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Mason agt. Jones and others.

Paige, Justice.—There is a difference in the phraseology of the Revised Statutes and the Code in relation to the service of notice of trial. The Revised Statutes declare that notice of trial shall be served at least fourteen days before the first day of the court, &c. (2 Rev. Stat. 410, $7). The Code provides that either party at least ten days before the court may give notice of trial (Code, $ 256). The Supreme Court in Small vs. Edrick (3 Wend. 137), decided that as the statute expressly excluded the first day of the court and the rules the day of service, there must be a notice of fourteen days exclusive of both these days. The rules were subsequently altered so as to allow the day of service of a notice of trial to be included in the computation.

The Code does not exclude the first day of the court from the computation. The notice of trial, by the Code, is to be given at least ten days before the court—not ten days before the first day of the court (10 Wend. 422). If, therefore, section 407 of the Code excludes from the computation of time, the day of the service of the notice of trial, the first day of the court may be included. Hence the notice of trial in this case, having been served on the 11th for the 21st of October, was served in time.

COURT OF APPEALS.

Mason, Appellart, agt. JONES AND OTHERS, Respondents. Where judgmeni is pronounced in open court, holden by eight judges, without

any dissent at the time, neither party can go behind such public act and attack the judgment on the ground of what may have taken place among the

judges in their private consultations. When a court has jurisdiction, its judgment is never void because it is errone

ous in point of law. It seems there is no doubt of the right of this court to order a judgment of affirm.

ance where there is an equal division of opinion among the judges. Besides, the Code of 1849 ($ 14, which is not unconstitutional), expressly authorizes it.

June Term, 1850.

J. J. RING, for the Appellant, moved to vacate the judgment of

Mason agt. Jones and others.

affirmance in this cause, which was rendered in May term 1849, and have the cause reheard.

D. LORD, for the Respondents, opposed the motion.

The ground of the motion is sufficiently stated in the opinion of the court, which was delivered by

BRONSON, Ch. J.—The appellant moves to vacate the judgment of affirmance which was rendered in May 1849, and have the cause reheard; and the motion rests on the allegation that the judges in their consultations out of court were equally divided in opinion—four being for the affirmance and four for the reversal of the decree—and in such a state of things, it is said, that no judgment could properly be rendered. The judgment was pronounced by a full court of eight judges, without any dissent at the time; and I am of opinion that neither party can go behind the public act of the court, and attack the judgment on the ground of what may have taken place among the judges in their private consultations. Whatever diversity of opinion there may have been among them in the conference room about either the law or the facts of the case, they all tacitly agreed that the judgment which was announced by the Chief Judge was the proper judgment to be rendered. If, in truth, there was an equal division of opinion among the judges in the conference room, and if a judgment of affirmance should not have been rendered in such a case, still the court thought otherwise and ordered such a judgment; and as there was no defect of jurisdiction, the error in point of law, could not affect the validity of the judgment. When a court has jurisdiction, its judgment is never void because it is erroneous in point of law

We are referred to cases where the courts have looked beyond the statute book, and inquired whether a supposed law had received the number of votes required by the constitution to give it validity (The People vs. Purdy, 2 Hill, 31; 4 id. 384, S. C.). But in that case the inquiry was concerning the public act of the members of the legislature in passing the law; and not about the private opinions, or what they may have thought or said on the subject when they were not acting in their legislative capacity

Mason agt. Jones and others.

Here, it is not denied that all of the judges concurred in the public act of ordering a judgment of affirmance; and there is no precedent for going behind the public act, and inquiring about the thoughts, declarations or opinions of the judges at another time.

