Page images

far as regards the docketing of their judgments in his particular county, as a necessary preliminary to their enforcement by execution against property situate within its limits. The course to be pursued in the event of any neglect on the part of these officers in the due performance of their ministerial duties, is provided for by No. 6, of the Rules of the supreme court.

The clerk of the court has likewise, ex officio, the power of taking affidavits in his own peculiar tribunal. Such affidavits may also be sworn before any of the officers styled commissioners of deeds. The functions of these last parties are purely ministerial, and therefore consanguinity to any of the parties to a suit is no valid objection to the exercise of those functions in any proceeding therein-Lynch v. Livingston, 8 Barb. S. C. R. 463. They cannot, however, act in any proceeding in which they themselves are concerned, either as parties, attorneys, or counsel, or as partners of the latter.-See Gilmore v. Hempstead, 4 How. 153.

The judgments of the court, or orders of the judge, duly entered, or recorded by the clerk, are, on process duly issued, enforceable by the sheriff. For this and other purposes, (and particularly with reference to the summoning of juries, and the proceedings connected therewith), the latter may be considered as an officer of the court. His duties in these respects, [save as regards certain ministerial acts which will be treated of in due course, in connection with the proceedings to which they relate), and his responsibilities in relation to the performance of those duties, remain as settled by the old practice. Express provision is made to this effect by sec. 291, and also by sec. 419, in relation to his liabilities in these respects. The same remarks may be made with respect to the duties and office of the coroner as the ministerial agent of the court, for the execution of process against the sheriff himself, when necessary.

In addition to his duties in relation to the enforcement of the judgments or orders of the court, the sheriff may also, at the plaintiff's option, be made the latter's official agent for service of the process by which an action is commenced, sec. 133 and 138, and, in some cases, his employment for that purpose may be highly advisable, nay, even necessary, with a view to saving the statute of limitations, sec. 99. Under these circumstances he is equally responsible, under sec. 419, for the due performance of the duties so entrusted to him.

On a

Although the Code itself is silent on the subject, rule 6 of the supreme court prescribes that a party aggrieved by any neg. lect on the part of the sheriff or coroner as above, may serve upon him a notice to perform the act required, within ten days, or show cause why an attachment should not issue against him; the ulterior proceedings under such notice being conducted according to the old practice in similar cases.

With respect to the liability of the sheriff on an escape, it has been held that the subsequent death of an escaped debtor before action brought, was no bar to its enforcement, though the recapture or voluntary return of such debtor would have been so.-Tanner v. Hallenbeck, 4 How. 297. Nor on such an action brought against him, can he avail himself of any defects in the original process, rendering such process voidable only and not actually void.--Hutchinson v. Brand, 6 How. 73. recovery against him in such an action, he is liable for the whole judgment and costs, but not for interest on the former.

The sheriff is answerable for the acts of his deputies, and is liable on his official bond if they seize the goods of a wrong party. If he have taken an indemnity, his sureties are entitled to be subrogated to it, in an action brought against him.—The People v. Schuyler, 4 Comst. 173.

The authorized depositary of monies brought into court by the authority of the different tribunals, is, in the absence of special directions upon the subject, the county treasurer of the county in which the action is triable, or in the city of New York, the chamberlain of that city. The statutory provisions in relation to this officer will be found at i R. S. 369-371, and the rules of the supreme court on the subject, in Nos. 83 to 85 inclusive.

Although not regular officers of the court, receivers, and guardians ad litem may, in reference to the purposes for which they are respectively appointed, be considered as standing ministerially, and as exercising limited powers in that capacity; though only on delegation of those powers in the first instance, and subject to the control of the court in all respects with reference to their exercise. The authorities so exercised, and the duties of these officers in relation thereto, will be considered hereafter.

The above summary includes all the regular officers of a duly constituted court, through whose medium its decisions are pronounced in the first instance, and afterwards duly recorded and enforced. An important class remains however to be noticed, who, though exercising no ministerial functions, are yet so far officers of the court, in that they were originally appointed by its authority, and remain subject to its control, and also, in certain cases, must exercise their functions without remuneration, under its special direction. See 2 R. S. 444, and 445, in relation to suits in formâ pauperis. The class alluded to is that of counsel and attorneys, by whom the proceedings in any court whatsoever are usually conducted, from their outset to their final termination.

