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 of ficer, 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.

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. In 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. Berryhill-4 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

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.

Although the Code itself is silent on the subject, rule 6 of the supreme court prescribes that a party aggrieved by any neglect 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. On a 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 1 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