Terms-Removal of causes.

the surrogate, the signing by the witnesses may be waived, or in case the witness dies before the records are transcribed, the record of proof under the certificate of the stenographer or surrogate shall be deemed the record of the proofs and proceedings so taken. Code, § 256.

ARTICLE V.

TERMS.

Section 1. Always open. The surrogates' courts are always open for the hearing of any matters within their jurisdiction, and particularly on Monday of each week, it is the duty of the surrogate to attend at his office to execute the powers and duties conferred upon him. 2 R. S. 221, § 2; 4 Stat. at Large, 565, § 33; Laws of 1847, ch. 280, art. 4, § 32. By the act of 1847 it is provided that, in counties where the county judge performs the duties of the office of surrogate, the court may be held at the time and place at which county courts are held, and the order of business shall be under the direction of the county judge, who shall perform the duties of the office of surrogate at such other times and places as the public interest may require. 4 Stat. at Large, 565, § 32; Laws of 1847, ch. 280, art. 4, § 32.

It is also provided by the same act that if any court appointed to be held shall fail, no writ, process, or other proceeding shall be abated, discontinued or rendered void thereby. Id., § 28.

Section 2. Rooms, etc. The board of supervisors of each county must provide the court with rooms, fuel, lights and stationery, suitable and sufficient for the transaction of its business, and if they fail, the court may, by order duly entered, direct the sheriff of the county to supply the necessary accommodations, and his expenses in so doing become a county charge. 7 Stat. at Large, 169, § 10; Laws of 1867, ch. 782, § 10.

ARTICLE VI.

REMOVAL OF CAUSES.

Section 1. In what cases. The only case in which causes are removed from this court is when the legislature has conferred upon courts of record, in counties where the population exceeds

Rules-Appeals.

four hundred thousand, the powers and jurisdiction of surrogates, with authority to try issues of fact by jury in probate See article 1 of this chapter, § 11, ante, 405.

causes.

ARTICLE VII.

RULES.

Section 1. Supreme court rules. The general rules of the supreme court are binding upon this court, so far as they are applicable to it. Laws of 1870, ch. 408, § 13.

ARTICLE VIII.

APPEALS.

Section 1. To the supreme court. Appeals from the decision of the surrogate were formerly taken to the circuit judge, and to the court of chancery in certain cases, but under the present judicial system appeals are taken to the supreme court, which possesses all the powers in such cases formerly vested in the circuit judge, and in the courts of chancery. Laws of 1847, ch. 280, § 17; Whitbeck v. Patterson, 22 Barb. 83.

Appeals from the decisions of surrogates are not affected by the second part of the Code. Code, § 471.

PART III.

PRACTICE CONSIDERED GENERALLY.

CHAPTER I.

GENERAL NATURE OF PRACTICE.

ARTICLE I.

ELEMENTARY AND HISTORICAL SKETCH.

Section 1. Definition. Practice has been defined to be the course of procedure in the courts; the form and manner of conducting or carrying on, in the way of either prosecution or defense, of suits, actions and other judicial proceedings, at law or in equity, civil or criminal, through their various stages, according to the principles and regulations prescribed by law, or by the rules and decisions of the several courts. Burr. Dict. See also Bouv. Dict.

The present work is limited to an exposition of the principles and the details of the practice in civil actions, whether legal or equitable in their nature, in the superior courts of record in this State. To explain the subject properly requires more than a mere statement of the present system of practice. A careful study of the former systems of practice at law, and in equity, is invaluable as an aid in comprehending some of the technical rules of practice which are now daily applied by the courts. He who is familiar with the former practice in equity can readily see what cases are to be pursued according to the equity practice, even under our present system of law and equity united.

And so, too, one who knows the details of the common-law practice will readily and easily apply its rules to actions in the courts as now organized, whenever those rules are such as to be still in force.

Importance of a knowledge of practice.

The plan of this work, although extensive enough to include the entire practice in legal and in equitable actions, as well as in special proceedings, does not permit a full statement of the former practice at law and in equity; and, for such information, resort must be had to the works on practice under the former systems. A brief outline, however, will be valuable as a mode of showing some of the more striking features of the two systems of practice, and, from this contrast, the student will the more readily determine the nature or the character of the practice which ought to be adopted in any particular case under consideration. Such a knowledge will frequently be valuable by suggesting the proper source of information needed; for, if the action is one of a legal character, he will.consult the works on common-law practice, while in equitable actions a resort to equity practice will be necessary. To aid the student, and the young practitioner, much care has been taken to point out many of the strongly distinguishing features of legal and equitable actions and jurisdictions, as well as the peculiar modes of practice by which such remedies were formerly administered by the several courts. If this part of the work is not as full as the student may sometimes desire, it is much more complete in that respect than other works on practice, and will, at least, serve to point out the direction in which to search for information.

Section 2. Importance of a knowledge of practice. Every one recognizes the fact that a good lawyer is familiar with legal rules, and with equitable principles; and that, while acquiring that knowledge, he must necessarily become more or less familiar with the rules of practice. In the ordinary course of studies pursued by the beginner, he is presented with some works which are mainly devoted to an exposition of the rules of law, or of the principles of equity; while others are devoted to an explanation of the mode of proceeding in the courts in the course of applying such rules of law.

A thorough and accomplished practitioner will make himself familiar with the principles of the law, whether legal or equitable, as well as with the rules of practice applied by the courts. In the commencement of the practice of every young lawyer, he will naturally consult some experienced member of the profession in all important and intricate cases; and this is especially true in relation to the right of action or the grounds of defense. In such cases, the most learned counselor may sometimes be at

Simplicity of the early practice.

a loss as to the true rule of law; while the points of practice involved, may be matters of every day occurrence with him. It is evident, therefore, that there are many cases in which assistance is indispensable to the practitioner in his first efforts, but, in relation to the general practice of the courts, there is seldom any such necessity for his resort to the assistance of others. He ought to make himself as thoroughly conversant with the general principles of the law as his circumstances will permit; but, if with a good degree of such knowledge, he is still ignorant of the mode of applying to the courts for their assistance, in the ordinary proceedings in the course of an action, his want of this information will result in a loss of time, money, and, perhaps, of the interests of his clients; while it will seriously prejudice him in public estimation, and especially in the confidence of the bar and of the bench, in regard to his legal attainments.

It is mainly due to a want of knowledge of the practice, that so many good causes are lost, or the remedy so long deferred, or so many valid defenses sacrificed, or rendered but partially available. He who knows the law of his cases, who is skilled in the practice, and is industrious in his habits as well as energetic by nature, will seldom be delayed in securing all needed remedies for his clients, and will seldom have cause to complain of the law's delays. Thus much has been said for the purpose of persuading the younger members of the profession to become reliable practitioners, as they will then render an efficient service to their clients, secure the confidence of the bar and of the bench, as well as of the public, from whom they expect to derive all the pecuniary advantages of the profession.

Section 3. Simplicity of the early practice. As this is not a historical work, it will not be expected that an account will be given of the details of the early practice. One general principle, however, will be readily conceded, and that is, that when the laws were few and plain, and the courts were adapted to such a state of society, the practice must have corresponded with the courts and the times, and, of necessity, been simple and convenient in its application.

The English practice, from which we have so largely borrowed, was, in its origin, of this simple character. It is true that, in the course of time, technicalities were introduced, and that ultimately there were many difficulties in the way of the practitioner. But, as difficulties arose, they were met and surmounted, even