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the termination of the trust. It needed no that notice of the application is required by statute to protect remaindermen as against the final clause of the amendment to be given any sale or conveyance by the trustee. It per- only to the beneficiaries of the trust. It is haps added nothing to the protection of the claimed that the case of Morris (63 Hun, 619), cestui que trust beyond that given by the com- which was affirmed in this court without opinmon law. But it was a statutory expression of ion (133 N. Y. 693), is adverse to the construca rule which would challenge the attention of tion here given to the section as amended. the trustee and of persons dealing with him in re- The principal question argued in that case pect to the trust. But the material point is, that seems to have been whether certain assessments the legislature, in enacting the section, was deal for local improvements were to be borne by ing with transactions by the trustee in respect to

the trust estate alone or should be apportioned the trust estate. The trust estate, in a case

between the trust estate and the estate in relike the present, was the estate for the life of mainder. The opinion in the General Term the beneficiary named. An attempted sale or

did not refer to the question here considered. conveyance by the trustee of the estates in If that case should seem in any aspect to conremainder would, doubtless, be ineffectual, but fict with the construction we now place upon this would be so for the reason that the trustee

the statute we think it ought not to be followed. would have no estate in remainder to sell or

It would be most dangerous to establish a conconvey, and not because such sale or convey-struction of the statute of 1886, which would ance would be in contravention of the trust.

make it possible to deprive infants of their inThe estates in remainder would be outside of heritance by hurried and informal proceedings,

such as were taken in this case, and that too and not within the trust. The amendment of 1886 relaxed somewhat the stringency of the

on the application of a party hostile in interest,

and who by the general rule of law was bound original section. It added a proviso giving

to pay the ordinary taxes and improvements power to the Supreme Court to authorize any

upon the property. trustee to “mortgage or sell any such real

This decision does not leave the court withestate whenever it shall appear to the satisfaction of said court or a judge thereof that it is of infants whose property is in danger of being

out power upon the applicatiou by or in behalf for the best interest of the said estate so to do, lost by the failure of duty of a life tenant to and that it is necessary and for the benefit of

pay taxes or make improvements, or for other the estate to raise by mortgage thereon or by a

reason, to intervene for their protection. The sale thereof funds for the purpose of preserving provisions of the Code (Sec. 2348 et seq.) for or improving such estate." But the amend the sale or mortgage of the real estate of inment in no wise vested in the court a compul-fants are ample for such contingencies. They sory power to order the sale or mortgage of

are in the main transcripts from the Revised estates outside of the trust. It makes no re- Statutes. But proceedings under these secference to infants or persons incapable of act- tions are hedged about by safeguards, preventing for themselves, and if the construction ing inconsiderate action by courts, and by claimed could be sustained it would authorize requiring security, protect infants against the the court to order the sale or mortgage of the dishonesty of those who undertake to represent estates in remainder of adults without their

them. The court has on repeated occasions consent, for the purposes specified, which declared proceedings instituted under these would be plainly unconstitutional. (Powers v.

(Powers v. provisions to be void, when not taken in conBergen, 6 N. Y. 358; Brevoort v. Grace, 53 id.

formity to the statute. (Elwood v. Northrup, 245.) The scope and purpose of the section

106 N. Y. 172; In re Valentine, 72 id. 184; and amendment is plain. It was to vest in the Battell v. Torrey, 65 id. 294.) There is no court the power to order a sale or mortgage,

pretense that this is a proceeding under the which, under the section as it originally stood, general statute for the sale or mortgage of the it might not possess, when necessary to pre- real estate of infants. It conformed to none of serve and improve the trust estate, and this its requirements. The consent of the guardian purpose is emphasized by the circumstance ad litem of the infant defendants to the grant

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ing of the order does not conclude them. should establish, having the right to appoint gover(Ellwood v. Northrup, supra.) The court had nors, officers of justice, and all other public otticers, no jurisdiction to grant the order, and it is to maintain order and police, and generally, in the open in this proceeding to collateral attack for language of the charter, to do all that the service

of those countries might require.” “The colony of want of jurisdiction. (Risley v. Phenix Bank, 83 New Netherland was formally organized in 1623, N. Y. 318; Williamson v. Berry, supra.) The and a settlement was established at Manhattan, the plaintiffs may as a consequence of our decision

present site of the city of New York." Whether lose their money.

