other terms appeal. Whenever the judges of the supreme court in any appoint district find that the court, at any term or circuit, has not been, or will not be able to dispose of all the cases upon the calendar, they may request the governor to assign other judges, and, if necessary, appoint extraordinary terms and circuits for the purpose of disposing of such cases. The governor may thereupon make such assignment, and the judges assigned must hold the courts accordingly. Appe a ls decrees by supreme suits in equity, July 1, to be taken. Passed § 460. An appeal may be taken from any final decree entered from final upon the direction of a single judge, in any suit in equity a judge in pending in the supreme court, on the 1st day of July, one court, in thousand eight hundred and forty-seven, at any time before pending on the first day of November, one thousand eight hundred and 1847, when fifty-one. But this section shall not apply to cases where a rehearing has already been had or ordered, or to the case of 1849. a decree entered before the passage of this act, and to review Amended which no attempt in good faith has been, or shall have been made within thirty days after notice of the entry of such decree. Such appeal shall be taken in the manner provided in sections three hundred and twenty-seven and three hundred and forty-eight. As this is a provision extending the time for bringing an appeal, affecting the remedy only, it is not unconstitutional. Burch agt. Newbury and others, 4 How. 145. 1851. Issue of county court or common § 461. An issue of fact joined in a county court, or court fact in of common pleas, before the first day of July, one thousand eight hundred and forty-eight, or then pending in pleas, bethat court on appeal, shall be tried by a jury, unless the 1848, how parties otherwise agree. fore July 1, tried. Passed 1949. Definition of "real 467. Rule of strict construction of statutes inapplicable to this act. 468. Statutory provisions inconsistent with this act repealed. 471. This act not to affect certain proceedings and statutory pro- 472. 473. Certain parts of revised and other statutes not repealed. § 462. [Sec. 383.] The words "real property," as used in property." this act are co-extensive with lands, tenements and heredi of " per taments. Definition § 463. [Sec. 384.] The words "personal property" as sonal pro- used in this act, include money, goods, chattels, things in perty." Definition of property." Definition of "district." Definition of "clerk." Rule of strict comstruction of statutes, in action, and evidences of debt. § 464. [Sec. 385.] The word "property," as used in this act, includes property, real and personal. § 465. [Sec. 386.] The word "district," as used in this act, signifies judicial district, except when otherwise specified. § 466. [Sec. 387.] The word "clerk" as used in this act, signifies the clerk of the court where the action is pending, and in the supreme court, the clerk of the county mentioned in the title of the complaint, or in another county to which the court may have changed the place of trial, unless otherwise specified. Where papers were signed by a deputy clerk without stating or appearing that the clerk was absent, held valid. Lucus vs. Trustees, &c., of Baptist Church of Geneva, 4 How. 353. As to clerk's fees, see in re clerk of Albany county, 5 How. 11. § 467. The rule of common law, that statutes in deroapplicable gation of that law are to be strictly construed, has no ap to this act. Passed plication to this act. provisions inconsis this act re Amended 1849. § 468. [Sec. 388.] All statutory provisions inconsistent Statutory with this act, are repealed; but this repeal shall not re-ent with vive a statute or law which may have been repealed or pealed. abolished by the provisions hereby repealed. And all rights of action given or secured by existing laws, may be prosecuted in the manner proved by this act. If a case shall arise in which an action for the enforcement or protection of a right, or the redress or prevention of a wrong, cannot be had under this act, the practice heretofore in use may be adopted so far as may be necessary to prevent a failure of justice. practice in with this § 469. [Sec. 389.] The present rules and practice of the Rules and courts, in civil actions, inconsistent with this act, are ab- consistent rogated; but where consistent with this act, they shall act abroga continue in force subject to the power of the respective courts to relax, modify, or alter the same. ted. Amended 1849. supreme court to ral rules. 1849. § 470. The judges of the supreme court shall meet in gen- Judges of eral session at the capitcl in the city of Albany, on the first make genoWednesday in August, 1852, and every two years thereafter, and at such sessions shall revise their general rules and make Passed such amendments thereto as experience has shown to be neces- Amended sary to carry into effect the provisions of the Code of Proce- 1551. dure, and make such further rules as they deem proper, not inconsistent with the provisions of this act. The rules so made shall govern the superior court of the city of New-York, the court of common pleas for the city and county of NewYork, and the county courts, so far as the same may be applicable. to affect § 471. [Sec. 390.] Until the legislature shall otherwise This act no provide, this act shall not affect proceedings upon manda-ceedings and statu visions. pro Amended mus, or prohibition; nor appeals from surrogates' courts ; tory pronor any special statutory remedy not heretofore obtained by action; nor any existing statutory provisions relating 1349. to actions not inconsistent with this act, and in substance applicable to the actions hereby provided; nor any pro[NOTES.] 12 Certain parts of revised and other statutes not re peated. This act when to take effect. ceedings provided for by chapter five of the second part of the Revised Statutes, or by the sixth and eighth titles of chapter five of the third part of those statutes, or by chapter eight of the same part, excluding the second and twelfth titles thereof, or by the first title of chapter nine of the same part; except that when in consequence of any such proceeding a civil action shall be brought, such action shall be conducted in conformity to this act; and except also, that where any particular provisions of the titles and chapters enumerated in this section shall be plainly inconsistent with this act, such provisions shall be deemed repealed. As to practice in cases of mandamus, see the People ex. rel. Collier vs. the Board of Supervisors of the county of Dutchess, 3 How. 379. Supreme court rules 46, 82, 92. § 472. Nothing in this act contained shall be taken to repeal section 23 of article 2 of title 5 of chapter 6, part 3d of the Revised Statutes, or to repeal an act to extend the exemption of household furniture and working tools from distress for rent and sale under execution, passed April 11, 1842. § 473. [Sec. 391.] This act shall take effect on the first Amended day of July, 1848; except that sections 22, 23, 24 and 25 shall take effect immediately. 1349. AN ACT To amend an act entitled "An act to facilitate the determination of existing suits in the Courts of this State." Passed June 11, 1849. The People of the State of New-York, represented in Senate and Assembly, do enact as follows: The act entitled "an act to facilitate the determination of existing suits in the courts of this State," passed April 12, 1848, is hereby amended so as to read as follows: § 1. The act to simplify and abridge the practice, pleadings and proceedings of the courts of this State, passed April 12, 1848, and amended at the present session of the Legislature, is herein designated as the "Code of Procedure." Amended 1849. TITLE I. Provisions relating to the Courts in general. CHAPTER I. Sections of the Code of Procedure referred to and applied to existing suits. II. Other provisions relating to existing suits. CHAPTER I. Sections of the Code of Procedure referred to and applied to existing suits. 1849. § 2. The provisions of the Code of Procedure, contained Amended in the following sections thereof, are hereby applied, so far as the same are applicable, to future proceedings in civil suits, whether at law or in equity, pending on the first day of July, 1818, as follows: 1. Sections seventy-two, one hundred and twenty-one, one hundred and sixty-nine to one hundred and seventysix, both inclusive, three hundred and fifteen and three hundred and eighty-eight, to proceedings in actions in the supreme court, in the county courts, in the superior court of the city of New-York, in the court of common pleas for the city of New-York, in the mayors' courts of the cities of Albany, Hudson, Troy and Rochester, and in the recorders' courts in the cities of Buffalo and Utica. 2. Sections two hundred and ninety-two to three hundred and two, both inclusive, to executions on a judgment or decree in any of those courts, hereafter issued, against any person to the sheriff of the county where he resides, or if he reside out of the State, to the sheriff of the couny where the record of judgment is filed or the decree enroll |