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30th, 1838, shall extend to judgments rendered before the justices' courts of the cities of Albany, Troy, and Hudson.

And laws of 1849, p. 23, enact that the courts of justices' of the peace in the city of Rochester, shall have jurisdiction in actions upon the charter or by-laws of said corporation, where the penalty of forfeiture shall not exceed $100. Are these provisions repealed?

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General Provisions.

§ 68. [61.] (Amended 1849, 1851.) Sections 55 to 64 applicable to this title. The provisions of sections 55 to 64, both inclusive, relating to forms of action, to pleadings, to the times of commencing actions, to the rules of evidence, to filing and docketing transcripts of judgments, to their effect and the mode of enforcing them, and to proceedings where title to real property shall come in question, shall apply to the courts embraced in this title; except that after the discontinuance of the action in the inferior court, upon an answer of title, the new action may be brought either in the supreme court, or in any other court having jurisdiction thereof; and except, also, that in the city and county of New York, a judgment of twenty-five dollars or over, exclusive of costs, the transcript whereof is docketed in the office of the clerk of that county, shall have the same effect as a lien, and be enforced in the same manner as, and be deemed, a judgment of the court of common pleas for the city and county of New York.

The amendment of 1851 was the insertion of the words-" and be deemed " printed in italic.

The justice is bound to give a transcript on demand to any party interested in the judgment, and on being paid for such transcript. (Laws of 1841, p. 114.) If the justice refuses, a mandamus will lie to compel the delivery of the transcript. 8 Cow., 133. The filing a transcript deprives the justice of any further control over the judgment. Re Sholts, 2 Cow., 506. The transcript may be made after the expiration of the justice's term of office. Maynard v. Thompson, 8 Wend., 393; and it need not show jurisdiction on its face. Jackson v. Rowland, 6 Wend., 666. Jackson v. Jones, 9 Cow., 182; 10 Cow., 233.

This section corresponds to section 61 in the code of 1848, and that section was held not to make sections 143 and 148 (ss. 121, 127) applicable to pleadings in justices' courts. Cornell v. Smith, 2 Sand. S. C. R., 290; 3 Code Rep. 201. But section 168 has been held to be applicable to pleadings in justices' courts. See note to sections 63 and 168.

After a judgment in a county court of one county, if an execution be issued into another county before any transcript filed in that county, the court may order a transcript to be filed nunc pro tunc. ` Roth v. Schloss, 6 Barb. S. C. R., 308.

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SECTION 69. Distinction between actions at law and suits in equity abolished. 70. Parties, how designated.

71. Actions on judgments.
72. Feigned issues abolished.

§ 69. [62.] (Amended 1849.) Distinction between actions at law and suits in equity abolished.-The distinction between actions at law, and suits in equity, and the forms of all such actions and suits, heretofore existing, are abolished; and there shall be in this State hereafter but one form of action for the enforcement or protection of private rights and the redress of private wrongs, which shall be denominated a civil action.

The effect of this section has been much discussed, and has elicited remarks in several cases. In Giles v. Lyon (1 Code Rep. N. S., 259), the court of appeals said, "The legislature, by this section, sought to accomplish the object indicated in the preamble by abolishing the distinctions between law and equity. They were to be blended and formed into a single system, which should combine the principles peculiar

to each, and be administered thereafter through the same forms and under the same appellation." In Shaw v. Jayne (4 Pr. R., 119, 122; 2 Code Rep., 69), Welles, J., said, it is a mistake to suppose that the distinction between law and equity is abolished; it is only the distinction of actions that is abolished. The common law remains as much the standard of civil rights as ever: it is the great rule of action for the citizen. Equity is, as it always was, auxiliary to the common law, and is never to be invoked excepting where the rules of law are found inadequate to afford such relief as the peculiar circumstances of particular cases demand, and per Mason, J. While, however, the code has abolished all distinction between law and equity, so far as the form of the action and the jurisdiction of this (the supreme) court is concerned, and Bo far as the mode of commencing suits and the forms of pleadings, &c., are concerned, still there is recognized so far as the forum (that is a jury or the court) before which the trial shall be had, to a certain extent a distinction still, Hill v. McCarthy, 3 Code Rep., 49. Again, Willard says: "The code has abolished the distinction of the forms of action which formerly existed; but, for the purposes of costs at least, it recognizes the character of actions as formerly understood." Hinds v. Myers, 4 Pr. R., 316, 357, and per Barculo, J.

