tutional objections, or to secure a cheaper and better administration of justice.

It is obvious, that in order to secure the proper fruits of the constitution, it should be carried into effect in its own spirit. Its organization should be administered by its friends, and not by its adversaries. And although those who constructed the system, may have failed to fence it abont in a manner so skilful and effectual as to prevent an evasion of its intent, yet it should be the object of those, who are charged with the duty of carrying it into operation, to follow its indications in the spirit of its framers, rather than to cast about to find some unfenced outlet for escape from its intended course. To those who are familiar with the proceedings in the recent constitutional convention, who observed its progress, heard or read its debates, and appreciated its spirit, there exists no question as to the intent of its prevailing majority. They know how often, and with what earnestness, the friends of a system of common pleas courts, pressed it upon their attention, and how often, over and over again, it was rejected, in favor of the adopted system of thirty-two supreme court judges, to try all ordinary civil actions.

It was repeatedly urged, and always sustained by the votes of that body, that the large number of judges provided for the supreme court, was necessary, because there was to be no other tribunal for the trial of ordinary civil actions; and it was conceded by the friends of the system, on all occasions, that the only excuse for providing so large a judicial force, to be sustained at public expense, rested in the entire dispensation with the court of chancery, as well as with the county courts of common pleas. To this end, the supreme court is organized with a large judicial force, and in such a manner, that the judges may be employed, in the adjudication of any class of cases, equitable or legal, or in any part of the state, according to the tendency of judicial business.

The third section of the sixth article of the constitution concentrates in the supreme court the general jurisdiction hereto

fore divided into two great branches of jurisprudence, and administered by distinct tribunals, known as law and equity courts. The constitution no longer recognizes the necessity of separate and distinct sytems: for although the terms, "law and equity" are used in conferring jurisdiction, they may with propriety be considered descriptive, referring to the existing condition of things, rather than as implying a separate existence in future.

By the fourteenth section of the sixth article, provision is made for a county judge in each county.

The necessity of having at all times, within each county, a judicial officer, must be obvious to those who appreciate the extent and importance of the judicial business always done out of court. The office duties of surrogate have existed in every county, and one or more supreme court commissioners have exercised their functions in most of the counties; and when to these we add the judicial duties in various special cases, heretofore imposed by law on five county judges-other than that of holding courts of common pleas-all to be concentrated in one officer, it would seem as if the object of the provision of the constitution for a county judge is sufficiently manifest, without implying an intent to confer jurisdiction for the trial of ordinary actions between party and party. The design of that instrument, however, in this respect, is not left wholly to inference. It uses language to define the jurisdiction of county judges, to which it is difficult to affix any rational intent, if it be not to prevent a departure from one of its cherished objects, that of having a common tribunal for the trial of all civil actions, except those cognizable by a justice of the peace. Its language is: "The county court shall have such jurisdiction in cases arising in justices' courts, and in special cases, as the legislature shall prescribe, but shall have no original civil jurisdiction, except in such special cases." If all the qualifying words of this provision, restricting the jurisdiction, were stricken out, it would read thus: "The county court shall have such jurisdiction as the legislature may prescribe." These words would place the whole subject of the jurisdiction at the dispo

sal of the legislature, precisely where the friends of a common pleas system in the convention desired it to be, and sought in vain to place it. The law of 1847, however, construes it in this way. If this be a just construction, what is the purpose. and object of the omitted words, by which the meaning is qualified and the jurisdiction limited, to "cases arising in justices' courts and in special cases;" and also of the further prohibitory language, "but shall have no original civil jurisdiction, except in such special cases?" These words were inserted and adopted for some purpose. By all rules of construction, they must be intended to have a substantial sense and bearing on the whole sentence; and yet, if ordinary actions at law-the very actions which were formerly designated as common pleas, and from which the court of that title took its name-if these common pleas can be converted into "special cases," by being included in a list of subjects of jurisdiction, then the words last above cited have no meaning, and the provision would have precisely the saine effect without as with them.

