ing of the order does not conclude them. (Ellwood v. Northrup, supra.) The court had no jurisdiction to grant the order, and it is open in this proceeding to collateral attack for want of jurisdiction. (Risley v. Phenix Bank, 83

should establish, having the right to appoint governors, officers of justice, and all other public officers, to maintain order and police, and generally, in the

language of the charter, to do all that the service

of those countries might require." "The colony of New Netherland was formally organized in 1623,

plaintiffs may as a consequence of our decision lose their money. But they were chargeable with notice of the statements in the petition and of the legal interests of the children in the land. (Pitcher v. Carter, 4 Sand. Ch. 1, 20.) The infants on the other hand have had no benefit from the money advanced to their father, and they should not lose their inheritance unless it has become bound in accordance with law.

REPORT OF COMMISSIONERS TO REVISE THE CODE.

(Continued from Dec, 28, 1895.) PROCEDURE IN NEW YORK.

The legal history of this State may be conveniently divided into the following periods:

present site of the city of New York." Whether any provision was made for judicial tribunals during the first few years of the colony cannot be now determined, but it is probable that the colonists had little, if any, occasion for organizing courts.

Minuit came out as Governor in 1626, and "he had, to assist him, a council of five, who, with himself, were invested with all legislative and judicial powers, subject to the supervision and appellate jurisdiction of the Chamber at Amsterdam." There was also attached to this body an officer well known in Holland by the name of "schout-fiscal." "He was a kind of an attorney-general, uniting with the power of a prosecuting officer the executive duties of a sheriff." For ten years the administration of justice was left to this body. In what manner judicial proceedings were conducted is unknown. The records of this period are lost, having been sold at auction as waste paper in 1821 by the govern

Government in 1777.

4th. From 1777 to the Revision of 1801.

5th. From 1801 to the Revision of 1813. 6th. From 1813 to the Revision of 1828.

7th. From 1828 to the Code of Procedure of 1848. 8th. From 1848 to the Code of Civil Procedure

of 1876.

9th. From 1876 to the present time. During the last period the latter portion of the Code of Civil Procedure was adopted in 1880, but it is a part of the code as first planned, and is therefore treated as if it had been adopted at the same time as the first part.

Our judicial system has a mixed Dutch and English origin; it has been developed from small beginnings, and is the result of many struggles, much halting and uncertainty, and numerous compromises. The rude judicial tribunals of the early colonial period were copied from those of European countries, with the modifications required by pioneer conditions, and the necessary simplicity of provincial life. The colony of New Netherland was planted by the great West India Company, a commercial corporation of Holland. This gigantic corporation was invested, not only with vast commercial privileges, but also with the most comprehensive judicial power. "It was exclusively intrusted with the administration of justice in the colonies it

William Kieft came out as Governor in 1638, and ruled the colony with vigor for nine years, but re

tained in his own hands the sole administration of

justice. He was obliged to have a council, but he reduced it to one member, reserving two votes to himself. Under this administration the establishment of town courts was begun, the town court of Hempstead having been established in 1644, with eight magistrates, appointed by the Governor, upon nominations made by the patentees of the town. If the amount in controversy exceeded fifty guilders (twenty dollars) an appeal could be taken to the governor-general and council at New Amsterdam. In 1645 a town court was established in Gravesend, of three magistrates, with substantially the same jurisdiction as at Hempstead. A town court was established in Breuckelen in 1646. Up to that date, the only court on Manhattan Island was that of the director-general and council.

In 1647 a board of nine men was established, selected by the director-general and council, from eighteen men nominated by the commonalty. Three of these men were selected from the mer

chants, three from the burghers, and three from the farmers; and one from each class, making a board of three, rotating every month, was required to attend the court and act as arbitrators in the decision of such causes as might be referred to them. This court of arbitration, chosen from the nine men, was the first tribunal in the colony in the selection of which the people had any voice. It continued until the establishment of New

Amsterdam as a city in 1653. Several town courts were established during this period. During the early colonial period, the inferior courts generally possessed final jurisdiction in small civil causes, and there was no appeal from their judgments, except in cases involving more than fifty guilders. The tribunal of the nine men continued for seven years. But there was constant collision between the Governor and the people. The colonists, after a struggle of five years, procured an order from the home company to establish in the colony a municipal court of justice, to be composed of one schout, two burgomasters and five schepens. A burgomaster was a kind of mayor; a schepen was an officer resembling an alderman, and a schout combined the functions of a sheriff and a district attorney. This court was organized in February, 1653, and was called "The worshipful court of the schout, burgomasters and schepens." The procedure in this court was simple and summary, and strongly resembles, in many respects, the procedure established for the Roman people by the law of the

Twelve Tables.

