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siness of his court, is to be governed by rules of practice, was a question for the legislature to decide. It has declared that he shall be governed by rules, and has, by several acts on the subject, marked out those rules with considerable exactness and precision. And the volumes of our cases upon certiorari, show the strictness by which he is tied down to the decisions of the common law. In many instances, his rules and course of practice, must be conformable to those usual in courts of record. It is obvious, then, that on the right understanding of the practice of those courts, and the principles of law by which they govern them. selves, in deciding controversies, so far as they apply here, must very much depend on the utility and public convenience of justices' courts; as also the security of property coming within their jurisdiction.
The continual errors which many justices run into, in their proceedings under the law which confers their civil jurisdiction, prove that they want an explanation of that law in their hands. (1) It is impossible that it should be otherwise. A law of such magnitude cannot carry every exposition on its breast. T'he very terms of art made use of, have called forth folios of explanation and comment, applicable to our higher tribunals ; and volumes have been written to explain and illustrate questions of not more difficulty than those which occur every day in justices' courts. Men of the first professional abilities do not agrec in every point ; much less are we to expect a uniformity of opinion from men unaccustomed to legal investigation. Such men, howeyer, are, in the contemplation of the legislature, to carry this law into effect. Lawyers obtain knowledge from books, and justices would be more than men, if they could acquire it in any other way."(2)
" I certainly shall not presume,” says that great luminary of our jurisprudence, the present Chancellor of this state,(3) “ to strike out any new path, with visionary schemes of innovation and improvement; via antiqua via est tuta. It would, no doubt, be, at times, very convenient, and perhaps a cover for ignorance, or indolence, or prejudice, to disregard all English decisions as of no authority, and to set up as a standard my own notions of right and wrong. But I can do no such thing. I am called to the severer and more humble duty of laborious examination and study.
(1) Sir William Blackstone, in his excellent Commentaries on the Laws of England, vol. 1, p. 11, remarks : “Should a judge, in the most subordinate jurisdiction, be deficient in the knowledge of the law, it would reflect infinite contempt upon himself, and disgrace upon those who employ him."
Reviser. (2) Most of the above observations, marked as quoted, are either suggested by, or taken derbatim, from the preface to Judge Pennington's excellent treatise on the justices courts of New Jersey. I have therefore added a quotation for the whole.
(3) James Kent, who was succeeded in 323, by Nathan Sanford.
It was Lord Bacon, who laid it down as the duty of a judge, to draw his learning from books, and not from his own head." (4)
When I consider the perpetual doubts and embarrassments which perplex and harrass the greater number of justices, while engaged in discharging the useful and laborious duties imposed upon them by the laws of this state; the importance of any effort which shall tend, in the least, to render their path, in this respect, more plain and easy, will, I am confident, be duly appreciated by those gentlemen.(5) For their use, and the use of those officers who serve their process, and persons who may be suitors in their courts, are the following pages primarily intended. In a work of such a variety and extent, a reference to the authorities from which the matter is collected, was found essential for my own conduct in travelling through so large a field of investigation. To render these references, at the same time, of as much utility as possible, I have, where it was practicable, referred to such approved elementary treatises as contain quotations of the original reports, or other authorities establishing the principles advanced. I have then brought down each particular head, by a direct reference to such late English and American reporters, as are not noticed in the elementary treatise quoted; or rather, such cases given by those reporters as I thought of any practical use to the magistrate. As a majority of the law libraries in the state are probably composed, principally, and many of them, almost exclusively, of these elementary works, a greater number of justices will thereby be enabled to avail themselves of the known liberality of their neighbors of the profession, by examining the books thus referred to, in order to obtain, where necessary, still more ample instruction upon the point before them. By endeavoring thus to trace the principle advanced as ncar as possible to its original source, it will enable them to supply defects and correct those errors which may have intervened in the following treatise. To facilitate such researches, when they have the means in their power, I have prefixed an "explanation of abbreviations used in references to English law books, fc., published in CLARKE's Bibliotheca Legum-London, 1819, (6) adding thereto an explanation of abbreviations used in rcferences to American law books, in the course of the work.
