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[S 30. Same as $ 32 R. S. except that the concluding words “ and specifying particularly such errors," were omitted by the legislature.]
Original note. “As to certificates of counsel, 1 R. L. 144, 94; Laws of 1828, varied in requiring more precision in the certificate, so as to check, in some measure, the facility of granting them; and extended to judgments of the courts of common pleas, as being equally within the rule."
[S 31. Same as 33 R. S.] Original note. “1 R. L. 144, § 4, imposes the penalty on the clerk who shall issue the writ. This section has been so drawn, as to conform to the preceding provisions."
(S 32, 33, 34. Same as $ 34, 35, 36 R. S.]
Original note. “ The last three sections are substantially conformable to the existing practice, except that the time within which the bail are to justify, is enlarged from A to 10 days. It is deemed useful to declare the right to except, lest the practice should be supposed to be altered by the extension of the bond.”
(S 35. Same as $ 37 R. S.] Original note. “ New. Contrary to the present practice, 5 Cowen, 33. If the preceding sections are adopted, there can be no objection to this; as bail may be taken in a sum sufficient to cover all the mesne profits."
[S 36, 37. Same as $ 38, 39 R. S. except that the concluding words of the latter Ş, reported as follows: "and the amount of such damages may be recovered upon the bond given, on the suing out of the writ of error,” were stricken out by the legislature.] Original note. “To carry out the principle of the last section."
[S 38. Same as $ 40 R. S.] Original note. “$7,1 R. L. 133, varied so as to conform to the fact; the transcript only being removed.”
[S 39. Same as $ 41 R. S.] Original note. “1 R. L. 133, § 7, .varied according to the construction given by the court.”
IS 40, 41. Same as $ 42, 43 R. S.]
Original note. “The two last sections are founded on Ø 7, 1 R. L. 134; but varied according to the principles contained in preceding sections. The transcript is always made out by the clerk, in fact; and there seems no use in requiring the signature of the chief justice. Besides, the object of a succeeding section can be better attained by having the clerk the returning officer."
[S 43. Same as 5 46 R. S.] Original note. “New. It might be difficult now to assign the source of the power of the court to enforce returns, or to point out the mode of proceeding."
[S 44. Same as $44 R. S.]
Original note. “New. The present law, requiring the writs to be returned by the chief justice of the supreme court, has given rise to much curious discussion, as to the consequences of the death of that officer, before he has actually made a return; see 2 Saund. 101; 1 Siderfin, 268. It is a merely ministerial act, which can be better done by the clerk."
[S 45 to 53. Same as $ 47 to 55 R. S.]
Original note. “The preceding nine sections are drawn with a view to abolish one of the most perplexing and tedious proceedings known in the law, and to substitute plain and practical modes. They con
form to the principles of the present law and practice, see 1 Archbold's Pr. 216, &c."
(S 54. Same as 9 56 R. S.] Original note. “New; necessary to carry out the provisions in Ch. 6, 2d Part.”
[S 55, 56, 57. Same as $ 57, 58, 59 R. S.] Original note to $ 59. “By the present practice, there is no certainty of the defendant in error receiving any notice of a writ brought after the execution is collected. In the court of errors, the notice of assignment of errors, which is the first real notice in such a case, may be served on the attorney on record, or on his agent. The attorney may be dead or out of the state; or if here, wholly indifferent to the suit, after the lapse of years. It is conceived that express provision should be made to prevent surprise in such cases."
(S 59. Same as $ 60 R. S.] Original note. “See note to $ 8, Title 5, Oh. 8, Part 3, p. 72.”
[S 60, 61. Same as $ 61, 62 R. S.] Original note to § 61. “Declaratory of a point, perhaps somewhat doubtful.”
[S 64. Substantially same as $ 65 R. S.]
Original note. “The three last sections are new, and intended to supply a defect in the existing law. Release of errors, satisfaction of the judgment, infancy of the parties, coverture and various other questions of fact, may be, and sometimes are, presented to the court for the correction of errors, which it has now no means of determining, except by affidavits, a hazardous resort in all cases, and in some, utterly futile. The preceding sections vest a discretion in the court, which there can be no danger will be abused.”
(S 65. Same as $ 66 R. S. except that the words " or be barred from any recovery upon any contract, matter or thing," before " that shall have been,” &c., were omitted by the legislature.]
