"Ne moy reproues sauns cause, car mon entent est de bon amoure,"

Motto to Brooke's Abridgment.

VOLUME I.

NEW-YORK:

OLIVER HALSTED, LAW BOOKSELLER,

Corner of Wall and Broad Streets.

1831.

ENTERED ACCORDING TO ACT OF CONGRESS, in the Year 1831, by JONA. PRESCOTT HALL, in the Clerk's office of the District Court of the United States, for the Southern District of New-York, in the Second Circuit.

Rec. May 27, 1975

GEO. ROBERTSON, PRINTER.

PREFACE.

IT has often been asserted, that for the law to be known, is not of less importance than that it should be right. This remark is peculiarly just in reference to the promulgation of judicial decisions. The editor, in presenting this volume of reports to the bar of New-York, is animated by the belief, that both these ends will be subserved by their publication; that the knowledge of what has been ruled by an important judicial tribunal, will not only be disseminated among the profession, but that the decisions themselves will be found to be based upon the satisfactory principles of the ancient law.

It has sometimes been urged, that a rapid accumulation of law books is to be regarded as an evil; but that this opinion is at least questionable, will be evident to those who will compare the general state of legal learning amongst the profession in this country anterior to the publication of Johnson's Reports, with its condition at the present day. Independently, however, of this consideration, it should be remembered, that society is never stationary; that new discoveries are springing into existence, as former modes of life and action are passing away; and that the improvements of society give birth to new varieties of intercourse, which call for and obtain correspondent changes, not in the principles of justice itself,-for these are immutable—but in the administration of justice. Hence many of the legal remedies formerly in vogue both in England and in this country have gone into disuse, and other and more simple methods of redress have been devised in their place. Real estate, which once claimed almost the sole attention of English jurisprudence, has in modern times become secondary to the law of personal property. And in answer to those, who deprecate the accumulation of legal adjudications, may it not be pertinently asked, with what degree of skill could the judges

in the reign of Elizabeth (however learned) be supposed to sit in judgment upon a modern bill of exchange, with its days of grace and rules of notice; upon a policy of insurance, a case of average, or even upon a contract of bailment? The argument derived from this interrogatory, applies with peculiar force in favour of the publication of judicial decisions in the United States, and nowhere more than in the city of New-York. It was the increased number and importance of legal questions arising in a large commercial metropolis, which led to the establishment of the Superior Court.

The city of New-York had been early marked by the enterprising as a central position for the prosecution of maritime adventure. Its rapid growth subsequent to the revolution, has more than justified the most sanguine expections. In the space of fifty years, her population has swelled from twenty, to two hundred thousand souls; and during this period, the vicissitudes of our relations with Europe have given rise to the adjudication, in different courts, of some of the most important questions of maritime and international law. Most of these questions (so far as the people of this city were concerned) arose in the Supreme Court, where, for a series of years, the ability, integrity, and eminent learning of that tribunal has kept pace with the advancement of our population, and reflected imperishable honour upon the judiciary of the State. It could not, however, be expected that in a great and growing community, the limited number of judges, which originally composed that Court, would be capable of transacting the vast and accumulating business of the whole commonwealth; and accordingly, on the adoption of a new constitution of State Government, in 1821, a revision of the judiciary was deemed indispensable. This revision substantially gave an addition of six judges to the previously existing system. A new bench, consisting of three Judges, was substituted for the former Supreme Court, and to supply the numerical deficiency, the State was divided into eight circuits, in each of which a Circuit Judge was appointed, possessing "the powers of a Justice of the Supreme Court at Chambers, and in the trial of issues joined in the "Supreme Court, and in Courts of Oyer and Terminer and gaol delivery."

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This change, which promised a vast increase of judicial learning and ability, was found fully adequate to the requirements of every part of the state, excepting the city of New-York: where nearly as

many causes of importance are annually tried, (it is believed,) as in all the state beside. It was not to be expected, therefore, that a single Judge, to whom that citywas allotted, along with the counties of Kings, Queens, Suffolk and Richinond, however learned or experienced he might be, could be capable, by any exertions, of adjudicating every cause as fast as it arose within his jurisdiction, especially when oppressed with a part of the business of the Court of Chancery. The county of NewYork required a provision for itself without being connected with other counties. For a cause to reach a trial in the Supreme Court under the period of twelve or fifteen months from the return of the process had become an unusual occurrence, and this without the imputation of any blame to the Judge of the first Circuit. In the year 1827, these evils had become materially aggravated. It was stated in the proceedings, before the Common Council of the city of New-York, which led to the establishment of the Superior Court, that at the March sittings of the Circuit Court for that year, the calendar consisted of three hundred and ninety-nine causes of which twenty-three were tried, and thirty-four defaulted; leaving three hundred and fortytwo causes undisposed of. At the June sittings of the same year, (in consequence of the criminal business before the court,) it was asserted that, of three hundred and fifty-seven causes on the calendar, not one was tried. In fact, the exertions of a single Judge had become inadequate to the disposition of the business of the county of NewYork alone, without the addition of other counties, even if the terms of the court had been differently arranged.

The anxiety of the bar, in addition to the substantial requirements of the community, suggested various remedies for the evil that existed, and none appeared more obvious than to remodel the Common Pleas, (formerly styled the Mayor's Court,) by enlarging its jurisdiction, increasing the number of its Judges, and extending the length of its terms. This plan eventually assumed a new form, whereby it was determined to divide labours formerly allotted to a single Judge: and, in consequence, a petition was presented to the legislature for the establishment of a new and additional Court of Common Pleas, to be styled the "Superior Court of the city of New-York," possessing the jurisdiction of the Supreme Court in all civil causes. Accordingly, an act of the legislature was passed the 31st day of March, 1828, to establish this tribunal; (a copy of which will be found in this volume ;) and to meet the ex