"Although the forms of actions are abolished, the principles which govern them are retained." McMaster v. Booth, 4 Pr. R., 427, 428; 3 Code Rep., 111.


Again, Gridley, J., says: "It should not be forgotten that all distinctions between actions at law and suits in equity have been abolished." Munson v. Hagerman, 5 Pr. R., 223, 226; and see, also, per Welles, J., in Merrifield v. Cooley, 5 Pr. R., 272, 273. In another case (Row v. Row, 4 Pr. R., 133) Barculo, J., said, "The legal action of the code is expressly substituted for suits in equity.' In Wooden v. Waffle, I Code Rep. N. S., 393, Selden, J., said; "The constitution establishes a distinction between law and equity, and the code recognizes this distinction." And again in Crary v. Goodman, 9 Barb. S. C. R., 657, it was held at general term that it was not the object and effect of the code to abolish all distinction between legal and equitable remedies. All the foregoing cases, except Giles v. Lyon, were decided in the supreme court; but the question has been passed upon in the superior court of the city of New York, and at a general term of that court, present Oakley, Ch. J., and Sandford and Payne, J. J., it was said:

A much broader effect has been claimed for the abolition of the distinction between legal and equitable remedies than was ever intended by the Legislature. The first section of the code shows what was intended by the word "remedies." It is limited to actions and special proceedings, and the declared object of the preamble to the code is simply to abolish the distinction between legal and equitable actions. There is no ground for supposing that there was any design to abolish the distinction between the modes of relief known to the law as legal and equitable, or to substitute the one for the other in any case. Those modes of relief-the judgment or the decree to which a party, upon a certain state of facts, was entitled, were fixed by the law of the land. No inference or deduction from a statute, nothing short of a positive enactment, could change them. The code contains no such enactment, and we do not perceive in it any countenance for an inference or deduction to that effect. Linden v. Fritz, 3 Code Rep., 164; 5 Pr. R., 188, 191; S. C., sub. nom. Linden v. Hepburn, 3 Sand. S. C. R., 668. In the last named case the important question was passed upon as to the course to be pursued where a party has co-existent both a legal and equitable remedy. In that case the complaint was to recover possession of leasehold property for alleged breaches of the covenants in the lease. The complaint, after setting forth the violations of covenant for which the plaintiff sought to recover, prayed for a judgment of forfeiture of the term of years that the defendants be for that cause dispossessed, and that the plaintiffs be put into possession of the premises. It then prayed for an injunction to restrain the defendants from making alterations in the buildings, and from using them for retailing liquors, and in other modes prohibited by the covenants in the lease. The court said: The forfeiture and re-entry prayed, are the relief heretofore granted in the action of ejectment brought for the recovery of demised premises. The injunction asked, is purely equitable relief, heretofore given in a chancery suit, and in conformity to the principles of equity. The ejectment brought to effect a re-entry, for breaches of the condition in a lease, has always been regarded in the law as a hard action-one strictissimi juris; and the English chancery reports abound in cases in which the courts of equity have been importuned to relieve tenants against the forfeitures claimed in such actions. A proceeding like that before us would never have been thought of under the system of remedies in force prior to the code. Equity abhors forfeitures, and always

