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vent; so that the judgment shall be a bar to a subsequent suit, in conformity to the decisions of the supreme court. 2 J. R. 181 and 191; 11 do. 457; 10 do. 365; 16 do. 136."
[S 120, 121, 122. Same as $ 121, 122, 123 R. S.]
Original note to $ 120. “New in form;" $ 121. “See 12 J. R. 434, as to the execution in this case;" 122. “The law on this subject seems rather unsettled; vide 16 J. R. 66; 6 Cowen, 697. The better opinion probably is, that the defendant not brought in, may contest the judgment; but this throws upon him a very onerous burthen of proving a negative. The above section seems calculated to prevent fraudulent combinations, and to give to a plaintiff all he ought to require.”
$ 123 as reported; materially varied in $ 124 R. S.
Original note. “A part of this section taken from $ 3, act of 1824, and implied in other sections. 'The latter part is conformable to the decision in 15 J. R. 119."
(S 124. Same as $ 125 R. S. except that the words “by an instrument in writing, to be filed with the justice," after “excess," were stricken out by the legislature.]
Original note. “New in terms. See 12 John. 435, which confines the rule to actions sounding in damages. But no objection is perceived to allowing
the plaintiff to give up his demand, or any part of it, in any case. The release will be a bar to any other suit.”
“ARTICLE IX.- Of executions ; of sales thereon, and of imprisonment." [S 129, 130. Same as $ 130, 131 R. S. except that the words "on a judgment for more than ten dollars, exclusive of costs,” after “male person,” in § 130, were stricken out by the legislature.]
Original note to $ 130. “Ş 14. Italics, "the person against whom the execution shall be issued,' new. The present act, by its literal construction, authorizes the taking of the body of the defendant, in cases where sufficient goods and chattels can not be found; even when the execution may have issued against the plaintiff. It is proposed that hereafter no person should be subject to imprisonment for a debt of less than ten dollars. Reasons for the proposition, it is supposed cannot be required by a legislature acquainted with the actual state of things."
(S 131. Same as 133 R. S.] Original note. “Implied in § 14; except as to proof, which is new. It seems necessary, in order to protect the justice. Vide 2 J. C. 49."
(S 135. Same as enacted § 136 R. S. except that the words “until the regular time,” were added by the legislature.]
Original note. “The time for giving security extended, so as to enable a defendant to know the amount of the judgment, and have some little opportunity to obtain his sureties. Collisions must often happen, where there are contending applications, and difficulties must arise, which this provision will probably prevent.”
[S 136. Same as 5 137 R. S. except that the words “or at the time of rendering a judgment, which does not exceed twenty-five dollars,” were inserted by the legislature; and except also that the words “or if the
* $ 137, 138, 189 R. S. repealed by act of 1830, chap. 300, $ 41; and § 151 of this edition, inserted in Article from act of 1831, chap. 24.
judgment cxceed ten dollars, exclusive of costs," before that he will remain,” &c. were stricken out by them.] Original note. “Varied according to the previous section, which exonerates from imprisonment for sums less than ten dollars."
(S 138, 139, 140, 141. Same as $ 139, 140, 141, 142 R. S., except that the words “who did not appear in the suit," in 141 R. S., and "appearing or served with process,” in § 142 R. S., were inserted by the legislature.]
Original note. “The latter part of § 138 introduced to remove a doubt noticed in Cowen's Treatise, 649. 141 varied so as to express the supposed intent of the statute. 2 J. R. 88.”
[S 142, 143. Same as ♡ 144, 145 R. S.] Original note to $143. "Effect of renewal declared."
(S 144. Same as $ 146 R. S., except that the following concluding words were stricken out by the legislature: “within three months after such return, but not after.”] Original note. “14, qualified and limited, so as to express the supposed intent, and to guard defendants against dormant judgments.”
(S 145. Same as $ 158 R. S., except that the following concluding words were stricken out by the legislature: "nor shall any person be imprisoned upon any judgment recovered in a justices' court, which shall not exceed ten dollars, exclusive of costs.”] Original note. “varied so as to confine imprisonment to executions for more than ten dollars."
[S 146 to 153. Same as 148 to 156 R. S.] Original note to $ 149 R. S. “Varied. See 14 J. R. 352."
[S 154. Same as $ 157 R. S.] Original note. "Italics, such affidavit, or a copy thereof, duly certified by the clerk of the county, under the seal of the court of common pleas,' new; and supposed to be the spirit of the present act."
(S 156. Same as $ 159 R. S., except that the words “within five days after the return day thereof,” were substituted by the legislature for "within the time required by law,” as reported.] Original note. “Laws of 1824, 17, p. 289, the part concerning interest new, to supply an omission noticed in 14 J. R. 255."
