CORNER OF NASSAU AND SPRUCE STREETS, OPPOSITE G. M. Davison, Printer- Saratoga Springs. Northern District of New-York, to wit: BE IT REMEMBERED, that on the twenty-eighth day of May, in the forty-fifth year of the Independence of the United States of America, A. D. 1821, William Gould and Company, of the said district, have deposited in this office the title of a book, the right whereof they claim as proprietors, in the following words, to wit: "A Treatise on the Civil Jurisdiction of a Justice of the Peace, in the state of New-York. By Esek Cowen, Esq. Counsellor at Law." In conformity to the act of the Congress of the United States, entitled, "An "act for the encouragement of learning, by securing the copies of maps, "charts, and books, to the authors and proprietors of such copies, during "the times therein mentioned ;" and also, to the act, entitled, "An act sup"plementary to an act, entitled, an act for the encouragement of learning, "by securing the copies of maps, charts, and books, to the authors and pro"prietors of such copies, during the times therein mentioned, and extend❝ing the benefits thereof to the arts of designing, engraving, and etching historical and other prints." R. R. LANSING, Clerk of the Northern District of New-York. PREFACE. 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 an half. At one time it took cognizance of various matters to the value of £100; but in 1782, it was limited to 25 dollars, at which it remained stationary, till the year 1818, when its jurisdiction, in this respect, was enlarged to 50 dollars, in matters litigated, and to 100 dollars upon confession. 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 de cide without established principles, is, of all speculations, the most wild and pernicious. To substitute in the place of settled law, the whim, 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 established 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 indispensible 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 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 in 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 Jaw can restrain; that an artful, designing, insinuating party will approach him under every possible disguise, 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 info 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 feelings 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 business 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 cominon 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 themselves in deciding controversies, so far as they apply here, must very much depend on the utility and publick convenience of the justice's 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. It is impossible that it should be otherwise. A Jaw of such magnitude cannot carry every exposition on its breast. The 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 agree in every point; much less are we to expect a uniformity of opinion from men unaccustomed to legal investigation. Such men, however, 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.' 17* "I certainly shall not presume," says that great luminary of our jurisprudence, the present Chancellor of this state, "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. 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."t 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.‡ For their use and the use of * Most of the above observations, marked as quoted, are either suggested by, or taken verbatim from the preface to Judge Pennington's excellent treatise on the justice's court of New-Jersey. I have therefore added a quotation for the whole. † 1 John. Ch. Rep. 530. Ihave observed, for a few years past, while attending the Supreme 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 a justice's court, |