measurement be affirmed on the appeal, the supreme court, in awarding costs, is directed to require the party appealing to pay the one half of such costs and expenses before the surrogate, or court of common pleas, if he have not before paid the same.86

88 Ib. s. 26.

APPENDIX.

COLONIAL JUDICIARY ACT.

The following act,* which was passed in the first year of the regular government of the province of New York, is not only historically curious, but more important than any other of the acts of the colonial legislature: for its provisions have not, like most of theirs, ceased to be seen or felt in our present institutions, but are obviously the foundation and frame of our judicial system as it now exists, and may be distinctly traced in the constitution of almost all our courts. This act is not now to be found, except in a copy of an edition of the colonial session laws published by Bradford in 1694,' and preserved in the society library of the city of New York. It appears to have been unknown to all the re visers and compilers of the statutes down to this time, by whom it has been supposed to be lost. It was passed originally in April or May, 1691,2 to continue for two years; and on the 11th of November, 1692, was re-enacted for two years more, without alteration, except directing that the supreme court should be held in the other counties besides New York, and that one of the judges should go the circuit into those counties. It was again continued for two years more, and finally, in 1697, it appears to have been permanently continued, without any limitation of its duration, and never to have been repealed. Livingston and Smith,3 and Van Schaack, speak of it as lost, and could not have known of a copy

of Bradford's edition of 1694. Van Ness and Woodworth could not have known of it, as they mentions Bradford's edition of 1710 as the earliest edition extant; while neither that nor Bradford's editions of 1713 or 1726 contain the act, but merely give its title. Van Ness and Woodworth mention this and the acts continuing it, but consider the supreme court as regulated and fixed by cer tain ordinances of the governor and council which, (as well as the act of 1683, conferring civil jurisdiction upon courts of sessions and oyer and terminer) they give in the appendix to their edition."

It is to be inferred from these ordinances, that the legislative act was for some reason considered as having ceased to operate. although there is no evidence of its having expired; and the court was undoubtedly held by virtue of the ordinances, and not of the law; but this does not diminish the importance of the act itself, as the ordinances are mere transcripts of it, and intended only to continue its provisions; and as the ordinances were not considered as of the same force as legislative acts, but rather as temporary and provisional regulations, and could not, therefore, have conferred that character of strength and per petuity upon the constitution of the courts, which from their duration it is evident that they must have originally received. Smith, who published his history in 1756, alludes to the inadequacy of these ordinances for the establishment of courts of justice. He says, "As this act of 1691 was a temporary law, it may hereafter be disputed, as it has been already, whether the present establishment of our courts, for general jurisdiction, by an ordinance, can consist even with the preceding act, or the general rules of law."

"An Act for Establishing Courts of Judicature, for the Ease and Benefit of each respective City, Town and County, within this

Province.

"Whereas the orderly Regulation, and the establishment of Courts of Justice throughout this Province, as well in the respect