페이지 이미지
PDF
ePub

Entered according to Act of Congress, in the year eighteen hundred and fortyone, by Wm. and A. Gould & Co. in the office of the Clerk of the Northern District of New York.

350660

PUBLISHERS' ADVERTISEMENT.

The Publishers have taken the liberty to prefix a miniature engraving of the Author, without his consent.

PRE FACE

TO THE FIRST EDITION

The nature and object of the following work needs no apology. The court of which it professes to treat, has had an uninterrupted existence in this state, under different titles, and with a jurisdiction more or less extensive, for nearly a century and a half. At one time, it took cognizance of various matters to the value of £100; but in 1782, it was limited to $25, at which it remained stationary, till the year 1818, when its jurisdiction, in this respect, was enlarged to $50, in matters litigated, and to $100, upon confession.(1) Long, however, as this court has existed, universal as the acquiescence has been in the necessity of its continuance and permanency, its jurisdiction, embracing a considerable portion of the litigation in a great and commercial state; nothing like a treatise on its power, duty and manner of proceeding, has yet made its appearance. It must be obvious to every man of reflection, that a work of this kind is not only important to every citizen, but essentially requisite to justices, officers and suitors of the court; and this, in a special manner, since the late extension of its jurisdiction. “Its decisions daily affect the important rights of citizens. That its proceedings should be correct, and its judgments wise and lawful, must certainly be the wish of every well disposed man. That courts of justice should be conducted without rule, and decide without established principles, is, of all speculations, the most wild and pernicious. To substitute, in the place of settled law, the whim,

(1) In 1824, the justices'act underwent a material modification; and in 1830, still further and more important alterations were made. In each of these revisions, the jurisdiction of the court was limited, in amount, to $50, in disputed causes, and to $250, on judgments by confession. In 1831, was passed the “Act to abolish imprisonment for debt, and to punish fraud. ulent debtors,” by which the forms of proceeding in justices' courts were materially changed. This last act is incorporated in the second edition of the revised statutes. By the act of 1840, entitled “ An act concerning justices' courts,” (copied at large in the Appendix, vid. post, 1113, 14, 15,) their jurisdiction is extended to $100, in litigated causes, leaving the amount at which justices are authorized to take and enter judgments by confession, the same as under the revision of 1830.

REVISER.

the caprice, the affection, the inclination, or what, nine times out of ten, is the same thing, the conscience of the judge, is to unhinge the long es. tablished rules of property, and to launch into a deceitful, fluctuating and dangerous sea, without a compass to steer our course, or a land-mark to guide our way. To a superficial observer, the forms of proceeding, and the rules of law observed in our courts of justice, appear futile and unmeaning; productive of delay, and the most ruinous procrastination; at the same time indulging a shameful and contemptible chicanery. But to a reflecting mind, well acquainted with the use and foundation of judicial proceedings, and principles of law, they appear indispensable guards, established for the security of property, and protection of personal rights. A generous, candid, honest mind, unacquainted with the refined arts of designing and unprincipled men, and not sufficiently apprized of the force of passion, affection, antipathies, and even sympathies, by which all men are more or less influenced, is very naturally led to believe, that, in case two men have a controversy, they have nothing more to do than to state their case to a third person, who, to all appearance, stands indifferent between them; and that he, governed by no rules but his innate sense of justice, is every way competent to judge their cause. But a man better acquainted with the human heart, possessing a knowledge of the world, and in the least degree conversant with judicial proceedings, will at once tell you, that there is no security in this tribunal ; that the bias and affections of the umpire will, in a large majority of cases, have an insensible influence on his mind, which nothing but the established rules of law can restrain ; that an artful, designing, insinuating party, will approach him under every possible guise, and by wicked and deceitful means, raise a specious and delusive equity, which the solid rules of justice will at once put down ; but which, operating on the mind of a man who finds himself acting under no rule, governed by his own inclination, affected by prejudice, wrought upon by friendship, or influenced by passion, will continually lead him into unintentional error. He who has never been called upon to decide questions of interest, in cases where his friend or his enemy is concerned, knows not the difficulty in separating the abstract justice of the case from the feeiings and affections of the heart. This is, however, more easily perceived and felt by the injured party.

In the organization of the courts constituted for the trial of small causes, the legislature have not authorized a departure from any known, established, legal principle of decision; but it has very much altered the manner of proceeding, requiring much less particularity and exactness, in this respect, than is required in the courts proceeding according to the course of the common law. Whether the justice, in conducting the bu

« 이전계속 »