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REPORTS OF CASES

ARGUED AND DETERMINED

IN THE

COURT OF CHANCERY

OF THE

STATE OF NEW-YORK,

BEFORE THE

HON. LEWIS H. SANDFORD,

ASSISTANT VICE-CHANCELLOR

OF THE

FIRST CIRCUIT.

VOL. I.

NEW-YORK:
PUBLISHED BY GOULD, BANKS & Co.,

LAW BOOKSELLERS, 144 NASSAU-STREET,
AND BY WM. & A. GOULD & co.

104 STATE-STREET, ALBANY.

1846.

9217":9

Entered according to the Act of Congress, in the year one thousand eight hundred

and forty-five, by

GOULD, BANKS & co. In the Clerk's office of the District Court of the Southern District of Now-York.

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WILLIAM OSBORN, PAINTER

88 WILLIAM-STREET.

PREFACE.

The title of the officer by whom the decisions reported in this volume were made, is so little indicative of the nature of his duties, that it is deemed proper briefly to explain the origin and functions of the office.

In the judiciary system organized under the Constitution adopted by the people in 1822, the ordinary powers of the court of chancery, subject to an appeal to the Chancellor, were conferred on the eight Circuit Judges, whose principal duty was the trial of Supreme Court causes at Nisi Prius and holding the courts of Oyer and Terminer. This system was continued by the Revised Statutes, except that the circuit judges were to be denominated Vice Chancellors, in respect of their equity jurisdiction, and the latter was more fully and clearly defined. In all the circuits, except the first and the eighth, this system is still in force.

In the first circuit, (the City of New York, &c.) the increase of business, as well in the court of chancery, as in the civil and criminal branches of the common law courts, had in effect, overwhelmed the Circuit Judge, before the year 1830, when the Revised Statutes went into operation. This led to the passage of the act of January 28th, 1831, by which the office of vice chancellor of the first circuit was created, and that officer was clothed with all the powers which were previously conferred on the circuit judge as vice chancellor.

Relief was thus afforded for a time, but the rapid accumulation of suits in equity in our great commercial metropolis, soon rendered further legislation necessary.

By the rules and orders of the court of chancery adopted in 1830, causes in readiness for a hearing, are arranged upon the calendar in four classes, and are heard in that order. The first class, consists of bills taken as confessed; the second, of demurrers and pleas; the third, of causes on bill and answer; and the fourth class consists of causes in which a replication has been filed. For two years prior to 1839, the vice chancellor of the first circuit, owing to the pressure of interlocutory business, and causes in the prior classes, had been unable to make any impression on the mass of fourth class causes on his calendar.

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On the 27th day of March 1839, an act was passed for the appointment of another chancery judge, called the Assistant Vice Chancellor of the first circuit. (Laws of 1839, chap. 101. 211.) This act authorized him to hear and decide all fourth class causes in chancery, pending in the first circuit, or which might be referred to him for decision by the chancellor. The assistant vice chancellor was to hold a term in the City of New York, on the first Monday of every month, except July and August, and the law was to continue in force for three years.

The act of 1839 having given great satisfaction, the legislature made it permanent. (Laws of 1840, chap. 314.) By the act of 1840, the assistant vice chancellor was enabled to hear motions for the suppression of testimony; and the chancellor was authorised to refer any cause pending before him, to the assistant vice chancellor; and also to appoint special terms to be held by that officer in any part of the state, at which terms he might hear. and decide all causes of either class pending before the chancellor, or any vice chancellor. The latter provision was made to give relief to the over, burthened chancery calendars of some of the circuit judges. Under this law, special terms have been held in various parts of the state, both by the late, and the present assistant vice chancellor. Cotemporary with the origi. nal law, an act was passed creating a vice chancellor in the eighth eircuit, which is still in force.

The jurisdiction of the assistant vice chancellor as established in 1840, is therefore, to adjudge all causes in the first circuit on pleadings and proofs or in which a replication has been filed; all causes of any class referred to him by the chancellor; and at his special terms, causes of any class pending before any vice chancellor or the chancellor. The classes to be heard are pointed out in the order directing each special term. An appeal from the decrees of the assistant vice chancellor, may be made to the chancellor. In regard to fourth class causes pending in the first circuit, they may be heard either by the vice chancellor or the assistant vice chancellor. In practice, they are with very few exceptions, heard by the latter.

The Hon. Murray Hoffman, was appointed to the office in March, 1839. He has published one volume of his reports, which contains but a small part of his judicial labors.

The present assistant vice chancellor succeeded Mr. Hoffman in March, 1843.

L, H. S. New-York, 8th Dec. 1845.

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