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TITLE XIV.

Provisions relating to Existing Suits.

Section 456. Appeal from an order at special term, on summary application, after

judgment. 457. Writ of error in all cases abolished. Appeal substituted. 458. Execution, when issuable on a judgment docketed before July 1,

1848. 459. Existing suits.-Extraordinary terms. 460. Appeals from final decrees, by a single judge, in supreme court, in

suits in equity pending on July 1, 1847, when to be taken. 461. Issues of fact in county court or common pleas before July 1, 1848.

how tried.

$ 456. Appeal from order at a special term, on summary application after judgment.

The appeal mentioned in section 9, of the act to facilitate the determination of existing suits in the courts of this state, may also be taken from an order made at a special term, on a summary application in an action after judgment, when such order involves the merits of the application, or some part thereof.

$ 457. Writ of error in all cases abolished. Appeal substituted.

No writ of error shall be hereafter issued in any case whatever. Wherever a right now exists to have a review of a judgment rendered, or order or decree made, before the first day of July, 1848, such review can only be had upon an appeal taken in the manner provided by this act; and all appeals heretofore taken from such judgments, orders, or decrees, under the provisions of the code of procedure, which are still pending in an appellate court, and not dismissed, shall be valid and effectual. But this section shall not extend the right of review to any case or question to which it does not now ex. tend, nor the time for appealing, nor shall it apply to a case where a writ of error has been already issued.

a. Section 457 of the code of 1848, authorizes a review only in cases where the judgment, decree, or order, appealed from, was entered before the code was passed, and where a right of review existed by the previous law. Dunlop v. Edwards, 3 Code Rep., 197.

b. A writ of error will not lie to review in the court of appeals a decision of the supreme court, made at special term, awarding a peremptory mandamus. People v. Steele, 1 Code Rep., 88.

§ 458. Execution, when issuable on a judgment docketed before July 1, 1848.

An execution may be issued without leave of the court upon a judgment docketed before the first day of July, 1848, or now or hereafter to be rendered in an action pending on that day, at any time within five years after the rendering of the judgment.

See sections 283, 284.

$ 459. (Amended, 1851.) Application of this act to actions pending.-Ectraordinary terms.

The provisions of this act apply to future proceedings in actions or suits heretofore commenced and now pending, as follows:

1. If there have been no pleading therein, to the pleadings and all subsequent proceedings :

2. When there is an issue of law or of fact, or any other question of fact to be tried, to the trial and all subsequent proceedings:

3. After a judgment or order, to the proceedings to enforce, vacate, modify, or reverse it, including the costs of an appeal. Whenever the judges of the supreme court in any district find that the court at any term or circuit, has not been, or will not be able to dispose of all the cases upon the calendar, they may request the governor to assign other judges, and if necessary, appoint extraordinary terms and circuits, for the purpose of disposing of such cases. The governor may thereupon make such assignment, and the judges assigned must hold the courts accordingly.

c. Before amendment this section was as follows: The proceeding by re-hearing, provided for in the act in relation to the judiciary, passed May 12, 1847, and modified in sections 7 and 8 of the act to facilitate the determination of existing suits in the courts of this State, passed April 12, 1848, is hereby abrogated, so far as it relates to the appeals provided for in this section,

§ 460. (Amended, 1851-1852.) Appeal from certain final decrees allowed.

An appeal may be taken from any final decree entered upon the direction of a single judge, in any suit in equity pending in the supreme court on the first day of July, one thousand eight hundred and forty-seven, “ at any time before the first day of November, one thousand eight hundred and fifty-two. But this section shall not apply to cases where a rehearing has already been had or ordered, or to the case of a decree entered before the passage of this act, and to review which no attempt in good faith bas been or shall have been made within thirty days after notice of the entry of such decree.” Such appeal shall be taken in the manner provided in sections three hundred and twenty-seven and three hundred and forty-eight.

a. The part within inverted commas, was substituted by the amendment of 1851 for these words: “ Within ninety days from the time this act shall take effect; but this section shall not apply to cases where a re-hearing has already been had or ordered, and."

6. The amendment of 1852 was to extend the time for appeal, from 1st Novem. ber, 1851, to 1st November, 1852.

c. This section is not unconstitutional, it is merely a provision extending the time for bringing an appeal. It affects the remedy only. Burch v. Newbury, 4 Pr. Po, 145.

d. No suit in equity was pending in the supreme court, on “the first day of July, 1847," nor until the first Monday in July (5th July, 1847). Const., art. XIV. s. 6. But it is undoubtedly the intention of the legislature, by this section, to restore the rights to a rehearing in suits in equity pending on the first Monday in July, 1847, where it has been lost; and this section is to be construed as applicable to all suits in equity pending in the supreme court on the first Monday (the 5th) in July, 1847. 16. And see Mason v. Jones, 1 Code Rep., N. S., 335.

e. In an equity suit commenced before the code took effect, the mode of reviewing a decision of a single judge is by an appeal and not by a rehearing. Gilchrist v. Sterenson, 7 Pr. R, 273.

