) Where the triers find against law or evidence, it would seem, also, that their verdict may be reviewed, upon a case, in the same manner as a verdict upon the principal issue in the cause. (7) After the challenge is decided, if the juror be found indifferent, he is immediately sworn on the jury; if otherwise, he is desired to quit the jury box, and the ofiicer proceeds to swear the next juror if not challenged. If a juror be challenged and rejected, he cannot after- wards be sworn as a talesman.(8) Peremptory challenge^ In addition to the other grounds of challenge to which I have just adverted, namely, challenges to the array or for favor, &c., it is now provided by statute,(9) that upon the trials of any issue or issues of fact, joined in a civil action, each party shall be en- titled peremptorily to challenge two of the persons drawn as jurors for such trials ; that is, each party may require two of the jurors drawn to stand aside without assigning any reason, and the court is bound to allow it. As to the time when the peremptory challenges must be made, (1) The People v. RathbwK 21 Wend. 509, 641, 542. (2) Ex parte Vermilyea, 6 Cowen, 555. (3) Ibid. (4) The People v. Vermilyea, 7 Cowcn, 108. (5) Tlie People v. Ratlibun, 21 Wend. 509; The People v. Bodine, 1 Deuio, 282. (6) Tlie People v. Rathhun, 21 Wend. 509. (7) See Mechanics and Farmers^ Bank of Alhang v. Smith, 19 Johns. 115. (8) Parker Y. Thornton, 2 Ld. Raym. 1410; S. C. nom. Parkers. Thornton, 1 Str. 640. (9) Laws 1841, chap. 134, p. 130, sec. 1. 680 VERDICT. there does not seem to be any fixed rule, each judge adopting a prac- tice in accordance with his own views. Some judges require the per- emptory challenge to be made when the jury is called, and before he takes his seat at the box; while others allow the challenges to be made after the panel is full and before the trial is commenced. The latter, as far as my observation has gone, seems to be the most general practice. SECTION lY. VERDICT. After the cause has been submitted to the jury, they either return their verdict without retiring from the bar, or they retire in charge of an of&cer, who is sworn to keep them together until they agree upon a verdict or are discharged by the court. In case of their agreement without retiring, or delivering their verdict after their return, it was formerly necessary that the plaintiff should be called, so that he might either answer and receive the verdict, or, at his option, submit to a non-suit ; and if a verdict were received in either case, without calling the plaintiff, or without his express assent, it was a sufficient ground for setting it aside.(l) It is now provided, however, by the rules of this court, that it shall not be necessary to call the plaintiff when the jury return to the bar to deliver their verdict ; and the plaintiff shall have no right to submit to a non-suit, after the j ury have gone from the bar to consider of their verdict. (2) The only case, therefore, in which the plaintift' can submit to a non-suit, is where he does so before the jury retire. The verdict is either general, or special ; — general, where the jury, pronounce generally upon all the issues either in favor of the plaintiff or defendant, (3) and special, where they find the facts only, and leave the judgment to the court.(4:) The jury may, in all cases, unless with- drawn from them, by the consent of the parties, and a special verdict be agreed upon, or the plaintiff be non-suit, find a general verdict ; but they cannot be compelled to do so, but may if they choose, find a spe- cial verdict ;(5) but in no case, can the judge insist on taking a verdict, subject to the opinion of the court, unless both parties consent.(6) (1) The People Y. The Mayor's Court of Albany, 1 Wend. 36; Galey. Eoysradt, I How. Tr. Rep. 72; Baumv. Tarpenny, 3 Hill, 75. (2) Rule 23. (3) Code, sec. 260. (4) Code, sec. 200. (5) Code, sec. 261, (6) Ilydev. Stone, 9 Cowen, 230. GENERAL VERDICT. 681 This subject will bo considered under tlie following lieads : — 1. General verdict. 2. Special verdict. 8. Damages. 4. Polling the jury ^ and recording the verdict. 1. General verdict. "When the jury have agreed upon their verdict, whether they have retired or not, they are asked by the clerk, if they have so agreed, and if so, for whom they find. The foreman of the jury, in the presence and hearing of the remainder of the jurors,(l) then pronounces the verdict. If it be a general one, it is in the following form : " xoe find for the plaintiff [one thousand] dollars damages, and six cents costs ;" or if for the defendant then merely, ^'■wefindfi)r the defendant^ If there be several causes of action in the complaint, and they find for the plaintiff on some, and for the defendant on others, the verdict is then given thus : " ive find for the plaintiff on the [first, second and fourth] issues, [one thou- sand dollars damages, and six cents costs; audfor the defendant on the [third, fifth and sixth] issues.'" In actions for the recovery of specific personal property, if the pro- perty has not been delivered to the plaintiff, or the defendant, by his answer, claims a return thereof, the jury must assess the value of the propert}^, if their verdict be in favor of the plaintiff, or if they find in favor of the defendant, and that he is entitled to a return thereof The jury may at the same time, assess the damages, if any are claimed in the complaint or answer, which the prevailing party has sustained, by reason of the detention or taking and withholding such property. (2) A verdict must comprehend the whole issue or issues submitted to the jury ; otherwise, the judgment founded on it may be re versed. (3) And where a jury found not guilty as to part, and gave no verdict as to the rest, the judgment was reversed. (4) So, in replevin, where a plea of 2'>i'operty was interposed, as well as a plea of non cepit, a verdict for the plaintiff upon the latter plea, it was held determined nothing between the parties, except the taking ; and the plaintiff is not entitled to recover, unless the other issue be also found for him. And where the jury found for the plaintiff, on the plea oi non cepit, but assessed no damages, and on the plea of property, found that it was not in the de- fendant, but did not find it in the plaintiff", — it was held, that the ver- dict was defective in substance, and that the court was not authorized (1) See Rex v. Wooller, 2 Stark. Rep. 111. (2) Code, sec. 261, 262. (3) Miller v. Trette, 1 Ld. Raym. 324. (4) CaUh V. Andrews, 3 Salk. 372. Vol, I. 86 682 GENERAL VERDICT. to amend it, by adding nominal damages to the finding of the jury.(l) So, where, besides the plea of non ce]>it^ in an action of replevin, the defendant pleaded property in a third person and prayed a return ; and it appeared from the record brought up on a writ of error, that the jury had passed only upon the plea of non cepit, finding a verdict there- on for the plaintiff, but had omitted to pass upon the plea of property, the judgment below was reversed, although, from the bill of exceptions attached to the record, it appeared that all the issues were found for the plaintifi".(2) The reason of the rule just referred to, is, that the finding of the jury on the one issue, does not necessarily include a finding upon the other ; but wherever it does so, or wherever the matter of the plea not found could have been given in evidence under the other, the verdict will not be deemed defective. Thus, where, in an action of assault and battery, the defendant pleaded not guilty and son assault demesne, upon which issue was joined ; and upon the trial, the jury found the defend- ant generally guilty, but gave no verdict particularly on the other issue and judgment was entered upon such finding ; upon writ of error, the king's bench affirmed the judgment, and said, that where the intention of the jury is manifest and beyond doubt, the court will set right matters of form and the mere act of the clerk ; and that though the verdict may not conclude formally and punctually in the words of the issue, yet if the point in issue can be concluded from the finding of the jury, the court will work the verdict into form and make it serve.(3) So, also, in assicmpsit, where non-assumpsit and payment were pleaded, and the jury passed upon the first plea, finding a verdict for the plaintiff, it was held error would not lie for the omission to pass upon the second ; the verdict being merely informal, not defective in substance, for the reason, that payment might have been given in evidence under the ge- neral issue, as well as under the special plea ; and if it was proved, the jury could not have found for the plaintiff on non-assumpsit.{^) When a verdict is found for the plaintiff, in an action for the recovery of money, or for the defendant, when a set-off or counter-claim for the re- covery of money is established, beyond the amount of the plaintiff's claim as established, the jury must also assess the amount of the recovery ; they may also, under the direction "of the court, assess the amount of the recovery when the court give judgment for the plaintiff on the answer. If a set-off or counter-claim, established at the trial, exceed the plaintiff 's (1) Bemusv. BeeJcman, 3 Wend. 661 ; see also, ThonqJsonY. Button, 14 Johns. 84. (2) Boynton v. Page, 13 Wend. 425. (3) Eaivkesv. Crqfton, 2 Burr. 698; see also, Thompson r. Button, 14 Johns. 86; Hodges y. JRaymond, 9 Mass. 316. {i)Laiu V. Merrills, 6 Wend. 268; iran7ia v. Mills, 21 Wend. 90; see also, BocJcfeller v. Donnelly, 8 Cowen, 623. SPECIAL VERDICT. ggS demand so establislied, judgment for tlic defendant must be given for the excess ; or if it aj^pear that the defendant is entitled to any other affirm- ative relief, judgment must be given, accordingly.(l) Sealed verdict'] Where the jury do not agree upon their verdict, before the adjournment of the court for the day, it is customary for the judge to direct them to seal their verdict, when they shall have agreed, and to appear and render it at the next meeting of the court ; the effect of which is that they may separate after thus sealing their verdict. Whether this permission may be given to the jury, without the assent of the parties, does not appear to have been decided ; but it has been held, that where the judge directs the jury to bring in a sealed verdict, and gives them permission to separate after agreeing on the same, if no objection be made by the parties, to such direction, they will be deemed to have assented to it. And even if no such assent be given, either express or implied, the separation of the jury, either with or without the permission of the court, before rendering their verdict, would not, of itself, warrant the court in setting it aside.(2) If the verdict be sealed, it must, as in all other cases, be delivered in open court, to render it valid.(3) After a sealed verdict, the jury may, as will presently be seen,(4) be polled, or either of them may dissent from the verdict, as in ordinary cases. 2. Special verdict A special verdict is, as the term imports, where the jury instead of finding a general verdict for the plaintiff or defendant, either by the consent of parties, or in the exercise of a right conferred upon them in this respect, as has been seen, by statute,(5) find a verdict specially stating the facts of the case, as they have agreed that they exist, refer- ring the conclusions of law upon them to the court. The definition of a special verdict, as given by this court in a number of cases, is that it must present a statement of the facts as established, and not merely the evidence to prove them, and that they must be so presented, as that nothing remains for the court, but to draw conclusions of law upon them ; and that wdiere a special verdict finds the evidence of facts merely, a new trial will be ordered ; the court not being at liberty to 'intend any fact which is not distinctly found, and consequently being (1) Code, sec. 263. (2) Douglass v. Tousey, 2 Wend. 3"5 ; Tfie People v. Douglass, 4 Co wen, 26. (3) Blackley v. Sheldon, 1 Johns. 32 ; Boot v. Sherwood, 6 Johns. 68. (4) Post, subd. 4, of this section. (5) Code, sec. 261. 684 SPECIAL VERDICT. tmable to give judgment upon it.(l) Though, it would seem, that if a special verdict, on a mixed question of law and fact, find facts from which the court can draw clear conclusions, it is no objection to the verdict, that the jury have not themselves drawn such conclusions, and stated them as facts in the case.(2) So, it must not state exceptions to the competency of witnesses, or to the admissibility of testimony ; those being available onlj^ on exceptions or case.(3) And in setting forth deeds, according to the English practice, they should be set out not in luec verba, but merely the substance of them stated, unless the question in dispute rest upon their construction. (4) Yet, if the verdict state the contents of a deed, and also set out the deed in Jicec verba, the court will not regard the collection the jury have made of the substance of the deed, but the deed itself as set forth. (5) Also, a negative need not be found in a special verdict, unless when necessary to show that some matter therein mentioned, does not come within a particular excep- tion. (6) And matter not within the issue, as that an affidavit verifying the answer had not been filed will be rejected as surplusage ;(7) and a special verdict, finding that the defendant does not appear, or offer any evidence in support of his answer, is a nullity.(8) The facts found by a special verdict, must be within the issue in the cause, and such as are available under it ; and in testing the effect of such facts upon the rights of the defendant, the question is not whether the facts found may not constitute a ground of defence, if properly before the court, but whether or not, upon the whole record, the par- ticular defence set up has been maintained, or in the case of either the plaintiff or defendant, the particular issue established. Thus, where a plaintiff" in replevin, to an avowry for rent, pleaded a tortious eviction by the landlord, and it was found by the special verdict, that the land- lord had entered, by virtue of summary proceedings under the landlord and tenant act, for the non-payment of rent — it was held, that although that fact might have constituted a defence, if properly pleaded, yet it could not avail the defendant, upon his plea of eviction ; and the Ian d- (1) Jenks V. Ealktt, 1 Gaines, 60 ; Seward v. Jackson^ 8 Cowen, 409 ; The People v. TJiomp- son, 21 Wend. 235, 253 ; The People v. The Hillsdale and Chatham Turnpike Road Co., 23 Wend. 254, 259; Fuller v. Van Geesen, 4 Hill, 171, 174; Birckhead t. Brown, 5 Hill, 645, 646 ; Bird v. Appleton, 1 East, 111 ; S. C. 8 T. R. 562 ; Hubbard v. Johnstone, 3 Taunt. 209 ; Tubin V. Murison, (Priv. Coun., June 17, 1845,) 9 Lond. Jurist. 907. (2) Monkhouse v. Hay, 8 Price, 256 ; S. C. 8 Cowen, 424, note. (3) Powell y. Waters, 8 Cowen, 669 ; Welland Canal Co. v. Hathaway, 8 Wend. 480. (4) 1 Chit. Archb. 8th ed. 439. (5) Eowe V. Huntington, Vaugh. 77. (6) Mayor of Nottingham v. Lambert, Willes, 117. (7) Richmond v. Tallmadge, 16 Johns. 307. (8) Mirwan v. Ingersoll, 3 Cowen, 367. SPECIAL VERDICT. 685 lord was held, under such, a finding, to be entitled to judgment non obstante veredicto. {1) A special verdict, also, like a general one,(2) must cover all tlie mat- ters in issue, and must find one way or the other upon them all. And, accordingly, where, in a writ of nuisance, the plaintifis counted, for that the defendant had wrongfully erected and enlarged divers, to wit, three dams, three flumes, and three obstructions of great height, and the jury found a special verdict, setting forth that the defendant had raised the height of one dam^ but saying nothing as to the other alleged nuisances, the verdict was held defective, and this court, on the ground of a mis-trial, ordered a venire de novo.{S) In settling the special verdict, it is not necessary that it be drawn up in form at the trial, but merely that the counsel make a minute of the facts found specially by the jury, and deliver it to the judge, or that the judge himself note the points, as he may elect; and then that the special verdict be afterwards drawn up, amended and settled, within such times and under the same regulations, as are made with respect to cases ;(4) as to which, as well as to the subject of turning cases into special verdicts, I shall speak hereafter. A special verdict cannot be found, except in actions for the recovery of money only or specific real property, or where the court shall direct a special verdict to be found.(5) Where a verdict is found for the plaintiff, in an action for the reco- very of money only, the jury must also assess the amount of the reco- very.(6) Where the jury find a special verdict, it must be reduced to writing and must specifically find the facts to be as stated in the verdict. The jury may also, under the instructions of the justice, render a general verdict, and also a special verdict upon particular questions of fact. Where a special finding of facts is inconsistent with the general ver diet, the former will control the latter, and the court will give judgment accordingly. (7) Verdict subject to the opinion of the court.] A method of finding a spe- cies of special verdict, at one time much in use, is, when the jury find a general verdict for the plaintiff, subject to the opinion of the court upon the whole case. This practice was, however, much disapproved of by the court, as it tended to draw in question mere matters of fact. (1) M'Carty v. Haclsons, 24 Wend. 291. (2) Ante, 681. (3) Kintz V. M^Neal, 1 Denio, 436, 438, and the cases there cited; see also, Sanders v. Vanzeller, 4 A. & E., N. S., 260; S. C. 2 G. & D. 214; Tancred v. Cristy, 12 M. & W. 316. (4) Rule 15. (5) Code, sec. 261. (6) Code, sec. 262. (T) Code, sec. 262. 686 SPECIAL VERDICT. before tlie court ;(1) and they had accordingly provided, by the rules of this court that the practice of taking a general verdict, subject to the opinion of the court, on a case containing all the evidence given on the trial, was thereby abrogated ; and that no verdicts should thereafter be taken, subject to the opinion of the Supreme Court, except where the parties should agree on the facts proved, or where such facts should be found by the jury. And in such case, it was the duty of the party, in whose favor the verdict shall be taken, to prepare the case. This rule, as its terms import, requires as much fullness and certainty respecting the facts, in the case which is to be made, as is requisite in a special verdict ; and it must, as in a special verdict, state the fads, and not the mere evidence of them.(2) And where, by consent of parties, a general verdict was taken at the circuit, subject to the opinion of the court as to certain questions raised at the trial, and the facts were neither agreed on by the parties nor found by the jury, the court ordered a new trial, because of the omission. (3) Where, on the trial of a cause, a party takes exceptions to the ruling of the jadge, he may make a case subject to be turned into exceptions ; so, also, Avith respect to a special verdict, provided he ask leave of the judge at the trial to do so 5 and such leave cannot be denied, when it is requested at the trial. (4) But unless it be so requested, it will not be granted afterwards, on motion. (5) As respects the form of exceptions or special verdict, under such circumstances, it is provided by the rules of this court, that when a case shall be made, with a stipulation giving to either party the right to turn the same into exceptions, the j)oints of law decided at the circuit shall be distinctly stated in the case, substantially in the same form as is required in exceptions ; and when a case shall be made, with liberty to either party to turn the same into a special verdict, all disputed facts shall be found hy the jury.(6) The practice on this sub- ject, will be fully considered hereafter. Submitting distinct questions of fact to the jury icliere a gene:ixd verdict is rendered.^ The practice has recently been introduced in this state, of the judge submitting distinct propositions of fact to the jury, where a special verdict is not to be formallj'^ found ; and in a recent case, where that course was objected to by the party against whom the verdict was (1) HvMardv. The Bank of Chenango, 8 Cowen, 88; see Seward v. Jackson, 8 Cowen, 406. (2) Banyer v. Ellice, 1 Hill, 23 ; Cole v. Hall, 2 Hill, 625. (3) Banyer v. Ellice, 1 Hill, 23. (4) Root v King, 8 Cowen, 125. (5) Woolsey v. Camp, 3 Cowen, 358; see also, Law v. Jackson, 8 Cowen, 747. (6) Rule 18. As to turning exceptions, after argument and judgment upon it, in this court, into a special vsrdict, for the purpose of bringing an appeal, see Champlin v. Rowley, 18 Wend. 1S7, 197, DAMAGES. 687 found, it was considered by this court, and the practice approved ; Nelson^ Ch. J., observing : — " The course the judge took on the trial, in submitting certain questions to the jury, with a view to avoid the ne- cessity of a second trial, was objected to ; but such a course is not un- common at the circuits, where a doubt is entertained upon the law ; it cannot operate to the prejudice of either partj^, and frequently avoids the trouble and expense of a new trial. It is in the nature of a special verdict, which the jury may always find."(l) This practice is more par- ticularly applicable now, when several causes of action may be united, and unless the jury are instructed to find specially upon the different demands of the plaintiff, it would necessarily lead to great confusion, and hence it is now the practice of the judge at the circuit to submit distinct propositions of fact to the jury to pass upon. 3. Damages. The subject of damages, as applicable to the different forms of action, and the rules regulating the measure of damages in each; are beyond the scope of the present work, and will not, therefore, be considered. It is intended, in this place, only to advert to the form of the verdict in this respect. If the jury find a verdict for the plaintiff, the next inquiry is, at what amount, and in what form they should assess the damages. Damages are, in most cases, the sole object of the action : in some cases, however, they are merely nominal, and incident to a recovery of a nature some- what different. Of the former description, are actions for the recovery of money only, such as upon contracts express or implied, for injuries to the j)erson or property, and the like, in which the jury assess the plaintiff's damages at a certain sum. Of the latter description, are the actions for the recovery of personal property. In an action on articles of agreement, for a penalty,(2) or on bonds conditioned for the perform- ance of covenants or agreements, such as a bond for the performance of covenants contained in the same or in any other deed or writing ;(3) or for the performance of an award -,(4) or for the performance of any other specific act, not being a bond for the payment of a sum of money in gross, at a certain time, or by instalments ;(5) or where the action is brought on a bond for the performance of any covenant or written agree- ment, in which the plaintiff is required, in his declaration, to assign the (1) IPMasters v, Uie Westchester County Mutual I/is. Co., 25 "Wend. 379, 381. (2) Drags v. Brand, Willes, 317. (3) Collins V. Collins, 2 Burr. 824, 826; S. C. Ld. Ken. 530. (4) Welch V. Ireland, 6 East, 613 ; S. C. 2 Smith, 666. (5) Spaulding v. Millard, 17 Wend. 331 ; Nelson v. Bostioick, 5 Hill, 37. 638 DAMAGES. specific breaclies for wliicli tlic action is brought ;(1) if the jury find that the assignment of any such breaches is true, and that the plaintiff should recover damages therefor, they must assess such damages, and must specify the amount thereof in their verdict, in addition to their finding upon any other question of fact submitted to them.(2) And this statute extends to every kind of condition, excepting one for the absolute payment of a sum certain at a particular time, or in specified instalments. And in an action on a bond falling within these provi- sions, if the plaintiff omit to assign breaches, he is not entitled to an assessment of even nominal damages, and the omission to assign breaches in such a case, is fatal on appeal even after verdict ; and this statute has been construed to apply to a bond executed by two^ conditioned for the payment of money by only one of the obligors and not by both. (3) In actions upon records, the damages are only nominal ;(4) excepting on judgment, where interest may be recovered by way of damages for the detention of the debt.(5) The form of the verdict in actions to recover personal property will be considered, when I come to speak of the pro- ceedings in that action. A greater amount of damages is, in some cases, given by particular statutes, than those found by the jury ; as, for instance, for despoiling or girdhng trees :(6) in which case treble damages are given. Where, as in the instance just referred to, increased damages are given by the statute, the damages given by the jury are multiplied by the court, on motion, by two or three, as the case may be.(7) The jury themselves may, however, double or treble the damages ; and the court will imply that they have done so, unless the verdict be, in terms, for single dam- ages.(8) To entitle the plaintiff to double or treble damages, however, the complaint must distinctly refer to the statute.(9) Where there are several defeat dants.] Where the defendants in tort, as for a trespass, &c., join in pleading, the jury, if they find them jointly guilty, cannot sever the damages ;(10) and, even if they sever in plead- ing, or one suffer judgment by default, if there be but one trespass, of which both are found guilty.(ll) But they may find one of them guilty (I) 2 R. S. 378, sec. 5. (2) 2 R. S. 378, sec. 6. (3) Nelson v. Bosfivick, 5 Hill, 37. (4) Ven V. Phillips, 1 Salk. 208; FamJiaw v. Morrison, 2 Ld. Raym. 1138. (5) Blachnore v. Flemyng, 7 T. R. 446; Entwistle v. Shepherd, 2 T. R. 78; see also, M'- Clure V. Dunkin, 1 East, 43G ; Hillhouse v. Davis, 1 M. & Selw. 169 ; Wood v. Silleta, 1 Chit. Rep. 473. (6) 2 R. S. 338, sec. 1. (7) King v. Havens, 25 TVend. 420. (8) Livingston v. Plainer, 1 Cowen, 175. (9) Brown v. Bristol, 1 Cowen, 176 ; Euhhell v. Rochester, 8 Cowen, 115. (10) Ilillv. Goodchild, 5 Burr. 2790; Mitchell v. Milhank, 6 T. R. 199. (II) Bohun V. Taijhr, 6 Cowen, 313. DAMAGES. of the trespass at one time, and the other at another ;(1) or one of them guilty of part of the trespass or trover, and the other of another ;(2) or some guilty of the whole trespass, and the others guilty of part only ;(3) in all which cases the jury may assess several damages. Also, where the defendants answer severally, if they be found guilty of the same act of trespass, the jury cannot sever the damages ;(4) but the jury who try the first issue, shall assess damages against all ; and there shall be a cesset executio until the other issues are tried, when the other defendants, if found guilty, shall be contributory to those damages.(5) Where the jury sever the damages by mistake, the plaintiff may cure the defect, by taking judgment de meliorihus damnis^ against one, and entering a nolle prosequi as to the other,(6) or, by entering a remittitur as to the lesser damages, he may have judgment for the greater dam- ages against both.(7) If some of the defendants let judgment go by not answering, and others answer, there ought to be an order, as well to try the issue as to inquire of the damages : and the jury who try the issue shall assess the damages for the whole, or against all the defendants.(8) But in actions of tort, as for a trespass, &c., where the wrong is joint and several, the distinction seems to be this, that where the defence of one of the defendants is such, as shows the plaintiff could have no cause of action against any of them, there, if this be found against the plaintifi; it shall operate to the benefit of all the defendants, and the plaintiff cannot have judgment or damages against those who let judg- ment go by defiiult ;(9) but, where the defence merely operates in dis- charge of the party pleading it, it shall not operate to the benefit of the other defendants ; but, notwithstanding such plea be found against the plaintiff, he may have judgment and damages against the other de- fendants.(lO) Where the plaintiff has judgment for damages against several de- fendants, he may levy the whole upon any one of them ; and such de- fendant, if the action were ex contractu, may, after paying these dam- ages, maintain an action against the other defendants, and oblige them (1) Hexjdon's case, 11 Co. 5, h. (2) Player v. Warn, Cro. Car. 54. (3) Austen v. Wilhuard, Cro. El. 860. (4) Ibid; Heydon's case, 11 Co. 6, a, 1, a; see Walker v. Woolcott, 8 Car. & P. 352. (5) HeydorCs case, 11 Co. 6, a, 7, a. (6) Eolley v. Mix, 3 Wend. 350; Eodney v. Strode, Cartb. 19 ; Mitchell v. Milbank, 6 T. R. 199, 200 ; Dale v. Eyre, 1 Wils. 306. (1) Johis V. Dodsworth, Cro. Car. 192 ; Sahin v. Long, 1 Wils. 30. (8) Heydon's case, 11 Co. 5 ; Dicker v. Adams, 2 B. & P. 163. (9) Briggs v. Benger, 2 Ld. Rayra. 1372; >§. C. nora. Brigs v. Ch-einfield, 1 Str. 610. (10) Jones V. Harris, 2 Str. 1108 ; Cressy v. Webb, 2 Str. 1222 ; Hall v. Rochester, 3 Coweu, 374; Bank of Auburn \. Knapj), 9 Wend. 433 ; Judsonv. Gibbons, 5 Wend. 224. Vol. I. 87 690 POLLING THE JURY, AND RECORDING THE VERDICT. to contribute their respective shares ; but if the action were ex delicto, he cannot oblige the others to contribute, and is also altogether without remedy.(l) In what cases, limited.'] In cases where damages are the subject of the action, the jury are the proper judges, subject however, to the control of the court, on a motion to set aside their verdict, founded upon a case, where they have either departed from the measure of damages applicable to the case, or have given excessive or insufficient damages ; or upon exceptions where an improper rule of damages has been laid down by the court at the trial. These subjects will be hereafter dis- cussed. It was formerly the rule, that the jury could in no case exceed the damages laid in the declaration. (2) But now, however, it is otherwise; and in all cases where an issue is joined and tried, the jury may give any amount of damages they may see fit, even though it exceed the sum claimed in the complaint.(3) 4. Polling the jury, and recording the verdict. The object of polling the jury, is to ascertain whether the verdict as delivered by the foreman is the verdict of the whole jury. For this purpose, at any time after the verdict is rendered and before it is re- corded, either party may insist, as a matter of right, upon the jurors being separately called and each required to answer whether it be his verdict or not ; and this, whether it be a sealed or an oral verdict.(4) Upon such polling, or even without it, upon the mere motion of the juror himself, any juror may dissent from the verdict; and this, whether he have previously assented to it or not ; it being no verdict until it is recorded by the clerk, nor indeed until after it has been read to the jury and they have assented to it,(5) After a juror shall have so dissented, the judge may, if he see fit, send the jury out again for further deliberation, even though they may have separated after seal- ing their verdict; and the same or another verdict, to which, upon such further deliberation, they may agree, may be received.(6) The recording of the verdict consists in the entry thereof, by the clerk, in the minutes of the court, and in his calling upon the jury to hearken to their verdict as it stands recorded by the court, adding " and so say you all." If upon this form being gone through, the jury express no dissent, the verdict is deemed to be recorded, and becomes complete.(7) (1) Merryweather v. Nixan, 8 T. R. 186. (2) Oheveley v. Morris, 2 W. Bl. 1300. (3) Code, sec. 275. (4) Fox v. Smith, 3 Cowen, 23. (5) Rooty. Shervjood, G Johns. 68; Blackky v. Sheldon, 7 Johns. 32. (G) Bimn v. Eoyt, 3 Johns. Rep. 255. (7) Code, sec. 264. CHAPTEK VIII. TRIAL BY THE COURT WITHOUT A JURY, TRIAL BY REFEREES, AND TRIAL OP ISSUES OP LAW. Section I. trial by the court. 11. TRIAL BY REPEREES. III. TRIAL OF ISSUES OF LAW. IV. JUDGMENT AND MANNER OF ENTERING, SECTION. I. OF THE TRIAL BY THE COURT. The power to try issues of fact without a jury, was conferred upon the judge or officer holding the court, by the act of 1847.(1) The same power has since been continued by the Code.(2) It is now provided that trial by jury may be waived by the several parties to an issue of fact, in any action. The action, however, must be one arising on contract, otherwise a jury cannot be waived without the consent of the court. Hence, in actions to recover damages, which do not grow out of a contract, express or implied, such as actions for assault and batter}^, slander, trespass, and the like, a jury trial cannot be waived, without the consent of the court. In the cases above provided, a jury may be waived in the following manner : 1. By failing to appear at the trial. Where a cause is called in its regular order on the calendar, and the defendant fails to appear, the action maybe tried by the court, without a jury. So, to, an inquest may be taken by the court without a jury, if no affidavit of merits has been put in and the defendant fails to appear ; though it seems,(3) this cannot be done after the jury have been discharged.('4) 2. By written consent, in person or by attorney, filed with the clerk. 3. By oral consent in open court, entered in the minutes. The trial'] The trial before the court, without a jury, is conducted, in all respects, in the same manner as trials by a jury. The counsel for (1) Sess. Laws. 1847, p. 345, sec. 80. (2) Code, sec. 266. (?.) Dickinson v. KimbaU, 1 Code, Rep. 83. (4) See ante. p. 645, 692 on? THE TRIAL BY THE COURT. the party who holds the affirmative of the issue, opens the case, and introduces his evidence ; the adverse party then examines his witnesses, and the case is submitted to the judge.(l) The decision.'