Original note. “It would seem harsh to punish any citizen for any act done in good faith, in full reliance upon the expositions of the law given by the supreme court of our state. No party should be permitted to take advantage of what may well be called a common error. A decision of the supreme court of the United States, upon our insolvent laws, gave occasion to numerous writs of error upon judgments, in which all parties had acquiesced for years, and under the sanction of which, new rights and interests had arisen. The peace and happiness of the community should not be thus jeoparded; and least of all, should a citizen be subjected to the consequences of a penal statute, which he never intended to violate, and which he obeyed, as it had been construed by the courts. The sagacity of lord Bacon perceived this defect, and provided for it, in the 6th of his ordinances in chancery; which declares that if the construction of an act of parliament, hath for a time gone one way, in general opinion and reputation, and after, by a later judgment, hath been controlled, then relief may be given upon matter of equity, for cases arising before the said judgment, because the subject was in no default. See vol. 4 of his works, p. 510. How much stronger is the reason, when this general opinion and reputation has been founded upon the deliberate judgment of the highest law court of original jurisdiction in our state?
“It will be perceived that the section is carefully confined to the
constructions given to statutes; by which judgments upon common law principles, and in the great variety of cases in which private rights are concerned, are left untouched.” [“ ARTICLE II. — Of writs of certiorari and of error in special cases," as enacted, was reported
by the Revisers subsequently to the printing of the Chapter. It was enacted as reported, and was accompanied by the following:
Original note. “By the provisions of Article 1, of Title 1, of Chapter 5, Second Part, $ 43 to 52, a very important decision is to be made by a court of common pleas, upon a question involving the rights and interests of parties, without any means being provided for an appeal, and without prescribing the consequences of such appeal. The same defect exists in the present law; see § 7,1 R. L. 158. The fact, whether a person proceeded against as an absent, absconding or concealed debtor, was such at the time of issuing the warrant, will determine the right to the property of the debtor, as between the attaching creditors and any purchaser, after the issuing of the warrant. By $ 47, of Art. 8, of Õh. 5, 2d Part, a certiorari is allowed; and beyond all doubt, the common law supervisory power of the supreme court over the decision of the common pleas, must exist. But in the mean while, what becomes of the property? Suppose the decision of the common pleas reversed; in one case, the warrant is re-instated, and the lien acquired thereby, must remain effectual, and defeat subsequent purchases. In another case, the warrant will be invalid. The difficulty of following property thus circumstanced, will be very great. An effort to remedy the difficulty, has been made in this Article, which has been prepared since Chapter 9 of the 3d Part was printed. It should be inserted at p. 69 of that Chapter.” "ARTICLE II.- Of appeals from the court of chancery and surrogates' courts; and from circuit
judges and courts of common pleas, in certain cases."
[Enacted as Article III.) [S 66. Same as $ 78 R. S. except that the words after “restrictions," were added by the legislature.]
Original note. “The present limitation is the same as that upon writs of error, 1 R. L. 134, $ 9. The above section is proposed, to conform the law limiting appeals, in all respects, to that regulating writs of error."
(S 67. Same as $ 79 R. S.]
Original note. “Ib. New as to decrees for costs. The case of Travis vs. Waters, 13 J. R. 500, is supposed by many not to settle the rule. Where a final decree on the merits is reversed, that part relating to costs, of course follows the fate of the principal matter. And yet, if a decree be rendered on the merits, and the question of costs be reserved, a frequent case, it seems doubtful whether an appeal would lie on the subsequent decree for costs only, 2 J. Ch. R. 317. In many cases, the question of costs has become, from the length and expense of the proceedings, the most important point.”
[S 68, 69. Same as s 80, 81 R. S.] Original note to § 69. “New. The practice of requiring a deposit and bond, is salutary, and one or both should receive legislative sanction. As full provision will be made for security, it is thought best to omit the deposit.”
(S 70 to 77. Same as $ 82 to 89 R. S.]
Original note. “Few questions have occasioned so much difficulty, as that respecting an appeal from an order or decree of the court of chancery. On the one hand, it is obviously necessary that parties should be allowed to proceed, in some cases, unless they are indemnified by the appellant against the consequences of the delay. On the other hand, a loose, indefinite and arbitrary discretion of the chancellor, in giving or denying the effect of an appeal, must often deprive a party of all benefit from it. The preceding eight sections have been drawn with great care, and are believed to provide for all the cases where a party ought to be permitted to proceed, after an appeal. In some cases the power of the court has been enlarged; as in the 71st section, allowing it to require the production of securities, documents, &c., see 1 J. Ch. R. 77. As a general rule, it is conceived that the right of appeal ought to be restrained as little as possible, consistent with the rights of the parties. The necessity for legislative provision, arises from the circumstance, that as the court for the correction of errors is not in session a large portion of the year, the court of chancery is compelled to determine on the effect of an appeal.