[S 157, 158, 159, 160. Same as Ş 160, 161, 162, 163 R. S.]
Original note to $ 158; “modified;" to $ 160. “New. Conformable in principle to the case in 20 J. R. 74, that money must have been collected. The form of suit, in the name of the party, is proposed to avoid the difficulty which existed in that case, and others which always must exist. If the action be in the name of the people, provision should be made for the costs, in case of the plaintiff's failing, and to prevent a judgment from being a bar to future suits, &c. The provision proposed seemed the simplest and most effectual.”
(S 161, 162. Same as ļ 164, 165 R. S.]
Original note to $ 162. "The present act stays the execution, ‘until the expiration of the time limited in the original bond, or if no bond be filed, until ninety days after the rendering of the judgment.' $ 21, last clause. But by § 14, the bond stayed the execution only for ninety days; so that, in truth, the execution cannot be issued in any case by the clerk, until after that time."
$ 163. Same as $ 166 R. S.] Original note. “New; conformable in principle to the decision in 2 Cowen, 508.”
[S 164, 165, 166. Same as enacted Ş 167, 168, 169 R. S., except that in the last s the words and six spoons,” were inserted by the legislature; and except also that subdivision 4 was reported as follows: “4. All sheep to the number of ten, with their fleeces, and the yarn or cloth manufactured from the same; one cow, two swine, the necessary food for them, and the pork of such swine.”] Original note. “Extended; conformable to 9, Title 3, Art. 5, chap. 6, Part 2, R. S.” "ARTICLE X— Of the removal of causes to the supreme court."—[Article 10 R. S., entitled "
"Or the removal of causes to the court of common pleas, by certiorari,” was adopted by the legislature, instead of the Article as reported.]
“ARTICLE XI.— Of appeals to the courts of common pleas." [S 184. Same as $ 186 R. S., except that the words "where the recovery shall exceed twenty-five dollars, exclusive of costs,” were inserted by the legislature, and except also that subdivision 3 was reported as follows, but not enacted: “3. Where it was rendered after the defendant had appeared in the suit, in person or by attorney, and refused to join in any issue, either of law or fact."] Original note to sub. 1. “5 Cowen, 19; ib. 285;" to sub. 2, “6 do. 44;" to sub. 3, "new; intended to provide for a case where certiorari seems to be the remedy at present. Vide note $ 168, Article tenth."
[S 186, 187. Same as $ 187, 188 R. S., except that in $ 187, subdivision 2 was reported as follows: “2. That by reason of unavoidable accident, any witness or testimony, material to the controversy, could not be produced on the trial before the justice; or."] Original note. “New. These sections are respectfully proposed to check the evil of appeals, and yet to provide for those cases where it is supposed an appeal should lie.”
(S 188. Same as $189 R. S., except that subdivision 1 was reported as follows: “1. It shall be in a penalty at least double the amount of the debt or damages, and costs recovered, or if there be no debt or damages recovered, then in the penalty of one hundred dollars:" (1) and except also that in subdivision 3, the following concluding words were reported after “before the justice," instead of those enacted: “and in case of his failure to pay either of the said judgments, in the cases specified, that he will surrender his body in execution of such judgment."(3)
Original note. [The figures (1) (2) (3) (4) refer to the subdivisions.] “This section is an effort to express the meaning of $ 36, p. 295, as it has been expounded by the courts, with some modifications. (1) 5 Cowen, 27, and so modified as to prevent the difficulty often arising about costs. (2) 6 Cowen, 585; 5 do. 286. (3). This is an attempt to express the meaning of the act, as the court expounded it in 4 Cowen, 63, and is extended to the case of dismissal of an appeal, as equally within the reason. (4) 5 Cowen, 35, and apparently contrary to 7 Cowen, 428."
[S 189 to 200. Same as $ 190 to 201 R. S.] Original note to § 189. “Varied so as to have the payment made to the justice; 193 extended and made more definite; Ø 195 new, to enable a party to expedite the cause;" to $ 200,"part of 38. The latter clause new, to provide for a difficulty of frequent occurrence, which arises from
the want of any fixed rule as to the length of time the return must have been filed.”
[S 201, 202. Same as $ 202, 203 R. S., except that the words “specifying the grounds of such motion,” were inserted by the legislature.] Original note to s 201. “New;" to $ 202, "new. By requiring a notice of motion to dismiss, the parties will often be saved the preparations for trial, in many cases; and by requiring the motion to be made at the first time, a long train of evils, which will be perceived by a reference to 6 Cowen, 593, will be prevented.”
(S 203. Same as 5 204 R. S. except that the words “ or if another sufficient bond, to be approved by the court, shall be filed,” were inserted by the legislature.]
Original note. “New. To prevent the numerous cavils about bonds, which too often entirely defeat justice. The Reports are full of cases on applications to amend.”