} The judge or justice who tries the issue of fact with- out a jury, must give his decision within twenty days after the adjourn- ment of the court, at which the trial took place.(2) The decision must be in writing, and subscribed by the judge or justice who tried the cause. The decision is in form like the report of a referee. It is not necessary to state the facts found, nor the conclusions of law upon them, but simply the result to which the judge has arrived upon the whole case. Thus, that the plaintiff is entitled to recover from the defendant the sum of five hundred dollars ; or, that the plaintiff is entitled to recover the possession of the real or personal property, mentioned in the com- plaint ; or that he finds in favor of the defendant, and the like. But the facts established by the evidence, on the trial, or the conclusion of law upon them, need not be stated in the decision. This must not be confounded with a provision in the Code as amended in 1852,(3) as it will readily be perceived that it is only in settling a case or exceptions, that the judge must state the facts found by him, and his conclusions of law. The decision must not only be made, but must also be filed Avith the clerk of the county where the action was tried, within twenty days after the court at which the trial took place.(4) But, it would seem that this provision requiring the judge to make his decision in twenty days is directory merely, and that the judge might give his decision at any time.(5) And this court will grant a manda- mus to compel the judge to make and file his decision.(6) Issues of hw.] As has been seen, (7) issues of law, are in all cases to be tried by the court, without a jury. In such cases if the decision of the judge is in favor of the plaintiff, judgment is entered thereon, in the same manner as upon failure to answer the complaint.(8) If the decision be for the defendant, judgment is entered accordingly, unless the taking of an account or the proof of some fact is necessary to enable the court to complete the judgment ; as, where in actions to recover the posses- sion of personal property, and the property has been delivered to the (1) As to the manner of trying jury causes, see ante, p. 645. (2) Code, sec. 267. (3) Code, see. 268. (4) Code, see. 207. (5) Peopk V. Dodge, 5 How. Pr. Rep. 47. (6) Ibid. (7) Ante, p. 596. (8) See ante, p. 499. OF TRIAL BY REFEREES. 693 plaintiff, tlie defendant, if lie succeeds is entitled to recover damages for the taking and detention of the property. In such case the court would require proof of the damages, before it could complete its judgment. Or, where the defendant has been restrained from doing some act, by which he has sustained damage. In these and similar cases the court may order a reference, or that a writ of inquiry be issued to ascertain and assess the damages of the defendant. And upon the filing of the report of the referee, or inquisition of the sheriff, a judgment for such damages, with the costs and disbursements to which the defendant is entitled, may be entered. (1) SECTION II. OF TRIAL BY REFEREES. The right to try causes by referees, has been extended to every case, whether the issue be one of law or fact. Formerly references were con- fined to actions of assumpsit, where the trial of the cause would require the examination of a long account on either side. Now, however, all or any of the issues in any action, whether of law or of fact, or both, may be referred upon the written consent of the parties.(2) In what casesT^ The court in which the action is pending, has the power, without the consent of the parties, upon the application of either, or of its own motion to direct a reference in the following cases. 1. Where the trial of an issue of fact, shall require the examination of a long account on either side, in which case the referees may be directed to hear and decide the whole issue or to report upon any specific questions of fact involved therein. It has been decided in regard to a reference under this head, that it is confined to cases of accounts existing between the parties, and does not reach a case of many items of damage.Qi) A reference will be ordered where there are bat four items of an account.(4) But where a defendant stipulated to admit the plaintiff's cause of action as to all his bill of particulars, except the execution and delivery of a promissory note, the court, refused to refer the cause, although the bill of particu- (1) As to the trial of issues of law, see post. (2) Code, sec. 270. (3) 6 Hill, 372. (4) 10 Wendell, 577. Qg^ OF TRIAL BY REFEREES. lars coutaiued a large number of items.(l) So, where it appears tliat substantial questions of law will arise on the trial, although the plaintiff shows that it will require the examination of a long account on his part.(2) But in an action where the plaintiff's account contained a large num- ber of items, but were all of a single purchase, and made at one time, it was hold that this was not such an account as warranted a refer- ence. (3) So, it was held that a bill of goods containing fifty items, delivered at one time, was in fact but one item, and a motion for a reference was dcnied.(-i) Bat when the action was based on carelessness or negligence, and it might become necessary, in the course of the trial, to examine into a large number of items constituting the plaintiff's claim for damages, it was held not to be referable.(5) This seems to have been doubted in a later case,(6) and it is here held that in actions sounding in tort, where the trial will require the examination of a long account, the court has power to order a reference. The language of the Code is certainly suffi- ciently broad to authorize a reference in any case where the examina- tion of a long account becomes necessary. And so, whether the action be on a contract or for a tort.(7) A reference will also be ordered, 2. Where the taking of an account is necessary for the information of the court, before judgment, or for carrying a judgment or order into effect. In this case, the reference is usually made before judgment : thus, in an action for the foreclosure of a mortgage, an order of reference is pro- per to ascertain the amount due to the plaintiff, to enable the court to make the appropriate judgment. 3. Where a question of fact, other than upon the pleadings, shall arise, upon motion or otherwise, in any stage of the action. The court are authorized to refer a conflicting question of fact aris- ino- upon a special motion. Thus, where material facts in the affidavits of the moving party are denied by the opposing party, the court may refuse to determine the question, and may order a reference. So, in a (1) 3MliH V. Kelly, 3 How. Pr. Rep. 12. (2) Jves V. Vandeivater, 3 How. Pr. Rep. 1G8. (3) Steivart v. Ehoell, 3 Code Rep. 139. (4) Swift V. Wells, 2 How. Pr. Rep. 79 ; Miller v. Hooker, id. 171. (5) McMaster\. Booth, 3 Code Rep. ill. (6) Sheldon v. Wood, 1 Code Rep. (N. S.) 118. (7) And see Boyce v. Cornstock, 1 Code Rep. (N. S.) 290. OF TRIAL BY REFEREES. 695 summary proceeding, the court may order a question of fact to be tried by reference. Actions for torts are not referable, without the consent of the parties, "unless, as we have seen, the examination of a long account shall be re- quired : and all cases when a consent is necessary, it must be in writing, and filed with the clerk of the county where the action is pending. Motion for reference.'] The motion for a reference is non-enumerated, and must be made at one of the special terms of the court held in the district embracing the county in which the action is pending, or in an adjoining county, and is founded upon an affidavit of the party wishing the reference. It has been held, in one or two cases,(l) that the ai:>iwintment of refe- rees must be made b}^ the court, and that although the parties may agree upon suitable persons, 3^et the court must be satisfied that the selection made by the parties is a proper one. Therefore, when a referee pro- ceeded in a cause, under a stipulation signed by the respective parties, it was held that he acted without authority.(2) I apprehend, however, as was intimated in a late case,(3) that even after the reference is over, the court will order a rule to be entered nunc pro tunc, if necessary, and thus correct the irregularity of proceeding without an appointment by the court, in the first instance. Affidavit?^ The afiidavit should state the nature of the issue and the time when it was joined, and that the trial of the action will require the examination of a long account, either on the one side or on both sides. It seems, the afiidavit must be made by the party himself, and not by the attorney, unless a sufficient excuse is shown for the omis- sion.(4) Notice and service?^ A copy of the affidavit, with a notice of the mo- tion, must be served on the opposite part}^, eight days before the first day of the special term, at which it is designed to make the motion. The notice should contain the names of the persons proposed as refe- rees. It is usual to name three, but it will be sufficient if one is named, as the court is now authorized, without the consent of the parties, to appoint one or three referees.(5) (1) Litchfield v. Bunvell, 5 How. Pr. Rep. 341. (2) Ibid. (3) WlialenY. Supervisors of Albany, 6 How. Pr. Rep. 278. (4) 4 Hill, 548; Merick v. Smith, 2 How. Pr. Rep. 7 ; Ross v. Beecher, id. 157 ; Little v. Bigehw, id. 164; BouUony. McCuUough, id. 165. (5) Code, sec. 273. (396 01'' TRIAL BY REFEREES. Affidavit to oppose.'] In opposition to the motion to refer, it may be shown by affidavit, that questions of law will arise upon the trial of the cause. And if it clearly appear that substantial questions of law will arise, the motion will be denied.(l) The questions of law that will arise, must be stated in the affidavit, that the court may be able to judge whether they are material or difficult, or will necessarily arise. It is not enough that the affidavit states that questions of law will arise, without stating what those questions are. And the court must be satisfied they will be questions of real difficulty, otherwise they will grant the mo- tion. (2) Ap)pointing referees.'] The partj^ opposing the reference, has the right to object to the referee or referees named in the notice. But if no ob- jection is made, the person or persons so named will be appointed, of course. In case the parties disagree, the court will, either upon the nomination of the parties, or of its own motion appoint one or three referees, who are free from exception, and who reside in the county where the action is peuding.(3) In case the parties nominate, it is usual, where three referees are to be appointed, for each to name one, and the court to appoint the third. In case of disagreement, and only one refe- ree is to be selected, the court makes the appointment of its own mo- tion. Objection may be made to referees, that they are related to the par- ties, or some of them, or have formed and expressed an opinion, in re- spect to the subject-matter of the action, or have some interest therein ; and generally the same objections may be made to a referee, that may be made to a juror. Order.] If the motion is granted, draw up the order, and have it en- tered with the clerk of the county where the action is triable, for which purpose, if the motion is made in a coUnty other than that in which the action is pending, get the order certified by the clerk, and have the order entered in the proper county. Serve a copy of the order on the opposite attorney. It has been held, however, that such service is not necessary .(4) Reference at the circuit^ If the cause is noticed for trial, an applica- tion for a reference, may also be made to the justice holding the circuit, (5) who may order the cause to be referred, with the like effect, as if made at a special term. No notice of the application for a refer- (1) 1 How. Pr. Rep. 168. (2) 5 Cowen, sec. 423. (3) Code, sec. 273. (4) 1 How. Pr. Rep. 193. (5) 2 R. S. 305, sec. 42. OP TRIAL BY REPETtPJEg. G97 ence at the circuit need be given, but tlie usual affidavit must be made. The justice holding the circuit, may also, of his own motion, refer causes at the circuit, when in his opinion the trial will require the examination of a long account. Notice of reference^ Either party may notice the cause for hearing before the referees ; for which purpose, a notice of ten days must be served specifying the time and place of the hearing. Previous, how- ever, to giving the notice, the party wishing to bring on the hearing, should procure from the referee or referees, or a majority of them, an appointment of the time and place of hearing. A copy of the appoint- ment should be served with the notice of hearing. Proceedings on reference!] All the referees must meet together at the time and place designated, and must be sworn well and faithfully to hear and examine the cause, and make a just and true report therein, according to the best of their understanding. The oath may be ad- ministered by any officer authorized to take affidavits to be read in the Supreme Court. All the referees must hear the joroofs and allegations of the parties, but a report of two will be valid. (1) And if any of the referees refuse to appear the court may compel them to do so, (2) by order requiring them to appear or show cause why an attachment should not issue against them.(3) Either party giving the notice, may bring on the hearing before the referees.(4) If, therefore, the plaintiff omits to appear or proceed with the reference, the defendant, having noticed the hearing, may proceed with the case, and have a report generally in his favor, that there is nothing due from him to the plaintiff, or may examine his witnesses, and have a report in his favor, for such sum as shall be found to be due from the plaintiff to the defendant.(5) Formerly, a notice to the plaintiff to bring on the hearing, was neces- sary, and in default, the defendant could move for judgment as in the case of non-suit. Now, however, the defendant may, as has been stated, notice the cause for hearing, and obtain a report, although the plaintiff neglects to notice or bring on the hearing. If, however, the plaintiff" omits to notice the cause for hearing, before the referees, or if having noticed it, fail to proceed with the trial, the defendant may move for a dismissal of the complaint, with costs.(6) The defendant may make this motion, although he may have himself (1) 2 R. S. 306, sec. 47. (2) 2 R. S. 306, sec. 47. (3) 1 WendeU, 71 ; 3 John. R. 260. (4) Code, sec. 258. (5) Code, sec. 258. (6) Rule 21. Vol. I. 88 QQQ OP TRIAL BY REFEREES. noticed tlie reference for hearing. The motion, under these circnm- stances, is made at the special terra, upon an affidavit of the facts, setting forth that an issue has been joined in the action, and that the plaintiff has neglected to bring the cause to trial before the referees.(l) The plaintiff, however, may at any time, either before or after notice of motion, give to the defendant's attorney a stipulation to try the cause, and offer to pay the costs to which the defendant is entitled up to the time of tendering the stipulation. (2) The plaintiff cannot so stipulate more than once.(3) The plaintiff may show that the neglect to try is not unreasonable, and that will be a good answer to the motion.(4) The plaintiff must furnish the referees with a copy of the summons and pleadings and the offer of the defendant, if any shall have been made. The same rules in respect to the trial of the reference, and the ex- amination of witnesses, are to be observed, as on the trial of a cause before a jury. (5) The plaintiff may submit to a non-suit or to be non- suited by the referees, in like manner as upon a trial at the circuit, at any time before the cause has been finally submitted to the referees, for their decision. In which case the referees report the fact that the plaintiff submitted to a non-suit, or was non-suited, as the case may be, and judgment may thereupon be perfected by the defendant.(6) The witnesses may be sworn by either of the referees. Adjournment.'] The referees have power to adjourn the hearing from time to time, upon the application of either party, and good cause shown.(7) So, they may adjourn, on their own motion, without the consent of the parties. In order to adjourn, all the referees must meet; (8) and where the hearing is adjourned upon the application of a party, the referees may impose as a condition of granting the adjournment, the payment to the opposite party of a sum, not exceeding teyi dollars, besides the fees of witnesses, (9) and may require the same to be paid forthwith or allow the reference to proceed.(lO) Reporf] The referees, after having heard and examined the case, are bound to proceed and make up their report, in a reasonable time, or they may be compelled to do so, by a rule of the court requiring (1) Rule 21. (2) Rule 20. (3) Rule 20. (4) Ibid. (5) See ante. (6) Rule 25. (7) 2 R. S. 305, sec. 44 ; Code, sec. 272. (8) 7 Weudell, 534: 22 lb. 6?7. (9) Ck)de, sec. 314. (10) 5 HUl, 375. OF TRIAL BY REFEREES. them to report or sTiow cause why an attacliment should not be issued against them.(l) In making up their report, the referees are now required to state the facts found and the conclusions of law ;(2) and these must be stated separately. They are also required to give their decision upon the whole case. And where the referees are directed to report upon any specific question of fact involved in the cause, they must also make a special report of such fact with their finding thereupon. It is not proper, in any case, to report the evidence^ but simply the fact or facts, established by the evidence. As, that the plaintiff proved on the hear- ing that A. B. died on the first of March, 1845, intestate, the owner of the premises mentioned in the complaint, leaving him surviving, the plaintiff, and C. and D., his children, and only heirs at law, who each thereby, became seized of one equal undivided third part of said pre- mises, in fee simple : or, that the defendant made the promissory note or contract mentioned in the complaint, and the like. But the evi- dence proving such facts, should not be stated in the report. The decision of the referees may be excepted to and reviewed in like manner as the decision of this court may be, and for the purpose of this review, they have the power, to settle a case or exceptions. Where the referees decide the whole issue, their report stands as the decision of the court, and judgment may be entered thereon in the same manner as if the action had been tried by the court.(3) When the reference is to report the facts, the report has the effect of a special verdict. The report must be signed by at least two of the referees.(4) The report, when signed, should be delivered to the attorney for the pre- vailing party, and by him filed with the clerk of the county where the action is pending.(5) I shall have occasion when I come to speak of the case or exceptions to review the decision of referees, to point out more particularly the cases as well as the manner in which such decisions can be reviewed, which, as I now understand it, is the same as in exceptions to the ruling or charge of a judge, or a case to set aside a verdict of a jury. Fees of referees^ Each referee is entitled to three dollars a day for every day spent in the business of the reference. They are not entitled to any further sum for exj^enses ; but the parties may agree in writing, (1) 2 R. S. 306, sec. 48. (2) Code, sec. 272. (3) Code, 272. (4) 2 R. S. 306, sec. 47. (5) Rule 3. 700 OP THE TRIAL OF ISSUES OF LAW. upon any otlier rate of compensation, not less, however, tTian three dol- lars a day to each referee.(l) Judgment.'] Upon filing the report, where it is made on the whole issue, the prevailing party may immediately enter up judgment for the amount reported to be due, with the costs and disbursements to which he is entitled by law ; or, if the report be that there is nothing due from the defendant to the plaintiff, the judgment will be for the costs and disbursements only. It is not necessary to serve a copy of the report on the opposite party previous to entering judgment ; such party having ten days after notice of the judgment to make a case or excep- tion to set aside the report.(2) Nor is it necessary to procure the order of a judge to enter judgment.(3) SECTION III. OF THE TRIAL OP ISSUES OF LAW. As has been stated, issues of law must, in all cases, be tried by a single judge, without ajury.(4) Such issues may arise either upon demurrer to a complaint, answer, or reply ;(5) or, as it would seem, upon the allegations in the complaint, not controverted by the answer, or of the answer not controverted by the reply ; and they can arise in no other way. It is provided by the Code,(6) that issues of law, as provided for by the Code, and demurrers to pleadings, or any j)art thereof, must be noticed for trial and heard at a circuit court or at a special term. Where the special terms are held at the same time and place with the circuits, the practice will be the same, in bringing on the trial of issues of law, as it is in trials of issues of fact. As to the place of trial of an issue of law, some diversity of opinion seems to exist ; although, as far as I have '"discovered, there is but one reported case in which the question has been presented to this court.(7) In this case it is held, that an issue of law may be tried at any special term in the district, or at a special term in a county adjoining that in which it is triable, though in another district. It is, however, understood, (1) Code, sec. 313. (2) Code, sees. 272, 268. (3) Benouily. Harris, 1 Code Rep. 125. (4) Ante, p. 618. (6) Code, sec. 249. (6) Code, sec. 255. (7) Ward v. Davis and others, 6 How. Pr, Rep. 274. OF THE TRIAL OF ISSUES OF LAW. 701 tliat several of tlie judges have lield otherwise ; and it, therefore, may be regarded an open question, and it is to be regretted that it is one that is left so much in doubt. My own impression is, that there is no differ- ence between issues of fact and law in this respect, and that they must both alike be tried in the county designated in the complaint for that purpose. I do not think that the part of the Code regulating the place of trial in actions, relates exclusively to the trial of issues of fact. The proper county must be designated in the complaint, and if it is not, I suppose it would be competent even where an issue of law was joined, for the defendant to demand that the trial be had in the proper county. It is true there is no reason for confining the trial of an issue of law to a particular locality, as there is in the trial of an issue of fact, for the convenience of witnesses, and it is for this reason that the court are not empowered to change the place of trial of issues of law, but so long as the Code makes no distinction between the two issues, as respects the place of trial, it is difficult to see upon what principle a different rule is to be applied to the one than is to the other. Notice of trial] A notice of the trial of the issue must be served upon the opposite attorney at least ten days before the first day of the term.(l) The notice must be for the first day of the term. Either party may give the notice. Note of issue.'] Four days before the commencement of the term, a note of the issue must be sent to the clerk, containing the names of the parties and of the respective attorneys, and the time when the last pleading was served. The cause is thereupon entered upon the calen- dar, according to the date of the issue. Furnishing papers.] The papers to be furnished on the trial of the issue, is a copy of the pleadings, when the question arises on the plead- ings, or on any part thereof; or, where the question arises upon de- murrer, such parts only of the pleadings as relate to the question.(2) It is the duty of the plaintiff to furnish the papers where the issue arises upon the pleadings, and of the party demurring, when the issue arises on demurrer. (3) The rules formerly required that the party whose duty it was to furnish the papers, should serve a copy on the opposite attorney, at least eight days before the time the issue might be noticed for argument. If he neglected to do so, the opposite party might make an affidavit and (1) Code, sec. 256. (2) Rule 28. (3) Rule 28. 702 OF THE JUDGMENT; notice of motion, tliat tlie cause be struck from the calendar, (whicli- ever party might have noticed it for argument,) and that judgment be rendered in his favor. It is now, however, no longer necessary to do so, the trial of issues of law being excepted from the operation of the rule on that subject.(l) Argument.'] Upon the argument of the issue, the party demurring, where the issue arises upon demurrer, or the plaintiff where it arises upon the complaint and answer, or reply, opens and closes the argu- ment, and the opposite party replies ; only one counsel can be heard on either side.(2) And they are now restricted to two hours each, unless the court shall otherwise direct. (3) Becisioyi.'] The decision upon the issue is entered by the clerk in the minutes of the court, and judgment entered accordingly. If the term is held in a county other than that in which the action is triable, the rule or order entered by the clerk must be certified to the proper county. SECTION IV. OF THE JUDGMENT AND HEREIN OF THE ilANNER OF ENTERING JUDG- MENT. Judgment.] The judgment is the final determination of the rights of the parties in the action.(4) "We have before considered the judgments upon failure to answer, (5) and it remains to consider judgments upon trials where the defendant has appeared and answered. There is but one kind of judgment, and that is the final judgment. Formerly there were interlocutory as well as final judgments. Awarding judgment] A judgment upon an issue of law is pro- nounced or delivered by the judge or court, at the time of deciding the issue. But where a verdict is rendered by the jury, or a report is made by referees, upon the trial of an issue of fact, there is no actual award of judgment, any further than that the clerk enters the judgment in con- formity with the verdict or report,(G)by the implied direction of the jus- (1) Rule 28. (2) Rule U. (3) Rule 14. (4) Code, sec. 245. (5) Antt, p. 499. (6) Code, sec. 278. MANNER OF ENTERING JUDGMENT. 703 tice or referees; tlie direction to do so being implied suildciently from the fact that the verdict or report is received and entered by the clerk in the presence of the justice, or by the written direction of the re- ferees. Besides, courts of record are always open for the entering up of judgments. Judgment may be given for or against one or more of several plain- tiffs, and for or against one or more of several defendants, and it may determine the ultimate rights of the parties on each side, as between themselves. And it may grant to the defendant any affirmative relief, to which he may be entitled.(l) And in an action against several defendants, the court may, in its discretion, render judgment against one or more of them, leaving the action to proceed against the others, whenever a several judgment may be proper.(2) Thus, in an action against the makers and endorsers of a promissory note or bill of exchange, judgment may be rendered against one, and the suit proceeded with against the others ; and so, in all cases where the liability is several and not joint. But in cases of joint contracts or liability, judgment must be entered against all, and there can be no severance.(3) The court may dismiss the complaint and render judgment with costs in favor of one or more defendants, in case of unreasonable neglect on the part of the plaintiff to serve the summons on other defendants, or to proceed in the cause against the defendant or defendants served.(4) This, however, can only be done in actions against persons sued as joint contractors, for in other actions, it seems that the defendant served has the right to notice the cause and proceed with the trial, and need not wait for the plaintiff, or he may move to dismiss the complaint.(5) But in actions against persons jointly liable, one of the defendants served cannot proceed with the cause, in default of the plaintiff's mov- ing therein, unless the plaintiff unreasonably neglect to serve the sum- mons on the other defendants, or to proceed in the cause against such as are served. In awarding judgment, the court are not confined to the relief de- manded in the complaint, except in cases where no answer has been put in ; but the court may grant the plaintiff any relief consistent with the case made by the complaint and embraced within the issue.(6) In actions for the recovery of the possession of personal property, the judgment for the plaintiff may be for the possession or for the recovery of possession, or for the value thereof, in case a delivery cannot be had, and for damages for the detention. If the property have been deliver- (1) Code, sec. 274. (2) Code, sec. 274. (3) Merrifieldy. Coohy, 4 fLow. Pr. Rep. 272. (4) Code, sec. 274. (5) Rule 21 ; and see ante, p. 619. (6) Code, sec. 275. 704 MANNER OP ENTERING JUDGMENT. ed to the plaintiff, and tlie defendant claims or desires a return thereof, the judgment may be for such return : but if a return cannot be had, then the judgment may be for the value thereof, and also for damages for taking and withholding the same.(l) The value of the property, where a delivery cannot be had, and the damages for the taking and detention, must be found by the jury or referees. A plaintiff cannot have both, that is a return of the property and the value ; nor is it proper to enter judgment in the alternative. Accordingly, where in an action for the delivery of personal property, the plaintiff had not claimed a delivery, it was held, (2) that he might have judg- ment for the delivery of the property or for the payment of the value, but that a judgment in the alternative would be irregular. The rate or measure of damages which a party may receive, in any action, is the same as that which heretofore esisted.(3) Costs.'] — The costs and disbursements which the prevailing party is entitled to recover, must be inserted in the entry of j udgment ; for which purpose the sum of the charges for costs, and the items of dis- bursements and the fees of ofi&cers must be made out, and a copy serv- ed on the attorney for the opposite party, with a notice of at least two days, that such prevailing party will apply to the clerk to insert in the entry of judgment, such sum of the charges for costs, and such items of disbursements and fees of officers, as are allowed by law. Such notice must be in writing, must specify the time and place, when and where, and name of the clerk to whom such application will be made, and must be served in the same manner as other notices.(4) The disburse- ments must be stated in detail, and must be verified by afl&davit, which must be filed. A copy of the affidavit, however, need not be served on tlie opposing party. At the time and place mentioned in the notice, the attorney for the prevailing party must appear, and submit the charges and disburse- ments to the clerk for allowance, whose duty it is to pass upon the items, and allow or disallow such as are or are not authorized by law. The opposing party may appear on such application, and object to all or any of such items, and the clerk must decide such objections. As to costs generally, and what are allowable and the like, I shall speak hereafter. (5) The costs and disbursements having been allowed by the clerk, they are to be inserted by him in the entry of the judgment. (l)Code, sec. 277. (2) Aldrick v. Thiel, 3 Code, Rep. 91. (3) Code, sec. 276. (4) See post. Code, sec. 311. (5) See post. MANNER OF ENTERING JUDGMENT. 705 Manner of entering judgment.'] The clerk keeps among the records of the court, a book for the entry of judgments, which is called the "judgment book."(l) The judgment consists of a brief statement of the relief granted by the court, or other determination of the action ; this must be clearly specified ; (2) and will conform, of course, to each particular case, and will be varied accordingly. Thus, that the plaintiff recover from the defendant, the sum of five hundred dollars for his damages, and forty -five dollars for his costs and disbursements • or, that the personal property mentioned in the complaint be delivered to the plaintifF, and that he recover from the defendant the sum of one hundred dollars by the jury assessed for his damages, for the detention of such personal property, and also the sum of fifty dollars for his costs and disbursements. The judgment must in all cases follow the verdict of the jury or report of referees, where it is upon a question of fact, or the decision of the court, where it is upon a question of law ; but as the verdict, report or decision, as well as all the pleadings and proceedings in the action are annexed to and form part of the judgment roll, it is un- necessary to recite any part of them in the entry of judgment. Judgment roll.'] Immediately upon perfecting the entry of judgment in the judgment book, a judgment roll is to be made up and filed with the clerk where the judgment is entered, unless the proceedings are stayed for the purpose of making a case or exceptions. The roll may be prepared by the attorney for the prevailing party, or by the clerk. The roll consists of the original summons and all the pleadings in the action ; that is, the complaint, answer, reply and demurrers, if any, or copies of such pleadings, a copy of the entry of judgment, the verdict of the jury, a report of referees, or decision of the court, the offer of the defendant, if any shall have been made in the action, case or exception if any shall have been settled and filed ; and all orders relating to a change of parties, or in any way involving the merits, and necessarily affecting the judgment. These different papers must all be attached to- gether, and they form the judgment roll. Where the action is tried by the court w^ithout a jury, it is not enough to merely file the decision of the judge, such not beino- a sufii- cient judgraent.i^) A judgment must, therefore, in all cases, be made up and entered before the clerk is authorized to prepare and file the judgment roll. (4) The only papers necessary to form the judgment-roll, are those al- ready mentioned ; therefore it is improper to attach to the roll the bill (1) Code, sec. 279. (2) Code, sec. 280. (3) Schenectady and Saratoga R. R Co. v. Thatcher, 6 How. Pr. Rep 226 (4) Ibid. Vol. I. 89 706 MANNER OF ENTERING THE JUDGMENT. of costs and notice of adjustment, or the affidavit of disbursements, or tlie attendance of witnesses.