The court exercised unlimited civil and criminal jurisdiction, except in the infliction of punishment in capital cases. Attached to the court was an officer known as the court messenger, who, at the

might again bring the matter before the court, where it was finally disposed of. The defendant could require the plaintiff to put his complaint in writing, and if he did so the defendant was also obliged to answer in writing. The plaintiff could reply and the defendant rejoin, and there ended the pleadings. The great majority of cases were referred to arbitrators, or disposed of upon a summary hearing of the parties before the magistrates.

When judgment was given against a defendant for a sum of money, time was given for payment, usually fourteen days for the discharge of one-half and the remainder in a month. If he did not pay within the time fixed, proceedings were taken to levy on his goods, which were taken by the officer and detained six days subject to redemption; at the end of that time, if not redeemed, the property was sold at auction in a very peculiar manner. "The officer lighted a candle and the bidding went on while it was burning, and he who had offered the most at the extinction of the candle, was declared the purchaser." The court did a general business, and was also a conrt of admiralty and a court of probate in taking proof of last wills and testaments, and in appointing curators to take charge of the estates of widows and orphans.

It seems that the origin of a fee bill, for regulat

the adverse party to appear at the next court day. If the defendant failed to appear, he incurred the cost of the summons, and lost the right to make any objection to the jurisdiction of the court, and a new citation was issued. If he failed again, he incurred additional cost, and lost the right to make "all dilatory exceptions," or to adjourn or delay the proceedings. He was then cited for the third time, and if he did not then apper, the court proceeded to hear the case and give judgment, and he was cut off from all right of appeal or review. But if, upon hearing the plaintiff's case, the court deemed the presence of the defendant essential, they might issue a fourth citation in the nature of an arrest and compel his appearance. The plaintiff stated his case and the defendant made his answer. If they differed in a fact that the court thought material, either party might be put to an oath. If the case was intricate, or if it was difficult to get at the truth, it was the constant practice to refer the case to arbitrators, who were always instructed to bring about a reconciliation between the parties if they could. The arbitrators were left to the choice of the litigants or appointed by the court, or one of the schepens was directed to take the matter in hand and try to reconcile the contestants. If no reconciliation could be effected, or the parties would not submit to the final determination or conclusion of the arbitrators, the dissatisfied party

costs of attorneys and other public officers, may be traced to Governor Stuyvesant. On the 25th of January, 1658, he issued a proclamation with a preamble reciting the abuses that had arisen by reason of the conduct of certain officers in demanding excessive fees, and fixing with detail the fees thereafter to be charged. "It is then provided that the officers enumerated shall serve the poor gratis for God's sake, but may take from the wealthy the fees specified."

Courts of a similiar character were established in other parts of the province. From all these local courts an appeal lay to the court composed of the governor and council at New Amsterdam. These constituted the judicial tribunals of New Netherland until the colony passed into the hands of the English in 1664.

Early in the year 1665, a code prepared by Lord Chancellor Clarendon, father-in-law of the Duke of York, afterwards James II., and called the "Duke's Laws," was promulgated and went into operation at Long Island and Westchester. Afterwards its provisions slowly made their way in New York and the remainder of the province.

This code embodies the earliest attempt in New York at a systematic compilation and statement of law relating to the rights of persons and property, and of procedure, both civil and criminal. But it was not the first colonial code. The early English settlers in America had ample opportunity to experiment with advanced legal and constitutional ideas; while they brought with them the general rules of the common law, they nevertheless felt free to undertake law reform in its broadest sense, and to make laws for themselves, incident to their new conditions, for which the law of the mother country was inadequate or inappropriate.