If there could remain any doubt of the true and proper construction to be placed upon the last cited article, there is still another provision, which, unless that instrument be declared inconsistent with itself, must appear irreconcileable with the exercise of common pleas jurisdiction by the county courts. By the fifth section of the fourteenth article, it is provided, "that on the first Monday of July, one thousand eight hundred and forty-seven, jurisdiction of all suits and proceedings then pending in the supreme court and court of chancery, and all suits and proceedings originally commenced and then pending in any court of common pleas, (except in the city of New-York,) shall become vested in the supreme court hereby established. Proceedings pending in courts of common pleas [and]* in suits

• The history of the sentence where the superfluous "and" occurs, is as follows:In the convention, after the constitution had been agreed to, and had been arranged in the order of articles and sections, as it now stands, it was read over for the last time, preparatory to final engrossment, and several amendments were made and deficiencies supplied. Among others, it was observed, that no provision was made for transferring the jurisdiction of the court of common pleas in causes pending in that court, on certiorari and appeal from justices' judgments. A member stated this omission to the convention, and offered an amendment to supply it, which was adopted

originally commenced in justices' courts, shall be transferred to the county courts provided for by this constitution, in such manner and form, and under such regulation as shall be provided by law."

The obvious transfer, by this section, of all the business of the county courts, (except cases on certiorari and appeal from justices' courts,) to the supreme court, is inconsistent with the supposition that the constitution intended to allow to the county court, jurisdiction in precisely such cases, hereafter, as it transfers to the supreme court. That it was done by no loose or unguarded form of expression, is manifest from the particular and specific description of the cases sent to the supreme court, as well as those sent to the county court. Whatever hope, therefore, might be entertained by the friends of the two court system, of a construction favorable to their views, on the provisions of the sixth article, must be dispelled, it would seem, on a careful examination of the self-construction contained in the fourteenth article of the same instrument.

The fourteenth article, though a part of the constitution, and as such the law paramount, is nevertheless confined to provisions intended to carry into effect the preceding thirteen articles, and is temporary only, in effect, being in substitution for Jaws, to set itself in operation. It creates the county courts, with jurisdiction in cases arising in justices' courts only, and it sets the supreme court in motion, charged with the entire origi

without opposition, and was sent up to the chair, annexed to the article under con. sideration, and noted in the minutes of the clerk. This amendment, in the handwriting of the mover, still remains in the secretary of state's office, attached to the original, from which the constitution was engrossed. It is in the same words used in the printed copies, except the word "and" before the words "in suits." On a close examination of the parchment roll, it appears to have been in the first instance, without the word "and," but to have been altered afterwards by erasing the words "in suits," and writing them closer, so as to make room for the word "and" before them; the words "and in suits" being written crowded on the erasure. It is quite certain, that no amendment was made in the engrossed parchment roll, on its final reading in the convention. It was probably altered by the engrossing committee, or their clerk, to correct a supposed omission of a word. The sentence should be read, omitting the word “and.”

nal jurisdiction in civil actions, of all the former courts, chancery, supreme court, and common pleas.

The offices of the supreme court commissioners and five county court judges in each county having been abolished, the jurisdiction heretofore conferred on those officers by special statutes, is left at the discretion of the legislature, for the county judges, under the name of "special cases." These special cases are numerous and important, and frequently local in character, requiring a judicial officer convenient to the persons interested.

The existence of two courts, having concurrent jurisdiction of the ordinary civil actions, upon which the time of our courts is mostly occupied, involves the necessity of imposing restrictions upon the rights of parties to commence actions in the one or the other, in order to equalize the business, according to the judicial capacity of the t vo courts respectively.

It has ever been found, that in such cases, too large a share of the litigation will be conducted in one of the courts. This will be overloaded with business, producing delay and expense to suitors; while the other will have little to do, and will sink lower and lower in public estimation, if not in reality, from its want of employment. The history of the supreme court and common pleas in this state, is an exemplification of this tendency. There has been a continual series of legislative enactments, to equalize the business of the two courts, to induce suitors into the county courts, and away from the supreme court, to which they were inclined. It also appears by the report of the British commissioners on practice, that the principal common law courts of the kingdom have long been embarrassed in the same way; and they recommend as a remedy, a virtual amalgamation of the three courts, (king's bench, common pleas, and court of exchequer,) into one, by abolishing all distinctive features in practice, by adopting a common set of rules for them all, by allowing the same attorneys, barristers and advocates equal privileges in each, and by the trial of issues in each court by