(l) These constitute no part of the judg- ment-roll. In case the judgment is for the defendant, if the plaintiff shall not have filed the summons with proof of the service, and the pleadings on his part, the defendant may substitute the copies served on him, in mak- ing up the judgment-roll, or he may apply to a judge of the court, for an order requiring the plaintiff forthwith to file such papers.(2) Transcript^ Upon a judgment directing in whole or in part the pay- ment of money, the judgment-roll having been filed, the judgment may be docketed with the clerk of the county where it was rendered, and also with the clerk of any other county. For which purpose, a tran- script of the original docket must be procured from the clerk of the county where the judgment is entered. The transcript contains the name of the court, the title of the cause, the amount of the judgment, the time when docketed, and the name of the attorney. Upon filing such transcript with the clerk of any county, the judgment may be docketed therein. From the time of docketing such judgment in any county, it is a lien upon any real property therein belonging to the party against whom the judgment is rendered. (1) Schenectady and Saratoga E. R. Co. v. Thatcher, 6 How. Pr. Rep. 226. (2) Code, sec, 281. CHAPTEE IX. EXCEPTIONS, OR CASE TO MOVE FOR A NEW TRIAL, OR TO SET ASIDE A NON-SUIT; AND FOR JUDGMENT ON A SPECIAL YERDICT, AND DEMUR- RER TO EVIDENCE. Section I. motion for a new trial upon exceptions in cases TRIED BY A JURY. II. MOTION FOR A NEW TRIAL ON A CASE. III. MOTION FOR A NEW TRIAL IN CASES TRIED BY THE COURT WITHOUT A JURY. IV. SPECIAL VERDICT, AND VERDICT SUBJECT TO THE OPINION OF THE COURT. V. RESERVING CASE FOR FURTHER CONSIDERATION. VI. CASE TO SET ASIDE REPORT OF REFEREES. VII. DEMURRER TO EVIDENCE. The practice of this court, as it existed previous to the adoption of the Code of Procedure, authorized either party desiring to review the' decisions of the circuit judge, in admitting or rejecting evidence, in non- suiting the plaintiff or overruling the defence, and in applications for judgment upon special verdicts, and demurrer to evidence, to make a bill of exceptions or case, and present it to the court in hanco for its judgment. In these cases, the proceedings were staj^ed upon the verdict, and no judgment could be entered until the decision of the court. Under the Code, as originally adopted, and which has continued without material alteration until the amendments passed in 1852, great difficulty has been experienced in determining upon the manner in which the decisions of the judge, to which an exception was taken could be reviewed. No power was given by express terms, to the court to set aside verdicts as being against the weight of evidence, and to grant new trials, except upon appeal, although some of the judges had decided that it was competent for the court to do so. The difficulties which the Code thus presented have, however, been removed hj the amendments passed in 1852, which now prescribe two modes of proceeding to obtain a review of the trial. The one is applicable exclusively to a trial by jury. The other, to a trial by the coui% or by referees. These modes of proceeding are entirely distinct, each from the other. In one the re- 708 GROUNDS OP EXCEPTIONS. view is liad 5e/bre judgment; in the other, it can only be had upon ap- peal after judgraent.(l) In both cases, whether the trial be by jury or by the court, the ex- ceptions or case upon which to move for the review, is the same, must be prepared in the same manner, and is in all respects subject to the same rules and practice. It is only in the mode of bringing the case before the court, that the difference consists. I shall, therefore, proceed to speak of these various modes of review, as now provided by the Code, in the following order : First, of motions for new trials in cases tried by a jury ; and Second, like motions in cases tried by the court. There are other modes of review provided in the Code, less formal than those where exceptions or a case are required to be drawn and settled, and of which I shall speak hereafter, such as motions to set aside verdicts, and to grant new trials, &c., made upon the judge's min- utes.(2) But I shall confine myself, for the present, to the more formal modes of review. SECTION I. MOTION FOR A NEW TRIAL UPON EXCEPTIONS, IN CASES TRIED BY A JURY. Orounds of Exceptions. If, upon the trial of the cause by a jury, the judge, either in his charge to the jury or in admitting improper testimony, or in rejecting legal and competent evidence or in refusing to, or in non-suiting the plaintiff, and generally, in deciding any question of law raised on the trial, make a mistake in the law, the counsel on either side may except to such decision. The decision, however, must be upon some point of law, arising upon a fact not denied, in which either party is overruled by the court ;(3) or for nonsuiting or refusing to non-suit the plam- tiflf ;(4) or to notice material testimony, or rejecting proper evidence ;(5) or to charge upon a question of law, provided his attention is called to it, but not otherwise ;(6) or for charging erroneously upon a question of (1) WaUonY. Scriven, 7 How. Pr. Rep. 9. (2) Code, sec. 264. (3) Sanders v. Edwards, 1 Cowen, 622. (4) Murray v. Judah, 6 Cowen, 484. (5) Ex parte Bailey, 2 Cowen, 479. (6) 6 Wend. 268 ; 8 Wend. Ill ; 13 Wend. 41. GROUNDS OF EXCEPTIONS. 709 law : but an exception will not lie where there is no error in point of law in the charge, although the comments of the judge upon the evidence strongly indicate an opinion adverse to the party against whom the ver- dict is rendered.(l) But a charge upon an immaterial point of law, though erroneous, is no ground for an exception, unless the court find that the case might have been affected by the charge, injuriously to the party. (2) So, where the judge erred in non-suiting the plaintiff, if upon other gounds the action could not be maintained, the court will not grant a new trial.(3) So, where the judge erroneously refuses to non- suit the plaintiff, a new trial will be denied, if either party subsequently supplies the defect by evidence.(4) Exceptions will not lie for a mis- direction of the judge as to a matter of fact.(5) Nor, is it the proper remedy where the jury find a verdict against evidence.(6) Nor are matters resting in the discretion of the judge, as for refusing to open the case to let in more testimony, where the testimony has been closed, (7) or to postpone the trial, (8) or to suspend the trial until the party could subpoena a witness,(9) or for disregarding a variance on the trial.(lO) In such cases, the proper course is by motion to set aside the A^erdict and judgment. So, an exception does not lie to a general charge " that on the proof in the cause the plaintiff is entitled to recover his actual damages, &c." A mere general exception to a general charge amounts to nothing.(ll) And if incompetent testimony be admitted and the judge subsequently strikes it from his minutes, and charges the jury to disregard it, an ex- ception will not lie.(12) So, the denial of a motion to amend, where the law reposes a discretion in the judge, is not a ground of exception.(13) And where it was objected that the judge in his charge to the jury upon the facts of the case, went beyond the line of his duty, it was held to be no ground of exception. (14) Exceptions may be taken by either party, and even the party succeed- ing on the trial may prosecute the exceptions taken by him, for the purpose of reversing his own judgment, as where he recovers less damages than he is entitled to. (15) The exceptions must be taken at the trial, and at the time the deci- (1) 12 Wend. 299 ; 11 Wend. 18; 14 Wend. Ill ; 3 Barb. S. C. 419. (2) 3 Wend. 418; 11 Wend. 83. (3) Wend. 494. (4) 2 Wend. 561 ; 7 Wend. 377 ; 2 Hill, 205. (5) 14 Johns. Eep. 304. (G) 1 Wend. 418; 14 Johns. Rep. 304. (T) 2 Hill, 248. (8) 3 Hill, 432. (9) 4 Hill, 119. (10) 3 HiU, 159. (1 1) Laming v. Nisivall, 5 Denio. Rep. 2 1 3. (12) People v. Parish, 4 Denio Rep. 15:3. (13) Both V. ScMoss, 6 Barb. S. C. Rep. 308. (14) Bulkley v. Keteltas, 4 Sandf. S, C. R«p. 450. (15) 1 Cowen, 240, 253. 710 GROUNDS OF EXCEPTIONS. sion complained of is made. When the exception is to the charge of the judge, it may be made at any time before the jury have delivered their verdict.(l) The exceptions must be reduced to writing at the time ; usually a brief memorandum is made on the minutes of the court and counsel, and the exception afterwards drawn out at length. The exception when taken to the charge of the judge must be specific and particular as to the part of the charge intended to be excepted to. It will not do to except generally to the whole charge, unless it be all objectionable, for if any part of the charge be correct the exception will fail. It has been recently so decided in the Court of Appeals.(2) In that case the exception was " to the whole of the charge as given, and to each part of it." This was held to be too broad, if there was any part of the charge correct. An exception in that form can be available only, Avhen every part of the charge is wrong. It is the province of an exception to the ruling of a judge on the trial, to call his attention directly to the objectionable part, so that he may, if there be error, correct it at once, and direct the attention of the other party to errors which may be supplied, or waived by him on the trial. Nor will the addition of the words " to each and every part of it " make any differ- ence. In another case decided at the same term(3) the same court held the exception to be too general, and afl&rmed the judgment appealed from on that ground. And at the close of the late September term of the said court, the rule was reiterated. (4) The rule, therefore, may be regarded as fully and firmly established, that a general exception will be of no avail if any part of the ruling or charge is correct. It must point directly and distinctly to the objec- tionable matter and to nothing else. It is usually the practice of counsel in calling upon the court to charge upon particular points in the case, to draw up the points sepa- rately, and to ask the court to charge first upon one, and then upon an- other, and to except separately to his refusal to charge. In such case the exceptions will always be separate. But where the exception is to some part only of the charge as delivered by the judge, his attention must be clearly and distinctly called to the objectionable matter, otherwise if any part be adjudged correct, the exception will fall to the ground. Prior to the Code, if a party desired to make a bill of exceptions, he procured an order staying proceedings upon the verdict for such length of time as was required to prepare the bill and have it settled, and then obtained another order, staying proceedings until the argument and (1) 2 R. S. 422, sec. 73 ; 7 Wend. 31. (2) Joms V. Osgood, decided at the close of the March term, 1852, and not yet reported. (3) Sands v. Church. (4) Eunt v. Mayhee, decided Oct. 22, 1852. GROUNDS OF EXCEPTIONS. 711 decision of tbe bill. In that case no judgment could be entered until the decision upon the bill of exceptions. Upon receiving the verdict of the jury, the clerk is required to make an^ entry in his minutes, specifying the time and place of the trial, the names of the jurors and witnesses, the verdict, and either the judgment rendered thereon, or an order that the cause be reserved for argument or farther consideration.(l) If a different direction be not given by the court, the clerk must enter judgment in conformity with the ver- dict.(2) In order, therefore, to review any of the rulings of the court, upon the exception taken at the trial, it is necessary in the first place to pro- cure a stay of proceedings upon the verdict. As I understand the Code, as amended in 1852, we are brought back, substantially, to the practice as it prevailed under the old system. The act of 1832,(3) provided that where a bill of exceptions was made, or demurrer, to evidence put in, cose made, &c., it should in the first in- stance be heard by the circuit judge, for which purpose the circuit judge was authorized to hold terms, for the hearing of such matters. After his decision, an appeal might be taken from his decision to the Supreme Court. The only material difference is that there is no longer a hill of excep- tions, and a case is substituted as embracing both exceptions and case. Upon receiving the verdict of the jury, the clerk must proceed to enter judgment for the prevailing party, unless " the court give a different direction. ''\4:) As I understand these words, they mean that the pre- vailing party may forthwith, as soon as he can get his costs adjusted, enter up his judgment, unless the judge directs the cause to be re- served for argument or further consideration, or grants a stay ofjiroceed- ings. A stay of proceedings upon the verdict must be obtained, or the clerk may enter up the judgment, for although the exception may be reduced to writing at the time it is taken or may be entered in the judges minutes, it cannot be settled until afterwards. Therefore, t\iQ first step to be taken after the jury have rendered their verdict is to procure an order staying the proceedings : the second, to have the time for preparing the case extended, if necessary : third, to prepare and serve the case as provided by the rules of the court, and upon the same being settled and filed, the case may be heard at the cir- cuit or special term, and from the judgment on the case an appeal may be taken to the general term. (1) Code, sec. 264. (2) Code sec. 264. (3) Laws 1832, chap. 128. (4) Code, sec. 264. 712 GROUNDS OF EXCEPTIONS. Stay of proceedings^ Immediately upon the termination of tlie trial, the party wishing a review upon exceptions should procure from the judge holding the court, an order staying the proceedicgs of the oppo- site party. The case does not operate as a stay of proceedings, and therefore the order should be to stay the proceedings until the argument and decision of the case. The court in arresting the entry of judgment by giving a different direction, undoubtedly have authority to stay the proceedings until the decision at the special term, upon the case, that is to be made and settled. It is always best to obtain this order from the judge while holding the court, as a judge out of court cannot stay the pro- ceedings in a cause for a longer jjeriod than twenty days, except upon ^ previous notice to the adverse party.(l) Let a copy of this order be served immediately upon the opposite party. If the time allowed for preparing the case is not sufl&cient, obtain at the same time a further or- der extending the time as long as may be necessary. The stay of proceed- ings and the extension of the time to prepare the case may be included in one order. An order extending the time to prepare the case will not of itself operate also as a stay of proceedings.(2) It is not necessary, as we have seen, (3) to reduce the exception to writing at the trial, although it may be. The usual practice is for the court and the counsel to enter the exception upon their minutes merely, and the proceedings having been properly stayed, proceed to prepare the exceptions in the proper form, setting forth the evidence offered on the trial, the objections of counsel, the decision of the judge and the exception thereto : or the charge of the judge and the exceptions taken, as the case may be, concluding with the verdict of the jury. Properly, the exceptions should contain no more of the evidence than is necessary to present tha questions of law raised on the trial.(4) And it is the duty of the justice, upon the set- tlement of the bill, to strike out of the same all the evidence and other matters which are not necessarily inserted.(5) When the exception is to the charge of the judge, and the charge embraces several points of law, the exception must specify the particular points in respect to which the error is alleged.(6) And the exceptions must show on their face, that the exceptions were taken on the trial (7) The exceptions being drawn, it must be folioed, and each line of the folios numbered, and in the copy served upon the opposite attorn e}^, the folios and lines must correspond with the draft.(8) A copy must then be (1) Code, sec. 401. (2) Goodrich v. Dotos, 5 Hill Rep. 510. (3) Ante, p. 710. (-1) Code, sec 264. Rule 24. (5) Rule 24; 4 HUl, 119; 1 How. Pr. Rep. 226; 2 lb. 102. (6) 23 Wend. 316; see JonesY. Osgood; Sands v. Church; Runt v. Maylee, cited ante, p. 710. (7) 5 Hill, 577. (8) Rule 15. GROUNDS OF EXCEPTIONS. 713 served within ten days after the trial, upon the attorney for the adverse party. (1) The exceptions and copy must be endorsed, with the title of the cause, putting the plaintiff's name first, and " proposed exceptions." The exceptions need not contain the pleadings unless it be neces-sary, to raise the questions of law. Where, therefore, the exception relates to a matter which cannot be determined without looking at the pleadings they would be incorporated in the case. Proposing amendments^ If the party upon whom the proposed ex- ceptions are served is dissatisfied with the manner in which they are drawn up, or finds them incorrect, or if anything which ought to be in has been omitted, he may propose amendments thereto. For this pur- pose, the amendments are drawn up, specifying therein the alterations or additions which it is claimed should be made. Thus, "after Avord 'one' in Hne 7, of folio 9, insert as follows," or "at end of line 5, in folio 16, add as follows," or "strike out all after word 'as' in line 8 of folio 25, to and including word ' event' in line 11 of same folio," and the like. The amendments being prepared should be engrossed, and a copy served upon the attorney of the party proposing the exceptions. Unless the time for proposing amendments has been enlarged, they must be served within ten days from the time of receiving the proposed ex- ceptions. The time for proposing amendments may be enlarged by one of the justices of the court, or by a county judge.(2) Settling exceptions.'] If the party who proposed the exceptions is not willing to adopt the amendments served on him by the opposite party, he must ^ilh.\u four days after the receipt of the amendments, give no- tice to the other party to appear before the justice who tried the cause, within a convenient time, to have the exceptions and amendments settled. The time for settling the exceptions and amendments must be specified in the notice and must not be less than/o?/r, nor more than twenty days after the service of the notice.(3) The parties have the right to be heard by counsel before the justice, and the justice will amend and correct the exceptions according to the facts. He may correct his charge, even although the parties have agreed upon it, and he may, also, insert such proof as goes to waive the exception. (4) The exceptions having been settled by the justice, have them en- grossed and folioed. Formerly it was necessary that the exceptions should be signed and sealed by the judge, and he might be compelled to do so, by manda- (1) Rule 15. (2) Code, see. 405. (3) Rule 15. (4) 7 Cowen, 364. Vol. I. 90 714 GROUNDS OF EXCEPTIONS. mus. But this is no longer necessary, it being provided that the exceptions need not be sealed or signed. (1) Setting aside settlemeni of hill of exceptions'^ If the exceptions are im- properly settled, the party objecting may move to set them aside.(2) This is conducted like other special motions, and must be upon affida- vit of the errors or defects complained of. The court, if it is satisfied the exceptions are improperly settled, may correct them or refer them back to the justice who tried the cause, to be reviewed and corrected.(3) Filing exceptions.'] The exceptions having been settled by the justice, must be filed with the clerk of the county where the action was tried, within ten days after it is so settled by the judge, or it will be deemed abandoned. (4) And so, where the amendments proposed to the exceptions are sub- mitted to, the exceptions must within the like time be filed. By not noticing the exceptions and amendments for settlement, the party proposing the exceptions will be deemed to have agreed to the amend- ments,(5) and the exceptions will be regarded as " settled" after four days from the service of the amendments, if no notice of settlement is within that time given. Upon the exceptions being filed, the case is in a condition to be noticed for argument at the circuit or special term. Notice of argument.] Either party may notice the exceptions for argument. The notice must be served eight days before the first day of the term at which it is intended to bring on the argument, and must specify the time and place when and where the exceptions will be heard. The exceptions can only be heard in the judicial district embracing the county in which the place of trial was laid, or in a county adjoining the one where the trial was had, and must be heard at a circuit or special term. The exceptions may be noticed for argument as soon as they are settled and filed. Suflficient time, however, should be given to have the exceptions as settled copied, and that there has not been sufficient time to have them copied, will be a good answer to a motion to strike the cause from the calendar. Note of issue.] The party noticing the exceptions for argument must, eight days before the first day of the term at which it is intended to (1) Code, sec. 264. (2) 10 Wendell, 254. (3) 5 Wendell, 132 ; 1 id. 471. (4) Rule, 17. (5) Rule, 16. GROUNDS OF EXCEPTIONS. 715 bring on the argument, furnish the cleric of the court, where the excep- tion is to be heard, with a note of the issue. This is a brief note of the title of the cause, the nature of the question, the date of the issue, and the names of the attorneys for the respective parties. The date of the issue in exceptions will be the day when the verdict in the cause was taken, or non-suit granted. (1) Making up calendar.'] The calendar of causes for argument at the circuit or special term, is made up by the clerk in duplicate, one for the use of the court, and one for the use of the bar. The causes are arranged on the calendar in the order of the dates of the issues, com- mencing with the oldest dates. Argument.'] When the cause is reached on the calendar and called on for argument, the party excepting must furnish a copy of the case to the justice holding the court. Each party must furnish at the same time, to the justice and to each other, a copj^ of his points. The coun- sel for the party excepting opens the argument ; the counsel for the adverse party replies, and the counsel for the excepting party closes the argument. Only one counsel on each side will be heard, unless the court otherwise direct,(2) and then not more than two hours each.(3) Either party having noticed the exceptions for argument and put the cause on the calendar, may, if the other party does not appear to argue, move for and take, upon furnishing proof of the service of the notice of argument, such judgment as he claims to be entitled to ; either an order granting or refusing a new trial, as the case may be.(4) Where a default is thus taken, it is the duty of the counsel who moves, to endorse upon the papers his name.(5) The object of this being to enable the opposite party to give him notice of an application to the court to open the default ; it being the almost invariable prac- tice of the court to open defaults thus taken, provided the counsel who took the default is at the place where the court is sitting and has notice of the application. The court will, however, usually require, as a con- dition of the opening of the default, that the cause be argued at the same term. Decision?!^ Upon the decision being made, which will be either granting or refusing a new trial, the clerk of the court in the county where the exceptions were heard, will make an entry of the decision in the minutes of the court. If a new trial be granted, it will be suffi- (1) Rule, 34. (2) Rule, 14. (3) Rule 14. (4) Rule, 25. (5) Rule, 2G. 716 MOTION FOR A NEW TRIAL UPON THE JUDGE'S MINUTES. cient for the prevailing party to procure a certified copy of the order or decision of the judge, and serve a copy thereof upon the opposite party. The cause may then be noticed for trial at the circuit as in the first instance. If a new trial be denied, the successful party can pro- ceed to enter up his judgment upon the verdict, the manner of doing which is the same as if no case had been made.(l) From an order refusing or granting a new trial, however, either party may appeal to the general term ; but of this I shall speak hereafter. Motion for a new trial upon thejudge^s minutes. An informal mode of reviewing the decisions upon questions of law made by the judge at the circuit, as also the questions of fact and the finding of the jury is now furnished by the Code.(2) It is provided that "the judge who tries the cause may, in his discretion, entertain a motion to be made on his minutes to set aside a verdict and grant a new trial upon exceptions, or for insufficient evidence, or for excessive damages." The motion which may thus be made upon the judge's minutes can only be heard at the same term or circuit at which the trial is had.(3) The only advantage of this practice is that it avoids the delay of a formal hearing of exceptions or case at the special term, or of motions to set aside a verdict for insufficient evidence, or for excessive damages. If the ground of objection is to a decision of the judge upon some ques- tion of law, it is not probable that he will reverse his decision upon an informal argument at the same term, nor is there much hope of it even when argued at the special term. Therefore, where it is desired to take the case to the general term, much time may be saved by moving for a new trial upon the judge's minutes at the same term at which the trial took place, and if denied or granted, the unsuccessful party may at once appeal to the general term.(4:) But where the verdict is not supported by the evidence, as, for in- stance, being against the weight of evidence, or where the damages found by the jury are excessive, this summary mode of review is emi- nently useful. As has been already stated, the motions in all these cases are heard upon the judge's minutes ; hence no exceptions or case are prepared, nor need any points be drawn. Nor is it probable that the judge will ever allow a very extended argument, and verdicts will be set aside, as being against the weight of evidence, or on account of the excessive- (l) See ante. (2) Code, sec. 264. (3) Code, sec. 264. (4) Code, sec. 264. MOTION FOR A NEW TRIAL ON A CASE. 7X7 ness of the damages, and new trials granted onlj^ when the case is a clear one. The judge will not interfere in this summary way if there is reasonable ground to believe the verdict is correct, but will put the party to his formal exception. As I have stated, either party may appeal from the decision of the judge in like manner, and with like effect as from a decision made at special term. In such case, however, it is necessary to have a case or exceptions drawn up and settled in all respects similar to the usual form.(l) Where the motion is heard and decided upon the judge's minutes, the party desiring to review such decision, must appeal therefrom within thirty days after written notice of the judgment or order from which it is intended to appeal. (2) Whether the order grants or refuses a new trial, no judgment will be entered, and the appeal will be from the order. In no case is it now proper to enter up a judgment until the case has been decided at the general term. The appeal, therefore, will, in all cases, be from the order granting or refusing a new trial. The appeal which may thus be taken is subject to all the rules and restrictions provided in respect to appeals generally from orders made at special term,(3) and of which I shall fully treat hereafter. It may be observed, however, that no security upon such appeal is required to be given.(4) SECTION 11. MOTION FOR A NEW TRIAL ON A CASE. Another mode of reviewing the decisions of the judge made upon the trial, is by a ''''case'''' containing all the evidence and proceedings which transpired upon the trial. All the questions which can arise, upon exceptions, may also be raised upon a case. There are also ques- tions which cannot be raised by exceptions, which may be upon a case. Thus, a motion for a new trial may be made upon a case, on the ground that the verdict is against the weight of evidence.(o) And the court will look into the whole case, to see if there is sufficient evidence to sustain the verdict.(6) So, when relief against the verdict is sought on the ground of the excessiveness of the damages, or the smallness of the damages, the proper course is to make a case. (1) See ante, p. 712-113. (2) Code, sec. 332. (3) Code, sec. 349. (4) Beach v. Southiuorth, 1 Code Rep. 99; Nicholson v. Dimham, id. 119; Allen v. Johnson, 2 Sandf. S. C. Rep. 629. (5) 8 Cowen, 406 ; 14 Johns. R. 304 ; 2 Wend. 418. (6) Id. 718 MOTION FOR A NEAV TRIAL ON A CASE. A distinction lias at all times existed between exceptions and a case, and continues to exist under the Code.(l) The office of the former being confined to correcting errors in law^ and the latter to correcting errors in fact as well as in law. A case, therefore, is more comprehensive than exceptions, but is never proper, except where it is designed to review the finding of the jury upon the questions of fact. So, it seems that a motion for a new trial may be made upon a case for a misdirection of the judge, although no exception was taken on the trial.(2) But the usual office of a "case" where no exceptions have been taken, is to set aside the verdict of the jury, either as being founded upon insufficient evidence, or as being against the weight of evidence, or on account of the excessiveness or meagerness of the damages. In addition to this, all the rulings and decisions of the judge and his charge to the jury, or his refusal to charge, in a particular way, may also be reviewed by a case. Staying proceedings^ In order to prepare a "case," the proceedings upon the verdict must be stayed until the motion on the case is heard and decided. The order staying the proceedings is procured in the same manner as in the case of exceptions, and is of the same nature. (3) Preparing the case.'] The case must be drawn up, and should con- tain all the evidence and proceedings that transpired on the trial. It should also contain all the exceptions taken to the decision or charge of the judge. In point of form, the case should set forth, in the same manner as a special verdict, for which it is for some purposes a substi- tute, the facts with the evidence of them, as proved on the trial. And where the question is, not what is the law arising on the facts proved at the ti-ial, but as to the sufficiency or effect of the testimony offered to prove the facts, then the evidence itself must all be stated. The case should also contain the pleadings, if any qu.estion is likely to arise on them in connection with the evidence. Amendments to^ settling and filing case.] Amendments are proposed by the opposite party within the same time, and the case is settled in the same manner, and upon the like notice, as in the case of exceptions, and in like manner, after it is settled, must be filed with the clerk of the county where the action was tried.(-i) The case need not be signed by the judge nor sealed. (5) The grant- ing of a new trial on a "case" is matter of discretion : and if the court (1) Code, sec. 264, 265. (2) 4 "Wend. Rep. 514. (3) See ante, p. *? 11. (4) See ante, p. 713-7 14 ; Rule 17. (5) Code, sec. 264. MOTION FOR A NEW TRIAL OX A CASt:. 719 see that legal justice has been done by the verdict, they will not dis- turb it,(l) and for this purpose they will look into the whole case, and at all the evidence. Thus, where improper evidence was admitted on the trial, a new trial will not, on that ground, be granted on a case, where the court see that the result would be the same if the evidence was rejected,(2) although on " exceptions," it would be of course to grant a new trial. (3) So it seems a motion for a new trial on the case will be denied, irre- spective of the ground on which the cause was disposed of at the circuit, if the court see that another exists, which must ultimately prove fatal to the party moving : otherwise, where the question arises on excep- tions.(4) And so, on the other hand, if it appear that the plaintiff ought not to have recovered on an objection which if it had been specifically taken at the trial, could not have been obviated, the verdict will be set aside ; otherwise, on exceptions.(o) The practice as regards the argument of the case is the same as in the case of exceptions : therefore the notice of argument, — note of issue, — mode of making up the calendar, — argument, — decision, &c., will be the same ; and I need simply refer to the previous section for the practice on that subject. (6) Turning a case into a special verdict or exceptions?^ Unless the case is turned into a special verdict or exceptions, the defeated party cannot go to the court of dernier resort, (i. e. to the Court of Appeals,) that court refusing to entertain any cause that comes up iipon a case made at the circuit.