Abbildungen der Seite

words “or in any judicial proceedings,” were reported “or the rendering of any judgment.Original note to § 274. “ From the cases in Ventris, p. 1; 1 Bay's Rep., p. 1; and 10 J. R., 393, it seems settled that justices have the power, in some cases, to fine and imprison for contempts. The strongest of reasons require that this power should be defined, and its exercise regulated. This and the succeeding sections have been prepared, in conformity to similar provisions in Title II of Oh. III of the Third Part of the Revised Statutes."

[S 275, 276, 277. Same as enacted. Original note to § 277. “A record of conviction is a protection to the justice, 8 J. R., 44; 3 Caines, 170. Yet there seems a necessity for requiring it to be deposited in some public office, within a given time, to prevent a fictitious record being subsequently made."

[S 282 to 286, added to the Title by amendatory act of 1830, chap. 320, § 37.] Original note to amendments of 1830. “This section is conformable in principle to 3 R. S., vol. 2, p. 347; but that applies only to proceedings in higher courts."

"OHAPTER III." ‘GENERAL PROVISIONS CONCERNING COURTS OF JUSTICE." "TITLE I.- General provisions concerning the courts of justice, specified in the

two preceding chapters.” [S 1Same as enacted.] Original note. “Declaratory of the existing law.”

(S 2. Same as enacted.] Original note. “Declaratory of some universal principles of law, which cannot be too extensively known, or too formally declared. As to the interest of a judge, vide note to s 3, Title II. of Chapter I. Relationship to either party also precludes a judge from sitting; but it has been deemed useful to define precisely the extent of the rule. As to the latter clause of the section, vide 1 Bulstrode, 147 ; Salkeld, 396.”

[§ 3 R. S. was taken from the Revisers' report of Chap. 8, Title 18, $ 51, 3d Part; where it was reported with this note: “Necessary to provide for the case of certiorari to justices, and for other cases. This section will be transferred to Chapter III of this part."

[S 4, 5, 6. Same as $5, 6, 7 R. S. New section substituted for $6 R. S. by amendatory act of 1830, chap. 320, § 38.] Original note to § 4. “New:” to $ 5. “New ; partly taken from laws of Massachusetts; to $ 6.“ Conformable in part to the exceptions in R. L., 318, 31, and to various special laws extending the terms of courts.”

Original note to amendment of 1830. “ This section as enacted has been thought too extensive; especially in reference to the judges of the county courts. The proposed amendment will more clearly express the probable intent of the legislature.”

S 7. Same as ♡ 8 R. S. Original note. “ Various special provisions made general. In some cases, magistrates are authorized to issue process in their own names.”

[S 8, 9, 10. Same as $ 9, 10, 11 R. S. 88 reported as “partly new."]

Original note to g 11. “The exception other than defendants in cases where 'corporal punishments may be inflicted,” omitted. The section

applies exclusively to civil actions, and there is now no such action in which corporal punishments can be inflicted. The exception was originally intended for the case of an appeal of felony, and was copied from the statute of Gloucester, 6 Ed. I, ch. 8. But that proceeding never was in use in this state, and has long since been expressly abolished. The cases in which a party may appear in criminal proceedings, will be enumerated in the fourth part of the Revision. The last clause in the above section, is new in terms, but conformable in practice.”

“TITLE II.- General provisions concerning courts of record.“ ARTICLE I.—Provisions concerning courts of record, their process and proceedings." [S 1. Same as enacted.]

Original note to sub. 2. “Conformable to law and practice, and as to some of the courts to provisions of statutes, 2 R. L. 147, § 10. There seems propriety in declaring them to be courts of record; they are probably all such now, except courts of equity, although it would be difficult to trace accurately the foundation of the opinion. There is no attribute of a court of record which does not, or ought not, to belong to a court of equity ; vide 3 Bl. Comm. 25, 32.”

Sub. 3. “Extended."

[S 2 to 9. Same as enacted.] Original note to $ 3. “New; declaratory of what is probably the law, although perhaps doubtful :" to $ 4. “New; to provide for a case, which under the existing law, would probably be attended with some difficulty:" to § 5, 6. “New:" to 9. “Extended.”

[S 10. Same as enacted, except that the latter part of sub. 6, was reported as follows: but any citizen may at any time, freely publish, true and fair reports of any trial, argument, proceeding or decision, had in any court.”]