§ 461. Issue of fact in county court how tried.

An issue of fact joined in a county court, or court of common pleas, before the first day of July, one thousand eight hundred and forty-eight, or then pending in that court on appeal, shall be tried by a jury, unless the parties otherwise agree.

TITLE XV.*

General Provisions.

SECTION 462. Definition of "real property."

463. Definition of “personal property."
464. Definition of "property."
465. Definition of " district."
466. Definition of “clerk.”
467. Rule of strict construction of statutes inapplicable to this act.
462. Statutory provisions inconsistent with this act, repealed.
469. Rules and practice inconsistent with this act, abrogated,
470. Judges to make general rules.
471. This act not to affect certain proceedings and statutory provisions.
472. Certain parts of revised and other statutes not repealed.
473. This act, when to take effect.

$ 462. [383.] Definition of "real property.

The words “real property,” as used in this act, are co-extensive with lands, tenements, and hereditaments.

$ 463. [384.] Definition of "personal property.

The words "personal property,” as used in this act, include money, goods, chattels, things in action, and evidences of debt.

a. " Where there is nothing in the particular provision to show that the words personal property have a different meaning, section 463 no doubt extends them to include things in action. But it is equally plain that there are particular provisions which preclude those words in the section relative to executions from embracing things in action." Ransom v. Miner, I Code Rep. N. S., 98.

b. A claim for services rendered is not personal property within the meaning of this section. The People v. Hulbert, 1 Code Rep. N. S., 75.

$ 464. [385.] Definition of "property."

The words “property," as used in this act, includes property real and personal.

$ 465. [386.] Definition of " district."

The word “ district,” as used in this act, signifies judicial district, except when otherwise specified.

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*c.“ The definitions made in title xv. are necessarily general in their character, and are controlled by specific provisions limiting or enlarging them, whenever they occur in the same statute.” Ransom v. Miner, i Code Rep. N. S., 98.

$ 466. [387.] Definition of clerk.

The word “clerk," as used in this act, signifies the clerk of the court where the action is pending, and in the supreme court, the clerk in the county mentioned in the title of the complaint, or in another county to which the court may have changed the place of trial, unless otherwise specified.

a. An official statute certificate, signed by a deputy clerk without stating that the clerk was absent, held sufficient. 4 Pr. R., 353.

See note to section 312, and Andrews v. Durant, 6 Pr. R., 191.

$ 467. Rule of strict construction of statutes inapplicable to this act.

The rule of common law, that statutes in derogation of that law are to be strictly construed, has no application to this act.

§ 468. [388.] (Amended 1849.) Statutory provisions inconsistent with this act repealed.

All statutory provisions inconsistent with this act, are repealed; but this repeal shall not revive a statute or law which may have been repealed or abolished by the provisions hereby repealed. And all rights of action given or secured by exist ing laws, may be prosecuted in the manner provided by this act. If a case shall arise in which an action for the enforcement or protection of a right, or the redress or prevention of a wrong, cannot be had under this act, the practice heretofore in use may be adopted so far as may be necessary to prevent a failure of justice.

b. This section is identical with section 388 in the code of 1848, and it was decided that it preserved the right to a creditor's bill given by the revised statutes ? R. S., 3d ed., 234, s. 62, et seq.) in cases where an execution had been issued and returned unsatisfied, prior to the code. Quick v. Keeler, 2 Sand. S.C. R., 231; Dar ham v. Nicholson, 2 ib., 636. It has also been held that this section gives the right to proceed by summons and complaint for an admeasurement of dower. Townsend v. Townsend, 2 Sand. S. C. R., 713. Aud in like manner for partition of lands. See note to section 448. Also, in like manner, to pursue the remedy of a creditor's suit. See note to section 71.

c. The judiciary act of 1847, when applied to appeals depending on the 1st of July, 1848, is not so inconsistent with any thing in the code as to come within the repealing section. Per Bronson, Ch. J., Butler v. Miller, 3 Pr. R., 339. The codemakers did not intend to take away any right which had already attached under the old law, but only to change the law for the future. Ib.

d. This section was inserted in the former code in the same language as it is ia the present one. It was not intended to provide for a case in which a difficulty might arise out of the repeal of a provision in a former code, for it was an enactment contained in the former code itself; but it was a wise provision made by the legislature, lest, in the radical change introduced by a new and untried system, that system might be found not adapted to all exigencies, and might leave some cases without the appra

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