(7) Hence it was formerly the practice, that if it was desired to put the case in a situation to go, if necessary, to the court of dernier resort, the right must be reserved at the trial of making the case with liberty to either party to turn the same into a special verdict or excep- tions, whenever" it became necessary to do so, in order to go to the Court of Appeals. If the right was not reserved at the trial, it would not afterwards be allowed. (8) Nor would leave be granted to turn a case into a special verdict or exceptions, and enter it on the judgment roll, for the purpose of reviewing, upon appeal, a decision at the circuit, sustained at the general term, where the party instead of having a bill of exceptions duly signed and sealed, made up a case, and proceeded to the argument thereo£(9) And so, although the decision was duly ex- cepted to. (10) The stipulation was required to be inserted in the case. (1) 24 Wend. Rep. 15, 221; 1 Hill's Rep. 118 ; 5 Hill's Rep. 2T2. (2) 12 Wend. Rep. 404; 24 id. 221. (3) Ibid; 6 How. Rep. 292. (4) 1 How. Rep. 118 ; 1 Denio Rep. 226. (5) 1 Wend. Rep. 380. (G) Ante, p. 714-715. (7) Livingston v. Fiaddiff, 3 How. Pr. R. 417. (8) 2 Hall, 248 ; 3 Cow. 358 ; 1 How. Pr. R. 42. (9) 22 Wendell, 561. (10) Id. 720 MOTION FOR A NEW TRIAL ON A CASE. It is no longer necessary to reserve the right at the trial to turn a case into exceptions, though it may be to turn it into a special verdict. The provision in the Code is,(l) that if the exceptions are in the first instance stated in a case, and it be afterwards necessary to separate them, the separation may be made under the direction of the court. This undoubtedly gives the party the right to turn his case into exceptions without such right being reserved at the trial. It must be done however under the direction of the court. The court have accordingl>^ provided by rule,(2) that when a party shall be entitled to turn a case into a special verdict or exceptions he shall have thirty days after notice of the decision to do so. Upon receiving notice of the decision of the court upon the case or within tliirty days thereafter, the part}- wishing to turn the case into a special verdict or exceptions, must prepare and serve on the opposite party the special verdict or exceptions.(3) The mode of drawing up a special verdict will be the subject of the next section. I have already spoken of the manner of drawing up exceptions.(4) The party upon whom the special verdict or exceptions are served, has twenty days to prepare and serve amendments. In case such amend- ments are not agreed to, they must be settled by one of the justices of this court ; for which purpose the party preparing the special verdict or exceptions must within ten days after receiving the amendments give notice to the opposite party of the time and place of the settlement of the special verdict or exceptions and amendments. In case such special verdict or exceptions shall not be served within the said thirty days, the party in whose favor the motion on the case was decided is at liberty to proceed as though no special verdict or exceptions had been taken.(5) So, if no amendments shall be proposed and served within the twenty days allowed for that purpose, the special verdict or exceptions will be deemed to be assented to, as proposed and served.(6) And so, it would seem, although there is no rule on the subject, that if the amendments are not noticed for settlement within the time pre- scribed, they also will be deemed to be assented to as served. It may be observed that it is not necessary or proper to turn a case into a special verdict or exceptions until after the motion for a new trial on the case had been decided at the general term : it being necessary to do so only, as has been said, that the cause may go to the Court of Appeals. Where a case is made, reserving the right to turn it into exceptions, (1) Code, sec. 264. (2) Rule, 18. (3) Rule, 18. (4) Ante, p. 711-712. (5) Rule, 19. (6) Rule 19. MOTION FOR A NEW TRIAL, ic. 721 the points of law decided by the court must be distinctly stated on the case, substantially in the same form as is required in exceptions. And when a case is made with leave to either party to turn it into a special verdict, all disputed facts must be found by the jury.(l) As to manner of turning a case into a special verdict or exceptions, I shall speak again. SECTION III. MOTION FOR A NEW TRIAL IN CASES TRIED BY THE COURT WITHOUT A JURY. I have already stated, (2) the cases which may be tried by the court without a jury and the manner of trial, and it remains to be seen the mode in which in such case the proceedings on the trial are to be reviewed. As we have seen, (3) a different mode of review is provided in such cases than is provided iu cases of a trial by a jury. In the latter the review must be had hefore judgment, and in the former can only be had after judgment. In the case of a trial by the court, it is provided,(4) that for the pur- pose of an appeal either party may except to a decision on a matter of law arising upon such trial, within ten days after notice in writing of the judgment in the same manner, and with the same effect as upon a trial by jury. And either party desiring a review upon the evidence appear- ing on the trial, either of the questions of fact or of law, may at any time within ten days after notice of the judgment, or within such time as may be prescribed by the rules of the court, make a case or excep- tions in like manner as upon a trial by jury, except that the judge in settling the case must briefly specify the facts found by him, and his conclusions of law. Staying 'proceedh-igs.'] The first step to be taken, on receiving notice of the judgment is to obtain a stay of proceedings upon the verdict, if a stay is desired, until the appeal can be perfected. This is done in the same manner as in the case of a trial by jury. (5) The appeal when perfected will of itself, if the proper undertakings are executed and (1) 22 Wendell, 561; 4 Hill, 171 ; 5 HiU, 634. (2) AnU, p. 691. (3) Ante, p. 708-709. (4) Code, sec. 268. (5) Ante, p.709-7lO. Vol. I. 91 722 CASES TRIED BY THE COURT WITHOUT A JURY. filed, operate as a stay of all proceedings upon the judgment. The order therefore, staying the proceedings need be only until the appeal is perfected. The practice is, immediately upon receiving notice of the judgment to appeal therefrom to the general term, and prepare the case or excep- tions afterwards. In such case no stay of proceedings will be necessary. It is only where, for some reason, the appeal cannot be perfected, or Avhere it is desirable to prepare the case of exceptions before appealing, that it will be necessary to procure a stay of proceedings. Preparing case or exceptions P\ Upon the appeal being perfected by the giving the proper undertakings (of which I shall speak hereafter,) the party wishing the review, can prepare his exceptions or case in the same manner as upon a trial by jury.(l) All the rules as to the time and manner of preparing exceptions or a case, in cases of trial by jury, which I have already fully stated, apply to the same modes of review- ing in the cases of a trial by the court, and need not be here repeated. Upon the case or exceptions being settled, they must be filed, and annexed to the judgment roll. In respect to the settlement of a case where the trial is by the court, it is provided that the judge in settling the case shall hriefiy specify the facts found by him, and his concludons of law. This is in analogy to the report of referees.(2) I do not understand that in trials by the court, the unsuccessful party is at liberty to or can turn his case into exceptions with a view of ap- pealing to the Court of Appeals. The Code seems to make the decision of the general term upon a case final: the language of the Code being(3) that " questions whether of facts or of law, arising upon the trial, can only he reviewed in the manner prescribed by this section. The questions of law in every stage of the appeal, and the questions of fact upon the appeal to the general term of the same courtj^ Such also is the view taking of this subject in a late case.(4) The court {Harris, J.) say : " The mode of review upon questions of fact, is the same as upon questions of law. The only difference is, that, in the former case, the decision of the general term is final, while in the latter, another appeal may be brought to the Court of Appeals." The appeal, as will be seen hereafter, is to be heard in the first in- stance at the general term, and can in no instance be heard at a special term. In this respect also the mode of review in trials by the court differs fi'om a trial by jury, which as we have seen, (5) must be first heard at the circuit or special term. (1) Ante, p. 708, "709. (2) Ante, p. 698. (3) Code, sec. 2G8. (4) WaUon v. Scriven, T How. Pr. Rep. 9. (5) Ante, p. 714. SPECIAL VERDICT, &c. 723 The case or exceptions, as I have stated, when settled, is to be filed with the clerk of the county when the judgment is entered, and by him annexed to the judgment roll and the appeal carries up to the general term the judgment roll, including the case or exceptions. I shall again advert to this subject when I come to speak of appeals to the general term from the judgments entered under the direction of a single judge, and I may also here remark, that this mode of review is the same in all respects as in the case of decisions or reports made by referees, of which I shall speak in the succeeding sixth section of this chapter. SECTION lY. SPECIAL VERDICT, AND VERDICT SUBJECT TO THE OPINION" OF THE COURT. As has been stated(l) the jury may in their discretion, in actions for the recovery of money only, or specific real property, render a general or special verdict ; and in all other cases the court may direct the jury to find a special verdict in writing upon all or any of the issues. The special verdict when thus found by the jury must be in writing and filed with the clerk. The special verdict is not, however drawn up in form at the circuit, but a brief minute of the facts found by the jury only, is drawn up and filed with the clerk. Upon receiving the verdict, it is the duty of the clerk to enter judgment in conformity with the ver- dict, unless the judge or the court order the case to be reserved for argument or further consideration, or grant a stay of proceedings. Staying Proceedings. In order to draw up the special verdict, a stay of proceedings upon the judgment, ordinarily, will be required ; for in this case, as in cases of exceptions or cases made, the special verdict must be settled and filed. In order, therefore, to have the special ver- dict drawn up in form, procure from a judge of the court, an order suspending or staying proceedings upon the verdict, to enable you to draw up the special verdict and have it settled and filed with the clerk of the county where the trial was had. Serve a copy of this order on the opposite attorney. (1) Ante, p. 683. 724 SPECIAL VERDICT, AND Draiving special verdict.'] The special verdict must in all cases be drawn up by the party in whose favor the verdict was taken. The verdict must state the facts proved at the trial, and not the evidence given to prove these facts.(l) The verdict must not state any excep- tions taken on the trial to the competency of witnesses or the admissi- bility of evidence ; those being available only on exceptions or case.(2) The names of the witnesses sworn on the trial should not appear in the verdict, nor should deeds be set out in it, in hoec verba, but merely the substance of them stated, unless the question in dispute rests upon their construction. A negative need not be found in a special verdict, unless it be necessary to show that some matter therein mentioned does not come within a particular exception. After drawing up the special verdict in form, it must be engrossed, folioed, and lined in the same manner as cases or exceptions. A copy must be served upon the opposite attorney ; amendments may be pro- posed and served, and notice given of settlement before the judge who tried the cause, within the same time, and subject to the same regula- tions, as are made with respect to cases and exceptions. After the spe- cial verdict is settled, signed, and sealed by the judge, it must be filed with the clerk of the county where the action was tried. It must be filed within ten days after it is settled, or it will be deemed to be aban- doned.(3) The practice of drawing up a special verdict, and filing it, after it is settled is the same as in cases of exceptions and cases, to move to set aside a verdict or non-suit. There is however no analogy between this practice and the former practice of taking a verdict subject to the opinion of the court, or a motion for judgment upon a special verdict. But it is apprehended there is nothing in the Code that forbids the re- view of a special verdict, upon an appeal, though a motion /or judgment upon the verdict must of course be first made to a single judge. Hence, when the jury find a special verdict, a motion for judgment upon it must be made at a special term, but the judge before whom the trial was had may permit the judgment to be entered upon the verdict, without a motion, and then the party wishing to review, may after- wards, have the special verdict drawn up, settled and filed, and appeal from the judgment. Thus the case is heard upon the special verdict. The judge however may direct the party to move for judgment, upon the special facts as found by the jury, (as to whicli see post, title, " of special motions,") and such motion must be made at the special lerm.(4:) iX) Fuller Y. Van Giesen, 4 Hill, 171; Brin'k'headv. Brown, 5 Id., 634. (2) Welland Canal Co. v. Haiheway, 8 Wend , 480. (3) Rule 17. (4) Code, sec. 265. VERDICT SUBJECT TO THE OPINION OF THE COURT. 725 Verdict subject to the ojyinion of the court. Another mode of reserving the questions of law for the more mature consideration of tlie court, is to take a general verdict suhject to the opinion of the court at a general term. This can only be done where, upon the trial, the case presents only questions of law.(l) It will be seen that this course is proper only where there are no disputed (ixxQ&iiovi^ of fact, and. hence there must be a general and cannot be a special verdict. It is usual for the court where there is no dispute about the facts, to direct the jury to find a general verdict subject to the opinion of the court upon a case containing all the evidence. Upon the hearing of the case, the court direct judgment for the one party or the other, as may be right.(2) Where a verdict is thus taken, it is the duty of the party in whose favor the verdict is recorded, to prepare the case.(3) The case is drawn up within the same time, in the same manner, and is subject to all the rules, regulating cases on which to move for a new trial. In like manner, amendments may be proposed, and the case is to be settled. As I have already fully stated the practice as applicable to a "case,"(4) it is unnecessary to repeat here what was there said. U"|)on the case being settled, it must, within ten days thereafter, be filed with the clerk of the county where the trial Avas had. (5) The motion for a' new trial upon the case, can only be made at a general term. In this respect, it differs from a case on which to move for a new trial, which, as we have seen,(6) must, in the first instance, be made at a circuit court or special term, unless the judge trying the cause, at the trial, direct it to be heard, in the first instance, at a gene- ral term. (7) Upon the case being settled and filed, it is in a condition to be no- ticed for hearing, and is conducted in all respects like an appeal from a judgment entered under the direction of a single judge, or on a report of referees. In like manner, it must be printed,{S) and copies furnished to the court and the opposite attorney. As I shall fully treat on this subject, when I come to speak of "ap- peals," and shall there point out all that is required to be done after the case is filed, it is unnecessary to do more than refer the student to the chapter on that subject.(9) (1) Code, sec. 265. (2) 1 Burrill's Pr. 242. (3) Rule 28. (4) Ante, p. 717. (5) Rule 17. (6) Ante, p. 719. (7) Code, sec. 265. (3) Rule 30. (9) Post. 726 RESERVING CASE FOR ARGUMENT SECTION V. RESERVING CASE FOR ARGUMENT OR FURTHER CONSIDERATION. Somewhat resembling the practice of taking a verdict subject to the opinion of the court on a ca,se, at a general term, is that which autho- rizes the court to reserve the case for argument or for further conside- ration. (1) Therefore, it is provided that in actions tried by a jury, the judge, upon receiving the verdict, may reserve the case for argument or fur- ther consideration. In cases tried by the judge without a jury, the de- cision is to be made within twenty days after the adjournment of the court, at which the trial was had.(2) This time was doubtless given to enable the judge fully to examine the facts and law of the case, and direct the proper judgment to be entered. But when the action is tried by a jury, their verdict upon the facts is rendered, and judgment must thereupon be entered, under the direction of the judge, and in dif&cult or doubtful cases, no time is given to the judge to examine the law to ascertain what judgment upon the facts should be rendered, unless he reserved the case for argument or further consideration. Hence, in actions tried by a jury, the judge may, where, in his opinion, there is difficulty in the ease, or doubt as to the judgment to be entered upon the verdict, reserve the case for argument or further consideration. (3) Beserving case for argumeyit.'] The object of reserving the case for argument or further consideration, is to enable the judge to pronounce or direct the proper judgment. It is not, therefore, in the nature of a case made or exceptions, for no decision has as yet been made, to which an exception could be taken. No case or exceptions is drawn up, un- less so expressly directed by the judge, (4) but the argument of counsel is made upon the minutes of the trial kept by the counsel and by the judge who tried the cause. The argument of a case thus reserved is made at a special term, and is brought on like a motion, upon notice to the adverse party.(5) If a case is directed to be prepared, it must be drawn up and settled in the same manner as cases to set aside a ver- dict or non-suit. But when no case is directed to be made, the motion (1) Code, sec. 264. (2) Code, sec. 267. (3) Code, sec. 264. (4) Rule 28. (5) Rule 23. OR FURTHER CONSIDERATION. 727 may be made upon tlie minutes of tlic trial, or upon affidavits of what transpired upon the trial. In the absence of any rule or decision on the subject, the profession may be embarrassed in settling upon the practice under sections 264 and 265 of the Code. My impressions, upon a careful examination of the question, are, that the legislature intended that a case reserved for further consideration, was for the convenience of the judge before whom the trial was had, and under whose direction the judgment is to be entered. That upon the rendering of the verdict by the jmy, if the judge had doubt as to the judgment to be entered upon the facts as found ; whether upon such facts it should be for the plaintiff or de- fendant, he might reserve it, (that is, not at once direct the judgment,) for further consideration, and if he chose, he might hear counsel. On the trial of an issue of fact by a jury, the judge cannot, in the hurry of the circuit, give to any question a deliberate examination, and his judgment must, of necessity, be his first impressions ; hence, when a jury is waived, time is allowed him for reflection and examination. But in a jury trial, he must decide off-hand^ unless he reserves the case for argument or further consideration. It is not reserved upon the motion of either party, but by the judge on his own motion, for his own consideration. The judges have made a rule, requiring a case thus reserved to be heard at a special term, (1) but have given no direc- tions as to the manner of bringing it up or presenting the questions. I suppose it was the intention of the legislature that such cases should be heard in an informal manner, before the judge who held the circuit, on some future day, after he had discharged the jury, and that he might or not hear argument of counsel as he chose. The difficulty now presented is as to the manner of getting the case before the special term, unless the judge directs a case to be made. If no case is made, the profession are left in the dark as to the mode of presenting the questions and making the motion at the special term, where ordinarily a different judge will preside. The most convenient practice, therefore, will be to draw up and agree to, or have settled, in the ordinary way, a case containing such of the facts found by the jury as are necessary to present the questions. It will be seen that in these cases there is no disputed question of fact, but the verdict is found upon admitted facts. In this respect, it is analogous to taking a vei'dict subject to the opinion of the court, where the facts are never in dispute, and the sole question is as to the application of the law upon the facts. Hence, it will not be difficult to make a case for the purpose of making the motion at the special term. (1) RiUe 28. 728 RESEUYING CASE FOR ARGUMENT, &c. The practice of reserving a cause for argument or furtlier con- sideration, is now of but little consequence, iuasmucli as it is only ap- plicable to trial by jury, and in such cases a case or exceptions can be made and the questions of law thus reviewed, without giving security. Under the Code, prior to the amendments passed in 1852, the propriety and importance of this practice was apparent. Then the only way pro- vided for the review of a verdict of a jury, was an appeal after judg- ment on which security had to be given covering the judgment and the damages and costs on the appeal. This cast a heavy burthen upon the appealing party, and in authorizing the case to be reserved for argu- ment or further consideration, the intention of the legislature was doubt- less, to give to the parties the benefit of a deliberate and well considered opinion of the judge under whose direction the judgment is to be entered. Formerly, in reviewing the decisions of the circuit judge, no security was required, nor was any judgment entered until the decision of the court in banco ; and hence there was no particular consequence, whether the verdict was for the plaintiff or defendant, and generally, a verdict was directed for the plaintiff, and the defendant made a bill of exceptions ; thus presenting the questions involved in the case, for the judgment of the court in banco. The amendments to the Code passed in 1852 have brought us back as we have already seen,(l) substantially to the practice, so far as it respects the trial by j ury, as it existed prior to the adoption of the Code. And exceptions or a case is now heard in the first instance at the special term or circuit unless the judge trying the cause at the trial direct them to be heard in the first instance at the general term. In either case the j udgment is suspended Reserving the case for further consideration^ In like manner, if the judge is in doubt as to the judgment that should be entered, upon the facts as found by the jury, he may reserve the case for further con- sideration. And even after having heard the counsel of the parties, the judge may still reserve the case for examination and consideration. Having decided what judgment should be rendered upon the facts as found, the judge will direct the clerk to enter judgment accordingly, or he may grant a stay of proceedings, until the party desiring to review such decision, has had a case or exceptions made, settled and filed, as in other cases. Upon the expiration of such stay of proceedings, the judgment, as directed by the judge, is entered, the judgment roll made up and filed, and the party may appeal.(2) (1) Ante, p. VOS-TOO. (2) As to the manner of bringing on the motion of a case reserved for argument or further consideration see post under title " Of Special Motions." CASE TO SET ASIDE REPORT OF REFEREES. 729 SECTION VI. CASE TO SET ASIDE REPOllT OF REFEREES. As has been stated, the report of referees is to stand as the decision of the court ;(1) and the judgment is entered thereon in the same man- ner as if the action had been tried by the court ; and the decision of the referees may be excepted to and reviewed in the same manner. Drawing case or excepions.] In order to review the decision of the referees (where the whole issue has been reported upon) upon any question of law passed upon by them upon the hearing of the reference, exceptions must be drawn, or to move to set aside their report upon the merits, that is, as beiug against the Aveight of evidence, a case must be drawn, and served on the opposite attorney ; amendments proposed and served, and notice given of settlement before the referees, within the same times, and under the same regulations as are made with respect to exceptions or cases, to review the decisions of a single judge.(2) The party desiring to review the report of referees, upon the evidence appearing on the trial, either of the questions of fact or of law, may at any time within ten days after notice of the judgment, make a case or exceptions containing so much of the evidence as may be mate- rial to the question to be raised. (3) Staying proceedings.'] As in cases of exceptions or cases to review the decisions of a single judge, the party desiring to review the report of referees, must get his case settled and filed, so that it may be attached to the judgment roll, and then appeal from the judgment, which, as we have seen, carries up to the general term the judgment roll, including the case or exceptions as settled and filed. Such case can only be heard on appeal at the general term. (4) As the case or exceptions cannot, in general, be settled and filed within the ten days allowed for that pur- pose, a stay of proceedings must be obtained for the purpose of having ' the case settled and filed. Such stay may be granted by a justice of the Supreme Court, but not by a county judge.(5) A stay of proceedings for a longer time than twenty days, cannot be granted by a judge out of court, except upon previous notice to the adverse party.(6) (1) Ante, p. 699 ; Code sec. 272. (2) Code, sec. 2*72. (3) Code, sec. 268, 272. (4) Code, sec. 268, 272. (5) Code, sec. 401. (6) Code, sec. 401. Vol. I. 92 730 DEMURRER TO EVIDENCE. Settling case^^ The case is settled by the referees, in the same man- ner that exceptions or a case, or special verdict is settled by a judge. The parties in like manner have the right to be heard by counsel upon the settlement of the case. Where more than one claim or demand was in controversy before them, the referees must add a statement showing what claims and demands, and what sums in particular were allowed to each party. Filing case.'] The case or exceptions having been settled by the referees, must be engrossed, and it would seem should be signed and sealed by them, and filed with the clerk, with whom the judgment is entered, within ten days after it is settled, or it will be deemed to be abandoned.(l) It is then attached to the judgment roll.(2) SECTION VII. DEMURRER TO EVIDENCE. A DEMURHER to evidence is similar to a demurrer to a pleading. The party declares that he is not bound to proceed any farther, because the evidence offered on the other side is not sufl&cient to maintain the issue. The office of a demurrer is to refer to the court the law arising upon the facts.(3) In practice, however, demurrers to evidence are seldom resorted to, as the effect of a demurrer may be obtained by a special verdict or special case. If the opposite party join in demurrer, the jury are, in general, dis- charged from giving any verdict, though they may assess the damages conditionally. The demurrer to evidence is made orally by counsel as the evidence is produced by the opposite party. If the court overrules the demurrer, or refuses to receives it, the proper course is to except to the decision, and afterwards make exceptions. If, however, the demurrer is decided to be well taken, the jury will be at once discharged. Demurrer how drawn up^ The demurrer to evidence is drawn up and served upon the opposite attorney, amendments proposed and (1) Rule, 17. (2) For mode of reviewing tbe report of referees, where only a part of the issue is reported on, SQQ post, under title "of Special Motions." (3) The People v. Roe, 1 Hill, 47 1, 7wte (a.) DEMURRER TO EVIDENCE. 73-|_ served, and notice given of settlement within the same time and under the same regulations, as are made with respect to exceptions or cases to review the decisions of a single judge. If a stay of proceedings upon the judgment is necessary to draw up and have the demurrer settled and liled, it must be obtained from x judge of the court. Filing demurrer.] The demurrer having been settled, signed and sealed by the judge, it must be filed with the clerk, with whom the judgment is entered, and attached to the judgment roll, within the same time that is required in respect to cases.(l) (1) Rule 17. CHAPTEE X. OF SUBMITTING A CONTROVERSY WITHOUT ACTION. The Code has provided a clieap and expeditious mode of determin- ing a controversy concerning the law of a case, between parties, with- out resorting to an action. The controversy, however, must be real, and the facts upon which the questions of difference arise must be con- ceded and without dispute. The courts will not determine a disputed or conflicting question of facts, but will onl}^ adjudge the law, upon the facts as agreed on between the parties. This mode of determining a question of law, where the facts are con- ceded, will be found both convenient and cheap in a variety of cases. Thus, in cases of application to the court by executors, for the construc- tion of a will or other instrument, which heretofore could only be ob- tained by a bill in the court of chancery 5 or by trustees, for the con- struction of a power or trust ; and in all cases where the facts are agreed upon, and the dispute is in respect to the law, the parties may avoid the expense and delay of an action, and obtain the same result by the expeditious and economical method pointed out in the Code.(l) Drawing case.'] In order to present the questions of law for the ad- judication of the court, a case must be drawn up, containing' the facts upon which the controversy depends, to which must be annexed the affidavit of the parties, that the controversy is real, and that the pro- ceeding is conducted in good faith. Submission.'] There must be annexed to the case as prepared, a writ- ten submission of the questions in dispute to the court for its adjudica- tion. This submission must be subscribed by both parties. No attorneys are necessary, as the case is submitted by the parties in person. The argument of it, however, will ordinarily be by counsel. The case and submission having been drawn up and signed, it must be printed, and furnished by the plaintiff, in like manner as upon an appeal to the Supreme Court. (2) Points in like manner must be prepared and printed. The cause is put upon the calendar, and the argument moved and conducted in the same manner as upon appeals from judgments. (1) Code, sec. 132. (2) Rule 29. SUBMITTING A CONTROVERSY WITHOUT ACTION. 733 If tlie party whose duty it is to furnisli the printed case, fail to do so, at the proper time, tliat is, at or before noticing tlie case for argument, the other party may in like manner as in appeal cases, move to strike the cause from the calendar and for judgment in his favor. Either party may notice the cause for argument, by a notice of at least eight days. The case is heard at the general term of the court, and cannot be heard at the special term.(l) Judgment^ The judgment upon the decision of the case is entered in the judgment book, in like manner as in other cases, but without costs for any proceeding prior to notice of trial. But the costs subse- quent to the notice of trial, are to be inserted for the partv entitled thereto, in the entry of judgment the same as in actions. The case, the submission, and a copy of the judgment, constitute the judgment-roll. The judgment may be enforced in the same manner as if it had been rendered in an action, and may in like manner be ap23ealed from to the Court of Appeals. (I) Rule 29-30, CHAPTER XI. APPEALS TO THE SUPEEME COURT, FROM AN INFERIOR COURT. Section I. preliminary remarks. II. APPEAL, WHEN AND BY WHOM TAKEN, AND FROM WHAT JUDGMENTS. III. PROCEEDINGS TO PERFECT APPEAL. lY. TRANSMITTING JUDGMENT APPEALED FROM TO SUPREME COURT. V. PREPARING AND ARGUING APPEAL. YI. JUDGMENT AND PROCEEDINGS THEREON. SECTION I. PRELIMINARY REMARKS. The only mode known to tlie former practice of reviewing the judg- ments of inferior courts, was by writs of erroi\ whicli issued out of this court, and were directed to, and commanded the inferior court to return to this court a transcript of the record of judgment, and all things touch- ing and concerning the same. Upon the return of this writ, the plain- tiff filed and served upon the defendant an assignment of errors. The errors thus assigned were either in law^ as where, upon the face of the record, an improper judgment appeared to have been given, or, in /ad, as where, by matters dehors the record, it appeared that, from some omission or irregularity in point of fact, as that a judgment had passed against an infant, or the like, it could not be sustained. To this assign- ment of errors in law or in fact, the defendant might either plead the common joinder, that there was no error, or specially, or he might de- mur. Writs of error in civil actions, as they have heretofore existed, are now abolished ;(1) and the only mode of reviewing a judgment, is by an appeal in the manner prescribed by the Code. As I have fully stated in a former part of this work,(2) in speaking of the organization and business of this court, it is provided that at least (1) Code, sec. 323. (2) Ante, p. 25. APPEAL, WHEN AND BY WHOM TAKEN, &c. 735 four general terms of the Supreme Court shall be held annually in eacli judicial district, and as many more as the judges may from time to time appoint. These terms are held by at least three of the judges, and it requires a concurrence of a majority of the judges holding the court, to pronounce a judgment. I have also already stated,(l) that this court, when sitting in general term, exercises appellate powers only, in reviewing the judgments and decisions of inferior courts, or of judgments or orders rendered or made under the direction of a single judge of the same court. It also has ap- pellate power to restrain inferior courts within the limits of their juris- diction, by writs of prohibition and mandamus ; and to review the pro- ceedings of certain courts and officers, invested with special jurisdiction, by certiorari.