Original note. “This subdivision is presented with a view to obtain the expression of the sense of the legislature upon the subject in question. Some cautionary provisions seem useful. See note to 5 15, for the general reasons for proposing this and the succeeding sections."

[S 11. Same as enacted, except that the words after the imprisonment thirty days,were added by the legislature.]

[S 12. Substantially same as Ş 12 R. S.] (S 13, 14, 15. Same as enacted.]

Original note to § 10 to 15. “In preparing the preceding sections, the Revisers have not designed to take from the courts of justice any power which was essential to the maintenance of their dignity, or the enforcement of their mandates. But they have herein pursued their general plan, to define and limit undefined powers wherever it was possible, as well for the information as the protection of the citizen; and they have supposed that their declaration and enumeration in a legislative act, would frequently prevent the necessity of resorting to them, and would strengthen the hands of the courts whenever their exercise became indispensable, by justifying an appeal to the written law. A solid and obvious distinction exists between contempts, strictly such, and those offences which go by that name, but which are punished as contempts, only, for the purpose of enforcing some civil

[ocr errors]

remedy. This distinction has been observed, and the former are intended to be included in the preceding sections. The latter class are treated of subsequently, among miscellaneous proceedings in civil cases. In the 4th part, many offences which are now punished as contempts, and which are omitted in the preceding sections, will be included among misdemeanors. It cannot be necessary at this day, to urge any reasons for substituting the trial by jury in all possible cases, instead of a trial by an offended tribunal." ("ARTICLE II. R. S.-Of the powers and duties of certain judicial officers," was originally re

ported as Title 16, of Chapter 8 of this Part; but in the course of enactment was transferred to this Title as Article 2 thereof.] [S 1, 2 of Tit. 16, Chap. 8. Same as $ 18, 19 R. S.]

Original note to § 2. [5 19 R. S.] “There are various cases in which very special powers have been given to supreme court justices and circuit judges, which were not intended to be confided to commissioners; and in the acts giving such powers, supreme court commissioners were intentionally omitted, with a view to this provision.”

(S 3. Same as 5 20 R. S.]

Original note. "4 of act of 1825, p. 391, extended. The section referred to, prevents such orders, where a case has been made after verdict. Its object, doubtless, was to prevent them also where a party had neglected to make a case, and wanted to delay his adversary by applications for time to make one. In such cases, according to the practice of the judges of the supreme court, and of the circuit judges, they refuse to interfere, but require the application to be made to the judge who tried the cause. Where bills of exception have been taken, but not signed, the interference of a commissioner would be equally improper. And generally in all cases after verdict, it is conceived that any equitable powers which it may be necessary to exercise for the relief of parties, had better be confided to the justices of the supreme court and circuit judges, who are sufficiently numerous, and located in so many different parts of the state, that there can be no difficulty in having access to them.

(S 4 to 8. Substantially same as $ 21 to 25 R. S.] Original note. “The preceding five sections are new, and are intended to prevent the abuse of a power which may be exercised so as entirely to defeat the end and object of a suit. It is believed that the rights and interests of defendants are sufficiently guarded.”

(S 9, 10, 11. Substantially same as 26, 27, 28 R. S.] Original note. These sections are proposed to correct a growing abuse. They probably introduce no new principle, but their enactment and promulgation will be useful; or if new, they are believed to be highly necessary."

[S 12. Same as § 29 R. S.] Original note. “New. Abuses are sometimes practised by parties resorting to distant commissioners, for the very purpose of annoying their adversaries, and compelling them to apply to the same officer for a revocation of the order. Delay is always, and mischief and injury are frequently, produced in this way, which it seems desirable to prevent."

[S 17, 18. Same as $ 38, 39 R. S. except that the last clause of $ 38

R. 8. commencing with the words "and the mayor or recorder," &c. was added by the legislature.]

Original note to $ 18. [§ 39 R. S.] “New. It is presumed that at common law, every judge of a court would have the powers granted by $ 16, 2 R. L., 149; and it is hence inferred that the provision was intended to be exclusive."

[S 22. Same as § 44 R. S.] Original note. “New. The object of declaring their powers is not only for information, but to subject them to the general provisions of law."

[S 23. Same as $45 R. S.]

Original note. “ The act of 1815, p. 277, regulates notaries' fees, but does not define their powers. The protest of a notary, or any memorandum made by him, in reference to inland bills or notes, is no higher evidence than similar acts of private individuals. It is deemed useful to declare this explicitly.”