But they were chargeable any provision was made for judicial tribunals durwith notice of the statements in the petition ing the first few years of the colony cannot be now and of the legal interests of the children in the determined, but it is probable that the colonists land. (Pitcher v. Carter, 4 Sand. Ch. 1, 20.) bad little, if any, occasion for organizing courts.

Minuit came out as Governor in 1626, and “he The infants on the other hand have had no

had, to assist him, a council of five, who, with himbenefit from the money advanced to their

self, were invested with all legislative and judicial father, and they should not lose their inherit- powers, subject to the supervision and appellate ance unless it has become bound in accordance jurisdiction of the Chamber at Amsterdam.” There with law.

was also attached to this body an officer well known

in Holland by the name of " schout-fiscal.” “He REPORT OF COMMISSIONERS TO REVISE was a kind of an attorney-general, uniting with the THE CODE.

power of a prosecuting officer the executive duties (Continued from Dec. 28, 1895.)

of a sheriff.” For ten years the administration of

justice was left to this body. In what manner PROCEDURE IN NEW YORK.

judicial proceedings were conducted is unknown. The legal history of this State may be conveni

The records of this period are lost, having been ently divided into the following periods:

sold at auction as waste paper in 1821 by the govern1st. From the settlement of the colony to the pro- ment of the Netherlands. mulgation of the “ Duke's Laws” in 1665.

William Kieft came out as Governor in 1638, and 2d. From 166.) to the establishment of the Su-ruled the colony with vigor for nine years, but repreme Court in 1691.

tained in his own hands the sole administration of 3d. From 1691 to the establishment of the State justice. He was obliged to have a council, but he Government in 1777.

reduced it to one member, reserving two votes to 4th. From 1777 to the Revision of 1801.

bimself. Under this administration the establish5th. From 1801 to the Revision of 1813.

ment of town courts was begun, the town court of 6th. From 1813 to the Revision of 1828.

Hempstead having been established in 1644, with 7th. From 1828 to the Code of Procedure of 1848. eight magistrates, appointed by the Governor, upon 8th. From 1848 to the Code of Civil Procedure nominations made by the patentees of the town.

If of 1876.

the amount in controversy exceeded fifty guilders 9th. From 1876 to the present time.

(twenty dollars) an appeal could be taken to the During the last period the latter portion of the governor-general and council at New Amsterdam. Code of Civil Procedure was adopted in 1880, but in 1645 a town court was established in Gravesend, it is a part of the code as first planned, and is tliere of three magistrates, with substantially the same fore treated as if it had been adopted at the same jurisdiction as at Hempstead. A town court was time is the first part.

established in Breuckelen in 1646. Up to that date, Our judicial system has a mixed Dutch and Eng. the only court on Manhattan Island was that of the lish origin; it has been developed from small begin- director-general and council. nings, and is the result of many struggles, much In 1647 a board of nine men was established, halting and uncertainty, and numerous compromises. selected by the director-general and council, from The rude judicial tribunals of the early colonial | eighteen men nominated by the commonalty. period were copied from those of European coun- Three of these men were selected from the mertries, with the modifications required by pioneer chants, three from the burghers, and three from conditions, and the necessary simplicity of provin- the farmers ; and one from each class, making a cial life. The colony of New Netherland was

board of three, rotating every month, was required planted by the great West India Company, a com- to attend the court and act as arbitrators in the mercial corporation of Holland. This gigantic cor- decision of such causes as might be referred to poration was invested, not only with vast commercial them. This court of arbitration, chosen from the privileges, but also with the most comprehensive nine men, was the first tribunal in the colony in judicial power. “ It was exclusively intrusted with the selection of which the people had any voice. the administration of justice in the colonies it It continued until the establishment of New



Amsterdam as a city in 1653. Several town courts might again bring the matter before the court, were established during this period. During the where it was finally disposed of. The defendant early colonial period, the inferior courts generally could require the plaintiff to put his complaint in possessed final jurisdiction in small civil causes, writing, and if he did so the āefendant was also and there was no appeal from their judgments, obliged to answer in writing. The plaintiff could except in cases involving more than fifty guilders. reply and the defendant rejoin, and there ended the The tribunal of the nine men continued for seven pleadings. The great majority of cases years. But there was constant collision between referred to arbitrators, or disposed of upon a sumthe Governor and the people. The colonists, after mary hearing of the parties before the magistrates. a struggle of five years, procured an order from the When judgment was given against a defendant home company to establish in the colony a munici- for a sum of money, time was given for payment, pal court of justice, to be composed of one schout, usually fourteen days for the discharge of one-half two burgomasters and five schepens. A burgo- and the remainder in a month.

