pronounced in the first instance, and afterwards duly recorded and enforced. An important class remains however to be noticed, who, though exercising no ministerial functions, are yet so far officers of the court, in that they were originally appointed by its authority, and remain subject to its control, and also, in certain cases, must exercise their functions without remuneration, under its special direction. See 2 R. S. 444, and 445, in relation to suits in formâ pauperis. The class alluded to is that of counsel and attorneys, by whom the proceedings in any court whatsoever are usually conducted, from their outset to their final termination.

The duties and responsibilities of these quasi officers, the privileges they enjoy, the disabilities under which they labor, and the mode in which any misconduct on their part may be provided against, or punished, remain entirely unaltered by the Code, and are governed in all respects by the old practice; to the treatises on which, and also to the different provisions on these subjects in the revised statutes, the reader is accordingly referred, in accordance with the plan prescribed at the outset of the work. The only points in which the law on the subject is at all affected by the recent measures are, first in relation to the original appointment of these parties, and secondly, by the total repeal of all legislative provisions, and of the former powers of the court to control and prevent abuse in the pecuniary arrangements between them and their clients, effected by sec. 303, of the Code. See, however, this subject hereafter considered in connection with this last provision, and the case of Barry v. Whitney, 3 Sandf. S. C. R. 696; 1 C. R. (N. S.) 101, there cited.

The offices of attorney and counsel, separated in England by rigid and impassable barriers, are, in this state, not merely compatible, but universally exercised in conjunction with each other, all the former restrictions upon and prerequisites to the appointment to those offices, being at once and for ever swept away by sec. 8 of act. 6 of the present constitution, which provides as follows:

"Any male citizen of the age of twenty-one years, of good moral character, and who possesses the requisite qualifications. of learning and ability, is entitled to admission to practice in all the courts of the State;" the spirit of which provision has

since been fully carried out in detail, first by the judiciary act, and ultimately by Rules 1 and 2 of the supreme court, by which the practice on admissions is now governed, and to which accordingly the reader is referred upon the subject. That an absolute compliance with these rules in every respect is necessary in all cases, was decided in Re Brewer, 3 How. 169.

In the amended judiciary act however, (c. 470 of Laws of 1847,) a provision is inserted, sec. 46, which has given rise to considerable and doubtful discussion. The provision in question is as follows:

"Any person of good moral character, although not admitted as an attorney, may manage, prosecute, or defend a suit for any other person, provided he is specially authorized for that purpose by the party for whom he appears, in writing, or by personal nomination in open court."

An important question has been raised as to the constitutionality of this provision, although, even in the strictest view that can be taken, it confers no general license to practice on the part of the person claiming to act under it; but is, on the contrary, a mere special and limited authority, confined to the individual case for which a special nomination is made, and to that case alone and a series of decisions have been pronounced on the subject, holding it to be unconstitutional. The first of these is Bullard v. Van Tassel, 3 How. 402, followed up by Weare v. Slocum, 1. C. R. 105; 3 How. 397, (although, in that case the question as to a personal retainer does not seem to have been raised,) and lastly by McKoan v. Devries, 3 Barb. S. C. R., 196; 1. C. R. 6. The latter may be looked upon as the leading case on the subject, and in it the doctrine of unconstitutionality by implication is pushed to its utmost limits, in direct opposition to the principles laid down in Beecher v. Allen, 5 Barb. S. C. R. 169; that courts of law ought not rashly to presume that the legislature has transcended its powers, but that the presumption lies the other way, in all cases where any reasonable doubt is admissible. It appears also by a note, 1 C. R. 106, that in another district, Sill, J., refused to be bound by the decision in McKoan v. Devries, and allowed a party not an attorney, to appear for another, on his due compliance with the requisites imposed by the provision in question.

Two branches of the supreme court are thus in direct conflict

on the subject of the above provision, and it seems a matter to be regretted that the particular question has not yet been set at comparative rest by the decision of a general term.