(S 24, 25. Same as $ 46, 47 R. S.]

Original note to $ 24. “New: to provide for a case of not unfrequent occurrence. By creating such officers, giving them a seal, and providing for their compensation, the community is induced to suppose that their official acts possess some quality of evidence, and may often be deceived and injured by a reliance on them. The above section is proposed to meet an urgent case, and is conformable in principle to a decision of the supreme court of the United States, in 8 Wheaton, 334; by which the register kept by a notary was allowed to be read in evidence, upon proof of his death. The next section is drawn to meet that case.”

(S 26. Same as $ 48 R. S.]

Original note. It may be a very serious question, how far an officer or citizen of this state, acting under a foreign authority, or by virtue of a foreign law, is amenable to our laws. Notaries are entrusted with important duties by the laws of congress and the practice of the departments, and by the laws of other states and foreign countries. It would seem to be the duty of the state to enforce the faithful execution of such trusts, and to leave no room for doubt, as to the power of our courts to punish for official misconduct." “ARTICLE II. — Of the officers of courts of record, their dutics, privileges and liabilities."

[Enacted as Article Third R. S.] [S 23. Same as $ 71 R. S.]

Original note. “The words in italics, 'with the intent,' &c., new, and varied so as to conform to the supposed intent. Vide opinion of Sutherland, J. 1 Cowen, 458; Woodworth, J. and Savage, Ch. J. ib. 459. Vide also 6 Cowen, 512, which has been supposed to give a different construction. Legislative provision seems indispensable.”

[S 39. Same as 5 86 R. S. except that the words “on any process against the body," were reported“ on any mesne process;" and except also that the words after" are officers,” were added by the legislature.] Original note. “1 R. L. 418, Ø 12. Varied according to the settled construction of the act. 13 J. R. 252."

" ARTICLE III. Miscellaneous provisions concerning courts of record." — [Enacted as Article

Fourth R. S.) CS 41 to 47. Same as ļ 88 to 93 R. S.] Original note to § 46. “ 2 R. L. 146, $ 5. Varied by omitting the exception of New York.”

(S 48, 49. Transferred to Article 2, and enacted as $ 16, 17 R. S.)


“TITLE I.-- Of actions, and their general divisions." [S 1, 2. Same as enacted. $ 1 reported as “ new.”]

“ TITLE II. - Of the time of commencing actions." " ARTICLE I. — Of the time of commencing actions relating to real property." [S 1. Same as enacted, except that the word “forty,” was altered by the legislature to twenty,” in subs. 1 and 2.) Original note. 1 R. L. 184, § 1. It is worthy of consideration, whether the same limitation should not be applied to suits by the state, as to those of citizens."

(S 2, 3, 4. Same as enacted, except that in $4, the word “ 'forty" was altered by the legislature to "twenty."]

Original note to § 4. “Residue of same 1. The original act in 2 Jones and Variek, 260, was taken from the English act, 9 Geo. III, ch. 16, which is one of the most obscure statutes to be found. In the revision of 1801, vol. 1, 562, it was much abbreviated, but was still left somewhat vague, and the part which retained the right to prosecute to the people as well as to a patentee, was omitted. A reference to 2 Bl. Com. 348, will assist in ascertaining the meaning of the original act. It is there stated that the grant of the king may be avoided, where it appears that he was mistaken in matter of fact or of law, 'as in case of false suggestion, misinformation, or misrecital of former grants; or, if his own title to the thing granted be different from what he supposes, or if the grant be informal,' &c. It would seem that the exception in the statutes meant to reach these cases, and to give a right of recovery, wherever, for any of those reasons, a patent had been abrogated. The Revisers have endeavored to express that intent in the above section, by making the provision an affirmative proposition, instead of an exception. They have also restored the original, so as to give the same right to the people as to a patentee, and to limit the time of commencing in the same manner. The expression in the act, by which the decree or judgment against a patentee, is required to be made in a court of record in this state, is inconsistent with itself, as decrees are not rendered by courts of record. Nor should the decision be confined to courts of this state. The title of the state may be found by a decision of the supreme court of the United States, into which court the defendant may, in many cases, carry the cause. What was proper in the original act, became otherwise by the adoption of the constitution of the United States."

[$ 6. Same as enacted, except “twenty-five" reported, instead of twenty," as enacted.] Original note. “2 of same act, varied as to cognizances. It is not

« ZurückWeiter »