§ 460. (Amended, 1851-1852.) Appeal from certain final decrees allowed.-An appeal may be taken from any final decree entered upon the direction of a single judge, in any suit in equity pending in the supreme court on the first day of July, one thousand eight hundred and forty-seven, "at any time before the first day of November, one thousand eight hundred and fifty-two. But this section shall not apply to cases where a rehearing has already been had or ordered, or to the case of a decree entered before the passage of this act, and to review 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. The part within inverted commas, was substituted by the amendment of 1851 for these words: "Within ninety days from the time this act shall take effect; but this section shall not apply to cases where a re-hearing has already been had or ordered, and." The amendment of 1852 was to extend the time for appeal, from 1st November 1851 to 1st November 1852. This section is not unconstitutional, it is merely a provision extending the time for bringing an appeal. It affects the remedy only. Burch v. Newbury, 4 Pr. R., 145. No suit in equity was pending in the supreme court, on "the first day of July, 1847," nor until the 1st Monday in July, (5th July, 1847.) Const, art. xiv., s. 6. But it is undoubtedly the intention of the legislature, by this section, to restore the right to a re-hearing in suits in equity pending on the first Monday in July, 1847, where it has been lost, and this section is to be construed as applicable to all suits n equity, pending in the supreme court on the 1st Monday (the 5th), in July, 1847. Ib. Where a suit in equity was pending in February, 1847, and a decree was made on 21st of April, 1851, and notice of the entry of such decree was served 13th May, 1851, and no attempt to obtain a rehearing, or to appeal was made until 17th July, 1851, when a notice of appeal was served,-it was held that the time to appeal was passed, and the appeal was dismissed for that reason. Mason v. Jones, 1 Code Rep., N. S., 335. § 461. Issue of fact in county court or common pleas before July 1, 1848, how tried.-An issue of fact joined in a county court, or court of common pleas, before the first day of July, one thousand eight hundred and forty-eight, or then pending in that court on appeal, shall be tried by a jury, unless the parties otherwise agree. TITLE XV. General Provisions. SECTION 462. Definition of "real property." 465. Definition of "district." Definition of "clerk." 467. Rule of strict construction of statutes inapplicable to this act. 469. Rules and practice inconsistent with this act, abrogated. 470. Judges to make general rules. 471. This act not to affect certain proceedings and statutory provisions. 472. Certain parts of revised and other statutes not repealed. 473. This act, when to take effect. § 462. [383.] Definition of "real property."-The words "real property," as used in this act, are co-extensive with lands, tenements, and hereditaments. § 463. [384.] Definition of "personal property.”—The words "personal property," as used in this act, include money, goods, chattels, things in action, and evidences of debt. A claim for services rendered is not personal property within the meaning of this section. The People v. Hulbert, 1 Code Rep. N. S., 75. § 464 [385.] Definition of" property."--The word " property," as used in this act, includes property real and personal. $465. [386.] Definition of "district."-The word, "district," as used in this act, signifies judicial district, except when otherwise specified. § 466. [387.] Definition of "clerk."-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 in 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. An official statute certificate, signed by a deputy clerk without stating that the clerk was absent, held sufficient. 4 Pr. R., 353. See note to section 312, and Andrews v. Durant, 6 Pr. R., 191. § 467. Rule of strict construction of statutes inapplicable to this act. The rule of common law, that statutes in derogation of that law are to be strictly construed, has no application to this act. § 468. [388]. (Amended 1849.) Statutory provisions inconsistent with this act repealed.-All statutory provisions inconsistent with this act, are repealed; but this repeal shall not revive a statute or law which may have been repealed or abolished by the provisions hereby repealed. And all rights of action given or secured by existing laws, may be prosecuted in the manner provided 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. This section is identical with section 388 in the code of 1848, and it was decided that it preserved the right to a creditor's bill given by the revised statutes (2 R. S., 3d ed., 234, s. 62, et seq.), in cases where an execution had been issued and returned unsatisfied, prior to the code. Quick v. Keeler, 2 Sand. S. C. R., 231; Dunham v. Nicholson, 2 ib., 636. It has also been held, that this section gives the right to proceed by summons and complaint for an admeasurement of dower. Townsend v. Townsend, 2 Sand. S. C. R., 713. And in like manner for partition of lands. See note to section 448. Also, in like manner, to pursue the remedy of a creditor's suit. See note to section 71. The judiciary act of 1847, when applied to appeals depending on the 1st of July, 1848, is not so inconsistent with any thing in the code as to come within the repealing section. Per Bronson, Ch. J., Butler v. Miller, 3 Pr. R., 339. The code-makers did not intend to take away any right which had already attached under the old law, but only to change the law for the future. Ib. "This section was inserted in the former code in the same language as it is in the present one. It was not intended to provide for a case in which a difficulty might arise out of the repeal of a provision in a former code, for it was an enactment contained in the former code itself; but it was a wise provision made by the legislature, lest, in the radical change introduced by a new and untried system, that system might be found not adapted to all exigences, and might leave some cases without the appropriate remedies. The legislature foresaw that there might be instances like that of Crane v. Sawyer, 1 Code Rep. N. S., 50, in which the forms of proceedings sanctioned by the code could not be applied to the case; and therefore, in such instances, they authorized a procedure under the former system, so far as to prevent a failure of justice. Again, the practice heretofore in use' means the practice which prevailed before the code." Church v. Rhodes, 6 Pr. R., 285. § 469. [389.] (Amended 1849.) Rules and practice inconsistent with this act abrogated.