The point as to whether parties may or may not act wisely in availing themselves of the facilities hereby granted, is entirely beside the question. Any right of whatever nature, constitutionally given by the legislature in the regular exercise of its powers, cannot constitutionally be taken away by any subordinate authority on any forced construction, or on any considerations as to its convenience or inconvenience. The legislature, in the ordinary exercise of those powers, have passed the enactment in question such as it is, that enactment being, moreover, one calculated rather to extend than to abridge the general liberties of the citizen; and, if that enactment can by any construction be carried into effect, without a direct and positive violation of the constitution, the courts, it may well be contended, are bound to give it that effect, whatever may be their own views on the subject; and certainly the general doctrines as to constitutionality or unconstitutionality as laid down in Beecher v. Allen, seem, when examined, preferable to those maintained in McKoan v. Devries, and the other cases to the same effect, the former being moreover a decision of the general and the others of the special term.

CHAPTER II.

OF THE DIFFERENT COURTS OF JUSTICE WITHIN THE STATE OF NEW YORK.

IN section 9 of the Code, a list is given of the different tribunals within the state, and in the following section the then present jurisdiction of those tribunals is saved in all cases, except as otherwise prescribed by that Act.

The list in question is as follows:

1. The court for the trial of impeachments. 2. The court of appeals.

3. The supreme court.

4. The circuit courts.

5. The courts of oyer and terminer.

6. The county courts.

7. The courts of sessions.

8. The courts of special sessions.

9. The surrogates' courts.

10. The courts of justices of the peace.

11. The superior court of the city of New-York.

12. The court of common pleas for the city and county of New-York.

13. The mayors' courts of cities.

14. The recorders' courts of cities.

15. The marine court of the city of New-York.

16. The justices' courts in the city of New-York.

17. The justices' courts of cities.

18. The police courts.

It will of course be observed, that, valuable as an official list of the different courts of justice unquestionably is, still, as regards the operation of the Code itself, that list is in part irrelevant, many of the tribunals enumerated being neither directly nor indirectly affected by its provisions. Those provisions relate simply and solely to civil, and trench in no manner upon the limits of either criminal or police jurisdiction; and therefore the proceedings in Nos. 1, 5, 7, 8, and 18, which courts fall exclusively within one or the other of the latter categories, are entirely without their scope.

The Surrogate's courts, (No. 9,) being tribunals exercising special statutory jurisdiction, are likewise in no manner affected by the recent changes. Proceedings in them, and the review of those proceedings are, on the contrary, exclusively and entirely governed by the provisions of the Revised Statutes.

The marine and justice's courts also, Nos. 15, 16, and 17, though their jurisdiction is defined by the Code, and the general course of practice in them laid down by title VI. of part I. of that measure, are likewise mainly governed by other statutory provisions. The course of proceedings in those courts is essentially different in all its main features from that pursued in those of higher jurisdiction, and remains substantially the same as heretofore. No attempt has accordingly been made by the author to enter into the full details of their practice, his ob

servations on the subject being confined to a mere reference to the enactments of the Code as regards the tribunals in question, and a citation of the different reported cases which bear upon the appellate jurisdiction of the higher courts in relation to the review of their decisions. To have attempted more than this, would have involved the composition of a separate and independent treatise, upon a subject unconnected with the general operation of the Code, and one moreover already separately dealt with by others.

Before proceeding to the detailed consideration of the jurisdiction and functions of the different tribunals comprised in the foregoing list, another subject seems to require at least a cursory notice, though in strictness of a collateral nature; that subject being the exclusive or concurrent jurisdiction of the federal courts in certain cases.

To enter into any lengthened discussion upon the limits and exercise of that jurisdiction, would be, of course, beyond the limits of the present work; while, on the other hand, to omit all reference to it might lead to serious inconvenience. The better course appears to be to give a slight sketch of its extent and boundaries, and then to leave the matter open for the further researches of the student, merely indicating the sources through which those researches may best be prosecuted.

He cannot take a better guide for this purpose than the first volume of the invaluable commentaries of Chancellor Kent, part II. consulting, in particular, Lectures XIV. to XIX. inclusive, with the different statutory provisions and authorities there cited. The summary contained in the first volume of Conkling's treatise will also be found succinct and trustworthy. An attentive perusal of these two works, will be sufficient to give a good general idea upon the subject, and to suggest the further course of reading by which its details may be fully mastered.

Without pretending therefore, to give more than a mere sketch of the jurisdiction in question, that jurisdiction may be defined as threefold

1. The original and exclusive,

2. The concurrent,

3. The appellate authority possessed by the courts referred to, within the limits of the state sovereignties, and which authorities are exercisable, the two former by the district and circuit, and the latter by the supreme court of the United States.