relieves against them when possible to do so; and no man would have ventured, under that system, to ask her for one of her most benign remedies, while in the same breath he demanded from her a rigorous forfeiture of his opponent's estate in the subject of the controversy. Does the code make any change in this respect? Can a plaintiff, under the code, ask for equitable relief and in the same suit demand a forfeiture? We are clear that the code has not altered the rule. It has abolished the distinction between the legal and equitable remedies, but it has not changed the inherent difference between legal and equitable relief. Under the code, the proper relief, whether legal or equitable, will be administered in the same form of proceeding. In some cases, alternative relief may be prayed, and relief be granted in one or the other form, in which cases an action at law was necessary before to attain the one form, and a bill in equity, to reach the other. A suit for specific performance is one of that description. But we think inconsistent relief can be no more asked now than it could be under the old system. A vendor cannot now exhibit a complaint, demanding payment of an installment of purchase money in arrear, and also forfeiture of the contract of sale and restoration of the possession, even if the contract expressly provided for such payment and forfeiture. There can be no better illustration of our meaning than this case. The forfeiture of the term is a relief totally inconsistent with any equitable remedy. The lessor may pursue his remedy for a re-entry, or proceed for an injunction and damages, leaving the tenant in possession. He has an undoubted option to do either; he cannot do both. "He that seeks equity must do equity," is a maxim which lies at the foundation of equity jurisprudence; and it is not at all affected by any change of remedies. Ib.

Where legal and equitable relief were consistent they might be asked for in one complaint. Getty v. Hudson River R. R. Co., 6 Pr. R., 269; and see section 167, and note to section 140.

$70. [63.] (Amended 1849.] Parties, how designated.— In such action, the party complaining shall be known as the plaintiff, and the adverse party as the defendant.

§ 71. [64.] Actions on judgments.-No action shall be brought upon a judgment rendered in any court of this State, except a court of a justice of the peace, between the same parties, without leave of the court for good cause shown, on notice to the adverse party; and no action on a judgment rendered by a justice of the peace, shall be brought in the same county within five years after its rendition, except in case of his death, resignation, incapacity to act, or removal from the county, or that the process was not personally served on the defendant, or on all the defendants, or in case of the death of some of the parties, or where the docket or record of such judgment is or shall have been lost or destroyed.

Under section 64 of the code of 1848, which in the parts material to the question are identical with this, it was held by the superior court that assistant justices' courts came within the description of justices' courts in this section mentioned, and that a justice's judgment recovered before the code took effect, was not within [section 64 of code of 1848] this section. Maguire v. Gallagher, 2 Sand. S. C. R., 402. 1 Code Rep. 127. The court of common pleas for the city and county of NewYork have, however, decided differently in Mills v. Winslow, 3 Code Rep., 44. [see note to sub. 1 of sec. 53, ante.]

This section as it stood in the code of 1848, was held not to prevent a judgment creditor, whose execution was issued and returned unsatisfied before the code went into effect, from proceeding against his debtor by a complaint in the nature of a creditor's bill, without first obtaining the leave of the court in which the judgment was recovered. Quick v. Keeler, 2 Sand S. C. R., 231; 3 Code Rep., 205. Dunham v. Nicholson, 2 Sand. S. C. R., 636.

§ 72. [65.] Existing suits. Feigned issues abolished.Feigned issues are abolished; and instead thereof, in cases where the power now exists to order a feigned issue, or when a question of fact, not put in issue by the pleadings, is to be tried by a jury, an order for the trial may be made, stating distinctly and plainly the question of fact to be tried; and such order shall be the only authority necessary for a trial.

The court may order a feigned issue in an action for divorce on the ground of adultery to be tried by referees, on consent of both parties. Anon., 5 Pr. R., 306, and see 1 Code Rep., 115. 3 Ib., 139.

See rules of supreme court, in appendix, rules 67, 70.


Time of commencing civil actions.*

CHAPTER I. In general.

II. For the recovery of real property.

III. Other than for the recovery of real property.
General provisions.



Time of commencing actions in general.

SECTION 73. Repeal of existing limitations.

74. Time for commencing actions, &c.

73. [66.] (Amended 1849.) Repeal of existing limita tions. The provisions contained in the chapter of the revised statutes, entitled "of actions and the times of commencing them," are repealed; and the provisions of this title are substituted in their stead. This title shall not extend to actions already commenced, or to cases where the right of action has already accrued; but the statutes now in force shall be applicable to such cases, according to the subject of the action, and without regard to the form.

Section 66 of the code of 1848, for which this section was substituted, repealed only the 2d, 3d, 4th, and 5th articles of the chapter of the revised statutes referred to.

The principle of the statute of limitations is applicable by analogy to demands prosecuted in the surrogate's court without any express provision. Re Delacroix, dece'd. 1 Bradford, Surrogate Rep. 1.

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