(4) 1 John. Ch. Rep. 530.
(5) I have observed, for a few years past, while attending the snpreme court at Albany, that a considerable share, and in several instances, I think, a majority of the causes which have occupied the large calendar of that court, at their January and August terms, are brought there by certiorari from justices' courts.
(6) This table has been much enlarged, by inserting all the references to English law books contained in the present edition, many of which have been published since the first edition of the treatise.
In exemplifying any principle advanced, I have generally pursued the more usual course of authors, by giving a brief outline of the facts conlained in the case itself, as reported, or stated, in the author referred to. To this remark, there will, however, be found many exceptions. And where I supposed the case so complicated and techical as to confound the general reader, I have usually dismissed it once, and drawn the illustration directly from common life.
I cannot but persuade myself, that this book will also be found useful to the man of business, as well as the justice; and this, not only on account of the iustruction it contains concerning the structure and mode of enforcing most of the contracts in civil life; but because a very great proportion of his credits are many times the subject of collection in a justice's court. Besides, his extensive commercial intercourse with mankind, frequently leads to controversies, which are to be litigated there. And as professional assistance is sometimes obtained with great difficulty, and is always burthensome to the suitor, in a court where no compensation therefor can be taxed against the party in the wrong, prudence would seem to dictate some preparation to manage his causes in person. Indeed, his rights would often be materially impaired, perhaps lost entirely, by a neglect of this duty.
A judge, who ranks among the first for learning and judicial experience of any in the state, not to say in the United States, on looking over those pages of the work devoted to general law, gave it a still higher character; and was pleased to remark, in his note to the bookseller, that he also thought it a book of reference highly valuable to his brethren of the profession. He probably founded his opinion upon the numerous quotations which he observed, made from the late English and American reporters, not brought down to this time by other books of reference. Should the sphere of its usefulness be thus enlarged, beyond the author's primary design, it will be peculiarly gratifying to his feelings. The work will then be in the hands of a class of gentlemen fully competent to appreciate the difficulty and labor of its execution, and who will look with an indulgent eye upon those errors, which he cannot pretend to have entirely avoided. Should it answer the elevated purpose of facilitating research in the useful, and, as Edmund Burke justly styles it, “NOBLEST” of professions, that of our country's laws; besides gratifying that ambition to be useful to his fellow citizens, which the author acknowledges to have felt, the being tributary to such an end, will, at the same time, accord with those feelings of respect and confidence which he is proud to avow, towards the enlightened and liberal members of the AMERICAN BAR. Saratoga Springs, June 30th, 1821.
TO THE SECOND EDITION.
The following revision of “ Cowen's Treatise” was commenced in 1837. It was undertaken with reluctance, and its prosecution has been attended by many embarrassments. It is unnecessary to obtrude upon the public, a detail of the difficulties which the reviser has encountered in the progress of his work; it is sufficient to remark, that constant and arduous professional engagements have had no slight effect in retarding the preparation and publication of the following pages.
It is proper to state, by way of justifying what may appear to be a serious fault, that the printing of this edition was commenced at an early period, and has progressed from time to time, to suit the convenience of the publishers, and as fast as the preparation of manuscript would permit. Owing to this fact, it has been impossible to make the treatise conform, in all respects, to the existing statutes, many of which were enacted after a considerable portion of the work was printed. In some instances, when it could well be done, these have been noticed in subsequent parts of the book. The acts of 1840, are inserted at length in the appendix, with references to previous pages. Vid. post, pp. 1113 to 1116. The appendix is also made, in some measure, to supply the place of an errata, by correcting such mistakes (other than typographical,) as have come under the observation of the reviser. In addition to this, the plan adopted in the first edition, has been pursued, of inserting in the appendix such cases, &c. as were omitted in the body of the work; and by noticing such additional cases as have been reported since those parts of the volume to which they relate were put to press.
The reviser has endeavored to adhere closely to the original plan or arrangement of the treatise, and has in no case departed from it, except when such departure was deemed unavoidable. The principal object of the revision has been, to adapt the treatise to the provisions of the revised statutes, and to the subsequent acts of the legislature affecting