The duties and responsibilities of these quasi officers, the privileges they enjoy, the disabilities under which they labor, and the mode in which any misconduct on their part may be provided against, or punished, remain entirely unaltered by the Code, and are governed in all respects by the old practice; to the treatises on which, and also to the different provisions on these subjects in the revised statutes, the reader is accordingly referred, in accordance with the plan prescribed at the outset of the work. The only points in which the law on the subject is at all affected by the recent measures are, first in relation to the original appointment of these parties, and secondly, by the total repeal of all legislative provisions, and of the former powers of the court to control and prevent abuse in the pecuniary arrangements between them and their clients, effected by sec. 303, of the Code. See, however, this subject hereafter considered in connection with this last provision, and the case of Barry v. Whitney, 3 Sandf. S.C. R. 696 ; 1 C. R. (N. S.) 101, there cited.

The offices of attorney and counsel, separated in England by rigid and impassable barriers, are, in this state, not merely compatible, but universally exercised in conjunction with each other, all the former restrictions upon and prerequisites to the appointment to those offices, being at once and for ever swept away by sec. 8 of act. 6 of the present constitution, which provides as follows:

“Any male citizen of the age of twenty-one years, of good moral character, and who possesses the requisite qualifications of learning and ability, is entitled to admission to practice in all the courts of the State;" the spirit of which provision has part of the

since been fully carried out in detail, first by the judiciary act, and ultimately by Rules 1 and 2 of the supreme court, by which the practice on admissions is now governed, and to which accordingly the reader is referred upon the subject. That an absolute compliance with these rules in every respect is necessary in all cases, was decided in Re Brewer, 3 How. 169.

In the amended judiciary act however, (c. 470 of Laws of 1847,) a provision is inserted, sec. 46, which has given rise to considerable and doubtful discussion. The provision in question is as follows:

“ Any person of good moral character, although not admitted as an attorney, may manage, prosecute, or defend a suit for any other person, provided he is specially authorized for that purpose by the party for whom he appears, in writing, or by personal nomination in open court."

An important question has been raised as to the constitutionality of this provision, although, even in the strictest view that can be taken, it confers no general license to practice on the

person claiming to act under it; but is, on the contrary, a mere special and limited authority, confined to the individual case for which a special nomination is made, and to that case alone : and a series of decisions have been pronounced on the subject, holding it to be unconstitutional. The first of these is Bullard v. Van Tassel, 3 How. 402, followed up by Weare v. Slocum, 1. C. R. 105; 3 How. 397, (although, in that case the question as to a personal retainer does not seem to have been raised,) and lastly by McKoan v. Devries, 3 Barb. S. C. R., 196; 1. C. R. 6. The latter may be looked upon as the leading case on the subject, and in it the doctrine of unconstitutionality by implication is pushed to its utmost limits, in direct opposition to the principles laid down in Beecher v. Allen, 5 Barb. S. C. R. 169 ; that courts of law ought not rashly to presume that the legislature has transcended its powers, but that the presumption lies the other way, in all cases where any reasonable doubt is admissible. It appears also by a note, 1 C. R. 106, that in another district, Sill, J., refused to be bound by the decision in McKoan v. Devries, and allowed a party not an attorney, to appear for another, on his due compliance with the requisites imposed by the provision in question.

Two branches of the supreme court are thus in direct conflict


on the subject of the above provision, and it seems a matter to be regretted that the particular question has not yet been set at comparative rest by the decision of a general term.

The point as to whether parties may or may not act wisely in availing themselves of the facilities hereby granted, is entirely beside the question. Any right of whatever nature, constitutionally given by the legislature in the regular exercise of its powers, cannot constitutionally be taken away by any subordinate authority on any forced construction, or on any considerations as to its convenience or inconvenience. The legislature, in the ordinary exercise of those powers, have passed the enactment in question such as it is, that enactment being, moreover, one calculated rather to extend than to abridge the general liberties of the citizen; and, if that enactment can by any construction be carried into effect, without a direct and positive violation of the constitution, the courts, it may well be contended, are bound to give it that effect, whatever may be their own views on the subject; and certainly the general doctrines as to constitutionality or unconstitutionality as laid down in Beecher v. Allen, seem, when examined, preferable to those maintained in McKoan v. Devries, and the other cases to the same effect,-the former being moreover a decision of the general and the others of the special term.




In section 9 of the Code, a list is given of the different tribunals within the state, and in the following section the then present jurisdiction of those tribunals is saved in all cases, except as otherwise prescribed by that Act.

The list in question is as follows:
1. The court for the trial of impeachments.
2. The court of appeals.

« PreviousContinue »