It must not be inferred from what has been said, that I entertain a serious doubt about the right of the court to order a judgment of affirmance where there is an equal division of opinion among the judges. Whatever the rule may be in England, the Court of Errors in this state repeatedly rendered judgment of affirmance in such cases; and that course was expressly authorized by the legislature at the time this judgment was rendered (Code of 1849, § 14). However inexpedient it may have been to alter the rule as it had been established by the code of 1848 (14), I see no ground for saying that the act of 1849 was unconstitutional. It did no more than restore the common law as it had been previ

usly understood and acted on in this state. It was not a rule touching rights of property; but only a regulation of the course of judicial proceedings. We can not say that it was a law made for this particular case, which was then under advisement. The statute is general in its terms, applying alike to all cases under the like circumstances; and we can not inquire into the motive of the legislature in passing it, nor the influences which may have been exerted to procure the enactment.

We are all of opinion that the motion should be denied.
Motion denied.

6 How. 121-NOT CONCURRED IN, 5 How. 278, 279

Dyckman agt. McDonald and Decker.

SUPREME COURT.

DYCKMAN agt. McDonald and DECKER.

All litigated trials, are difficult or extraordinary. And within the meaning of

the Code ($308), a percentage should be allowed to the prevailing party. The application should be made when the cause is tried, or at least to the jus

tice who tried it, (There are various decisions upon this question. See 3d and 4th vols. Howard's

Pr. Rep.)

Dutchess Special Term, Nov. 1850. This cause was tried at the last September circuit held in Westchester county by Justice McCoun and the plaintiff recovered $250. Upon an affidavit showing that the cause was litigated and occupied two days in its trial, &c.; the plaintiff's counsel now moves for a per centage under the Code.

J. W. TOMPKINS, for Plaintiff.

C. Frost, for Defendants. BARCULO, Justice. The construction which I have always given to the 308th section of the Code differs in some respects from that put upon it by some of the other judges. The impossibility of adopting any uniform rule in determining what were “difficult or extraordinary cases,” if each case is made to stand upon its own peculiar circumstances; as well as the uncertainty and inconvenience which must attend applications of this kind, led me to an examination of the subject which resulted in the conclusion that the object of the legislature was to empower the court to allow a per centage in all cases of litigated trials.

This opinion is founded,

1. Upon the expressed intention of the commissioners as contained in pages 206–7 of their report. They there declare that the losing party “ought to pay the expense of the litigation.' and that the section in question is designed to furnish a “mode of indemnifying the successful party for his expenses in the suit.”

Dyckman agt. McDonald and Decker.

2. The intention of the commissioners is further manifested by the fact that the section as reported by them did not contain the words “difficult or extraordinary," but made the discretionary allowance depend upon a trial being had.

3. The specific allowances given by section 307 amount to the same sum on a simple inquest in an action upon a promissory zote, as if the defendant litigated the right to recover in a trial of two or three days and at a great expense to the parties. But, if the object of the Code is to indemnify the prevailing party for his expenses, then in the case supposed, an extra allowance should be made in consequence of the litigation.

4. The second subdivision of section 308, by permitting an allowance in partition and foreclosure suits, &c., although “not difficult or extraordinary,” shows that the discretionary power is conferred merely to enable the courts to indemnify the prevailing party for his expenses.

5. All litigated cases are difficult. There is no other reasonable definition which can be given to the word “ difficult” consistent with the objects of the statute. It seems to be supposed by some that the party who seeks an allowance must show that it was only by great exertions that he was enabled to obtain a verdict. Those who take this view seem not to be aware of the inconsistencies into which they are wandering. For if this is the kind of difficulty meant, then it is only necessary for a party to show that his claim was unfounded, or at least doubtful, and that by his skill and ingenuity, or by the smartness of his counsel he has performed the difficult task of obtaining a verdict contrary to law or evidence. This would establish a difficult as well as extraordinary case in the literal acceptation, but not, I apprehend, in the legal acceptation; for this would be punishing the defeated party because he resisted an unjust or doubtful claim, while it permitted him to resist a well founded demand with impunity. And thus it would happen that. the most difficult and most extraordinary cases would be precisely those in which the allowance would be most manifestly unjust. It would be a much more sensible construction to say, that, where the prevailing party has

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