Discretion, how exercised.

If a summons has been served, and the defendant has neglected to answer in due time, it will be discretionary with the court whether to permit him to answer, and even to limit the character of the answer, if one is allowed. In the course of a trial by jury, there are constant instances of the exercise of a discretionary power of the court. So of the selection of a referee to try a cause, so as to questions of costs, and so as to granting or refusing leave to amend pleadings or other proceedings. And these are but a very few of the innumerable instances in which the decision is controlled or influenced by circumstances submitted to the court for its consideration.

This discretion is indispensable to a wise and just administration of the law; for, in multitudes of the instances which occur in practice, the particular circumstances of each case require consideration before a just decision can be made. And no general rules could be adopted which would reach each case and do entire justice. Suppose the case of a motion, which is founded upon affidavits, and opposed by counter affidavits, how much is there that depends upon the facts disclosed, and what general rule could provide for its disposal upon disputed facts, while a learned and experienced judge can secure ample justice after a full hearing of the matter. This discretionary power is one of the most valuable ones that can be possessed or exercised by the courts. That there may be errors in the exercise of such a power is not to be denied; but the same thing is true of an exercise of the powers of the court in deciding ordinary questions of law, which do not depend upon the discretion of the judge, or of the court.

Section 2. Discretion, how exercised. The general principle which ought to govern in the exercise of a discretionary power of the court, is to use it for the furtherance of justice. Where the facts are undisputed and the law well settled, the court has no power over the case except to apply the rules of law. But, where the rules of law are equally well settled, and the facts are in dispute, to be settled upon conflicting evidence; or, where the applicant has no legal right upon which he can insist, but is compelled to ask for what he receives as a favor, or a dispensation with settled rules which he has violated or disregarded, the court may exercise its discretion in such a manner as to secure all just rights of all the parties. There is no power more delicate, and none in which the court has more unlimited authority than

Reviewing exercise of discretion - Usage.

in such cases; and, for this reason, there is no act of the court which demands or which receives more scrupulous care than this exercise of that legal discretion which the law has confided to the judges of the courts. Such a power is one in which the court may sometimes give relief when the party would be remediless without its exercise. But it is guarded by the corresponding power of imposing such terms and conditions upon the relieved party as will fully secure the rights and interests of the opposite party. In all matters of practice, where so much depends upon, the peculiar circumstances of each case, this discretionary power is indispensable, and it is one which is more frequently than any other called into daily use by the necessities of the parties to actions or proceedings in the courts.

Section 3. Reviewing exercise of discretion. It is evident that, from the very nature of this power, its review by a higher tribunal is not ordinarily practicable. The very fact that the exercise of the power is one which is governed by the judgment of the court or judge upon all the facts, instead of a ruling upon a mere legal principle, distinguishes the case from all others. Again, the decision below is not governed by legal rules framed for its guidance; and, yet, it is not a decision in violation of law, or a mere arbitrary decision according to the caprice of the judge making the decision. The law must confide the power of deciding many questions to the judgment, justice and wisdom of some tribunal, and in this instance it is generally left with the judges or courts below, from whose decision there is, as a general rule, no appeal. It is not to be understood that appellate courts do not sometimes interpose and change or overrule decisions thus made; and yet this can rarely be done, in the case of a decision which is strictly discretionary, because the moment a decision becomes subject to a review because it has violated a settled legal rule, from that moment the discretionary power ceases to exist in that case.

ARTICLE VII.

USAGE.

Section 1. The practice of the court is the law of the court. Every court is the guardian of its own records, and master of its own practice, and where a practice has long existed it is con

The practice of the court is the law of the court.

venient to adhere to it, because it is the practice, even though no reason can be assigned for it; for a long standing rule of practice in the law generally stands upon principles that are founded in justice and convenience.

Long usage in the practice of the courts, or of a particular court, may be considered the common law of the court, for the acquiescence in constant proceedings, by the judges, officers and attorneys of the courts, is evidence that it is reasonable, and has not been found objectionable, because if it had, it would have induced a change by the courts, as they have power in most cases to do.

It is important that a usage should be adhered to until expressly altered by statute, or by rule of the court, for if this were not done a practitioner who relied upon the known practice would be misled if there were any sudden or unpromulgated changes, and this sure reason weighs against any change which is not demanded by some necessity.

And in courts like those organized in this State, where there are so many judges who are employed in enforcing the practice, it is indispensable that a settled usage or practice should be observed, for a slight departure by each judge would soon completely unsettle the entire practice.

PART IV.

'THE COMMENCEMENT OF ACTIONS.

CHAPTER I.

THE SUMMONS.

ARTICLE I.

ACTIONS COMMENCED BY SUMMONS.

Section 1. In general. Prior to the adoption of the Code, civil actions in the courts of record of this State were commenced either by summons, by writ (capias ad respondendum), or by declaration.

The summons was used in actions against corporations only; the capias, in actions against persons not privileged from arrest ; and the declaration in nearly all actions where no bail was required. 1 Burr. Pr. 86.

The Code abrogated the old forms of procedure, and provided that all civil actions in the courts of record of this State shall be commenced by the issuing and service of a summons, by the voluntary general appearance of the defendant, or by the submission of a case upon which a controversy depends to a court for a final determination. Code, §§ 127, 139, 372.

These are the only modes by which an action can be commenced. Diefendorf v. Elwood, 3 How. 285; S. C., 1 Code R. 42; Akin v. Albany Northern R. R. Co., 14 How. 337; Kendall v. Washburn, id. 380; In re Griswold, 13 Barb. 412; O'Hara v. Brophy, 24 How. 379; and see art. 6, post, p.

Requisites of a summons.

ARTICLE II.

REQUISITES OF A SUMMONS.

Section 1. In general. The office of a summons is to give to the defendant certain and authentic notice, that an action has been commenced against him; to apprise him of the nature and amount of the claims of the plaintiff; and to compel his appearance in court, to answer to these demands, within a time stated, under penalty of forfeiting all subsequent right to dispute their validity, or to prevent their enforcement. Bulkley v. Bulkley, 6 Abb. 307.

Although a summons need not follow any prescribed form, it must contain certain requisites that may best be considered in detail. First among these is the title.

Section 2. The title. The Code does not require that the summons shall contain a title, but by the uniform practice of the courts, a title is essential to the regularity of every summons, and indispensable where the summons and complaint are served separately. In the title of the summons are included the name of the court, the place of trial, and the names of the parties, plaintiff and defendant. See Van Namee v. Peoble, 9 How. 198. A summons, if served without a complaint, is irregular if it does not contain the name of the court in which the action will be prosecuted. James v. Kirkpatrick, 5 How. 241; S. C., 3 Code R. 174; Dix v. Palmer, 5 How. 233; S. C., 3 Code R. 214; Walker v. Hubbard, 4 How. 154; Anonymous, 2 Code R. 75; Ward v. Stringham, 1 id. 118. But if the summons and complaint are served together, an omission of the name of the court in the summons will be disregarded if the court is named in the complaint. Yates v. Blodgett, 8 How. 278. As the statute does not in express terms require that the court shall be named in the summons, an omission of this nature cannot render the summons void, but only voidable, and the defect may be cured by amendment. Such amendment cannot be claimed as a matter of right, but is wholly within the discretion of the court, and, if denied, furnishes no ground for appeal. Tallman v. Hinman, 10 How. 89. As it is as important that the defendant should be informed where the trial will be had, or in what particular court, the summons should specify the place of trial. The name of the