If he did not pay master was a kind of mayor ; a schepen was an

within the time fixed, proceedings were taken to officer resembling an alderman, and a schout com

levy on his goods, which were taken by the officer bined the functions of a sheriff and a district and detained six days subject to redemption; at the attorney. This court was organized in February, end of that time, if not redeemed, the property was 1653, and was called “The worshipful court of the sold at auction in a very peculiar manner. “The schout, burgomasters and schepens." The pro- officer lighted a candle and the bidding went on cedure in this court was simple and summary, and

while it was burning, and he who had offered the strongly resembles, in many respects, the procedure most at the extinction of the candle, was declared established for the Roman people by the law of the the purchaser.” The court did a general business, Twelve Tables,

and was also a conrt of admiralty and a court of The court exercised unlir ted civil and criminal probate in taking proof of last wills and testaments, jurisdiction, except in the infliction of punishment and in appointing curators to take charge of the esin capital cases. Attached to the court was an

lates of widows and orphans, officer known as the court messenger, who, at the

It seems that the origin of a fee bill, for regulatverbal request of the party aggrieved, summoned ing by a fixed and positive provision of law the the adverse party to appear at the next court day.

costs of attorneys and other public officers, may be

traced to Governor Stuyvesant. On the 25th of If the defendant failed to appear, he incurred the cost of the summons, and lost the right to make January, 1658, he issued a proclamation with a pre

amble reciting the abuses that had arisen by reason any objection to the jurisdiction of the court, and

of the conduct of certain officers in demanding exa new citation was issued. If he failed again, he cessive fees, and fixing with detail the fees thereincurred additional cost, and lost the right to make " all dilatory exceptions,” or to adjourn or delay officers enumerated shall serve the poor gratis for

after to be charged. “ It is then provided that the the proceedings. He was then cited for the third

God's sake, but may take from the wealthy the fees time, and if he did not then apper, the court pro

specified." ceeded to hear the case and give judgment, and he

Courts of a similiar character were established in was cut off from all right of appeal or review. But other parts of the province. From all these local if, upon hearing the plaintiff's case, the court

courts an appeal lay to the court composed of the deemed the presence of the defendant essential, | governor and council at New Amsterdam. These they might issue a fourth citation in the nature of constituted the judicial tribunals of New Netheran arrest and compel bis appearance. The plaintiff land until the colony passed into the hands of the stated his case and the defendant made his answer.

English in 1664. If they differed in a fact that the court thought Early in the year 1665, a code prepared by Lord material, either party might be put to an oath. If Chancellor Clarendon, father-in-law of the Duke the case was intricate, or if it was difficult to get at of York, afterwards James II., and called the the truth, it was the constant practice to refer the “Duke's Laws,” was promulgated and went into case to arbitrators, who were always instructed to operation at Long Island and Westchester. Afterbring about a reconciliation between the parties if wards its provisions slowly made their way in New they could. The arbitrators were left to the choice | York and the remainder of the province. of the litigants or appointed by the court, or one of This code embodies the earliest attempt in New the schepens was directed to take the matter in York at a systematic compilation and statement of hand and try to reconcile the contestants. If no law relating to the rights of persons and property, reconciliation could be effected, or the parties and of procedure, both civil and criminal. But it would not submit to the final determination or con- was not the first colonial code. The early English clusion of the arbitrators, the dissatisfied party settlers in America had ample opportunity to ex

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periment with advanced legal and constitutional Justices of the peace were commissioned for the ideas; while they brought with them the general various towns, and were clothed with all the powers rules of the common law, they nevertheless felt exercised by such officers in Englund, A local court free to undertake law reform in its broadest sense, was created in each town for the trial of actions of and to make laws for themselves, incident to their debt or trespass under five pounds. Six overseers, new conditions, for which the law of the mother elected by the people, with a constable, or seven country was inadequate or inappropriate.