(2) At the general term, therefore, this court will only exercise its revi- sory powers in correcting the errors, abuses and mistakes of inferior and subordinate tribunals, and of single judges of the same court. The manner of bringing a decision or judgment of an inferior court into this court for review, will now be entered upon. It is provided by statute, (3) that an appeal may be taken to this court, from a judgment rendered by a county court, or by the mayor's courts, or recorder's courts of cities. An appeal may also, in like manner, be taken to this court from the judgments of "The City Court of Brook- lyn."(4) This change from writs of error to appeals, is nominal merely, the same results having heretofore been attained, and very much in the same way, by a writ of error, that are now by an appeal. In both, the record of the judgment rendered in the subordinate court, is sent into this court, and the j udgment reviewed. There is, however, some change for the better, in the forms and machinery employed in possessing this court of the case. The powers of the court, and the judgments which are applicable are more clearly and distinctly defined, and but little, if any, difficulty is presented in arriving at a correct conclusion on the subject. SECTION II. APPEAL, WHEN AND BY WHOM TAKEN, AND FROM WHAT JUDGMENT. When taken^ An appeal from a judgment of a county court, or (1) Ante, p. 24. (2) Graham on Jurisd. p. 232. (3) Code, sec. 344. (4) Laws of 1850, p. 148. 736 APPEAL, WHEN AND BY WHOM TAKEN, mayor's or recorder's court of a city,(l) and from tlie city court of Brooklyn, (2") may be taken at any time, witliin two years after the judgment appealed from was entered, and it seems the two years will be taken from the time the decision was actually made and entered, and not from the time the judgment was perfected. This question arose lately in the Court of Appeals,(3) where it was held that the section of the Code limiting the time for bringing an appeal, ought to receive the same construction which was given to the former statute, and that the limitation should be counted from the time the final determination w^as actually made. And Buggies, Ch. J. says, " It was decided at the last term of this court, that an appeal could not regularly be brought until the costs were ascertained and the judgment-roll filed. But the party desiring to appeal, may compel the other, by motion, to perfect his judgment, if he omits to do so ; and it is the appellant's own fault, if he permits the time to elapse without causing the roll to be filed. " The clerk of the county where the general term is held, must neces- sarily make and keep an entry of the final order of the court ; and this ought to specify the relief granted or other determination of the action.('i) This entry shows when the final determination is made, and regulates the time allowed for appealing. For the purpose of perfecting the judgment, the prevailing party must cause this order to be entered in the judgment book kept by the clerk of the county where the action is brought, and the other proceedings are filed.(5) But the time allowed for bringing the appeal is not aftected by a delay in entering the order in the judgment book." So, under the late statute regulating the time for bringing writs of error, it was held, (6) that the two years were counted from the time the final determination was made, and not from the subsequent filing of the judgment roll. The principles established by these cases in respect to the time when the two years limitation begin to run, must be taken to govern the time within which an appeal may be taken to this court from the judgment of a county or other inferior court. In the section giving the right to appeal,(7) the words " actual determination," as used in the 11th section regulating appeals to the Court of Appeals, are omitted, and the appeal is authorized from the "judgment rendered," &c. But there is no difierence except that in order to allow the appeal from a judgment of an inferior court, it need not actually determine the case, it may grant (1) Code, sec. 344, 331. (2) Laws of 1850, p. 148. (3) Bank of Geneva v. HotcliMss, 5 How. Pr. Rep. 478. (4) Code, sec. 280. (5) Code, sec. 281. (6) Fleet v. Youngs, 11 Wend. 522 ; Lee v. Tillotson, 4 Hill K. 29. (7) Code, sec. 344. APPEAL "WHEN AND BY WHOM TAKEN, &c. 737 a new trial and yet be appealable ; not so in the Court of Appeals: thej cannot review judgments which do not actuall}^ determine the case — and hence they have no power where the judgment of this court grants a new trial or refers the case back for any purpose. Hence, it may be regarded as settled that the time within which only an appeal can be made to this court, from a judgment of an inferior court is two years from the time the decision is made and entered in the book kept by the clerk, and not from the time the judo-ment roll is filed. By whom.~] An appeal from a judgment may be taken by the party against whom the judgment was rendered, and in some cases a party may appeal from a judgment in his own favor, it being provided by the Code,(l) that any party aggrieved may appeal in the cases prescribed by law. It is presumed that the provisions of law,(2) in respect to the parties by whom and against whom writs of error may be brought, the joinder of parties, and the proceedings on the death or marriage of parties, will all apply to appeals, brought under the Code. (3) From icl tat judgments?^ The only judgments of inferior courts that can be brought into this court for review upon appeal, are final judg- ments. No interlocutory proceeding in a cause, or decision which only partially determines the rights of the parties or the subject of the con- troversy, is the subject of appeal. So, where the judgment in the court below was rendered by default it seems, this court cannot entertain an appeal. (4) This was a case arising in a justice's court, which was appealed to the county court, in which the plaintiff did not appear, and the judgment of the justice was reversed by default. The plaintiff' appealed to this court, and Parlcer^ J., says: "I am satisfied this court is vested with no authority in this case except to review and correct the decisions of the county court, actually made after a hearing of both parties." So, where in cases arising in justices' courts, the judgment of the county court is to order a new trial in the cases prescribed, (5) such judgment cannot be appealed from.(6) But in other cases, such as originate in the county court, I suppose it to be otherwise, and that it (1) Code, sec. 325. (2) 2 Rev. Stat. 592, sec. 2. (3) As to -which see post under head of "Appeals from judgments entered under the dh-ec- tion of a single judge and report of referees," post, Chapter XII. (4) Dorr v. Birge, Wells, 5 How. Pr. R. 323. (5) Code, sec. 366. (6) Rartwelly. Kingsby, 2 Code R. 101. Vol. I. 93 738 ^APPEAL WHEN AND BY WHOM TAKEN, &C. is competent for this court to review the judgment of a county court, even though it grant a new trial. The count}'- court is now clothed with jurisdiction in a large class of cases,(l) and may grant new trials upon exceptions or case made, &c. It need not be an actual determina- tion of the action in order to render the judgment appealable. It is sufl&- cient it be & judgment^ and it is immaterial whether such judgment grant a new trial, or af&rm, or modify, or reverse ; in either case it is appeal- able to this court, for the section which gives the county court the power to grant a new trial, &c. upon exceptions or case made, says it shall be " subject to an appeal to the Supreme Court."(2) Cases arising in a justice's court.'] In order to appeal from the judg- ment of a county court in a case arising in a justice's court, it is neces- sary to procure a certificate, that it is a proper case to be j)resented to the Supreme Court. For this purpose, the party desiring to bring the appeal must within thirty days after he has received notice of the judgment, present to a judge of this court (i. e. Supreme Court) the re- turn of the justice, or a copy thereof, with the decision of the county court and obtain from such judge a certificate that he has examined the case, and in his opinion an appeal to the Supreme Court should be allowed. In order to restrict the time within which this certificate must be ob- tained a written notice of the judgment having been entered, must be served on the party against whom it is entered. A verbal or con- structive notice is not suf&cient, it being provided that all notices shall be in writing.(3) And even, if the party was present when the judg- ment was entered, it will not be deemed a notice within the meaning of the law ; and so it was decided by Harris, J., in a case not reported. But if the certificate of a judge is not procured within such time, after notice of the judgment has been duly given, the right to appeal will be lost the court having no power to extend the time for granting the certificate. The act of 1836(4) required, in cases of writs of error brought upon a judgment of a court of common pleas in a cause arising in a justice's court, that a certificate should be procured, Avithin thirty days from the time of filing the record, from the judge who presided at the trial, that the cause was a proper one to be carried to the Su- preme Court. Under this statute it was decided(5) that the court could grant no relief whatever, if the certificate was not procured within the thirty days. The provision in the Code in respect to procuring a (1) Code, sec. 30, sub. 1, 2, &c. (2) Code, sec. 30, sub. 13. (3) Code, sec. 408. (4) Sess. Laws, 1836, p. 794, sec. (5) 22 Wendell. 627. PROCEEDINGS TO PERFECT THE APPEAL. 739 certificate of a judge is substantially the same as the act of 1836, ex- cept that the party must have notice of the judgment, in order to limit the time. So, in a more recent case in the Court of Appeals, (1) it was held, that an appeal was a nullity, if the certificate required by the Code was given after the expiration of thirty days, and the defect could not be cured. Parties, how called.'] The party appealing is known as the appellant, and the adverse party as the respondent, but the plaintiif 's name must always be placed first in the title, thus: A. B., appellant or respondent, against C. D., appellant or respondent.(2) There is nothing in this section of the Code which affects the name or style of the court ; it ap- plies only to the names of the parties. Hence, after an appeal is per- fected, the papers must be entitled in the appellate court, and not in the court from whose judgment the appeal has been made. (3) SECTION III. PROCEEDINGS TO PERFECT THE APPEAL. Notice of appeal.] The mode prescribed by the Code for bringing an appeal, is by the service of a notice.{4:) This is analogous to the mode provided heretofore for appeals from the decisions of circuit judges,(5) which were authorized to be made by the service of a notice. The notice thus required and which is the first step towards the appeal must state that the party appeals from the judgment or from some specified part of it. It must contain correctly the names of the parties, and should describe the judgment accurately. It need not, however, state the grounds upon which the appeal is brought.(6) And if the whole judgment is not appealed from, and the party appealing intends only to review a part of it, he should specify with accuracy the part or por- tion of the j udgment appealed from. Service of notice^ The notice of appeal must be served on the adverse party, and also on the clerk with whom the judgment appealed from is entered. (1) Seymour v. Judd, 2 Com. R. 464. (2) Code, see. 326. (3) Chickman v. Cliickman, 1 Code R. 98. (4) Code, sec. 327. (5) Sess. Laws, 1841, p. 206. (6) Wilson, receiver, v. Alle^i and others, 3 How. Pr. Rep. 369. 740 PROCEEDINGS TO PERFECT THE APPEAL. The language of the Code would seem to indicate that the notice must be served upon the adverse party ^ and cannot be upon his attorney, but there are other parts of the Code which control and which autho- rize, indeed require, that if the party has an attorney, all papers in the action must be served upon such attorney,(i) and I believe it has uni- formly been held by this court, that it is improper to serve a notice of appeal upon the party if he has an attorney in the action.(2) This no- tice may be served in the same manner, both upon the attorney and upon the clerk, as other notices and papers in the action. There is nothing to require the service to be personal, or to be made in any peculiar way, and as I shall hereafter allude more fully to the subject of the service of notice, &c., it is unnecessary here. The notice of appeal must be served within the time limited for the bringing an appeal,(3) and cannot be afterwards. The appeal is not made until the service is complete, upon the attorney and the clerk.(4) In the case of service upon the attorney it will be deemed complete when the notice is deposited in the post office, but not so in the case of the clerk. Accordingly, it has been held, (5) that where a notice of appeal was deposited in the post office for the clerk on the last day for bringing an appeal, which was not received by him until after the time had expired, was irregular. But being merely irregular the court has power to give relief and may order the service to be deemed suffi- cient so as to give the party the benefit of his appeal.(6) The service of such notice is a jurisdictional question, and may be taken advantage of at any time, if the party has not appeared so as to give jurisdiction or rather waive the objection. (7) The undertaking?^ To render the appeal effectual for any purpose, a written undertaking must be executed on the part of the appellant, by at least two sureties, to the effect that the appellant will pay all costs and damages which may be awarded against him on the appeal, not ex- ceeding two hundred and fifty dollars. Or, the appellant may deposit with the clerk with whom the judgment appealed from was entered, the sum of two hundred and fifty dollars, to abide the event of the ap- peal.(8) This undertaking or deposit, or both, may be waived by the written consent on the part of the respondent.(9) (1) Code, soc. 417. (2) Trijip v. Bow, 3 Code R. 163; 5 How. Pr. P. 114. (3) Ante, p. 735. (4) WescoU v. Pratt, 1 Code R. 100. (5) CritteTiden v. Adar.vs, 1 Code R. (N. S.) 21 ; 5 How. Pr. R. 310. (6) Ibid. (7) TriTyii v. Bow, 5 Kow. Pr. R. 114; 3 How. 363; 9 Barb. 373; 6 Barb. 173. (8) Code, sec. 334. (9) Code, sec. 334. PROCEEDINGS TO PERFECT THE APPEAL. 741 The undertaking above mentioned will be sufficient to perfect the appeal in all cases where a stay of execution upon the judgment is not desired ; or where the judgment appealed from does not direct the pay- ment of mone}^, or some act or thing to be done by the party against whom the judgment is made. If, however, the appeal be from a judgment directing the payment of money, it will not stay the execution of the judgment, unless in ad- dition to the undertaking to pay costs,(l) a written undertaking be exe- cuted on the part of the appellant, by at least two sureties, to the effect that if the judgment appealed from, or any part thereof be affirmed, the appellant will pay the amount directed to be paid by the judgment ; or the part of such amount, as to which the judgment shall be affirmed, if it be affirmed onl}'- in part, and all damages which shall be awarded against the appellant, upon the appeal. (2) Both the undertakings may be embraced in one, and it is not neces- sary that they should be separate. As has been alreadj^ stated, an appeal is not effectual for any purpose unless an undertaking for costs be given, and the court would, on motion, dismiss an appeal if such undertaking were not given. Accordingly, where the undertaking was to pay the amount of the judgment appealed from and all damages which should be awarded against the appellant, upon the appeal, it was held in the Court of Appeals,(3) that the appeal was not effectual for any purpose. In this case the motion was to dis- miss the appeal, there being no undertaking for costs as required by the 334th section of the Code, and the appeal was accordingly dismissed. The court say the words " all damages" are not enough ; there must be an agreement to pay costs. The same point has been decided in this court.(4) If the judgment appealed from direct the assignment or deliver}^ of documents or personal property, the execution of the judgment will not be stayed by the appeal, unless (in addition to giving the under- taking to pay costs,) the things required to be assigned or delivered, be brought into court, or placed in the custody of such officer or receiver, as the court shall direct, or unless an undertaking be entered into, on the part of the appellant, by at least two sureties, and in such amount as the court or judge thereof or county judge shall direct, to the effect that the appellant wall obey the order of the appellate court, upon the appeal. (5) If the judgment appealed from direct the execution of a conveyance (1) See Lanrjley and Langley v. Warm?; 1 Com. Rep. 60G. (2) Code, sec. 335. (3) Lanrjley v. Warner, 3 How. Pr. Rep. 3G3. (4) Wilson V. Allen, 3 How. Pr. R. 367. (5) Code, sec. 336. 742 PROCEEDINGS TO PERFECT THE APPEAL. or otlier instrument, the execution of the judgment will not be stayed by the appeal until the instrument shall have been executed, and depo- sited with the clerk, with whom the j udgment is entered, to abide the judgment of the appellate court.(l) If the judgment appealed from direct the sale or delivery of posses- sion of personal property, the execution of the judgment will not be stayed, unless a written undertaking be executed on the part of the ap- pellant, with two sureties, to the effect that during the possession of such property by the appellant, he will not commit, or suffer to be commit- ted, any waste thereon, and that if the judgment be affirmed, he will pay the value of the use and occupation of the property from the time of the appeal until the delivery of possession thereof, pursuant to the judgment, not exceeding a sum to be fixed by a judge of the court, by which the judgment was rendered, and which must be specified in the undertaking. When the judgment is for the sale of mortgaged premises, and the payment of a deficiency arising upon the sale, the undertaking must also provide for the payment of such deficiency.(2) Although the foregoing sections of the Code require that the under- taking shall be in the form and for the amount and to the effect as pre- scribed in those sections, yet there are cases in which the court in which the judgment appealed from was rendered may entirely dispense with or limit the security required by certain of those sections.(3) Thus, where the appellant is an executor, or administrator, or trustee, or other person acting in another's right, and the judgment appealed from di- rect the payment of money — or the assignment or delivery of docu- ments, or personal property — or directs the sale or delivery of posses- sion of real property, — in all these cases the court heloio may in their dis- cretion, either entirely dispense with the undertaking or limit the amount ; that is, authorize it to be for a less sum than is required in appeals by other parties. And in all cases, where the judgment appealed from directs the pay- ment of money ; or the execution of a conveyance, or other instru- ment ; or the sale or delivery of possession of real property, the court may in like manner limit the security to an amount not less than fifty thousand dollars, when it would otherwise according to the pro- visions of the Code in these cases exceed that sum.(4) In all cases of appeal there must be an undertaking to pay costs, in addition to any or either of the other undertakings as above mention- ed.(5) But all the undertakings required to make the appeal effectual, or (1) Code, sec. 3 3 7. (2) Code, sec. 338. (3) Code, sec. 339. (4) Code, sec. 339. (5) Langley and Lanr/ky v. Warner, 1 Com. Rep. 606. PROCEEDINGS TO PERFECT THE APPEAL. 743 to suspend tlie execution of the judgment appealed from, may be em- braced in one instrument, and they need not be separate. They may, however, be in separate instruments, at the option of the appellant.(l) It is not necessary for the appellant to execute the undertaking. It will be sufficient, if it is executed by two sureties, without the appellant. The undertaking need not be approved. It is required by ru]e(2) that the undertaking shall be duly proved or acknowledged, in the same manner as prescribed hj law for the proof or acknowledgment of deeds of real property, before the same shall be received or filed. Until the undertaking has been thus proved or acknowledged it is irregular to file it.(3) In cases of appeal from judgments other than those which direct the payment of money ; or, the assignment or delivery of documents, or p)ersonal property : — or, the execution of a conveyance or other instru- ment : — or the sale or delivery of possession of real property, it is pro- vided that the appeal may be perfected by giving an undertaking, on the part of the appellant, executed by at least two sureties, to the effect that the appellant will pay all costs and damages which may be award- ed against him on the appeal, not exceeding two hundred and fifty dollars ; or by depositing that sum with the clerk with whom the judg- ment was entered, to abide the event of the appeal, such undertaking will stay all proceedings in the court below, upon the judgment appeal- ed from ; except that where it directs the sale of perishable property, the court below may order the property to be sold, and the proceeds thereof to be deposited or invested, to abide the judgment of the ap- pellate court.(4:) Thus, where the judgment appealed from is for an absolute or limited divorce : — or for the partition of lands, and the like, it will be sufficient if the undertaking provides for the payment of all costs and damages which may be awarded against the appellant, and need not contain any other engagement on his part. If the party appealing does not desire a stay of execution upon the judgment below, he need not in any case give any other undertaking or security, than to pay the costs and damages which may be awarded against him on the appeal. But if he do, he must give an undertaking, in addition to the one to pay costs and damages, appropriate, according to the provisions of the Code, to the judgment appealed from, all of which as wo have seen, may be em- braced in one instrument. (5) (1) Code, sec. 340. (2) Rule 72. (3) Beach V. Souiliworth and Litchfield, 6 Barb. S. C. R. 173. (4) Code, sec. 342. (5) Firemen's Ins. Co. of Albany v. Bay, 2 Code, R. 3 ; Langley v. Warner, 3 How. Pr. R. 3G3; Wilson \. Allan, \6.. ZQ2. 744 PROCEEDINGS TO PERFECT THE APPEAL. There is no form in wliicli the undertaking should be drawn. All form is abolished. It must however refer correctly to, or set out or re- cite correctl}^, the judgment appealed from. It should state the names of the parties and of the court in which the judgment is entered, and the amount or nature or substance of the judgment(l) and should be to the effect that if the judgment below shall be affirmed, the appellant will not only perform that judgment, but will pay all damages and costs that may be adjudged against him in the appellate court. Amending undertaking?^ Under the Code as it was enacted in 1848, it was doubtful if the court possessed thejDowerto allow an undertaking to be amended. This court in one or two cases(2) held, however, that the court under the general power to grant amendments might allow an undertaking to be amended. But the Court of Appeals(3) denied such power and held that the power conferred upon the court to amend pleadings and proceedings in certain specified cases did not include an undertaking on appeal. They regarded an undertaking as a contract, which could not be amended without the consent of the parties to it. And they intimated that it was doubtful whether a new one could be filed nunc pro tunc. But the amendments to the Code enacted in 1851, have put this question to rest and it is now provided, (4) that where the appellant shall in good faith give notice of appeal from a judgment and shall omit through mistake or otherwise, to do any other act necessary to perfect the appeal or to stay the proceedings, the court may permit an amendment on such terms as may be just. Where a sum, to be inserted in the undertaking, is to be fixed by a judge, as in the case of an appeal from a judgment, directing the sale or delivery of possession of real property, the judge may ascertain the same by a reference, or by an aflidavit, or otherwise. Upon the appeal being perfected, that is, upon the service of the notice of appeal and the execution of the appropriate undertaking, as provided by law, it stays all further proceedings in the court below, upon the judgment appealed from, or upon the matter embraced there- in ; but the court below may proceed upon any other matter included in the action, and not affected by the judgment appealed from.(5) In order to " perfect " an appeal so as to make it operate as a stay of (1) HarrisY. Bennett, 3 Code R. 23. (2) Wilsons. Allan, 3 How. Pr. R. 3'12; Beach v. Southworth and Litchfield, 6 Barb. S. C, R. 173. (3) Langlerj and Langley v. Warner, 3 How. Pr. R. 363, (4) Code, sec. 327. (5) Code, sec. 339. PROCEEDINGS TO rERFEGT THE APPEAL. 745 proceedings it has been held in the Court of Appeals(l) that an appeal is perfected within the meaning of the Code, when the proper undertaking with an affidavit of the sureties, has been executed, and notice of the appeal has been served on the adverse party and on the clerk with whom the judgment was entered. The court say : " It is true that the appeal may still fail, should there be an exception to the sufficiency of the sureties(2) and they should not justifj^ But when the party has executed the undertaking and given notice, he has done all in his power to perfect the appeal ; and the proceedings ought then to be stayed, without requiring him to get an order for that purpose. And if the appeal is deemed perfected for the purpose of a stay, it is also to be deem- ed perfect for the purpose of requiring the appellant to take the next step in the cause. The twenty days allowed by the second rule(3) for procuring a return, and the forty days allowed by the seventh rule(-i) for serving cases, should commence running from that time. It seems(5) that it is proper, though, perhaps, not absolutely neces- sary, that the undertaking should contain the residence of the sureties. And it would be well, also, to give their occupation. Frequently this would save an exception, and the consequent necessity of a justification. It might be difficult in many cases, particularly in our large cities, to ascertain who the sureties were, if their names only were given, whereas the addition of their residence and occupation would in most cases en- able the respondent to make inquiries as to their responsibility, and he might thus become satisfied without requiring them to justify. Indeed, the Code (6) requires that the undertaking should contain the residence of the sureties, but there is nothing requiring it to state their occupa- tion. Affidavit annexed to undertaking.'] The undertaking must be accom- panied by an affidavit of the sureties that they are each worth double the amount specified therein, otherwise the undertaking will be of no effect,(7) and the appeal will not stay the proceedings in the court be- low, upon the judgment appealed from. And it would seem that the sureties must be householders or freeholders in this state, as they are re- quired to justify upon exception in the same manner as bail taken upon the arrest of a defendant. It is unnecessary, however, to state in the afiidavit, that the sureties are householders or freeholders. BlU it will (1) Thompson v. Blanchard and Whcekr, 4 How. Pr. R. 210, (2) Code, sec. 341. (3) Rule 2, Court of Appeals. (4) Rule 7, Ibid. (5) Bhod V. Wilder, G Hovr. Pr. Rep. 446. (6) Code, sec. 340. (7) Code, sec. 341. Vol. I. 94 746 PROCEEDINGS TO PERFECT THE APPEAL. be sufficient if they swear that they are each worth double the amount specified iu the undertaking. Serving copy ofmideriaJdng.'] At the time of serving the notice of appeal, a copy of the undertaking, including the names and residence of the sureties, must also be served on the adverse party, unless the ap- pelant makes a deposit of money instead of executing an undertaking for the payment of costs. The copy undertaking is served in the same manner as notices and other papers in the action, and may be upon the adverse party or upon his attorney, if he have one.(l) Exceptions to sureties.] Within ten days after receiving notice of the appeal, and a copy of the undertaking, the respondent, if he is not satis- fied with the sufficiency of the sureties, may except thereto. Yor this purpose, he must serve upon the appellant's attorney a written notice that he excepts to the sufficiency of the sureties. If the respondent omits to give this notice, until after ten days from the receipt of the copy under- taking and notice of appeal, he will waive his right to require the sure- ties to justify. The exception should be to the sufficiency of the " sureties," not to the undertaking.(2) And in serving the notice by mail, double the usual time, i. e. twenty days, must be given. (3) In justifying, the sure- ties need only justify in double the amount of the judgment,(4) and dou- ble the two hundred and fifty dollars required as the security for the costs upon the appeal. Sureties justifying.'] The appellant's attorney, having received notice of exception to the sufficiency of the sureties, he must see that they jus- tify, and if he fail to do so, and other sureties are not put in, the appeal will be regarded as if no undertaking had been given. (5) Within ten days next succeeding the receipt of notice of exception, the sureties must justify before a judge of the court below, or before a county judge. For this purpose, a notice must be served on the respondent's attorney, at least five days before the time specified therein when the sureties will justify, stating the time, place and name of the judge before whom the sureties will justify. Sureties, in an undertaking given upon an appeal, cannot justify be- fore a j ustice of the peace, as in case of bail given upon the arrest of a defendant.(6) (1) Code, sec. 334, 340; as to the service of notice of appeals, see ank, p. 739. (2) Ymmg v. Colby, 2 Code Rep. 68. (3) Dresser v. Brooks, 5 How. Pr. Rep. 75-76. (4) Rich V. Beekman, 2 Code Rep. 63. (5) Code, 341. (6) Code, sec. 341. PROCEEDINGS TO PERFECT THE APPEAL, 747 Other sureties.'] Instead of causing the sureties already given to jus- tify, the appeUant may, within the same time, {L e. ten days after notice of the exception,) give a written notice to the respondent's attorney, that other sureties, (whose places of residence and occupation must be stated in the notice) will in like manner justify before the judge. The other must specify the time, place, and name of the judge, before whom the new sureties will justify, and must be served at least five days be- fore the time mentioned in the notice. In case the new sureties justify, a new undertaking must be executed, in the form and to the effect prescribed by law for the first undertaking ; and the new sureties must justify in the same manner as is required in the case of the first sureties. Manner of justifying.'] At the time and place specified in the notice, each of the sureties must attend before the judge, who must administer to the sureties an oath, that they will truly answer all questions that may be put to them touching their property and sufficiency as sureties. The respondent's attorney may then examine the sureties in such man- ner as the judge may think proper. If required by the respondent's attorney, the examination of the sureties must be reduced to writing by the judge, and subscribed by the sureties. If the judge finds the sureties sufiEicient, lie must annex their exami- nation (if the same shall have been reduced to writing) to the underta- king, and endorse upon the undertaking an allowance of the sufficiency of the sureties. The qualifications of sureties, and the manner of justifying, is the same as in case of bail taken on arrest.(l) Filing undertaking.] The undertaking must be filed with the clerk with whom the judgment appealed from was entered.(2) Deposited If no stay of execution is required, the appellant, instead of giving the undertaking, may deposite with the clerk with whom the judgment appealed from is entered, the sum of two hundred fifty dol- lars, to abide the event of the appeal.(3) In this case, notice of the de- posite must be given to the opposite party. (4) The undertaking required upon an appeal from a judgment of an in* ferior court, and all its incidents, are the same as on an appeal from a judgment of this court to the Court of Appeals; as to which, see^os^, vol. 2. (1) Code, sec. 341; ante, p. 411, 417. (2) Code, sec. 343. (3) Code, sec. 334. (4) Code, sec. 340. 