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the termination of the trust. It needed no
statute to protect remaindermen as against
any sale or conveyance by the trustee. It per-
haps added nothing to the protection of the
cestui que trust beyond that given by the com-
mon law. But it was a statutory expression of
a rule which would challenge the attention of
the trustee and of persons dealing with him in re-
pect to the trust. But the material point is, that
the legislature, in enacting the section, was deal-
ing with transactions by the trustee in respect to
the trust estate. The trust estate, in a
like the present, was the estate for the life of
the beneficiary named. An attempted sale or
conveyance by the trustee of the estates in
remainder would, doubtless, be ineffectual, but
this would be so for the reason that the trustee
would have no estate in remainder to sell or

case

that notice of the application is required by the final clause of the amendment to be given only to the beneficiaries of the trust. It is claimed that the case of Morris (63 Hun, 619), which was affirmed in this court without opinion (133 N. Y. 693), is adverse to the construction here given to the section as amended. The principal question argued in that case seems to have been whether certain assessments for local improvements were to be borne by the trust estate alone or should be apportioned between the trust estate and the estate in remainder. The opinion in the General Term did not refer to the question here considered. If that case should seem in any aspect to conflict with the construction we now place upon the statute we think it ought not to be followed. It would be most dangerous to establish a construction of the statute of 1886, which would make it possible to deprive infants of their inheritance by hurried and informal proceedings, such as were taken in this case, and that too on the application of a party hostile in interest, and who by the general rule of law was bound to pay the ordinary taxes and improvements upon the property.

convey, and not because such sale or conveyance would be in contravention of the trust. The estates in remainder would be outside of and not within the trust. The amendment of 1886 relaxed somewhat the stringency of the original section. It added a proviso giving power to the Supreme Court to authorize any 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 reStatutes. 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. 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

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 officers, to maintain order and police, and generally, in the no jurisdiction to grant the order, and it is 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 petitioning the first few years of the colony cannot be now and of the legal interests of the children in the land. (Pitcher v. Carter, 4 Sand. Ch. 1, 20.) 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 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:

determined, but it is probable that the colonists had little, if any, occasion for organizing courts.

"He

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."
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

1st. 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 1665 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.

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.

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reduced it to one member, reserving two votes to
himself. Under this administration the establish-
ment 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.
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

Our judicial system has a mixed Dutch and Eng-
lish origin; it has been developed from small begin-director-general and council.
nings, 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 coun-
tries, with the modifications required by pioneer
conditions, and the necessary simplicity of provin-
cial life. The colony of New Netherland was
planted by the great West India Company, a com-
mercial corporation of Holland. This gigantic cor-
poration 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

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 merchants, 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

Several town courts

Amsterdam as a city in 1653. 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 verbal request of the party aggrieved, summoned 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

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 regulating by a fixed and positive provision of law the 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 thereofficers enumerated shall serve the poor gratis for after to be charged. "It is then provided that the 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 ex

periment 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.

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 transaction 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.

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 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 overseers, 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 Laws, 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, Councell, civil, criminal and equitable, and heard appeals from Condemned, Defamation, Dowery, Fees, Fences, For- the inferior tribunals. 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 and Laborers, Military Affairs, Officers and Offices, Overseers, Orphans, Payments, Pipe Staves, Posses sion, 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."

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 hearing, his declaration, "to the end that the defendant 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."

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 The common pleas, and a court of chancery.

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 sum

The 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 6. A 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 and writs were issued by the clerk of the court, and signed "per curiam.”

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 .emanded 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 abridge in any material respect; for while its jurisdiction 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

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 This act judgment above three hundred pounds. 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.

diction of the supreme court has been general. On Except during a brief period, the original juristhe 20th of May, 1769, an act was passed, depriving this court of original jurisdiction in actions involving less than fifty pounds. This act expired by 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

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