The Massachusetts colony, as early as March, 1634, through its General Court, appointed a committee to revise the law. Other committees were appointed in 1635 and 1637, and in the latter year the freemen were requested to submit suggestions to the committee concerning the laws. Maryland adopted a code in 1639. In Massachusetts, another committee was appointed in 1639, and on December 10, 1641, a code of laws embracing one hundred and twenty sections was adopted. It is said to have been prepared by Rev. Nathaniel Ward, and was called "The Liberties of the Massachusetts Colony in New England." Connecticut adopted a code in 1650, a large part of which was evidently copied from the Massachusetts code. Virginia seems to have adopted a body of laws in 1611, and and in 1656 the laws of the colony were reduced into one Volume.

The compiler of the "Duke's laws" of the colony of New York evidently had before him other colonial codes, especially the Connecticut code, between which and the "Duke's Laws" there is a striking similarity in the arrangement and subjects of the titles; and it is stated in the order of the King promulgating the "Duke's Laws," that they are compiled and digested from the laws of the other colonies. The New York code called the "Duke's Laws" was alphabetically arranged in seventy-two titles or paragraphs, and an examination of these titles shows its comprehensive character. It embraces "Absence, Actions, Administration, Amerciament, Appearances, Appeal, Apprisement of Goods, Arrest, Assessments, Assaults, Attachment and Summons, Attorney, Assizes, Barratry, Ballast, Bills, Bond and Slavery, Bounds, Brewers, Births, Marriages and Burials. Capital Laws, Cattle, Cornfields, Causes, Church, Church Wardens, Charges, Public, Children and Servants, Chirurgeons, Midwives and Physicians, Courts, Constable, Conveyances, Deeds and Writings, Councell, Condemned, Defamation, Dowery, Fees, Fences, For nication, Forgery, Fines, Fugitives, Horses, Impresses, Inn-Keepers & Ordinaryes, Indians, Jurors and Juries, Justices of the Peace, Lands Laws. Lying and false news, Marriages, Masters, Servants

Justices of the peace were commissioned for the various towns, and were clothed with all the powers exercised by such officers in England, A local court was created in each town for the trial of actions of debt or trespass under five pounds. Six overseers, elected by the people, with a constable, or seven without him, constituted a quorum for the trausaction of business. All questions were determined by a vote of the majority, and if the overseers were evenly divided, the constable had the casting vote. In 1666 the number of overseers was reduced to four, and any two of them, with the constable, held the court. The town clerk was the clerk of the court.

The "Duke's Laws" retained the practice of arbitration, with which the people had become familiar under the Dutch rule. It was originally provided that "All actions of debt or trespass under the value of five pounds, between neighbors, shall be put to arbitration of two indifferent persons of the neighborhood, to be nominated by the constable of the place." By an early amendment it was provided that if the parties refused to arbitrate, the case should be determined by the court. If the case involved less than five pounds, the arbitrators were to be nominated by the constable; if more than that amount, they were nominated by the justices. Appeals were taken from the decision of the town court to the court of sessions.

A court of sessions was also created, which had jurisdiction of all civil, criminal or equitable actions over five pounds. Actions at law, and all criminal cases, were tried before a jury. The jurors were drawn from the overseers, each town electing eight. "No jury shall exceed the number of seven, nor be under six, unless, in special causes upon life and death, the justices shall think fit to appoint twelve." The verdict of a majority was sufficient, except in capital cases, where the jury was uniformly composed of twelve, who were required to be unanimous.

The highest tribunal in the province was the Court of Assize, or, as it was sometimes called, the "General Assizes." It was held once a year in the city of New York, by the Governor and Council and such of the justices of the peace as saw fit to attend it. This court had original jurisdiction, civil, criminal and equitable, and heard appeals from the inferior tribunals.

Under the "Duke's Laws," all actions were commenced by the plaintiff's entering and filing in the clerk's office, at least eight days before the day of the

Overseers, Orphans, Payments, Pipe Staves, Possession, Public Affairs, Packers Casks, Keepers and Gagers, Pounds, Prisons and Stocks, Public charges, Records, Sailors, Sheriffs, Townships, Votes, Weights and Measures, Witnesses, Wolves, Wrecks of the Sea, Warrants."

ant may, if he please, take a copy thereof, and provide his answer, which is also to be filed by the said defendant, and the judgment, if for the plaintiff, shall be endorsed on the declaration; if for the defendant, on the answer, and all evidences concerning that cause are to be filed together and remain in the hands of the clerk," At the time of entering his declaration, the plaintiff obtained a summons or warrant for the defendant. The summons was required to be served at least eight days before the court. If not so served, the defendant was at liberty to appear or not, at his option.