748 TRANSMITTING JUDGMENT TO THE SUPREME COURT. Liability of sureties.'] The liability of the sureties to an undertaking, upon an appeal, attaches immediately upon the affirmance of the judg- ment of the court below. The engagement of the sureties is that the " ap- pellant will pay," or do or perform the requirements of the judgment appealed from ; and upon such judgment being affirmed, the appellant must pay or perform the judgment, and the sureties become immedi- ately liable. No preliminary steps are necessary, such as making a demand of the appellant, or issuing an execution against his property, as it seems is required in case of bail given upon the arrest of a defend- ant, but the sureties may be proceeded against ; in other words, they may be sued upon the undertaking immediately, without making any attempt to enforce the judgment against the appellant. I am not aware that this question has been passed upon by any court, at least I have not found any reported case, but from the nature of the engagement of the sureties, which, as I have before stated, is that the appellant shall pay, &c., their liability must attach immediately upon the judgment being affirmed. In this respect, the liability is like the guarantying the payment o^ a note; upon its non-payment, the guarantor becoms imme- diately liable, and it is not necessary to prosecute or seek to collect from the maker.(l) SECTION IV. OF TRANSMITTING JUDGMENT APPEALED FROM TO THE SUPREME COURT. An appeal to this court, from a judgment rendered in a county or other inferior court, is, as will be seen hereafter, heard upon the judg- ment-roll, which must be transmitted into this court, by the clerk of the court below. Formerly, the return of the inferior court to a writ of error, was under seal, (2) and for all the purposes of the jurisdiction of the appellate court, the record itself was supposed to be removed, al- though, in point of fact, only a transcript was sent;(3) but for the pur- poses of amendments, it was still regarded as remaining in the court below.(4) ffoiv procured.'] Having perfected the appeal by the service of the notice of appeal and a copy of the undertaking, the judgment appealed (1) Story on Promissory Notes, sec. 460. (2) 2 R. S. 599, sec. 44. (3) 3 Johns. Rep. 443. (4) 2 Cow. Rep. 408. TRANSMITTING JUDGMENT TO THE SUPREME COURT. 749 must be sent into the Supreme Court. The appellant must procure from the clerk with whom the judgment appealed from is entered, a certified copy of the notice of appeal and judgtnent-roll. The clerk's fees for making the copy and certifying it, must be paid by the appel- lant, and the clerk is not bound to make the copy without the payment of his fees. It is the duty of the clerk to transmit the copy, notice and judginent-roll, into the Supreme Court; but in practice, it is usual for the attorney of the appellant to receive it from the clerk, when duly certified, and attend to filing it in the proper oifice. The return of the clerk, (which is the certified copy of the notice and judgment-roll,) must be made and filed within a reasonable time after the appeal is perfected or a motion may be made to dismiss the appeal. When transmitted.] The appellant must procure the proper return to be made and filed with the clerk of the Supreme Court, within a rea- sonable time after the appeal is perfected. If the appellant fail to do so, he will be deemed to have abandoned the appeal ; and the respond- ent may, upon an affidavit showing when the appeal was perfected and a certificate of the clerk of the Supreme Court that no return has been filed, move at a special term, on notice to the adverse partv for an order dismissing the appeal, for want of prosecution. This would seem to be the only correct practice, though I am not aware that the question has been passed upon by this court since the adoption of the Code. The statutes and rules are silent as to the mode of compellino- the appellant to have the judgment-roll transmitted to the appellate court. Under the practice of this court, as it existed before the Code, if the de- fendant in error wished to hasten the proceedings he might enter a rule requiring the i3laintiff in error to transcribe the record, and if he did not the defendant in error might sign judgment of non pros.{[) This rule was entered in the court below and could not be in the appellate court.(2) But under the present system, there are no common rules but a notice is substituted in all necessary cases where rules were for- merly entered. It is now made the clerk's duty by statute(8) upon the appsal being perfected by the service of a notice thereof on him, to forthwith transmit to the appellate court a certified copy of the notice of appeal and judgment-roll, and he can be compelled by the court to do so. But I do not understand that the respondent has it in his power to compel the clerk to make the return. He could not under the old practice. His only remedy is to move to dismiss the appeal for the want of prosecution : and it would be well, though I cannot think it ne- (1) 10 Weud. R. 574. (2) Ibid. (3) Code, sec. 328. 750 TRANSMITTING JUDGMENT TO THE SUPREME COURT. cessary, to serve the appellants' attorney, in the first instance, with a notice requiring him to cause the return to be made. The Court of Appeals have regulated this practice so far as concerns that court, by rulc(l,) in which they have provided that the appellant shall cause the proper return to be made and filed with the clerk of that court within twenty days after the appeal shall be perfected. If he fail to do so, he shall be deemed to have waived the appeal, and on an affidavit, prov- ing when the appeal was perfected and a certificate of the clerk of that court that no return |ias been filed, the respondent may enter an order dismissing the appeal for want of prosecution, with costs ; and the court below may thereupon proceed as though there had been no appeal. It is to be regretted that a similar rule has not been adopted in this court, as applicable to appeals from inferior courts. It may therefore be regarded as the practice of this court in these cases, that if the appellant does not cause the return to be made within a reasonable time after the appeal is perfected, the respondent may move this court to have the appeal dismissed for the Avant of prosecu- tion. This cannot be done ex parte, but must be upon notice to the respon- dent's attorney, and is made at special term like other notices. The order dismissing the appeal should be entered in this court. And for the purposes of this motion, I think this court has jurisdiction of the case, although ordinarily they acquire no jurisdiction until the return is filed. This power was exercised under the old practice and is now by the Court of Appeals under similar circumstances. The time for making the return may be enlarged by the court on motion, upon sufficient cause shown. (2) With respect to the manner of making the return, it may be observ- ed, that it is more a matter of form than substance, except when the appeal is from a judgment of a mayor's or recorder's court of a city. As now constituted, the clerks of the several counties are ex officio clerks of the Supreme Court, and of the county courts of their respective counties. Hence, in appeals from judgments of county courts, the re- turn is certified by the clerk, as clerk of the county court,- and filed by the same person, as clerk of the Supreme Court. In reality, it never goes out of his office, but is simply sent from one court into another, of both which courts the same officer is clerk. In appeals, however, from mayors' and recorders' courts of cities, there is an actual transmission of the return from one court to the other, there being distinct and differ- ent clerks and officers for each. And thus, if an appeal be taken from a judgment of the county court (1) Rule 2, of Court of Appeals. (2) Code, sec. 405. TRANSMITTING JUDGMENT TO THE SUPREME COURT. 75I of Oneida county to the Supreme Court, the return of the clerk is cer- tified by him as clerk of the county court, and immediately filed by him as clerk of the Supreme Court ; the papers and proceedings of the two courts being kept in the same office. Where the appeal, however, is from a judgment of a mayor's or recorder's court of a city, the return is transmitted by the clerk of such court to the clerk of the county, and by him filed in the Supreme Court. The return must be filed in the office of the clerk of the county where the judgment appealed from was rendered. Ohtaining further return.'] If the return made by the clerk of the court below, is defective or erroneous, either party may apply to one of the judges of the Supreme Court, for an order requiring the clerk to make a further return without delay. The application for this order must be founded upon an affidavit specifying particularly the defects or errors in the return already made, and is made ex parte, no notice to the adverse party being required. The order should also specify par- ticularly the defects or errors in the first return, and must be served upon the clerk. Assigning errors in fad.] As I have before stated (1) the appeal, takes up the judgment roll from the court below and is heard upon it, and for all purposes of correcting errors of law this will be sufficient. But there are cases in which the appealing party desires to correct errors not appearing upon the face of the record or roll. By the former practice with respect to writs of error, the plaintiff in error, upon the return of the writ, assigned errors. This was in the nature of a decla- ration and was either of errors in law, as where upon the face of the record an improper judgment appeared to have been given, or in fact, as where, by matter dehors the record, it appeared that, from some omission or irregularity in point of fact as the appearance of an infant by attorney or the like, it could not be sustained. There is now, however, no such thing as an assignment of errors in law; they sufficiently appearing upon the face of the record. But with respect to errors in fact, I apprehend the only manner in which they can be made available, is by an assignment or suggestion of the errors to this court, after the appeal is perfected and return made. Nor do I think this has been abolished by the Code. The general repealing section of the Code,(2) repeals all inconsistent statutes, and provides that if a case shall arise in which an action for the enforcement or protection of a right, or the redress or prevention of (1) Ante, p. 148. (2) Code, sec. 468. 752 TRANSMITTING JUDGMENT TO THE SUPREME COURT. a wrong, cannot be had under that act, the practice heretofore in use may be adopted, so far as may be necessary to prevent a failure of justice. And the legislature have further,(l) excepted from the opera- tions of the Code and provided that until they shall otherwise provide, the Code shall not affect any existing statutory provisions relating to actions not incoiisistent with the Code, and in substance applicable to the actions thereby provided. It is provided by the revised statutes,(2) that whenever any issue of fact shall be joined upon any writ of error, returned into the Supreme Court, the same shall be tried at a circuit court or sittings, and a circuit roll for that purpose shall be made up, transmitted and returned as in other cases, and the same proceedings shall be had thereon in all respects. This statute is unrepealed and remains in full force. I apprehend, there- fore, that it is competent now as formerly to assign or suggest errors in fact, adapting the proceeding as nearly as may be to the practice pre- scribed by the Code. Indeed it is provided in the Code,(3) that when a question of fact, not put in issue by the pleadings, is to be tried by a jury, an order for the trial may be made, stating distinctly and plainly the question of fact to be tried, and such order shall be the only au- thority necessary for a trial. Grounds of error in fact?\ The most usual grounds of error in fact are the appearance of an infant by attorney instead of guardian,(4) or that the plaintifl' or defendant was a married woman at the commence- ment of the suit, and ought to have joined her husband. And where one of two defendants sued as joint debtors, was an iufant, and appeared by attorney instead of guardian, it was held to be error in fact, and the court revoked the judgment as to both.(5) But where two defendants are sued as joint contractors, and one was an infant but was not served with process, and judgment was rendered against both wdthout appoint- ing a guardian for the infant, it was held not to be error in fact.(6) In these and all similar cases it is proper to assign the error in fact. Assignment.'] The asignment of error in fact, is, as we have seen, in the nature of a complaint, and the same rules which govern pleadings in general,(7) are applicable. Indeed, it partakes of the nature of a new action and must be conducted in the same manner so far as respects (1) Code, sec. 471. (2) 2 R. S. 601, sec. 62. (3) Code, sec. 72. (4) 11 John R. 460 ; 14 id. 417 ; 16 Wend. R. 48. (5) Cruikshank v. Gardiner, 2 Hill R. 333. (6) Maison v. Denison, 15 "Wendell, 64. (7) See general rules of pleadings, ante, p. 357. TRANSMITTING^ JUDGMENT TO THE SUPREME COURT. 753 alleging the error. Upon the appeal being perfected, the party desiring to assign error in fact, should draw up the assignment and serve it upon the opposite party and then procure a stay of proceedings upon the appeal until the question of liict is disposed of. As respects the time within which the assignment must be served it is sufficient to say, that the party desiring so to do, will lose the opportunity if he omits assign- ing, until the appeal is ready for argument. By the practice and rules as they existed before the Code,(l) the plaintiff in error was bound to assign error within twenty days after notice to do so. Nothing of that kind is now necessary and the party must now, immediately after his appeal is perfected, assign his errors, and procure his stay of proceedings. There is nothing that requires his assignment to be verified, although I suppose it may be the same as any other pleading under the Code. Answer.'] The respondent has the same time to answer the assign- ment that he has to answer a complaint, and the same rules that govern an answer to a complaint are applicable here. He may generally or specifically deny each allegation, or he may set up new matter by way of avoidance, or he may demur for insufficiency and the appellant may demur to the answer.(2) Issue of fact how tried.] The issue of fact formed by the assignment of errors and the answer, is, as we have seen,(3) to be tried like other issues at a circuit court.(-i) Either party may notice the issue for trial, and the appellant may be compelled to bring the issue to trial as in ordinary cases. Judgment.] Upon the rendition of the verdict the successful party should move this court upon the pleadings, (i. e. the assignment of error and answer,) and a copy of the minutes of trial, including the verdict for judgment. This motion should be made in open court,(5) and should be made at the general term as the appeal is there, and it is doubtful if a single judge sitting in special term would have power to order judgment upon the appeal. The judgment will be, if for the appellant, that the judgment below be reversed, and if for the respond- ent, that it be affirmed,(6) (1) Rule 21, of the late Sup. Ct. revision of 1845; Graham's Pr. 2d. ed. 955. (2) As to the rules of pleading applicable to answers, see ante p. 590. (3) Ante, p. 590. (4) 2 R. S. 601, sec. 62. As to the mode of trial and the preparation therefor, see ante p 645. (5) 2 Cow. R. 525 ; 2 Hill R. 391. (6) 1 Arch. Pr. 281 ; 16 Wend. R. 48 ; 13 id. 577 ; 6 How. 81. Vol. I. 05 754 OF PREPAEING THE APPEAL FOR ARGUMENT. SECTION V. OF PREPARING THE APPEAL FOR ARGUMENT. Haying procured the return of the clerk to be made aud filed, the next proceeding is to prepare the appeal for argument. Preparing lepers.'] The appeal is to be heard upon the return of the clerk of the court below ; a case must therefore be prepared, consisting of the return of the clerk, i. e. the notice of the appeal and judgment roll, and the reasons of the court below for its judgment, if any shall have been given in writing. The case must also contain a statement of the time of the commencement of the suit, and of the service of the respective pleadings, the names of the original parties in full, the change of i:>arties, if any has taken place, pending the suit, and a very brief history of the proceedings in the cause ; and also an abstract of the pleadings not exceeding one-sixth of the number of folios contained in the original pleadings.(l) The points intended to be relied on, in argu- ment, with reference to the authorities in support of the same must also be prepared. In cases where it is necessary for the court to go into an extended examination of evidence, each party must briefly state upon his printed points, the leading facts which he deems established, with a reference to the folios where the evidence of such facts may be found. (2) It is the duty of the appellant in all cases to prepare the papers upon which the appeal is to be heard, and furnish the necessary copies thereof, and the respondent has no right to make them up.(3) And the case should show a return made by the court below, other- wise the appellate court has no authority to hear the argument.(4) And for this purpose the return and printed case should contain the certifi- cate of the clerk of the inferior court that the return has been made. In the case just cited, (which was a writ of error in a criminal case,) the court say : " The error book does not show that the clerk of Ontario county has ever made a return to the writ of error. This court is not, therefore, ofiicially informed that such return has been made, and, until that is done, we cannot hear the argument ; we have nothing upon which to afiirm or reverse the judgment in the court below.' Printing appeal and points^ The case and points, and all other pa- pers furnished the court, and the opposite party in calendar causes, (1) Rule 29. (2) Rule 31. (?.) Rule 29. (4) Peox>k v. Baron, 6 How. Pr. Rep. 81. OF PREPARING THE APPEAL FOR ARGUMENT. 755 must be printed on wliite writing paper, witli a margin on tlie outer edge of the leaf not less than one and a half inch wide. The printed page, exclusive of anj marginal note or reference, must be seven inches long, and three and a half inches wide. The case must be folioed, num- bering from the commencement to the end, and must be printed on the outer margin. (1) Serving apj^eal] At or before noticing the appeal for argument, the appellant must serve on the attorney for the respondent, three printed copies of the case. If the appellant fails to serve the copies at such time, the respondent having noticed the appeal for argument, may put the cause on the calendar, and move upon an affidavit of the facts and of the neglect of the appellant to serve the case, and upon notice to the appellant for the earliest practicable day in term for hearino- non- enumerated motions, that the cause be stricken from the calendar, and that judgment be rendered in his favor.(2) The court in which the motion is made, to strike the cause from the calendar, may, upon sufficient cause shown, grant relief^ upon such terms as shall be just. The motion days in term, when motions to strike a cause from the calendar and for judgment, are the first day, and Thursday of the first week, and Friday of the second week, immediately after the opening of the court. But as the notice must be eight days, and the party whose duty it is to serve the papers has the whole of the eighth day before the first day of term to do so, a motion cannot regularly be made to strike the cause from the calendar before Thursday of the first Aveek. If the cause should be called previous to the day for which the notice is given, the court will pass it without prejudice, until the motion can be heard ; and when heard, unless the party charged with being in de- fault excuses himself, the motion will be granted.(3) And it was held in the late Supreme Court, under a similar rule, that where a party who is to furnish the papers, has noticed the cause for argument, without serving a copy of the papers in due time, the other party may move to strike the cause from the calendar, without noticing it himself But where the cause has not been noticed by the party who is to furnish the papers, the other party must show in his affidavit for the motion that he has noticed the cause for argument.(-l) Notice of argument.] Either party may notice the appeal for argu- ment. The notice must be served eight days before the first day of- the (1) Rule 30. (2) Rule 29. (3) 10 Wend. R. 537, note. (4) Herkimer Co. Bank v. Devereux, 5 HiU R. 9. 756 OP PREPARING THE APPEAL FOR ARGUxMENT. term at which it is intended to bring on the argument, and must specify the time and place when and where the appeal will be heard. The appeal can only be heard in the judicial district embracing the county in which the judgment appealed from is entered, or in a county adjoin- ing such countj^, though not in the same district. Thus an appeal from a judgment entered in Ulster county which is in the third judicial dis- trict, may be heard at a general term of the court, in Dutchess county, which is in the seconcZ judicial district. But such appeal cannot be heard in an adjoining district, unless the court for such district is held in an adjoining county. (1) This provision, however, does not apply to causes arising in the city and county of New York, and appeals from judgments entered therein, can be heard only in the first judicial district.(2) The appeal must be noticed for argument at a general term of this court : it cannot be heard at a special term. Unless a party notices the appeal for argument, he cannot move on the argument, in the absence or without the consent of the opposite party. And in the late Supreme Court, it was the well established practice to refuse to default a party unless the party moving the case had himself noticed the cause and put it on the calendar. As soon as the case (which, as we have seen, contains the notice of appeal and judgment-roll) is printed, the case can be noticed for argu- ment. It is not irregular to notice it before, but if the case were not printed it would be a sufficient excuse for not bringing on the argu- ment, unless the party whose duty it was to prepare the papers had been guilty of laches. Note of issue^^ The party noticing the appeal for argument, must, four days before the first day of the term, furnish to the clerk of the court, where the appeal is to be heard, a note of the issue. This is a brief note of the title of the cause, the nature of the q^uestion, the date of the issue, and the names of the attornies for the respective parties.(3) There was, until the late rules of this court were adopted, a difiiculty in determining the date of the issue, in appeals from inferior courts, inas- much as no rule has been made upon the subject by the court, and the old rules are wholly inapplicable. In cases of lorits of error to inferior courts, the date of the issue was the time the joinder in error was put in ; now there is no joinder in error, but an appeal ; and section 256 of the Code relates to trials and not to appeals, besides it would be diffi- cult to ascertain when the last pleading was put in, in cases arising in a justice's court, and such are chiefly the cases that come up from a (1) Code, sec. 346. (2) Code, sec. 346. (3) Rule 34. OF PREPARING THE APPEAL FOR ARGUMENT. 757 county court. It would seem most consistent with tlie nature of the case to take the filing of the velum of the clerk as the date of the issue, there being an identity in the practice of appeals from the Supreme Court to the Court of Appeals, and appeals from inferior courts to the Supreme Court, Such is the rule of the Court of Appeals,(l) and such was the practice adopted in the third judicial district, it having been de- cided at the September general term in 1849, that appeals from the judgments of inferior courts, should have priorit}/ upon the calendar from the date of the filing of the return of the court below, in analogy to the practice of the Court of Appeals and the former practice on writs of error in this court. But by the rules adopted at the convention of judges in August, 1852, it is provided(2) that appeals shall be placed on the calendar ac- cording to the date of the service of the notice of appeal. The date of the issue, therefore, will be of the time the notice of appeal is served. Making up calendar.'] The calendar is inade up by the clerk, in duplicate, for the use of the court and bar. The causes are arranged upon the calendar in the order of the dates of the issues, commencing with the oldest issues. And the clerk is now required by rule(3) to cause the calendar for the general term to be printed for each of the justices holding the court. Argument.'] When the appeal is reached on the calendar and called on for argument, the appellant must furnish a printed copy of the appeal papers to each of the justices holding the court. Each party must at the same time, furnish to each of the j ustices and to each other, a printed copy of his points. (4) The counsel for the appellant opens the argument ; the counsel for the respondent replies, and the counsel for the appellant closes the argument. But one counsel will be heard on each side, unless there are several parties, represented by different attorneys and counsel, and unless the court shall otherwise order; and the counsel who opens the argument and the one who closes it, must be the same.(5) Counsel will not be allowed to occupy more than two hours each in the argument, unless special permission is obtained from the court.(6) Either party having noticed the appeal for argument and put it on the calendar, may if the other party does not appear to argue, move for and take, upon furnishing proof of the service of the notice of argument, such judgment as he is entitled to, either of affirmance or revci'sal of (1) Rule Ct. of Ap. p. 8. (2) Rule 34. (3) Rule 34. (4) Rule 29. (5) Rule 14. (6) Rule 14. 758 JUDGMENT AND PROCEEDINGS THEREON. the judgment of the court below.(l) Where a default is thus taken, it is the duty of the counsel who moves, to endorse upon the papers his name,(2) the object of that being to enable the counsel of the adverse party to give him notice of an application to the court to open the de- fault, it being the almost invariable practice of the court, to open de- faults thus taken, provided the counsel who took it is at the place where the court is sitting, and has notice of the application to open the default. The court may, however, require, as a condition of opening the default that the cause be heard at the same term. SECTION yi. JUDGMENT AND PROCEEDINGS THEREON. Decision.'] The decisions of the court are usually made at the end of each term, when they are handed in to the clerk and entered by him in the minutes. The decision in appeal cases, is to reverse, affirm or modify the judgment appealed from, in the respect mentioned in the notice of appeal.(3) 'A concurrence of a majority of the justices hold- ing the court, is necessary to pronounce judgment.(4) In deciding the appeal, the court may reverse, affirm or modify the judgment appealed from, as to any or all of the parties interested. They may also, if necessary or proper order a new trial.(5) In appeals, however, from judgments of inferior courts, the decision of this court will usually be, simply affirming or reversing the j adgment of the court below. There are, however, cases in which the court may send the cause back for a new trial, which was formerly denominated awarding a venire de novo. The appeal from judgments of inferior courts, as has been stated, is a substitute for the writ of error, under the old prac- tice, and the powers of the appellate court are now the same as were formerly possessed by the Supreme Court upon writs of error. The county courts, as at present constituted, have no general or original jurisdiction, except in special cases conferred by law ; and, unril the ■ amendments to the Code passed in July 1851,(6) these special cases were few, and great doubt was entertained whether the legislature could confer upon them jurisdiction in civil actions generally. But as (1) Rule 25. (2) Rule 26. (3) Code sec. 330. (-4) Code, sec. 19. (5) Code, sec. 330. (6) Code, sec. 30. JUDGMENT AND PROCEEDINGS THEREON. 759 will be seen by reference to the section above cited, sucli courts now have jurisdiction in all civil actions in which the relief demanded or the personal property sought to be recovered does not exceed in value the sum of one hundred dollars, and in which all the defendants reside in the county in which the action is brought. The question, as to the constitutionality of this statute in thus con- ferring a general jurisdiction upon county courts, and limiting it only in the amount, and the residence of the defendants, was presented to this court(l) upon the appeal from a county court, and it was held the act was constitutional. This decision has since been sustained by the Court of Appeals.(2) Ilence, judgment rendered in county courts, in actions arising in those courts may be removed into this court by appeal, and in such cases, this court may grant a new trial and send the case back to the county court to be tried anew. But where the judgment brought from a county court, is one which arose in a justice's court thi judgment of the Sujoreme Court, upon the appeal will be simply afl&rmingor reversing the judgment of the county court. But in actions for the foreclosure of mortgages or the partition of lands, or such other actions as county courts have power to try, the Supreme Court, upon appeal from judgments rendered therein, may affirm, reverse or modify the same, or grant a new trial. In some cases the court will not only reverse the judgment of the inferior courts, but will go further, and render such judgment as the court below ought to have rendered(3) thus, they will affirm or reverse the judgment of the justice, as the case may be, in addition to revers- ing the j udgnient of the county court. AVhere, however, the appeal is from specific parts of the judgment, only, this court will not review any other parts of the judgment.(4) Costs.l Having obtained the decision of the court, the next step is to make out a bill of the costs and disbursements to which the prevail- ing party is entitled.(5) This must be adjusted by the clerk of the court upon a two days' notice to the opposite attorne}^, and inserted by the clerk in the entry of judgment. If the judgment of the court below is affirmed or reversed, the successful party will be entitled to costs as of course ; but where it is affirmed or reversed in part, only, or when a new trial shall be ordered the costs are in the discretion of the court.(6) A question is presented under the Code, whether the appellant, upon (1) Beecherv. AlVn, 5 Barb. S. C. R. 169. (2) F7'ees v. Lord, decided at tlio close of the March term, 1852, and not yet reported. (3) 2 Hill, 391, 393. (4) Kelseyv. Western, 2 Com. R. 500. (5) As to which, see post vol. 2, (6) Code, sec. 306. 760 JUDGMENT AXD PROCEEDINGS THEEEON. the reversal of tlie judgment of the inferior couit, in a case arising in a justice's court, is entitled, in addition to the cosis of the appeal, to the costs in the court below. The practice upon this subject, as settled by the late Supreme Court in cases of like reversals upon writs of error, WHS,(1) that when the court below should have given judgment in favor of the plaintiff in error, but gave it to the other party, then on the writ of error, the judgment would not only be reversed, but the proper judgment would be rendered, and costs followed as a matter of course. This was following the practice in similar cases adopted in the English courts,(2) where the common pleas gave judgment for the plaintiff on a special verdict. That judgment was reversed in the king's bench, and judgment was rendered for the defendant on the special verdict with costs in the court below. The king's bench gave such judgment as the court below would have given, and that carried costs. Hence, it was well settled, that in cases arising in justice's courts, and brought into a county court by certiorari, and afterwards into his court by writ of error ^ this court gave the judgment which the county court ought to have given, and the prevailing party could recover the costs of the certiorari in the county court. Thus, when the judgment of the justice was reversed in the county court and the judgment of the county court was reversed in this court, this court went farther and affirmed the judgment of the justice, and the plaintiff in error recovered not only the costs of the writ of error but the costs in the county court. This rule applied to all cases of a final judgment in this court. If a new trial was granted : or if liberty was given to amend : or if in any other form the orio-inal action was still to go on, the costs of the court below, would usually depend on the final issue of the cause. The question whether under the Code the appellant can, upon the reversal of the judgment below, recover the costs of that court in addi- tion to the costs of the appeal, has not, that I am aware of, been presented to this court. By the Code, (3) this court has the power to reverse, affirm, or modify the judgment appealed from ; and when a judgment is reversed this court may make complete restitution of all rights lost ly the erroneous judfjmerit.{4:) In following the practice as adopted in cases of writs of error, this court not only reverses the judgment of the county court, but also that of the justice.(5) So, they sometimes reverse the judgment of the county court and affirm the judgment of the justice ;(6) thus giving the judgment which ought to (1) GosUng v. Acker, 2 HOI R. 391, 395. (2) Gildart v. Gladstone, 12 East R. 668. (3) Code, sec. 330. (4) Ibid, (5) Comls and Shute v. Bateman, 10 Barb. S. C. E. 573 ; Baymond v. Loyl, id. 483. (6) Stevens v. Eoughtailing and Eno, id. 95. JUDGMENT AND PROCEEDINGS THEREON. 761 have been given by the court below. The costs of appeals to this court are now regulated by the Code,(l) as well as the costs of an appeal to the county court from a judgment rendered by a justice of the peace.