CHAPTER II.

PRACTICE AT LAW PRIOR TO 1846.

ARTICLE I.

THE COURTS AND THEIR ORGANIZATION.

Section 1. In general. In this chapter an attempt will be made to point out some of the more prominent and distinguishing features of the common-law practice, which was in force in this State at the time of the adoption of the constitution of 1846. To give the details of that practice at any great length would be useless, as the older works on practice will furnish that information. But, to give a brief synopsis of the principal steps in an action at law, as well as those in a suit in equity, it is believed will better enable the student to understand the present practice, as the contrasts thus presented will fix his attention upon many matters which might otherwise fail to receive due consideration.

Section 2. The supreme court. Under the former system, the powers of this court were exercised by the chief justice and two associate justices, and any of them might hold the court. The original jurisdiction of the court was the same as that which had always been exercised by that court from the organization of the State, or even during colonial times.

It had general appellate jurisdiction for the review and correction of all errors that might occur in inferior courts.

Section 3. Terms of the court. The terms were either general or special. The general terms were four in number, the January term was held at Albany; the May term in New York; the July term in Utica; and the October term in Rochester. These terms were deemed to continue for four weeks for some purposes, and for but two weeks for other proceedings.

The special terms were held in February, April, June, September and December, and they continued until the business was disposed of. These terms were held by one of the justices of the supreme court.

Section 4. Circuit courts. The State was divided into eight circuits, and a circuit judge was appointed for each circuit. The circuit judges usually presided over these courts, of which there

The kinds of action.

were at least two terms in each county every year. The court might be held by any one of the justices of the supreme court, or by any circuit judge.

The terms continued as long as the judge deemed necessary for the public interests. These courts might be adjourned from time to time as the court might direct. These circuit judges each possessed 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. Every circuit judge was required to hold a court once at least every three months, for hearing arguments of the matters committed to his decision. From the decisions made by the special terms, or those made by the circuit judges, an appeal might be taken to the supreme court.

Section 5. Common pleas. In each of the counties of this State there was a court of common pleas. The general jurisdiction of this court has been noticed when discussing the jurisdiction of the county courts.

Section 6. New York superior court. This court has been sufficiently noticed in explaining its jurisdiction and powers.

ARTICLE II.

THE KINDS OF ACTION.

Section 1. In general. Under the former practice there were numerous varieties of common-law actions, each of which had a name, and was designed for a particular purpose. To define them is not now intended, but a brief enumeration of most of them will serve to show what jurisdiction was exercised by the former supreme court in actions at law.

Section 2. Real actions. There were numerous actions relating to real estate, and among them Ejectment, in ordinary cases; For the recovery of dower; For non-payment of rent; For terminating a tenancy, and the like; Actions for Partition; of Nuisance; of Waste; For Trespass on lands; For the determination of claims to land, and for the Admeasurement of dower. The subject-matter of these actions will be quite fully discussed in a subsequent part of this work.

Section 3. Personal actions, ex contractu. These actions were, Account, Assumpsit, Covenant, and Debt, and their nature and object are sufficiently understood by every lawyer or student.

The parties to actions-Of the form of the action.

These actions were

Section 4. Personal actions, ex delicto. Replevin, Trespass, Trespass on the case, Trover, Libel, Slander, and Malicious prosecution. Some of these actions will receive due attention elsewhere in this work.

ARTICLE III.

THE PARTIES TO ACTIONS.

Section 1. In general. This subject is too extensive to be discussed in this place, and information will be found in the former works on practice. There are one or two rules which ought, however, to be mentioned, as they differ essentially from the present practice. Under the old practice in actions ex contractu, the rule was that the actions must have been brought in the name of the party in whom was vested the legal interest in the contract, although the equitable title, or the real interest, was in another person. 1 Chit. Pl. 2-6; 1 Burr. Pr. (2d ed.) 60. Another rule was that the assignee of a personal contract could not sue upon it in his own name, but must bring his action in the name of the assignor. 1 Burr. Pr. 60. Negotiable paper, and some other instruments, formed exceptions to the general rule.