—The present rules and practice of the courts in civil actions, inconsistent with this act, are abrogated, but where consistent with this act, they shall continue in force subject to the power of the respective courts to relax, modify, or alter the same. This section is identical with section 389 in the code of 1848, which was held not to abrogate the principles which governed the practice with respect to affidavits to hold to bail, and showing cause of action, and vacating orders to hold to bail. Martin v. Vanderlip, 3 Pr. R., 265. § 470. (Amended 1851-1852.) Judges to meet and make general rules.-The judges of the supreme court, of the su perior court of the city of New York, and of the court of common pleas for the city and county of New York, shall meet in general session at the capitol in the city of Albany, on the first Wednesday in August, 1852, "and every two years thereafter, and at such sessions shall revise their general rules, and make such amendments thereto as experience has shown to be necessary to carry into effect the provisions of the Code of Procedure, 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 of the city and county of New York, and the county courts, so far as the same may be applicable. The amendment of 1852 was the insertion of the words in italic. The amendment of 1851 was the substitution of the words within inverted commas for these words-"1849, and at such session make general rules to carry into effect the provisions of this act, and such other ;" and the omission, at the end, of these words "Until such general session of the supreme court, the general terms respectively of that court, and of the other courts mentioned in this section, may make temporary rules in like cases, to continue in force until the first day of September next, and no longer; and from and after the first day of September next the existing general rules of the supreme court, adopted in July, 1847, so far as the same remain now in force, shall be abrogated." § 471. [390.] (Amended 1849-1852.) This act not to affect certain proceedings and statutory provisions.-Until the legislature shall otherwise provide, the second part of this act shall not affect proceedings upon mandamus, or prohibition; nor appeals from surrogates' courts; nor any special statutory remedy not heretofore obtained by action; nor any existing statutory provisions relating to actions not inconsistent with this act, and in substance applicable to the actions hereby provided; nor any proceedings 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 provision of the titles and chapters enumerated in this section shall be plainly inconsistent with this act, such provision shall be deemed repealed. The amendment of 1852 is the insertion of the words, "the second part of." This section was substituted in 1849 for section 390 in the code of 1848. "It is not clear what is meant by bringing an action in consequence of any such proceedings. It cannot be an action of ejectment after partition, for this would have been so as a matter of course. The more reasonable construction is, that the proceedings are to be conducted as suits under the code, except that when they are not provided for in that, the former statute remains in force." Per Hand, J., in Watson v. Brigham, 3 Pr. R., 290; 1 Code Rep., 67. By this section, all proceedings upon appeals from surrogate's courts are entirely excluded from the operation of any of the provisions in the code; they must be governed by other statutes. Sherman v. Young, 6 Pr. R., 318. The following is a list of the matters excepted from the operation of the code by this section: "Provisions for the better security of mechanics and others erecting buildings, and furnishing materials therefor, in the several cities of this State, and in certain villages." 2 R. S., 558. "Writs of habeas corpus and certiorari, in certain cases." Ib., 559. "Attachments against absconding, concealed, and non-resident debtors." Ib., 1. "Custody and disposition of the estates of idiots, lunatics, persons of unsound mind, and habitual drunkards." "Trespass on lands." Ib., 388. Ib. "Proceedings to discover the death of persons upon whose lives any particular estate may depend." Ib., 343. "Bringing and maintaining suits by poor persons." Ib. 444. "Suits by and against executors, and administrators, and against heirs, devisees and legatees." Ib., 447. "Proceedings by and against corporations, and public bodies, having certain corporate powers, and by and against officers representing them." Ib., 457. "Suits against sheriffs, surrogates, and other officers on their official bonds." Ib., 476. "Actions for penalties and forfeitures, and provisions for the collection and remission of forfeited recognizances, and fines imposed by courts." Ib., 480. "Proceedings for the admeasurement of dower." Ib., 488. "Proceedings for the collection of demands against ships and vessels." Ib., 493; and see laws of 1850, p. 670. "Proceedings for the recovery of rent and of demised premises." Ib., 500. "Summary proceedings to recover the possession of land in certain cases." Ib., 507; and see laws of 1849, p. 291. Distraining cattle and other chattels doing damage, and of distraining in other cases." lb., 517. "Proceedings, as for contempts, to enforce civil remedies, and to protect the rights of parties in civil actions." Ib., 534. "Arbitrations." Ib., 541. "Foreclosure of mortgages by advertisement." Ib., 545. 66 " Ib., Proceedings for the draining of swamps, marshes, and other low lands," 548; and see laws of 1850, p. 621. "General miscellaneous provisions concerning suits and proceedings in civil actions." Ib., 550. This section preserves the petition for admeasurement of dower, but a party may either adopt the petition or the summons and complaint. Townsend v. Townsend, 2 Sand. S. C. R., 713; and sections 24 and 25 of 2 R. S. 617, are retained by this section. Murray v. Haskins, 4 Pr. R., 263, and see note to section 303, and 2 R. S., 252, s. 74 75 are retained by the code. McGown v. Morrow, 3 Code Rep., 9. "The true principles applicable to the titles named in this section, are: Where the title creates the proceeding and contains full directions as to the form and mode of conducting it, or where the title modifies a common-law remedy, so as to make it |