without him, constituted a quorum for the transThe Massachusetts colony, as early as March, action of business. All questions were determined 1634, through its General Court, appointed a com- by a vote of the majority, and if the overseers were mittee to revise the law. Other committees were evenly divided, the constable had the casting vote. appointed in 1635 and 1637, and in the latter year In 1666 the number of overseers was reduced to the freemen were requested to submit suggestions four, and any two of them, with the constable, held to the committee concerning the laws. Maryland the court. The town clerk was the clerk of the adopted a code in 1639. In Massachusetts, another court. committee was appointed in 1639, and on Decem- The Duke's Laws" retained the practice of ber 10, 1641, a code of laws embracing one hun arbitration, with which the people had become dred and twenty sections was adopted. It is said familiar under the Dutch rule. It was originally to have been prepared by Rev. Nathaniel Ward, provided that “ All actions of debt or trespass under and was called “The Liberties of the Massachusetts the value of five pounds, between neighbors, shall Colony in New England.” Connecticut adopted a be put to arbitration of two indifferent persons of code in 1650, a large part of which was evidently the neighborhood, to be nominated by the constable copied from the Massachusetts code. Virginia of the place." By an early amendment it was proseems to have adopted a body of laws in 1611, and vided that if the parties refused to arbitrate, the and in 1656 the laws of the colony were reduced case should be determined by the court. If the into one Volume.

case involved less than five pounds, the arbitrators The compiler of the “Duke's laws" of the colony were to be nominated by the constable;

if more than of New York evidently had before him other col- that amount, they were nominated by the justices. onial codes, especially the Connecticut code, be- Appeals were taken from the decision of the town tween which and the “Duke's Laws" there is a strik court to the court of sessions. ing similarity in the arrangement and subjects of A court of sessions was also created, which had the titles; and it is stated in the order of

jurisdiction of all civil, criminal or equitable actions the King promulgating the " Duke's Laws,”

over five pounds. Actions at law, and all criminal that they are compiled and digested from cases, were tried before a jury. The jurors were the laws of the other colonies. The New York drawn from the overscers, each town electing eight. code called the “Duke's Laws” was alphabetically “No jury shall exceed the number of seven, nor be arranged in seventy-two titles or paragraphs, and under six, unless, in special causes upon life and an examination of these titles shows its comprehen- death, the justices shall think fit to appoint twelve." sive character. It embraces " Absence, Actions, Ad- The verdict of a majority was sufficient, except in ministration, Amerciament, Appearances, Appeal, capital cases, where the jury was uniformly composed Apprisement of Goods, Arrest, Assessments, As- of twelve, who were required to be unanimous. saults, Attachment and Summons, Attorney, Assizes, The highest tribunal in the province was the Barratry, Ballast, Bills, Bond and Slavery, Bounds, Court of Assize, or, as it was sometimes called, the Brewers, Births, Marriages and Burials. Capital "General Assizes.” It was held once a year in the Litws, Cattle, Cornfields, Causes, Church, Church city of New York, by the Governor and Council Wardens, Charges, Public, Children and Servants, and such of the justices of the peace as saw fit to Chirurgeons, Midwives and Physicians, Courts, Con- attend it. This court had original jurisdiction, stable, Conveyances, Deeds and Writings, Counrell, civil, criminal and equitable, and heard appeals from Condemned, Defamation, Dowery, Fees, Fences, For- the inferior tribunals. nication, Forgery, Fines, Fugitives, Horses, Im.

Under the “Duke's Laws," all actions were compresses, Inn-Keepers & Ordinaryes, Indians, Jurors menced by the plaintiff's entering and filing in the and Juries, Justices of the Peace, Lands Laws,

clerk's office, at least eight days before the day of the Lying and false news, Marriages, Masters, Servants and Laborers, Military Affairs, Officers and Offices,

henring, his declaration, “to the end that the defendOverseers, Orphans, Payments, Pipe Staves, Posses

ant may, if he please, take a copy thereof, and prosion, Public Affairs, Packers Casks, Keepers and vide his answer, which is also to be filed by the said Gagers, Pounds, Prisons and Stocks, Public charges, defendant, and the judgment, if for the plaintiff, Records, Sailors, Sheriffs. Townships,

Townships, Votes, shall be endorsed on the declaration; if for the Weights and Measures, Witnesses, Wolves, Wrecks (efendant, on the answer, and all evidences conof the Sea, Warrants."