In June, 1665, the court of burgomasters and schepens was abolished in the city of New York, a new court was organized, called the Mayor's Court, a title by which it was known for one hundred and forty-six years afterwards. The records were directed to be kept in English and Dutch, and a jury of twelve was directed to be empaneled for the trial of civil causes. There was no court of chancery, but matters in equity were heard in any of the courts organized in conformity to the "Duke's Laws."

The first General Assembly of New York met on the 17th day of October, 1683, and among its first and most important acts was the passage of the law entitled "An act to settle courts of justice." this act four distinct tribunals were created

By

"A

petty court for the trial of small causes for every town; a court of sessions for each county; a court of oyer and terminer and general gaol delivery; and a court of chancery for the entire province." The Court of Assize was abolished.

The town court was held by three commissioners appointed for that purpose. The "process of warning" was a summons under the hand of the commissioners, to be served by a messenger, personally, or left at the defendant's house four days before the court. The cause might be tried before a jury if demanded by either party, In the court of sessions the summons was to be issued to and served by the sheriff, but no time was prescribed for its service.

Another provincial Assembly was held in 1691, and its most important act, for our present purpose, was the act reorganizing the judicial system of the colony. This act was prepared by James Graham, the Speaker of the Assembly, and was introduced and passed on the 17th of April, 1691. Upon this statute Mr. Robert Ludlow Fowler, in his "Observations," comments as follows: "This act founded the supreme court, the tribunal which still continues to be the great law court of the State; and it vested in it a jurisdiction which change of government and constant reforms and revolutions in procedure have been powerless to

King's Bench of the province, where the king himself (coram ipso rege) theoretically sat in person to administer justice to his subjects in this part of his dominion. It was from the act of 1691 that the supreme court of this State inherited not only the traditions of the Saxon Aula Regis, but the best fruits of centuries of English law. So wise were the provisions of that early Act of 1691, that the patriotic framers of the first State government recognized its creation, the supreme court of the province, as an appropriate tribunal for a free people and a new order of things."

In addition to the supreme court, the act provided for a justices' court, a court of sessions, a court of common pleas, and a court of chancery. The justices' court was held by a justice of the peace and one freeholder of the town where the cause of action arose. Actions were commenced by a summons, to be personally served on the defendant, or left at his house, two days before the day of hearing. The existing court of sessions was continued. A court of common pleas was provided in each county, consisting of one judge and three justices, with general jurisdiction in common law actions, but no appeal was allowed where the amount in controversy was less than twenty pounds. Mayors' courts in cities possessed the same power and jurisdiction as the courts of common pleas. All processes and writs were issued by the clerk of the court, and signed "per curiam."

The court of chancery was composed of the Governor and council, and the Governor presided unless he nominated and appointed in his stead a chancellor. Matters of fact were to be determined in all courts, except the court of chancery, by a jury of twelve men. Appeals might be brought from the Mayor's court and common pleas to the supreme court, from any judgment above twenty pounds; from the supreme court to the Governor and council from any judgment above one hundred pounds; and from the Governor and council to Their Majesties in council from any decree or judgment above three hundred pounds. This act was only to be in force two years, but it was reenacted from time to time and continued by proclamations and was in force, with some modifications, at the organization of the State government in 1777.

Except during a brief period, the original jurisdiction of the supreme court has been general. On the 20th of May, 1769, an act was passed, depriving this court of original jurisdiction in actions involv

diction has been enlarged by its union with the court of chancery, its ancient jurisdiction still remains unimpaired. The supreme court of the province was the instrument by which the great body of the jurisprudence of the English common law was applied to New York. This court was the

limitation, January 1, 1773, and since that time the court has possessed general original jurisdiction in all cases.

By the first constitution of 1777, the existing courts were recognized and continued, and a new court for the trial of impeachment and the correc