(2) And I do not entertain a doubt that in cases of a final judgment in this court reversing the judgment of a county court, the appellant may recover the costs of the court below. In other words that this court will give the judgment which the county court ought to have given, and that the costs of the county court follow of course. If this Avas not so, a party whose judgment was erroneously reversed in the county court would be without remedy for his costs in that court, though com- pelled to come to this court to get rid of such erroneous judgment. Entering judgment.'] The court having decided the appeal, the clerk must enter the proper judgment in this court. If the cause is decided in a county other than that in which the judgment appealed from is filed the prevailing party must obtain from the clerk of the court, where the decision was made, a certified copy of the rule or order entered in the minutes, which must be filed in the office of the clerk where the judgment roll appealed from is filed. A copy should also be served upon the opposite attorney. In entering the judgment, if the judgment of the court below is afiirmed, the prevailing party is entitled to inter- est upon such judgment, by way of damages. The judgment, therefore, to be entered, is for the amount of the judgment appealed from, with interest upon such amount, together with the costs and disbursements allowed by law. The interest is computed or assessed by the clerk. The proceedings are not remitted to the court below, but the judg- ment upon the appeal is enforced in this court, in the same manner as other judgments. The judgment upon appeal, must be entered in the county where the judgment a23pealed from was entered.(3) (1) Code, sec. 307, sub. 6. (2) Code sec. 3*71. (3) Code, sec. 347. YoL. I 9.6 CHAPTER XII. APPEALS TO THE GENERAL TERM OF THE SUPREME COURT, FROM JUDG- MENTS ENTERED UNDER THE DIRECTION OF A SINGLE JUDGE OF THE SAME COURT OR ON REPORT OP REFEREES. Section I. appeal when and by whom taeen and from what JUDGMENTS OR ORDERS. II. THE PROCEEDINGS TO PERFECT THE APPEAL. III. PREPARING APPEAL FOR ARGUMENT. IV. JUDGMENT AND PROCEEDINGS THEREON. V. TURNING A CASE INTO A SPECIAL VERDICT OR EXCEPTIONS. I HAVE already had occasion to state,(l) tlie difference between the mode of reviewing the decisions of the court in cases tried by a jury and cases tried by the court without a jury. In the former, as was stated, the proceedings upon the verdict are stayed, and a case or exceptions made, which is in the first instance heard and decided at the circuit court or special term. In the latter, the decisions can only be reviewed after judgment, on an appeal from the judgment. In cases of trial by jury, upon the decision of the case or exceptions, a judgment must be entered, from which judgment the unsuccessful party may appeal to the general term. From the entry of the judgment, the proceedings in cases of a trial by jury are the same as in cases of a trial by the court or by referees. The appeal is in like manner taken and perfected, and all the subsequent proceedings are the same. Where the trial is by jury, the case or ex- ceptions must, as we have seen, be filed, and is annexed to and forms a part of the judgment-roll. In like manner, where the trial is by the court or by referees, the case or exceptions must be settled and filed and annexed to the judgment-roll, and in both cases the appeal carries up the case or exceptions.(2) (1) Ani€, p. 707. (2) See ante, p. 721, 729. APPEAL WHEN AND BY WHOxM TAKEN, &c. 763 SECTION I. APPEAL WHEN AND BY WHOM TAKEN, AND FROM WHAT JUDGMENTS OR ORDERS. When taken.] An appeal from a judgment in tlie Supreme Court, entered under the direction of a single judge, or upon the report of refe- rees, must be taken within ihirt// days after written notice of the judg- ment shall have been received by the party intending to appeal. So that the only way of limiting the time for bringing the appeal, is by giving to the party against whom the judgment is entered, a written notice of the entering of the same.(l) The explicit language of the Code, that an appeal may be taken to the general term from ajudgynent, &c., would seem to admit of no doubt that the time limited for the making the appeal, was to commence from the date of the entry of judgment. But the term "judgment" has received different constructions by different judges; and by some it has been *lield to mean the decision of the court, and by others the actual entry by the clerk, of the judgment, in pursuance of the decision. The practice, as I understand it, is as was established by the case of Bentley v. Jones and others^{2) that the judgment is not to be considered as entered until it is perfected: that is, until the costs have been adjusted and the judgment entered in the judgment-book. Then the party can limit the right to appeal by giving a written notice of the judgment to the opposite party. Hence, the notice should not be given of the de- cision, but of the judgment entered in conformity therewith.(3) And if the prevailing party neglects to complete his judgment, wlien the other party is desirous to appeal and obtain a speedy decision, the course of the latter is to notify the former to perfect his judgment for that purpose ; and if he do not perfect it in a reasonable time, the court will, on motion, compel him to do so, with costs, unless some good cause for the delay be shown. (4) Power to e7ilarge time for bringing apj^eal.] A great diversity of opinion has existed among the judges of this court, as also among the judges of the New York superior court, and ccurt of common pleas, as to the po^ver of the court or of a judge thereof, to enlarge the time within which an appeal may be taken from a judgment entered under the direction of a single judge or on a report of referees. (1) Code, sec. 332. (2) 4 How. Pr. Rep. 335. (3) See Lentilhow v. Mayor of New York, 1 Code Rep. (N. S.) 111. (4) Id. 764 APPEAL WHEN AND BY WHOM TAEJ3N, The section of the Code which, on the one side it is claimed, confers the power on the court, is section 174, which provides that the court may, in its discretion^ and upon such terms as may be just, allow an answer or reply to be made, or other act to be done after the time limited by the act, or by an order enlarge such time. While on the other hand, it is claimed that section 405, positively prohibits the court from en- larging the time for bringing an appeal. This section reads thus: " The time within which any proceeding in an action must be had, after its commencement, except the time ivithin which an aj^peal must be taJcen, may be enlarged, &c." The first case in this court in which this question arose was decided in 1849.(1) The court here held in special term that the time might be enlarged by the court, but the power was denied to a judge at chambers ; and it is said sections 174 and 405 must be construed to- gether. This case was followed by another on the same side also decided at special term.(2) In both these cases the court rely upon section 174 and throw out of view the provisions of section 405 altogether. And in the last case cited, it is said that the latter section is confined to« chamber orders, as granted by a judge out of court and was not in- tended to limit the power of the court as conferred b}^ the former section. But I find the weight of judicial authority opposed to this view and in two cases at least this power has been denied at general term.(3) The case of Mws v. Thomas, was decided in this court and that of JReriouilr. Harris in the N.Y. superior court. Both these cases declare that the Code positively precludes the court from enlarging the time for bringing an appeal. It must therefore, I think, be regarded as settled for the present at least, that the court cannot enlarge the time. The two cases I have cited having been decided at general term, must be regarded as overrul- ing the contrary decisions made at special term. By whom.] The appeal may be taken by the party against whom the judgment was rendered, and in some cases, a party may appeal from a judgment in his own favor ; as, where he recovers less damages than he is entitled to. The provision of law (4) in respect to the parties by and against whom writs of error may be brought, the joinder of parties, and the proceedings on the death or marriage of parties, it is presumed will also apply to appeals brought under the Code, there being nothing in such law inconsistent with the provisions of the Code. (1) Traver v. Silvernail, 2 Code, Eep. 96. (2) Crittenden v. Adayns, 3 Code, Rep. 145. {:;) Enos V. Thomas & Himter, 5 How. Pr. Rep. 361; Benouil v. Harris, 2 Code, Rep. 71. (4) 2 R. S 592, sec. 2. AND FROil WHAT JUDGMENTS OR ORDERS. 765 I am not aware that it has been dcciclecl by tliis court, or by tlie Court of Appeals, whether the provisions of the revised statutes re- specting writs of error, particularly those sections in regard to disabili- ties, and who might bring error on the death of a party, apply to ap- peals brought under the Code ; but by the very precise language of the Code,(l) it woald seem that appeals must, in all cases, be brought within thirty days from the time of giving notice of the judgment, whether the disability provided for in the revised statutes, existed or not. Yet, it is believed that the court v;ill decide that the revised statutes, in respect to disabilities, continue in force, notwithstanding writs of error have been abolished. I shall, therefore, briefly refer to the several provisions of the revised statutes on this subject. The appeal may be brought by the party against whom the judg- ment complained of was rendered. In case of his death, by his execu- tors or administrators, if the judgment was to recover any debt, or damages only, or to recover any interest in lauds, declared by law to be personal assets ; in case of the death of such party, if the judgment Avas for the recovery of real estate, or the possession thereof, or the title to real estate was determined thereby, the appeal must be brought by the heirs or devisees of such deceased party, to whom such estate was devised or descended, or might have descended. An appeal may be brought by any person having an estate in rever- sion or remainder, in any real property which shall have been recover- ed, or the possession of which shall have been recovered, in any action relating to property, brought against any tenant for life, or for years, in which action such person was not a party ; and such appeal may be brought within the time prescribed by law, by such person, as well du- ring the lifetime of such tenant as after his death.(2) Appeals, as now authorized by the Code of Procedure, are a substi- tute for writs of error, in actions at law, and appeals in chancery, as they existed under the former practice. Kence, as the provisions of the revised statutes in respect to the persons who may prosecute the writ of error, are not inconsistent with the provisions of the Code, they apply to appeals brought under the Code. Appeals may also be brought by a party in whose favor a judgment may have been rendered, upon which no execution shall have been issu- ed, and which shall not have been in any way satisfied, in whole or in part; and after his death, by his personal representatives, heirs, or devi- sees.(3) Also, by the attorney-general, in behalf of the people of this state. (4) (1) Code, sec. 348. (2) 2 R. S. 490, sec. 2. (3) 2 R. S. 491, sec. 3. (4) 2 R. S. 491, sec. 4. 7G6 APPEAL WHEN AND BY -^THOM TAKEN, Also, by liusband and wife, on a judgment, recovered against tlie wife dura sola, or during marriage.(3) Also, by the survivors of several persons against wbom judgment has been obtained.(4) Joinder of jJarties.'] Where there are several persons against whom a judgment shall have been recovered, and entitled to bring an appeal, living at the time of bringing such appeal, they must all join in the ap- peal, (except in appeals on judgments in proceedings for partition,) and if any are omitted, the appeal will be dismissed, unless one or more of such persons be allowed to proceed separately, by the court into which the appeal is brought.(5) Uxcuses for not joining^ To the allegation of there being other per- sons living who ought to join in such appeal, if it be established or ad- mitted, the party bringing the appeal may answer by due proof on affi- davit, that any of such persons not joined are either incapable of con- senting to join in such appeal, by reason of insanity or imbecility of mind, or that their consent could not be obtained, by reason of their beinsr absent out of the state ; and if the conrt shall be satisfied of the truth of such answer, such party shall be allowed to prosecute such ap- peal, without joining such persons, in the same manner as if they were joined.(6) The party prosecuting the appeal may also answer, that ap- plication has been made to any person not joined in such appeal, to join therein, and that they have refused. In such case, the court shall stay further proceedings on such appeal, and on the motion to dismiss the same, until a rule to join in the appeal shall have been duly served upon the persons so refusing.(7) Entering rule. A rule must thereupon be entered, directing the per- sons so refusing, to join in such appeal in such court, within such time as shall be prescribed therein, and there join in such appeal, and in the proceedings thereon, or be forever precluded from bringing another ap- peal on the same judgment.(8) Service of rule.] A copy of such rule must be served on the persons named therein, at least ten days previous to the time of appearance therein specified, by delivering the same personally to them, if they can be found ; and upon such of them as cannot be found, by leaving the (1) 2 R. S. 491, sec. 5. (2) 2 R. S. 491, sec. 6. (3) Id. sec. 1. (4) Id. sec. 8. (5) Id. sec. 9. (6) Id. sec. 10. AND FROM WHAT JUDGENTS OR ORDERS. 767 same at their last place of residence respectively, witli some person of proper age.(l) Proceedings on default?^ If any person named in sucli rule do not ap- pear by the time therein specified, and join in such appeal, upon due proof of the service of such rule, the default of such person shall be en- tered, and he shall thereby be forever precluded from bringing any ap- peal on the same judgment. And the case shall proceed in the same manner as if such person had been named in such appeal, and in the proceedings thereon. (2) Misjoinder.'] Not only must all proper parties join in bringing an appeal, but no one must unite, who has not been prejudiced by the judgment. This was decided in a case of a writ of" error, (3) and it may be regarded as the rule in respect to appeals. Against whom.'] Appeals must be brought against the same person who was a party to the judgment from which it is taken ; or, in case of his death, either, 1. if such judgment was for the recovery of any debt or damages only, against his executors or administrators ; or, 2. if the judgment was for the recovery of any interest in lands declared by law to be personal assets, against the executors or administrators of such deceased party ; or if such interest have been conveyed by the deceased, previous to bringing the appeal, then against the actual occupants thereof, under such conveyance. 3. If such judgment was for the re- covery of real estate, or the possession thereof, or in any action by which the title to real estate was determined, the appeal must be brought against the heirs of such person to whom such real estate de- scended, or against the devisees of such estate ; or if conveyed by the deceased, previous to bringing the appeal, then against the actual occu- pants thereof, claiming under such conveyance. (4) Appecds from judgments.] The judgments, asjias been seen, are such as are entered under the direction of a single judge, or upon the report of referees. (5) They must be judgments entered upon the direction of a single judge in the Supreme Court, or in the Superior Court of the city of New York, or the Court of Common Pleas of the city and county of New York. Hence, judgments of county courts, or city courts, or mayors' or recorders' courts of cities, are not included among the judgments from which an appeal may be taken to the general terra, (1) 2 R. S. 491, sec. 11. (2) 2 R. S. 492, sec. 13. ) 17 Wend. Rep. 434. (4) Id. sec. 19. (5) Code, sec. 278. 768 APPEAL WHEN AND BY WHOM TAKEN, &a as provided by the Code.(l) Appeals from sucli judgments, have been before spoken of.(2) Appeals from order's.'] In the same manner that appeals from judg- ments may be taken, and within the same time, an appeal may also be taken from an order made by a single judge of the same court, and such order may thereupon be reviewed in the following cases : 1. When the order grants or refuses, continues or modifies, a provi- visional remedy; 2. "When it grants or refuses a new trial, or when it sustains or over- rules a demurrer ; 3. When it involves the merits of the action, or some part thereof, or affects a substantial right ; 4. When the order in effect determines the action, and prevents a judgment from which an appeal may be taken ; 5. When the order is made upon a summary application in an action after judgment, and affects a substantial right. In addition to these orders, an appeal may also be taken to the gene- ral term, from an order made out of court upon notice. This includes such orders as may be made by a judge at chambers ; such as orders for injunctions, attachments, and the like. But the order, to be an appeal- able one, must be one of the several orders above mentioned. Before an order made out of court, can be appealed from, it must first be entered with the clerk of the county in which the action is tri- able or pending. For this purpose, the party affected by the order, and who wishes to appeal, may require the order to be entered with the clerk, and may get the direction of the judge who made the order, requiring it to be filed. As it will be more appropriate to treat of appeals from orders in con- nection with " motions," the further consideration of the subject will here be omitted.(o) (1) Sec. 348; see ante, p. 7G2. (2) Ante, p. 134. (3) See post. THE PilOCEEDlNUS TO PEilFECT THE APPEAL. 769 SECTION II. THE PROCEEDINGS TO PERFECT THE APPEAL. The Code as originally passed required that security should be given in all cases of appeals from judgments, and it so continued until the amendments were passed in July, 1851. By the amendments passed in 1852, it is now provided that an appeal does not stay the proceedings upon the judgment, unless security be given, as upon an appeal to the Court of Appeals,(l) or unless the court, or a judge thereof^ so order ^ which order may be made upon such terms, as to security or otherwise, as may be just, but such security not to exceed the amount required on an appeal to the Court of Appeals. It seems clear from this provision that the proceedings on the judg- ment can only be stayed in one of two ways : — 1. By giving an under- taking as required in appeals to the Court of Appeals or by procuring an order from the court or a judge of the court, staying the proceed- ings. In every case of appeal an undertaking for costs is necessary, although the court may dispense with any further security, and can stay the proceedings upon the judgment ; but to render the appeal effectual for any purpose security for the costs, must be given or a deposit made as provided in the Code.(2) I will therefore proceed to speak of the security which must be given in all cases and also the security which may be given, and which will of itself operate as a stay of proceedings upon the judgment appealed from, without any order of the court. As I have already, in treating of appeals to this court from the judg- ments of inferior courts, spoken fully of the iinclertakimj and all its in- cidents, required to perfect an appeal, it will be unnecessary to repeat it here. By referring to pages from 740 to 748, both inslusive, the student will find the following subjects in connection with the under- taking fully treated on, namely : the undertaking for costs, which is necessary in all cases, and also the undertaking, as applicable to the different kinds of judgment, required to stay proceedings, the mode of executing, amending the undertaking, exception to sureties and mode of justifying, and their liability &c. Where, therefore, security is given it must be in the form and to the effect before stated. (1) Code, sec. 348. (2) Code, sec. 334. YOL. I. 97 770 PREPARING THE APPEAL FOR ARGUMENT. . But, as has already been said, the court now has the power to grant a stay of proceedings without requiring any security, or they may limit the amount of the security, as may be just. I am not aware that any definite practice has been or can be, settled upon by this court, as respects the cases in which a stay of proceedings will be granted without requiring security. Indeed I do not know of a case where it has been dispensed with, and I do not suppose the court will ever stay the proceedings without requiring security except when the appellant is an executor, administrator, trustee or other person act- ing in another's right, in which cases they are authorized to dispense with or limit the security. (1) All, therefore, that can be said on the subject is, that the court will determine each application for a stay of proceedings, by itself, and grant the stay on such terms as to security or otherwise as may be just. SECTION III. OF PREPARING THE APPEAL FOR ARGUMENT. The appellant having perfected his appeal, the next step is to pre- pare the appeal for argument. Preparing papers.] An appeal from a judgment entered in the Supreme Court, is to be heard upon the judgment roll and the notice of appeal. It is not necessary to obtain the return of the clerk, as in the case of an appeal from a judgment of an inferior court, but the cause remains in the same court, and the appellate court has access to and control over the records in the office of the clerk. There is, there- fore, no transcript necessary. But the appellant must procure from the clerk a copy of the judgment roll, which, however, need not be certifi- ed. A case must then be prepared by the appellant, consisting of the judgment roll and notice of appeal. The case must also contain a statment of the time of the commence- ment of the suit, and of the service of the respective pleadings ; the names of the original parties in full ; the change of parties, if any has taken place, pending the suit, and a very brief history of the proceed- ings in the cause ; and also an abstract of the pleadings, not exceeding one-sixth of the number of folios contained in the original pleadings.(2) (1) Code, sec. 339. (2) Rule 29. PREPARING THE APPEAL FOR ARGUMENT. 771 The points intended to be relied on in argument, with a reference to the authorities in support of the same, must also be prepared. In cases where it is necessary for the court to go into an extended examination of evidence, each party must state upon his points tlie leading facts which he deems established, with a reference to the folios where the evidence of such facts may be found.(l) It is the duty of the appellant, in all cases, to prepare the case(2) upon which the appeal is to be heard, and furnish the necessary copies thereof, and the respondent has no right to make it up. Printing cases and points.'] The case and points, and all other papers furnished the court, and the opposite party in calendar causes, must be printed on white writing paper, with a margin on the outer edge of the leaf not less than one and a half inch wide. The printed page, exclu- sive of any marginal note or reference, must be seven inches long, and three and a half inches wide. The case must be folioed, numbering from the commencement to the end, and must be printed on the outer margin (3) Serving appeal'] At or before noticing the appeal for argument, the appellant must serve on tlie attorney for the respondent, tJiree printed copies of the case. If the appellant fliils to serve the copies at such time, the respondent having noticed the appeal for argument, may put the cause on the calendar, and move upon an affidavit of the facts and of the neglect of the appellant to serve the case, and upon notice to the appellant for the earliest practicable day in term for heariug non-enu- merated motions, that the cause be stricken from the calendai', and that judgment be rendered in his favor.(4) The court in which the motion is made, to strike the cause from the calendar, may, upon sufficient cause shown, grant relief, upon such terms as shall be just. The motion days in term when motions to strike a cause from the calendar and for judgment, are the first day, and Thursday of the first week and Friday of the second week, immediately after the opening of the court. But as the notice must be eight days, and the party whose duty it is to serve the papers has the whole of the eighth day before the first day of term to do so, a motion cannot regularly be made to strike the cause from the calendar before Thursday of the first week. If the cause should be called previous to the day for which the notice is given, the court will pass it without prejudice, until the motion can be heard ; and when heard, unless the party charged with being in de- (1) Rule 31. (2) Rule 29. (3) Rule 30. (4) Rule 29. 772 PREPARING THE APPEAL FOR ARGUMENT. fault excuses himself, the motion will be granted.(l) And it was held, in the late Supreme Coart, under a similar rule, that where a party who is to furnish the papers, has noticed the cause for argument, with- out serving a copy of the papers in due time, the other party may move to strike the cause from the calendar, without noticing it himself. But where the cause has not been noticed by the party who is to furnish the papers, the other party must show, in his afl&davit for the motion, that he has noticed the cause for argument.(2) Notice of argument^ Either party may notice the case for argument. The notice must be served eight days before the first day of the term at which it is intended to bring on the argument, and must specify the time and place when and where the appeal will be heard. The case can only be heard in the judicial district embracing the county in which the judgment appealed from is entered, or in a county adjoining such county, though not in the same district. Thus, an appeal from a judg- ment entered in Ulster county, which is in the third judicial district, may be heard at a general term of the court, in Dutchess county, which is in the second judicial district. But such appeal cannot be heard in an adjoining district, unless the court for such district is held in an ad- joining county.(3) This provision, however, does not apply to causes arising in the city and county of New York, and appeals from judgments entered therein, can be heard only in the first judicial district.(4) The appeal must be noticed for argument at a general term of this court : it cannot be heard at a special term. Unless a party notices the appeal for argument, he cannot move on the argument, in the absence or without the conset of the opposite party. And in the late Supreme Court, it was the well-established practice to refuse to default a party unless the party moving the case had himself noticed the cause and put it on the calendar. As soon as the case, (which, as we have seen, contains the notice of appeal and judgment-roll,) is printed, the case can be noticed for argu- ment. It is not irregular to notice it before, but if the case were not printed, it would be a sufficient excuse for not bringing on the argu- ment, unless the party whose duty it was to prepare the papers, had been guilty of laches. Note ofissue^ The party noticing the appeal for argument must, /owr days before the first day of the term at which it is intended to bring on (1) 10 "Wend. Rep. 537, note. (2) Herkimer Co. Bank v. Devereux, 5 Hill's Rep. 9. (3) Code, sec. 34€. (4) Ibid. PREPARING THE APPEAL FOR ARGUMENT. 773 the argument, furnish the clerk of the court where the appeal is to be heard, with a note of the issue. This is a brief note of the title of the cause, the nature of the question, the date of the issue, and the names of the attornes for the respective parties. By the rules adopted at the convention of judges in August, 1852, it is provided (1) that appeals shall be placed on the calendar, according to the date of the service of the notice of appeal. The date of the issue, therefore, will be of the time the notice of appeal is served. Malcing up calendar.'] The calendar is made up by the clerk, in du- plicate, for the use of the court and bar. The causes are arranged upon the calendar, in the order of the dates of the issues, commencing with the oldest issues : and the clerk is now required by rule,(2) to cause the calendar for the general term to be printed for each of the justices hold- ing the court. Argument.'] When the appeal is reached on the calendar and called on for argument, the appellant must furnish a printed copy of the ap- peal papers to each of the justices holding the court. Each party must, at the same time, furnish to each of the justices and to each other, a printed copy of his points.(3) The counsel for the appellant opens the argument ; the counsel for the respondent replies, and the counsel for the appellant closes the argument. But one counsel will be heard on each side, unless there are several parties, represented by different at- torneys and counsel, and unless the court shall otherwise order ; and the counsel who opens the argument and the one who closes it, must be the same.(4:) Counsel will not be allowed to occupy more than two hours each in the argument, unless special permission is obtained from the court.(5) Either party having noticed the appeal for argument, and put it on the calendar, may, if the other party does not appear to argue, move for and take, upon furnishing proof of the service of the notice of ar- gument, such judgment as he is entitled to, either of affirmance or re- versal of the judgment of the court below.(6) Where a default is thus taken, it is the duty of the counsel who moves, to endorse upon the pa- pers his name,(7) the object of that being to enable the counsel of the adverse party to give him notice of an application to the court to open the default, it being the almost invariable practice of the court to open (1) Rule 34. (2) Rule 34. (3) Rule 20. (4) Rule 14. (5) Rule 14. (6) Rule 25. (7) Rule 26. 774 OP THE JUDGMENT AND PROCEEDINGS THEREON. defaults thus taken, provided the counsel who took it is at the place where the court is sitting, and has notice of the application to open the default. The court may, however, require, as a condition of opening the default that the cause be heard at the same term. SECTION IV. OF THE JUDGMENT AND PEOCEEDINGS THEREON. Decision!] The decisions of the court at the general term, are usu- ally made at the end of the term, when thej are handed to the clerk of the court, and entered bj him in the minutes. The decision upon the appeal is either to reverse or afiirm, or modify the judgment appealed from, and they may grant a new trial.(l) But the court will not modify the j udgment appealed from except in the respect mentioned in the no- tice of appeal. A concurrence of a majority of the justices holding the court, are necessary to pronounce a judgment.(2) Costs.'] Having obtained the decision of the court, the next step is to make out a bill of the costs and disbursements to which the prevail- ing party is entitled. The costs must be adjusted by the clerk of the court, upon a two days notice to the opposite party, and inserted by the clerk in the entry of judgment. Entering judgment.'] The court having decided the appeal, the clerk must enter the proper judgment. If the cause is decided in a county other than that in which the judgment-roll is filed, the prevailing party must obtain from the clerk where the decision is made, a certified copy of the rule or order entered in the minutes, which, with the costs and disbursements and the judgment thereon, should be attached together and filed in the office of the clerk in which the judgment was filed, and the judgment docketed. The judgment is a brief statement of the ap- peal, and the decision thereon, and the judgment of the court, which is, that the judgment appealed from is reversed, or affirmed or modified in the particulars stated, and. that the successful party recover his costs and disbursements. Where the appellate court grant a new trial, no judgment is necessary, unless costs on the appeal are awarded, when the judgment will be for costs. A copy of the rule or order entered (1) Code, sea 330. (2) Code, sec. 19. TURNING A CASE INTO A SPECIAL VERDICT, &c, 775 upon tlie decision of the court, should in all cases be served upon the opposite party. A practice has prevailed to some extent in entering up judo-ment of affinnance upon an appeal, of including in it the amount of the judo'- ment appealed from, or in other words entering up a 7-ieiu judgment. This is manifestly wrong. The judgment on the appeal is affirming the judgment at s^^ecial term, and awarding the costs of the appeal and interest upon the judgment as damages. It is therefore improuer to enter a new judgment including the amount of the original judgment but merely a judgment of affirmance with the costs &c., of the ap- peal.(l) Cases and exceptions^ special verdicts^ and verdicts subject to the opinion of the court. In addition to what has already been said under these different heads(2) it will be sufiicient to remark that substantially the same rules and practice prevail in respect to them, so far as regards the prepara- tion for the argument(3) and the manner of bringing on the argument, &c., as apply to appeals from the judgments entered under the direc- tion of a single judge or report of referees; and I therefore refer to the preceding parts of this chapter for the practice on that subject. SECTION V. OF TURNING A CASE INTO A SPECIAL VERDICT OR EXCEPTIONS. I have already(4) referred to the practice of turning a case into a siDCcial verdict or exceptions. The object of turning a case into a special verdict or exceptions, is to enable the party to appeal from the judgment of the general term to the Court of Appeals. Where a case is made and not exceptions or special verdict, and no right is reserved at the trial to turn it into one or the other, the Court of Appeals will refuse to hear it upon appeal or otherwise.