(S 204. Same as $ 205 R. S. except that the words “nor upon any other ground than such as shall have been expressed in the notice," were inserted by the legislature.] Original note. “New. The necessity of the provision will be seen by a case in 6 Cowen, 593, and various others, where an appeal has been defeated on such frivolous exceptions."
(S 205, reported as “new,” with references to 5 Cowen 416, 6 Cowen 592, and same as enacted, except that it merely allowed “the costs attending the motion only.”]
IS 207. Same as 5 208 R. S] Original note. “New and declaratory." (S 210, 211. Same as § 212, 213 R. S.] Original note to § 211. “ The three last sections are new, and are deemed essential to supply an obvious defect in the existing law, which gives the right of appeal on an issue of law, (vide 5 Cowen, 285 ; ib. 19,) but makes no provision for amendments, or for forming an issue of fact, in the different cases."
$ 212. Same as $ 214 R. S.] Original note. “Ş 38 modified, so as to allow the court to correct the error of the justice, in the cases stated.”
S 216 as reported; enacted $ 218 R. S. with material alterations.
Original notc. “39 and 41, p. 296, varied by proposing a rule to ascertain the cases in which costs shall be allowed, instead of leaving it, in any case, to the discretion of the court. It is believed that more difficulty arises in deciding where costs are proper, than in determining the merits of the case.”
[S 218. Same as $ 220 R. S.] Original note. “New ; demand necessary to prevent confusion in rendering a judgment for both parties, and awarding executions to each. The above section is in conformity to the practice of the supreme court, 8 J. R. 357."
[S 219, 220. Same as ♡ 221, 222 R. S. except that the words in the latter section, after “rendered,” were added by the legislature.] Original note. “ Varied, so as to require execution promptly, for the protection of the sureties in the appeal bond.”
[S 221, 222. Same as $ 223, 224 R. S.] Original note to 222. “New; to carry out the provisions respecting the effect of a dismissal or discontinuance, and to remove the embarrassments which arise under the present law.”
(S 223. Same as $225 R. S. except that the following clause was omitted by the legislature : "and in every such action, the defendants may show in bar thereof, that the appellant surrendered himself to the custody of the sheriff of the county, in exoneration of his sureties, and give notice thereof to the respondent, within thirty days after the term, when judgment was rendered against him, or when his appeal was dismissed or discontinued.”
Original note. “The first part of the above section is taken from $ 39, extended to the cases of dismissal and discontinuance. The latter part is new, and seems necessary, in order to conform to the condition of the bond, (vide 4 Cowen, 63,) and to render the law on this subject precise and certain."
[S 224, 225. Same as $ 226, 227 R. S.] Original note. “The words in , 225, following into effect,' new."
“ Article XIII.— General provisions concerning justices courts, and proceedings therein."
[S 229. Same as 5 231 R. S. except that “ New York, was stricken out, and the words after“ thereto,” added by the legislature.] Original note. “The acts creating special justices' courts in the cities specified, adopt more or less the provisions of the act concerning courts held by justices of the peace. So far as changes have been made, in this Title, they are equally applicable to courts in cities.''
[S 230. Same as 232 R. S.] Original note. “$ 1, p. 280, as to signing; the other part of the section new. No reason is perceived for retaining a seal in any case.”
(S 231 to 236. Same as § 234 to 238 R. S. except that the words in the last section after “by law to witnesses,” were inserted by the legislature.] Original note to 233. “Slightly varied.” To $ 234. “Condensed.”
(S 238, 239, 240, 241. Same as $ 240, 241, 242, 243 R. S. except that in the latter section, the 4th subdivision, was reported as follows: “4. The declaration of the plaintiff, the plea of the defendant, the further pleadings of the parties, if any, and the issue joined ;" and except also that the following subdivision was not adopted : “6. The issuing of any commission by him, and to whom, and the time of receiving the return thereto.”] Original note. “New; intended as a directory to justices, and necessary to carry into effect the succeeding provisions."
[S 243. Same as 246 R. S. except that the concluding words of reported section, “but may be repelled by contrary proof,” were not adopted.] Original note.“ $ 29, p. 292 of act of 1824; varied in declaring it liable to contradictory proof, upon the belief that it could not have been intended to be conclusive."
(S 245. Same as $ 248 R. S.] Original note. “Declaratory. See 3 J. R., 429."
[S 243 (2). Same as $250 R. S.] Original note. “ New."
(S 257, 258. Same as 8 261, 262, R. S.] Original note. “Conformable to a decision of the supreme court, and obviously requiring legislative provision."
(S 263. Same as $ 267 R. S.] Original note. “These sections seem necessary to provide for cases of not unfrequent occurrence.”
[S 271, 272, 273, 274. Same as enacted, except that in $ 273, the