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remain in the hands of the clerk,” At the time of King's Bench of the province, where the king himentering his declaration, the plaintiff obtained a self (coram ipso rege ) theoretically sat in person to summons or warrant for the defendant. The sum- administer justice to his subjects in this part of his mons was required to be served at least eight days dominion. It was from the act of 1691 that the before the court. If not so served, the defendant supreme court of this State inherited not only the was at liberty to appear or not, at bis option. traditions of the Saxon Aula Regis, but the best

In June, 1665, the court of burgomasters and fruits of centuries of English law. So wise were schepens was abolished in the city of New York, the provisions of that early Act of 1691, that the a new court was organized, called the Mayor's patriotic framers of the first State government Court, a title by which it was known for one hun recognized its creation, the supreme court of the dred and forty-six years afterwards. The records province, as an appropriate tribunal for a free peowere directed to be kept in English and Dutch, and ple and a new order of things." a jury of twelve was directed to be empaneled for

In addition to the supreme court, the act provided the trial of civil causes. There was no court of

for a justices' court, a court of sessions, a court of

common pleas, and a court of chancery. The chancery, but matters in equity were heard in any of the courts organized in conformity to the justices' court was held by a justice of the peace

and one freeholder of the town where the cause of ** Duke's Laws."

action arose.

Actions were commenced by a sumThe first General Assembly of New York met on

mons, to be personally served on the defendant, or the 17th day of October, 1683, and among its first

left at his house, two days before the day of hearand most important acts was the passage of the law ing. The existing court of sessions was continued. entitled “ An act to settle courts of justice." By A court of common pleas was provided in each this act four distinct tribunals were created

county, consisting of one judge and three justices, petty court for the trial of small causes for every

with general jurisdiction in common law actions, town; a court of sessions for each county; a court

but no appeal was allowed where the amount in of oyer and terminer and general gaol delivery; and controversy was less than twenty pounds. Mayors' a court of chancery for the entire province.” The courts in cities possessed the same power and jurisCourt of Assize was abolished.

diction as the courts of common pleas. All processes The town court was held by three commissioners and writs were issued by the clerk of the court, and appointed for that purpose. The “process of signed "per curiam.warning" was a summons under the hand of the The court of chancery was composed of the commissioners, to be served by a messenger, per- Governor and council, and the Governor presided sonally, or left at the defendant's house four days unless he nominated and appointed in his stead a before the court. The cause might be tried before chancellor. Matters of fact were to be determined a jury if semanded by either party, In the court in all courts, except the court of chancery, by a jury of sessions the summons was to be issued to and of twelve men. Appeals might be brought from served by the sheriff, but no time was prescribed for the Mayor's court and common pleas to the supreme its service.

court, from any judgment above twenty pounds; Another provincial Assembly was held in 1691,

from the supreme court to the Governor and and its most important act, for our present purpose,

council from any judgment above one hundred was the act reorganizing the judicial system of the pounds; and from the Governor and council to

Their Majesties in council from any decree or colony. This act was prepared by James Graham,

This act the Speaker of the Assembly, and was introduced judgment above three hundred pounds. and passed on the 17th of April, 1691. Upon this

was only to be in force two years, but it was re

enacted from time to time and continued by statute Mr. Robert Ludlow Fowler, in his “ Observations,” comments follows:

This act

proclamations and was in force, with some modifi

cations, at the organization of the State government founded the supreme court, the tribunal which

in 1777. still continues to be the great law court of the

Except during a brief period, the original jurisState; and it vested in it a jurisdiction which

diction of the supreme court has been general. On change of government and constant reforms and

the 20th of May, 1769, an act was passed, depriving revolutions in procedure have been powerless to this court of original jurisdiction in actions involvabridge in any material respect; for while its juris- ing less than fifty pounds. This ct expired by diction has been enlarged by its union with the limitation, January 1, 1773, and since that time the court of chancery, its ancient jurisdiction still re

court has possessed general original jurisdiction mains unimpaired. The supreme court of the in all cases. province was the instrument by which the great By the first constitution of 1777, the existing body of the jurisprudence of the English common courts were recognized and continued, and a new law was applied to New York. This court was the court for the trial of impeachment and the correc


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