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time to time been raised as to the interpretation of the measure. That eso.little of insoluble difficulty should have arisen; ::förms the best eulogium upon the Code itself, effecting, as it unquestionably has effected, a revolution in the previous system which for extent and boldness stands unparalleled in the annals of legal reform. The

scope of the work may be thus briefly stated : A sketch of the different tribunals of Civil Jurisdiction, is first given. The general prerequisites to the assertion of remedies in those tribunals, is next considered. The progress of an ordinary suit in the higher courts is then taken up, and practical directions given for its conduct and management by both parties, from its first outset to its final result. This important subject having been fully considered in all its branches, the nature and characteristics of special proceedings are shortly adverted to, and the work concludes with a brief notice of the retrospective effect of the Code, and an appendix of Forms.

In treating of these subjects, the enouncement of any proposition unsupported by positive authority, has been carefully avoided ; and, where the decisions on any given point have been conflicting, the author has stated those on both sides as impartially as lay in his power, whilst drawing his own conclusion. too, adopted the principle of confining himself to the citation of decisions pronounced under the actual operation of the Code, to the exclusion of cases decided before its passage, or by the English tribunals. Though concurrent on many points, and consistent on more, on

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others the old and new systems are at absolute and irreconcileable variance with each other, on many and those most important points, and à fortiori is this the fact with respect to English authorities. Their

applicability is at the best illustrative; it cannot be held to be direct under any circumstances.

The general tenor of the work pre-supposes likewise an acquaintance on the part of the student with the elementary and other works in relation to the practice under the old system. For some time to come, this will remain a matter, not of choice, but of necessity, though that necessity will lessen in degree with every recurring year. All details of proceedings governed exclusively by the old system will therefore be rigidly excluded, whilst indicating, the sources whence those details may be gathered; and the present work will be strictly and professedly confined to the new, as contradistinguished from the old practice.

The authorities on which the different positions advanced throughout the volume are grounded, are as follows :

Comstock’s Reports, 4 volumes, cited as Comst.

Howard's Practice Reports, vols. 3, 4, 5, and part of 6, cited as How.

Barbour's Supreme Court Reports, vols. 2 to 8 inclusive, cited as Barb. S. C. R.

Sandford's Superior Court Reports, 3 volumes, cited as Sandf. S. C. R. The Code Reporter, 3 volumes, cited as C. R.

(New Series,) part of vol. 1, cited as C. R., (N. S.)

The Legal Observer, vols. 5 to 9 inclusive, and part of 10, cited as L. O.

The Code and Rules will necessarily form the subject of constant citation, the more important provisions of the former being inserted in the text. In quoting from the Revised. Statutes, the references are made to the marginal paging in the third edition.

In preparing the appendix of Forms, succinctness has been studied, and no attempt made to give precedents of mere statements of fact, apart from those clauses which are of general and not of particular application

With these few preliminary remarks, the author commits to an impartial and discerning public the result of near two years' labor bestowed upon this interesting and important subject during the intervals of his practical avocations. Should the following pages prove useful in any respect, whether to the student as a guide, or to the practitioner as a manual of convenient use, his aim will have been attained.

BOOK I.

OF THE COURTS OF JUSTICE WITHIN THE STATE OF

NEW YORK.

CHAPTER I.

.

OF JUDICIAL AND OTHER OFFICERS.

Pursuing the plan laid down in the introduction, and assuming that the reader has already mastered the elementary works on the science of Law, and is acquainted with the general characteristics of the tribunals established for its administration within the State, it will be unnecessary to enter into any lengthened remarks on the general nature of the judicial office, on the powers and privileges which that office confers, or on the peculiar responsibilities and disabilities of its holders. Extensive in other respects as have been the recent changes, the abstract duties and abstract responsibilities of the judicial officer, apart from the peculiar constitution of the tribunal in which from time to time it may be his province to exercise jurisdiction, remain practically unchanged ; and the recent decisions on that subject present therefore, few, if any, features of importance. The only case, in fact, to which it seems necessary to make any allusion, is that of Oakley v, Aspinwall, 3 Comst. 547, in which it was held by a majority of the court of appeals, that the disqualification of consanguinity to one of the litigant parties, is a fatal objection to the validity of any decision which a judge so disqualified shall either pronounce or concur in pronouncing ; and that no form of consent, nay more, not even the expressed wish of the parties, that the judge so disqualified should remain and exercise his functions, can avail to remove that objection, or render valid a judgment so pronounced.

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In all its more essential attributes, the judicial office, is from its very nature incapable of delegation. In some few respects, however, functions falling in strictness within the province of the judge, are nevertheless capable of being exercised by deputy, to a certain extent, and in certain specified cases. Those cases may be shortly classified as follows:

1st. The granting of interlocutory orders, and the exercise in general of the powers of a judge of the supreme court at chambers, an authority exercisable by county judges within the limits of their jurisdiction.

2. The examination into accounts, or complicated questions of fact, and the taking of testimony in relation thereto, including in certain cases the power of deciding on such questions in the place of the court, which powers are exercised by referees specially appointed for that purpose.

3. The taking of testimony by commission; in which proceeding the commissioners stand to a certain extent, and within the limits of their authority, in the place of the court.

The decision of the court or jury on the controversy at issue having been pronounced, must of necessity be duly recorded. The clerk of the court is the officer appointed for this purpose.

His duties are substantially unaltered by the Code, and he still remains, as under the old practice, the authorized depositary of the records of his peculiar tribunal, and the official registrar of the orders pronounced by it. He possesses also, in addition to these ordinary duties, the power, exofficio, of assessing the amount due on the entry of judgments for the recovery of money only-secs. 246 and 310; of taxing the costs of the prevailing party on the entry of judgments of whatever nature-sec. 311. Įn respect of these and other services he receives various fees which are prescribed by section 312. His decisions on such assessment or taxation of costs are, however, reviewable by the court—See Whipple v. Williams, 4 How. 28,--and any irregularities committed by him in the performance of his ministerial duties, will be corrected on proper application, and the parties placed in the situation in which they would have stood had such irregularities not occurred.Neele v. Berryhill4 How. 16.—See also Renouil v. Harris, 2 Sandf. 641 ; 2 C. R. 71, and other decisions cited in loco. The county clerk of each county is also ministerially an officer of every one of the different tribunals throughout the state, in so

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