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quest the governor to assign other judges, and if necessary appoint extraordinary terms and circuits, for the purpose of disposing of such cases. The governor must thereupon make such assignment, and the judges assigned must hold the courts accordingly. This provision shall last, so long as any of the actions and suits now pending remain undetermined.




TITLE I. Of state writs.

II. Of summary proceedings.

III. Of the enforcement of liens.

IV. Of the punishment of contempts.

V. Of assessments.

VI. Of the voluntary dissolution of corporations. VII. Of proceedings in the courts of conciliation. VIII. Of arbitrations.

IX. Of proceedings in surrogates' courts.

X. Of proceedings in cases of insolvency.

XI. Of the admeasurement of dower.

XII. Of miscellaneous proceedings and general pro



SECTION 1262. Parties designated as plaintiffs and defendants. 1263. Judgment and order same meaning as in actions.

§ 1262. The party prosecuting a special proceeding, may be known as the plaintiff, and the adverse party as the defendant.

§ 1263. A judgment in a special proceeding is the final determination of the rights of the parties therein. The definitions of a motion and an order in a civil action are applicable to similar acts in a special proceeding.



CHAPTER I. State writs in general.

II. The writ of review of inferior jurisdictions.
III. The writ of mandate.

IV. The writ of assessment of damages.

V. The writ of deliverance from imprisonment.
VI. Appeals.



SECTION 1264. What are state writs.

1265. Private party named as plaintiff with people.

1266. Writs enumerated.

1267. How allowed.

1268. Application therefor, when made.

1269. Writ of deliverance, by whom allowed.

1270. When allowed, the proceedings in Supreme court.

§ 1264. The writs heretofore known as prerogative writs, so far as they are hereafter to be recognized, shall be denominated state writs. They are issued out of the supreme court at the instance of the state, sometimes on behalf of private persons, for the protection of private rights, and sometimes for purposes of state. They are issued in the name of the people, under the seal of the court, and the signature of the clerk.

This title is the same, as that contained in our third report, with slight variatiors.

§ 1265. When issued on behalf of a private person. such person must be named as a puty in the proceedings jointly with the prople.

§ 1266. These writs, four in number are defined and regulated in this title in the following order:

1. The writ of review of inferior jurisdictions:

2. The writ of mandate:

3. The writ of assessment of damages:

4. The writ of deliverance from imprisonment.

The writ of quo warranto, the writ of scire facias, and writ of prohibition, are abolished.

The act, under which the Commissioners were appointed, contained this provision; "it shall be the duty of the said Commissioners to provide for the abolition of the present forms of actions and pleadings in cases at common law; for a uniform course of proceedings in all cases, whether of legal or equitable cognisance, and for the abandonment of all Latin and other foreign tongues, so far as the same shall by them be deemed practicable, and of any form and proceeding not necessary to ascertain or preserve the rights of the parties."

It has been our inflexible determination to conform to this provision in letter and in spirit. In seeking English substitutes for the Latin names of prerogative writs, we have endeavored to find such as are really significant of the purposes of the writs. The writ of habeas corpus being mentioned in the constitution, we provide simply that it may also be known as the writ of deliverance, or of deliverance from imprisonment. When the novelty of these names has worn off, the old ones will probably appear as uncouth as they really are. Custom only has made them tolerable to the profession, while they have always been a jargon to the mass of the people. Our own language is rich enough to express all our ideas, and, especially in the construction of a new system of law, it should seem in better taste and wiser to make it wholly in the mother tongue of those who are to read it and be governed by it.

§ 1267, The allowance of the writ of review, the writ of mandate, and the writ of assessment, rests in the sound discretion of the court. The writ of deliverance, when regularly applied for, cannot be refused.

§ 1268. The application for a state writ must be made to the supreme court, at a special term, except as provided in the next section.

§ 1269. The writ of deliverance from imprisonment, commonly known as the writ of habeas corpus, may be allowed, not only by the supreme court at a special term, but, out of court, by a judge of the supreme court, a judge of the superior court of the city of New-York, a judge of the court of common pleas of the city of New-York, a county judge, or the city judge of the city of New-York.

§ 1270. After the allowance of the writ of deliverance, all the proceedings thereon, to the judgment, inclusive, are had in the supreme court. But the orders and judgment, respectively, may be entered, in the manner hereinafter provided, upon the certificate out of court, of any judge designated in the last section.

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