In actions ex delicto, the general rule was that the action must be brought in the name of the party whose legal right had been affected, and who was legally interested in the property, at the time the injury was committed. In those cases in which an assignment of the right of action was permitted, the assignee must have sued in the assignor's name. Though the rule was otherwise where the assignment was by operation of law, as in cases of insolvency.

The rule as to defendants under the old practice does not seem to demand notice here.

ARTICLE IV.

OF THE FORM OF THE ACTION.

Section 1. In general.

Under the former system the form of action to be adopted was one of the first, and frequently one of the most important and intricate, questions which the practitioner had to consider.

Election of actions.

The boundaries which separated one form of action from another sometimes approached so near that great accuracy was necessary to guard against confounding one form of action with another, and thus making a wrong selection of a remedy, the consequences of which were sometimes quite material. If a party failed in his action, in consequence of a mistake in the form, and not upon the merits, he might commence a new action, and the first judgment would not bar a new suit. The delay and the costs, however, were to be borne by the defeated party.

Section 2. Election of actions. A plaintiff frequently had an election as to the form of action, as concurrent remedies for the same right of action, and various considerations were to be weighed before arriving at a conclusion. Among other things which the plaintiff took into account were the following :

1. The plaintiff's interest. If the plaintiff had an election between trespass or trover, for the wrongful conversion or detention of goods, and assumpsit for their value, the advantage of the former remedies would be that a bare possession by the plaintiff would, in general, sustain them, while in assumpsit a stricter right to the property might be required. So as between trespass and replevin, the latter was not adopted if there were a doubt as to the right of property.

2. As to bail. Where the plaintiff had a choice between an action in form ex contractu, and another ex delicto, the advantage of the latter consisted in the right of arrest, and to demand bail, which might not be allowed in the other form of action.

3. As to the number of parties. Where there was a doubt as to the number of parties to be joined as plaintiffs, and especially so as to defendants, the preferable action was in form ex delicto, as the mistake would be of less consequence than in an action in form ex contractu.

4. As to joinder of demands in suit. The practice to be observed in this respect was to adopt that form of action which would include all the plaintiff's demands when this was practicable.

5. As to the defense. In all cases the plaintiff adopted such form of action as would abridge the defense as much as possible. 6. As to the venue. Where there was a choice of actions, and one of them was in its nature local, and the other transitory, the latter was in some cases preferred.

Of the joinder of actions

7. As to the evidence.

Of the modes of commencing actions.

There was a considerable difference between the various forms of action as to the nature or quantity of evidence to be adduced in their support, which was a matter carefully considered.

8. As to the costs. This subject was as important as any of the others, in many instances.

9. As to the judgment. This matter needs little explanation, except to remark that the judgment in some forms of action was more advantageous than that in a different form of action.

Section 3. Of the joinder of actions. If the plaintiff had several causes of action which might have been joined in one action, he ought to join them, for, in case of an omission or refusal to do so, the court might consolidate the actions at his expense for the application. In those cases in which the cause of action arose out of one contract, or rested in an account, the plaintiff must have joined them; and, if he split up causes of action by bringing a suit for a part, he would not be permitted to bring another action for the balance.

The former general rule was, that where the causes of action were all of the same nature, and the actions in the same form, they might be joined in the same suit. The causes of action ought, however, to all exist in the same right, for a demand by a party as executor could not have been joined with one in his own right.

ARTICLE V.

OF THE MODES OF COMMENCING ACTIONS.

Section 1. In general. There were three modes of commencing actions under the former practice, which were as follows: 1. By summons, against corporations.

2. By capias ad respondendum, against persons not privileged from arrest; and,

3. By declaration.

Section 2. Actions by or against corporations. Actions by corporations might have been commenced in the same way as actions by ordinary persons, that is, by summons, capias, or declaration. But actions against corporations, created by or under the laws of this State, must, in all cases, have been commenced by a summons, unless, in some particular case, the law provided some other process.