“The third subdivision presents a class of cases, where a discretion seems absolutely indispensable, to prevent an entire failure of justice. By the provisions of Title 1 of this Chapter, the legality of such commitments may be inquired into, on a habeas corpus or certiorari, so that there can be no danger of abuse."
[S 82 to 91. Same as $ 94 to 103 R. S.] Original note. “The preceding fourteen sections are new; they are necessary to carry out the provisions of the third Article of Title 1, Ch. 6 2d Part R. S.”
(S 92 to 96. Same as 104 to 108 R. S.] Original note to $ 96. “New in form, although the principle of requiring bonds for costs on appeal, exists in many cases. It is conceived to be a salutary rule, checking unfounded appeals, and affording a security against the expenses of those which are frivolous."
(S 97. Same as $ 109 R. S.) Original note. “New; declaratory.”
(S 98. Same as § 110 R. S.] Original note. “It is conceived, that in these cases, the proceedings should continue.”
(S 99 to 103. Same as 111 to 115 R. S. except that the last words of $ 103, “to aid in constituting the jury fund thereof,” were stricken ont by the legislature.] Original note. “The five last sections are new; they seem necessary to provide for cases not unlikely to occur."
(S 104 to 108. Same as § 116 to 120 R. S.] Original note to g 105, 108. “New."
“CHAPTER X." “OF COSTS, AND THE FEES OF OFFICERS.” “ TITLE I.— Of the cases in which costs may be recovered, and in which double or
other costs may be allowed. (S 1. Same as enacted.] Original note. “$ 16, 1 R. L. 346. In suits by executors, &c., the court often allows the complainant to dismiss his bill without costs. The section is varied accordingly.”
[S 2. Same as enacted.] Original note. “New; declaratory of existing law.”
[S 3. Same as enacted.] Original note to sub. 1. “1 R. L. 343, § 1, extended so as to give costs in actions where no damages can be recovered, and to forcible entries. See Ch. 8, Tit. 10, Art. 1."
To sub. 2. “4th branch of $ 4, p. 344, 'or a right of way,' 1 J. Rep. 146; 'or a right by prescription or otherwise to any easement,' &c. 2 J. Rep. 185; 3 Cowen, 382. The provision in favor of the people of the state and corporations of certain cities, is omitted; as no reason is perceived why they should be exempted from the general rule. The other actions enumerated in that branch, will be subsequently noticed. As to full costs being allowed, see 3 Cowen, 382.”
To sub. 3. “S9, varied, in omitting the words which confine the recovery of costs to the cases of a judgment or award of execution being obtained after plea pleaded or demurrer joined. Scire facias particularly, and most of the others, may be absolutely necessary; and it is not perceived why a judgment by default should not carry costs, in those cases, as well as in all others. This section will then conform to the construction given in 11 East. 387, mandamus.' $5, 1 R. L. 108, auditor querela. See 20 J. R. 295.”
(S 4. Same as enacted.]
Original note. “S 1, 1 R. L. 343; and implied from the second branch of $ 4. The provision concerning suits for penalties, is new in form; costs being usually given in the act imposing the penalty, in the present statutes; but they have been usually omitted in this revision, with a view to this general provision."
[S 5, 6. Same as enacted.] Original note to § 6. “96, 1 R. L. 344, varied according to 13 J. Rep. 306, so as to reconcile it with the second branch of $ 4, which provided for recoveries of upwards of $50, so, that between that and $ 6, no provision whatever was made for the precise sum of $50. Varied, also, by including actions of false imprisonment; in which, by $4, the plaintiff recovered full costs for the slightest irregularity by which an officer made himself liable to such an action. It is hoped that by this provision, a temptation to, and of course a fruitful source of, litigation will be destroyed. Varied, also, by including libel as well as spoken slander.”
(S 7. Same as enacted.] Original note. “A recovery in the action of replevin to any amount, now carries costs. It is believed that this leads to long and frequently frivolous litigation, and requires a remedy. That proposed in this section is deemed adequate and just."
[S 8. Same as enacted.] Original note. “1 Branch, 1 R. L. 343, 34, varied to correspond with the preceding provisions."
(S 9. Same as enacted.]
Original note. "By the construction of $5,1 R. L. 344, as given in 4 Cowen, 396, although much doubt was entertained in 2 Cowen, 413, it is settled, that in such cases, the plaintiff must recover fifty dollars to be entitled to any costs, if the suit was commenced in the supreme court. That section was drawn in reference to the law, as it then was, allowing costs in the common pleas on a recovery over 25 dollars. As that is abolished, it is conceived that the reason for any distinction between the courts has ceased. And as the costs will be alike in each court, it is proposed to establish a uniform rule appli