(5) Hence, as has been stated,(6) a party Avishing to re- serve the right to go to the Court of Appeals, should at the trial pro- cure from the opposite party a stipulation^ giving him the right to turn the case into a special verdict. (1) Eno V. Crooks 6 How. Pr. Rep. 4G2. (2) Ante, p. 107, tn, T23. (3) See Ante, 754. (4) ^^^^^ p_ ^19_ (5) Livingston v. RadcUff, 3 How. Pr. R. 417. (G) Ante, p. 719. 770 TURNING A CASE INTO A SPECIAL A^ERDICT, &c. In respect to the right to tilrn a case into exceptions, it is no longer necessary, as we have seen(l) that the right to do so, should be reserv- ed at the trial.(2) This may be done now as a matter of course, in all cases; it beiag provided that "if the exceptions be in the first instance stated in a case, and it be afterwards necessary to separate them, the separation may be made under the direction of the court, or a judge thereof" I do not understand that where the trial is by the court without a jury, a case can be turned into exceptions. In such cases the judgment on the appeal at the general term is final. (3) The practice of turning a case into a special verdict or exceptions, is regulated by rule, and is as follows : Within thirty days after notice of the decision of the case, the party intending to appeal must prepare the special verdict or exceptions in form, and serve a copy on the op- posite party.(4) The special verdict or exceptions must be drawn up in the same form as though the exceptions had been taken at the trial, stating only the facts established by the evidence, and not the evidence itself.(5) No notice need be taken of the case, or of the stipulation.(6) The exceptions must be signed by the judge who tried the cause, as in ordinary cases, or it may be settled by any one of the justices of the Supreme Court.(7) The party on whom the special verdict or exceptions is served, may propose amendments thereto within twenty days.(8) And if no amend- ments are proposed, and served within such time, the verdict or excep- tions as proposed, will be deemed to be assented to.(9) If the amend- ments are not assented to by the parties proposing the special verdict or exceptions, they must be settled by one of the justices of thi. court, on a notice to the opposite party within ten daj-s after the service of the amendments.(lO) After the special verdict or exceptions are settled, it must be signed by the judge, and filed in the ofB.ce of the clerk of the court where the judgment of the court is entered, and annexed to the judgment roll.(ll) If the special verdict or exceptions is not served within the thirty days, the prevailing party will be at liberty to proceed as though no special verdict or exceptions had been taken. (12) Ai^peal?^ Either party, after the special verdict or exceptions is filed, may appeal from the decision of the Supreme Court to the Court of Appeals. (1) Ante, p. T19. (2) Code, sec. 264. (3) Watson and another v. Scriven and others, 7 How. Pr. Eep. 9. (4) Rule 18. (5) 5 HiU, 579. (6) Id. (7) Rule 18. (8) Rule 18. (9) Rule 19. (10) Rule 18. (11) Rule 17. (12) Rule 19. ODEX. ABSCONDING DEBTORS, proceedings against, 269, 454. ACCOUNT, copy how obtained, 525. consequences of not furnishing, 42*7. more particular bill, 427. ACTIONS, against sheriffs, IT. within what time to be brought, TS. place of trial in, 79, 345. pleadings in, 80. process in, how served, 80. by attorneys for their services, 207. ACTIONS, AND THEIR INCIDENTS, civil actions, definition, 281, division at common law, 283. present division, 283. criminal actions, 288. special proceedings, 289. limitation of actions, respecting real pro- perty, 291. by the people, or those claiming under under them, 291. by private persons, 293. adverse possession, 293. under written title, 294. under claim of title without writing, 294. right not impaired under certain disabili- ties, 295. limitation of actions other than in respect to real property, 297. periods of limitation, 297. when limitation commences, 300. conmiencoment of the action, 302. suspension of statute, by personal dis- abilities, 303. by death of either party, 303. actions against persons out of the state, 305. disabilities by operation of law, 305. agreement not to plead statute, 306. effect of two or more disabilities, 306. I'emedy restored by subsequent promise, 306. must be in writing, 309. foreign statutes of limitation, 312. parties to action, plaintiff, 313. persons convicted for felonies, 314. alien enemies, 314. foreign executors or administrators, 316. states of the Union, 317. foreign governments, 317. who must be plaintiff, 318. Vol. I. 98 i\.CTIONS, AND THEIR INCIDENTS— ctm- tinued. corporations and joint stock companies, 319. married women, 320. executors and administrators, 322. trustees, 323. persons authorized by statute, 324. infant, by guardian, 325 several plaintiffs, when necessary, 325. non-joinder of plaintiffs, 327, 328. death, effect of, 327. action ex delicto, 327. mis-joinder of plaintiff, 328. party defendant, 329. foreign ministers and theu' domestics, 332. consuls, 333. married women, 334. infants, 335. dormant partners, 336. persons severally or jointly liable to ac- tion, 337. non-joinder and mis-joinder of defendants, 338. power of court to determine controversy, 340. change of parties, sole plaintiff, 342. transfer of interest, 343. in case of several plaintiffs or defendants, 343. motion to continue action, when made, 343. how made, 344. who may make, 344. supplemental complaint, 344. place of trial, venue, 345. in county where subject of action is, 346. where cause arose, 347. where parties reside, 349. change of place, 351. how obtained, and grounds, 353. staying proceedings, 355. joinder of, generally, see "Joinder of Ac- tions." commencement, prosecution and defence of, 378. mode of commencing, 380. in what actions defendant may be arrest- ■ ed, 382. another pending, ground of demurrer, 541. mis-joinder of, ground of demurrer, 543. insufficient cause of, ground of demurrer, 544. 778 INDEX. ACTIONS, AND THEIR INCIDENTS— continued. subniittino^ a controversy without, 122. ADMISSION OF ATTORNEYS, see "At- torneys." from oilier States, 102. effect of, 103. practisinjy without, 104. AFFIDAVITS, who may take, 33. commissioners ex officio, 33. commissioners of deeds, 34. justices of the peace, 34. taken out of the State, 37. judges of a court having a seal, 37. commissioners appointed by the governor, 39. to obtain order of arrest, 389. to obtain delivery of personal property, 429. to procure injunction, 446. to obtain warrant of attachment, 457. verifjing complaint, 478. to procure order for publication against non-resident defendant, 489. of service of summons, 497. verifying answer, 586. replv, 593. AFFIDAVIT OF MERITS, by whom made, 638. when made, 639. what it must contain, 640. filing and serving of, 642. for reference, 695. annexed to undertaking on appeal, 745, AMENDMENTS, generally, 368. upon what terms allowed, 368. of course, 370. not of course, 371. of summons, 372, 466. of complaint, 481. to exceptions, 713. to case, 718. to special verdict, 724. to case to set aside report of referees, 729, of undertaking on appeal. 744. ANSWER, irrelevancy or redundancy in, generally. 529. its incidents, 556. general denial, 557. special denial, 565. denial of knowledge sufficient to form be^ lief, 567. statement of new matter, 570. counter-claim, 577. verifying, 586. sliam answers, 587. irrelevant and redundant matter, 589. filing and serving, 589. enlarging time, 589 answering amended complaint, 590. demurrer to, 590. APPEALS, court of, 1. organization of, 5. chief judge, who is, 6. APPE A LS — continued. clerk of the court, how elected, and term of office, 0. reporter, how appointed, and term of office, 6. powers of the court, how derived, 7. its jurisdiction, 7. business of the court, 8. how many terms, 8. additional terms, 8. number of counsel heard, 9. number of judges necessary to pronounce judgment, 9. to the Supreme Court, from an inferior court, 734. when taken, 735. by whom, 737. from what judgments, 737. in cases arising in justices' courts, 738. parties how called, 739. notice of and service, 739. undertaking on, 740. amending undertaking, 744. affidavit annexed, 745. serving copy of undertaking, 746. exceptions to sureties and their justifying, 746. other sureties, 747. manner of justifying, 747. filing undertaking, 747. deposit in lieu of undertaking, 747. liability of sureties, 748. transmitting judgment-roll, 748. obtaining farther return, 751. assigning errors in fact, 751. grounds of errors in fact, 752. trial of issue of fact, 753. preparing and printing appeal papers and points, 754. serving case and notice of argument, 755. note of issue, 756. judgment in proceedings thereon, 758. to the general terra, from judgment of special term, or on report of referees, 762. when and by whom taken, and from what judgments, 703. power to enlarge time for bringing, 763. joinder of parties in, 766. proceedings to perfect, 769. security for costs in, 769. stay of proceedings, how procured, 769. preparing for argument, 770. printing case and points, 771. notice of argument, 772. note of issue, 772. judgment on, 774. ARRE.ST, attorneys when privileged from. 111. in what actions, 382. actions not on contract, 384. for penalties, 384. on promi.se to marry, 384. actions to recover personal property, 386. for fraud, 387. when delendant has removed property, 388. when female can be, 388. by whom may be made, 406, INDEX. 779 ARREST— continued. when may be made, 407. where may bo made, 408. how may be made, 409. vacating: order of, 424. of defendant in actions for delivery of personal property, 437. ATTACHMKNTS, jurisdiction iu cases of, 247. ATTACHMENT, when appHed for, 455. who may grant, 456. the affidavit, 457. security, 458. how and by whom executed, 459. perisiiable property, 460. when chiimed by another, 460. suits by sheriff", 461. satisfying judgment, 461. judgment for the defendant, 462. motion to discharge attachment, 462. filing warrant, and fees of sheriff, 463. ATTORNEYS, origin of, 92. nature of the office, 94. former requisites of admission, 95. requisites for admission now, 100. citizensln'p, 101. age, 101. residence, 101. character, 101. examination, when and how had, 102. admission of attorneys from other states, 102. effect of admission, 103. practising without admission, 104. permitting auotlier to practise in Lis name, 105. effect of removal from the state, 107. privileges of attorneys, as to offices and duties, requiring personal service, 107. as to suits by and against them, 109. privilege from arrest. 111, 396. disabihties of attorneys from practising, by holding judicial offices, 114. wliile holding certain ministerial offices, 114. purchasing choses in action, to sue upon them, 115. from being bail, they, or their clerks, or persons indemnified by them, 121. who may ajjpear by attorney generally, corporations, 123. infants, through guardian, 124. idiots and lunatics, 129. habitual drunkards, 131. married women, 133. rule prohibiting tiie appearance of per- sons not of full age or sound mind, 136. appearing in person, 137. how appointed generally, and in special cases, 137. appearance must be in good faith, 140. when and jiow compelled to appear, 142. notice of retainer to opposite party, 143. duties of attorneys to the court, 144. to their clients, 144, fidelity, 144. ATTO Rl^EYQ— continued. skill, 150. care, 152. duties to the opposite party, 157. responsible for abuse of process, 159. for personal engagements, IGO, when liable for costs, 1G8. authority of, and its duration, 169. in the conduct of a suit, 169. termination of his authorit}', 171. change ofj by death, removal, suspen.sion, or ceasing to act as attorney, 176. before judgment, 176. notice of the change, 179. effects of acts of new attorneys, without due substitution, 179. entering change on record, 180. change after judgment, 180. right of attorney when changed to appear for ( pposite party, 182. consequences of acting without authority, as between the attorney and parties, 1 o3. as between the parties, 183. summary power of the court over attor- neys, 186. for crimes unconnected with his profes- sion, 191. for breach of duty to client or opposite party, 191. only in matter connected with his profes- sional character, 194. when the court will oblige attorney to pay over money, 197. to deliver up papers, 198. disobedience of the orders of the court or judges, 203. motion against an attorney, proceeding, 203. effect of removal or suspension, 205. striking off the roll, at his own request, 205. remedy of attorneys for their services, by action, 206. attorney's lien for costs, 207. upon client's papers, 208. upon money in his hands belonging to chent, 210. when he may be arrested, 384. BAIL, sheriff cannot become, 77. attorneys, when disqualified, 121. qualifications of, 411. freeholder or resident and householder, 411. liable to process of the court, 413. able to pay liability, 413. officers of the court, when excluded, 414, l^erson once rejected, 415. exception to bail, 415. justifying bail, and other bail, 416. manner of justifying and filing undertak- ing, 417. liability of the sheriff", 417. escape, 418. rescue, 419. lodging defendant in prison, 421. liability of; 422. surrender of 423. 780 INDEX. BAIL — continued. deposite of money, 424. vacating order of arrest, 424. BILL OF PARTICULARS, see copy of Account." BONDS, sheriff's ofScial, 48. of deputy slierilT, 74. proceeding on slieriff's, 80. bow prosecuted, 82. actions upon, 84. iudemnity to slieriff, upon claim to per- sonal property, 437. CALENDAR, for circuit, G33. for special term, 715. CASE, naotion for new trial on, 717. staying proceedings, 718. preparing case, 718. amendment to, settling and filing, 718. turning into special verdict or exceptions, 719, 775. reserving for argument, 726. for further consideration, 72G. to set aside report of referees, 729. drawing, 729. staying proceedings, 729. settling, filing, 730. CERTIORARI, common law, 264. by statute. 268. CIRCUIT COURTS, number of terras, and where held, 22. mode of appointment of time and place, 22. powers and jurisdiction of, 23. when to be adjourned, if judge do not at- tend, 23. judges of; also judges of Oyer and Ter- miner, 24. CLAIM AND DELIVERY OP PERSONAL PROPERTY, 428. affidavit to be made, 429. requisites, plaintiff owner, 430. property wrongfully detained, 430. alleged cause of detention, 431. taxes, fine, execution, 431. value of property, 432. the notice, 434. undertaking, 435. taking the property, 435. defendant requiring return of property, 435. delivery to plaintiff, 43 G. justifying sureties, 436. third person claiming, 436. return of sheriff, 437. arresting defendant, 437. . CLERK, of Court of Appeals, 6. office of, where kept, 6. of the Supreme Court, 39. deputy clerks, 40. disabilities of, 41. duties of, 41. office hours of, 42. seal of, 42. I COMMISSION FOR EXAMINATION OF WITNESSES, see " Witness " ! COMMISSIONERS, Procuring , authorized to take affidavits, 33. COMPLAINT, 467. general rules for drawing, 357. public statutes noticed by court, 468. statement of facts, 472. names of parties, 472. contents of complaint, 472. amending complaint, 481. supplemental complaint, 485. filing complaint, 485. when service is proper, 486. mortgage and partition cases, 487. demanding copy of, 487, 507. service, how made, 488. upon corporations, 488. minors, 488. idiots, insane persons, and habitual drunk- ards,- 488. copy, how obtained, 507. copy, account in, how obtained, 526. motion to strike out irrelevant matter, 527. who may move, 535. when to move, 537. amending after demurrer, 553. COMPROMISE, offer to, in whole or in part, 503. notice, 510. acceptance, non-accejitance, 511. effect, 511. CONTRACTS, joinder of actions for, 374. CONTROVERSY, submitting without action, 733. drawing case, 733. submitting, 733. judsrment, 734. CORONERS, election, and general incidents of office, 87. when to act as sheriff, 87. duty where sherifi' is a party, 89. process, how directed, where both sheriff and coroner are parties — elisors, 91. CORPORATIONS, must appear by attorney, 123. plaintiffs, 319. officer or agent of, when may be arrested, 384. injunctions against, 450. in actions for, complaint how verified, 479. summons, how served on, 488. COSTS, attorney's lien for, 207. in judgment, upon failure to answer, 504. of commission, 009. in judgment after trial, 704. on appeal, 759. on appeal from judgment at special terms, or on reports of referees, 774. COUNSELLORS, office generally, and admission thereto, 211. rights and duties, 214. liability to clients, 215. INDEX. 781 COUNSELLO R S— continued. to opposite party, 215. action for fees, 21G. COURT OF APPEALS, organization of, 5. classiiication of judges, 5. chief judge, G. clerk of, 6. reporter, 6. power of, "7, business of, 8. terms of, 8. COURT, SUPREME, see " Supreme Court." COUNTER-CLAIM, statement of, in answer, 577. reply to, 592. CRIERS, of different courts, 42. DAMAGES, what the jury may find, GS7. in actions of tort G88. DECEASED PERSONS, reference of claims against, 256. DECISION, on trial by tlie court, of issue of fact, 692. of issue of law, 702. on argument of exceptions, 715. of case, 719. on appeal, 758. on appeal from judgment at special term, or on report of referees, 774. DEFENDANT, 329. foreign ministers cannot be made, 332. nor consuls, 333. married women, 334. infants, 335. who must be, 336. non-joinder and mis-joinder of 339. DEMURRER, in general, 538. effect of, 539. grounds ofj want of jurisdiction, 540. want of legal capacity, 541. another action pending, 541. defect of parties, 542. mis-joinder of actions, 543. insufficient cause of action, 544. drawing demurrer, 548. filing and serving, 553. enlarging time to demur, 553. amending complaint after demurrer, 553. frivolous demurrer, 554. to answer, 590. to reply, 595. to evidence, 730. DENIAL, general, 557. specific, 565. of an}^ knowledge, &c., 567. DISCOVERY, of writings, books and documents, 514. in what cases compelled, 518. proceedings in case of non-production, 520. costs of motion for discovery, 521. effect, when produced, 521. DOWER, proceedings for admeasurement of, 257. ERROR IN FACT, assignment ofj 751. ground of, 752. issue of; how tried, 753. judgment on, 753. ESCAPE, 418. EXAMINATION, of writings, 598. of witnesses on commission, 598. in what case, 599. motion for commission, 599. by whom granted, 602. second commission, 603. interrogatories, how settled, 603. execution and return of commission, 604. depositions, how kept, when evidence, 607. trial notwithstanding commission, 607. costs of commission, 609. de bene esse, in what cases, 609. how obtained, 610. when evidence, and its eflect, 612. compelling attendance, 613. of a party, 614. before the trial, 616. at the trial, 617. effect of, 617. EXCEPTIONS, grounds ofj 708. stay of proceedings, 712. proposing amendments, 713. settling exceptions, 713. setting aside, 714. filing, 714. notice of argument, 714. note of issue, 714. making up calendar, 715. argument, 715. decision, 715. EXECUTION, sheriff cannot purchase at sales under 76. EXECUTORS OR ADMINISTRATORS, foreign, cannot be plaintiff, 317. may sue in their own name, 322. FORECLOSURE OF MORTGAGE, notice of object of suit in, 487. FORCIBLE ENTRY AND DETAINER, 270. FRAUD, in contracting a debt, defendant may be arrested for, 387. FRWOLOUS DEMURRER, 554. GENERAL TERMS, of Supreme Court, 25. of Court of Appeals, 8. HABEAS CORPUS, 257, 273. IDIOTS, may appear by attorney, 129. summons, how served on, 488. INFANTS, must appear by attorney, 124. cannot sue in their own name alone, 325. when may be made defendants, 335. summons, how served on, 488. INJUNCTION, by order, 438. cases in which allowed, 440. when applied for, 444. who mtiy grant, and upon what, 444. 782 INDEX. IN JUNCT ID'S— continued. tlie affidavit, 446. security, 448. order to sliow cause why it should not issue, 450. filing the undertaking, 450. injunction against corporations, 450. application to vacate or modify order, 451. reference as to damages, 453. INQUEST, G43. INQUIRY, duties of sheriff in executing v^rits ofj 65. INSPECriON OF WRITINGS, see "Dis- covery." IRRELEVANCY, in complaint, motion to strike out, 527. and redundancy generally, 529-535. who may move to strike out, 535. when to move, 537. in answer, motion to strike out, 589. in reply, motion to strike out, 593. ISSUE, of law, 597. of fact, 597. how tried, 618. note of, on trial of issue of fact, 632. of issue of law, 701. on hearing of exceptions, 714. of case, 719. JAILS, keeping of, 59. prisoners, how confined in, 60. liberties of, 63. JOINDER OF ACTIONS, generally, 373. what actions may be joined, 373, where all rise out of same transaction, &c., 373. on contracts express or implied. 373. for injuries to person and property, 374 to character, 375. to recover real propert}', 375. personal property, 376. for claims against trustees, 376. must belong to one of the classes, 377. JUDGES, of Court of Appeals, see " Court of Ap- peals." of Supreme Court, duties at chamber, 21. how many, 28. can hold no other office, 28. when disqualified from acting, 29. cannot practice as attorney or counsel- lor, 30. nor have a practising partner, 30. powers of, at chamber, 31. salaries olj 32. how removed from office, 32. JUDGMENT, satisfying in cases of attachment. 461. for defendant in cases of attachment, 462. upon failure to answer, 499. in actions on contract for recovery of mo- ney only, 500. in other actions, 501. manner of entering judgment, 503, 705. judgment roll, 505, 705. upon report of referees, 700. JUDGMENT— cowimwed awarding upon issue of law, 702. transcript, 706. transmitting to Supreme Court, 748. on appeal, 758. on appeal from judgment at special term, or on report of referees, 774. JURISDICTION^, of Court of Appeals, 7. of Supreme Court, see " Supreme Court." appellate jurisdiction of, 258. concurrent with other courts of this state, 276. concurrent with U. S. courts, 276. JURY, how summoned, 633. foreign juries, 636. special juries, 636. who are competent to serve, qualification, 656. exemption, 656. how punished for non-attendace, 657. being sworn, 658. tales, chaUeuges to the array, 660. to the polls, 662. when and how made, 677. how tried, 678. peremptorj' challenge, 679. polling the jury, and recording the ver- dict, 690 LIMITATION OF ACTIONS, 291. for recovery of real property', 291. in other actions, 297. wlien statute does not run, 302, how remedy restored, 306. foreign statutes oi, 312. MANDAMUS, jurisdiction in cases of^ 226, MARRIED WOMEN, appearance of by attorney, 133. when husband must be joined, 135, plaintiffs. 320. defendants, 334. when privileged from arrest, 396. MERITS, see " Affidavits of." MOTION, days in Supreme Court, 27. special, 27. against attorneys, 203. to discliarge attachment, 462. to strike out sham answer, 587. for commission, 599, for reference, 695. for new trial upon exception.?, in cases tried bj' a jury, see " Exceptions." for a new trial upon the judge's minutes, 716. on a case, see " Case." in cases tried by the court without jury, 721. staying proceedings, 721. preparing case or exceptions, 722. NEW MATTER, statement of, in answer, 570. in replv, 592. NEW TRIAL, motion for, upon exceptions, 708. on a case, 717. INDEX. 783 NON-RESIDENT DEFENDANT, summons, how served on, 489. affidavit to procure order for publication, 489. order for publication, 491. filing order, 491. service out of the state, 492. defendant's appearance and answer, 492. NOTE OP ISSUE, on trial of issue of fact, 632. of law, 701. on hearing of exceptions, 714. of case, 719. on appeal, 756, 772. NOTICE, to obtain delivery of goods, 434. to produce papers on trial, 522. form of, 523. time, 524. effect of, not producing, 525. of trial, 619. by whom given, 621. countermand of, 622. of motion for reference, 695. of reference, 697. of trial of issue of law, 701. of argument of exceptions, 714. of argument of case, 719. of appeal from judgments of inferior courts, 739. of argument do., 755. of appeal from judgment at special term, or report of referees, 772. OFFER TO COMPROMISE ACTION, in whole, or in part, 508. the notice, 510. acceptance, non-acceptance, of offer, 511. effect, 511. ORDER OF ARREST, see " Arrest." vacating, 424. to show cause why injunction should not issue, 450. for publication of summons, 491. for reference, 696. appeals from, 768. PARTIES, plaintiffs, 313. who may not be, 314. persons alien enemies, 314. who must be plaintiff", 318. corporation, 319. married women, 320. executors and administrators, 322. trustees, 323. persons authorized by statute, 324. infants, 325. several plaintiffs,. 3 2 5. death of, 327. non-joinder of, 327. in actions ex delicto, 827. defendants, 329. determining a controversy as to, 339. change of, 342. to suits, when i.irivileged from arrest, 387. how named in complaint, 472. defect of; ground of demurrer, 542. examination of, 614. before the trial, GIG. FAUTIE^— continued. examination at tlie trial, 617. effect of, 617. how called on appeal, 739. joinder of, on appeal, 766. PARTITION OF LANDS, notice of object of suit in, 487. PERSONAL PROPERTY, joinder of actions for, 376. claim and delivery of, 428. claim to, how made, 436. PLAINTIFF, 313. who cannot be, 314-318. who must be, 318. corporations, &c., 319. married women, 320. executors and administrators, 322. trustees, 323. persons authorized by statute, 324. infants, 325. several plaintiffs, 325. death of, 327. in actions ex delicto, 327. non-joinder or mis-joinder ofj 328. PLEADINGS, general rules of^ 357. four kinds of, 362. complaint, 363. answer, 364. reply, when necessary, 365. what insufficient in pleading, 365. construction and effect, 367. amendments, upon what terms made, 368. amendments of course, 370. of summons, 372. joinder of actions, what may be united, 373. commencing an action, service of sum- mons, 380. arrest and bail, in what actions, 382. obtaining the order of arrest, 388. afBdavit to obtain the order, 389. by whom sworn to, 391. order, when made, 391. contents of order, and undertaking, 392. who are privileged from arrest, 393. members of congress, and legislature, 394. ambassadors and their servants, 394. attorneys and officers of the court, 396. husband and wife, 396. parties to suits, and witnesses, 397. seamen and soldiers, 401. voters at elections, 402. where defendant has been arrested once, 403. where wrongfullr arrested or detained, 405. detainer, 410. giving bail, see "Bail." irrelevancy and redundancy in pleading, 529. who may move to strike out, 535. when to move, 537. copy for the court, 631. PRINTING APPEAL AND POINTS, for general term, 751, 754. PROCESS, duty of sheriiT in returning, 64. 784 INDEX. TROCY.^S— continued. dcliverino- copy, 64. PEOCURING COPT OP ACCOUNT, 526. how procured, 526, consequences of not furnishing, 527. further or more particular account, 527. QUO WARRANTO, jurisdiction in cases of, 236. REAL PROPERTY, joinder of action for, 375. REDUNDANCY, see "Irrelevancy." REFEREES, trial by, C93. in what cases, 693. motion for reference, 695. afSdavit, notice and service, 695. aEBdavit to oppose, 696. appointing, order, reference at the circuit, 696. notice ofj and proceeding on reference, 697. adjournment and report, 698. fees of referees, 699. judgment of, 700. case to set aside report of, 729. appeal from judgments on report of, 762. REFERENCE, as to damages upon dissolution of injunc- tion, 453. REPLY, and its incidents, 592. verifying, 593. irrelevant and redundant matter, 593. enlarging time, 593. filing and serving, 594. effect of replying, 594. not replying, 594. replying to amended answer, 595. REPORTER, of Court of Appeals, 6. of Supreme Court. 43. REPORT, of referees, 698. RESCUE, 419. SERVICE OF SUMMONS, limiting time of, 466. SCIRE FACIAS, to repeal letters-patent, &c., 242, SHAM ANSWER, motion to strike out, 587. SHIPS AND VESSELS, proceedings against, 254. SHERIFFS, their election, 47. their ofBcial bonds, 48. superseding of former sheriff and its inci- dents, 49. how removed, and proceedings therefor, 52. appohitment, to fill vacancy, 53. office, how filled, where new counties are created, 53. under and deputy sheriffs, appointment, powers and duties, 54. form of appointment, 55. deputies of the under sheriff, when he becomes sheriff, 55. duties of sheriffs, 56. SHERIFFS— cowimwed duties in executing the process of tho court, 56. his responsibility, 57. duty in case of resistance, 58. jails, and keeping thereof, .59. when jail of one county can be used for another, €0. when another place than the ordinary jail can be used as such, 61. liquors prohibited in jail, 62. sherills prohibited from taking gratuity, 62. prisoners on civil and criminal process confined separate, 63. jail liberties, 63. delivering copy of process, 64. return of process, 64. writs of inquirjr, and trial of claims to property, 65. duties of sheriff, as a general officer of the court, 65. sherift^'s office, 66. service of papers upon tho sheriff, 66. powers and duties of under and deputy sheriffs, 67. hability of the sheriff for their acts, 67. bond from deputy to the sheriff, 74. disabilities of sheriffs and their deputies, 76. in respect to other offices, 76. as to purchasing upon sales under exe- cution, 76. in respect to becoming bail, 77. actions against, 77. within what time to be brought, 78. venue, or place of trial, 79. pleading, 80. service of process in actions by or against, 80. sheriff's remedy over, on bond of indem- nity, 80. proceedings on tho official bonds of^ 80. what constitutes a violation of the bond, 80. affidavit for leave to prosecute the bond, 82. proceedings in actions upon the bond, 84. proceedings where there are several judg- ments on the bond, to prevent undue preference, 86. coroners office, powers and duties in re- lation to process, see " Coroners." duties of, in actions for delivery of per- sonal property, 435, 437. duties in attachments, 459, 461. fees of, in do., 463. SPECIAL PROCEEDINGS, 289. terms of Supreme Court, 27. SUBPCENA, for witness, 623. duces tecum, 625. SUMMARY PROCEEDINGS, jurisdiction in cases of, 244, 271. SUMMONS, what it must contain, 463. limiting time of service, 466. amending summons, 466. serving, how, 486. INDEX. 785 BTJUUO^S— continued. upon corporations, 488. minors, 488. idiots, insane persons, and habitual drunk- ards, 488. non-resident or concealed defendant, pub- lication, 489. afSdavit of the facts, 489. publication, when granted, 489. the order, 491. fihng, 491. service out of the state, 492. defendant's appearance and answer, 492. service on some, not all the defendants, 494. who may serve, 49'7. proof of service, 497. SUPREME COURT, history and organization, 10-21. presiding justice, who is, 20. business of the court, 24. general terms, 25. cases which have a preference on calen- dar, 26. special terms, 27. motion-days in, 27. justices of the court, 28. when disqualified from acting, 29. inability to practice as counsellor, solicit- or, attorney, 30. powers of the judges, at chambers, 31. salaries of the justices, 32. how removed from office, 32. clerks, who they are, 40. deputy clerks, how appointed, 40. disabilities of clerks and deputies, 41. duties of clerks, 41. office hours, 42. seal, 42. criers, office performed by whom, 42. their compensation, 43. reporter, office when abolished, 4G. jurisdiction of, origin and nature as to ac- tions generally, 217. as to the place where the cause of ac- tion arose, 222. general nature of its original jurisdiction, 224. jurisdiction in proceedings other than ac- tions, 225. writ of mandamus, 227. where it lies, 228. quo warranto, 236. when granted against a corportion, 237. when against individuals, 238. powers respecting elections in corpora- tions, 239. scire facias to repeal letters-patent and SUPREME COURT!— continued. proceedings for admeasurement of dower, 257. appellate jurisdiction, 258. writ of prohibition, 2G1. certioraiy., common law, 264. mode of obtaining, 2G7. operation, 268. certiorari, by statute, in proceedings against absconding, concealed, or non- resident debtors, 269. in cases of forcible entry and detainer,270. of summary proceedings of landlords, 271. of habeas corpus and certiorari, to in- quire into cause of detention, 273. of conviction by special sessions?, 274. jurisdiction as inferior to Court of Ap- peals, 275. concurrent with other courts of the state, 276. with courts of the United States, 276. TENDER, when and how made, 513. effect, 513. TIME, enlarging to demur, 553. answer, 589. reply, 593. power to enlarge for bringing appeal, 763. TRANSCRIPT OP JUDGMENT, 706. TRIAL, place of, 345. in actions for recovery of real property, 346. for partition of real property, 346. foreclosure of mortgage, 346. for recovery of penalties, &c., 347. against public officers, 347. in transitory actions, 349. changing place of, 350. how obtained, 353. ground of change, 353. . motion to change, when made, 354. staying proceedings to move, 355. examination of party at, 617. TRIAL, prepartion for, 618. notice of, 619. by whom, 621. notice of countermand, 622. entry of cause, note of issue, 632. the calendar, G33. calling cause, 645. opening, 645. evidence, G49. summing up, and judge's charge, 654. proceedings between opening and ver- dict, 655. acts of incorporation, wlien granted, TRIAL, 242. summary proceedings on claims to real property, 244. arbitrations, 246. attachments against absconding, conceal- ed and non-resident debtors, 247. proceedings against ships and vessels, 254. reference of claims against deceased per- sons, 256. by the court, 691, 700. decision on issues of law, 692, 701. by reference, see "Referees." motion for new trial in cases of, 721. TRUSTEES, of express trusts, may sue in their own name, 323. joinder of actions asrainst, 376. UNDERTAKING, to procure order of aiTest, 392. Vol. I. 99 786 INDEX. UNDERTAKING— co?2 UMVERSITY OF «^ r tiNJA LOS ANGEiuh^ |f:^i;ia^s'iwffe'!;^^