467. Rule of strict construction of statutes inapplicable to this act. 469. Rules and practice, inconsistent with this act, abrogated. 470. Judges of supreme court to make general rules. 471. This act not to affect certain proceedings and statutory provisions. 472. Certain parts of revised and other statutes not repealed. 473. This act, when to take effect. § 462. [383.] Definition of "real property."-The words "real property," as used in this act, are co-extensive with lands, tenements and hereditaments. § 463. [384.] Definition of" personal property."—The words "personal property," as used in this act, include money, goods, chattels, things in action, and evidences of debt. § 464. [385.] Definition of" property."—The word "property," as used in this act, includes property, real and personal. $465. [386.] Definition of "District."-The word "district," as used in this act, signifies judicial district, except when otherwise specified. 466. [387.] Definition of "clerk."-The word "clerk," as used in this act, signifies the clerk of the court where the action is pending, and in the supreme court, the clerk in the county mentioned in the title of the complaint, or in another county to which the court may have changed the place of trial, unless otherwise specified. An official statute certificate, signed by a deputy clerk, without stating that the clerk was absent, held, sufficient. 4 Pr. R., 253. See, note to section 312. $467. Rule of strict construction of statutes, inapplicable to this act. The rule of common law, that statutes in derogation of that law are to be strictly construed, has no application to this act. § 468. [388.] Statutory provisions inconsistent with this act repealed. All statutory provisions inconsistent with this act, are repealed; but this repeal shall not revive a statute or law which may have been repealed or abolished by the provisions hereby repealed. And all rights of action given or secured by existing laws, may be prosecuted in the manner provided by this act. If a case shall arise in which an action for the enforcement or protection of a right, or the redress or prevention of a wrong, cannot be had under this act, the practice heretofore in use, may be adopted so far as may be necessary to prevent a failure of justice. This section is identical with section 388, in the code of 1848, and it was decided that it preserved the right to a creditor's bill given by the revised statutes, (2 R. S., 173, s. 38, et seq.,) in cases where an execution had been issued and returned unsatisfied, prior to the code. Quick v. Keeler, 2 Sand. S. C. R., 231. Dunham v. Nicholson, Sand. S. C. R., 636. It has also been held, that this section gives the right to proceed by summons and complaint for an admeasurement of dower. Townsend v. Townsend, 2 Sand. S. C. R., 713. And in like manner for partition of lands. See note to section 448. And also, in like manner, to pursue the remedy of a creditor's suit. See, note to section 71. The judiciary act of 1847, when applied to appeals depending on the 1st of July, 1848, is not so inconsistent with any thing in the code, as to come within the repealing section. Per Bronson, Ch. J., Butler v. Miller, 3 Pr. R., 339. The code-makers did not intend to take away any right which had already attached under the old law, but only to change the law for the future. Ib. $469. [389.] Rules and practice inconsistent with this act abrogated. The present rules and practice of the courts, in civil actions, inconsistent with this act, are abrogated, but where consistent with this act, they shall continue in force subject to the power of the respective courts to relax, modify, or alter the same. This section is identical with section 389, in the code of 1848, which was held not to abrogate the principles which governed the practice with respect to affidavits to hold to bail, and showing cause of action, and vacating orders to hold to bail. Martin v. Vanderlip, 3 Pr. R., 265. § 470. (Amended.)-Judges of supreme court to make general rules. The judges of the supreme court shall meet in general session at the capitol, in the city of Albany, on the first Wednesday in August, 1852, and every two years thereafter, and at such sessions shall revise their general rules, and make such amendments thereto as experience has shown to be necessary to carry into effect the provisions of the Code of Procedure and make such further rules as they deem proper not inconsistent with the provisions of this act. The rules so made shall govern the superior court of the city of New-York, the court of common pleas of the city and county of New-York, and the county courts, so far as the same may be applicable. The amendment is the substitution of the words in italic for these words " 1849, and at such session make general rules to carry into effect the provisions of this act, and such other." And the omission at the end of these words. "Until such general session of the supreme court, the general terms respectively of that court, and of the other courts mentioned in this section, may make temporary rules in like cases, to continue in force until the first day of September next, and no longer; and from and after the first day of September next, the existing general rules of the supreme court, adopted in July, 1847, so far as the same remain now in force, shall be abrogated." 471. [390.] This act not to affect certain proceedings an statutory provisions.—Until the legislature shall otherwise provide, this act shall not affect proceedings upon mandamus, or prohibition; nor appeals from surrogates' courts; nor any special statutory remedy not heretofore obtained by action; nor any existing statutory provisions relating to actions not inconsistent with this act, and in substance applicable to the actions hereby provided; nor any proceedings provided for by chapter five of the second part of the Revised Statutes, or by the sixth and eighth titles of chapter five of the third part of those statutes, or by chapter eight of the same part, excluding the second and twelfth titles thereof, or by the first title of chapter nine of the same part; except that when in consequence of any such proceeding a civil action shall be brought, such action shall be conducted in conformity to this act; and except also, that where any particular provision of the titles and chapters enumerated in this section shall be plainly inconsistent with this act, such provision shall be deemed repealed. This section was substituted for section 390 in the code of 1848. "It is not clear what is meant by bringing an action in consequence of any such proceedings. It cannot be an action of ejectment after partition, for this would have been so as a matter of course. The more reasonable construction is that the proceedings are to be conducted as suits under the code, except that when they are not provided for, in that, the former statute remains in force. Per Hand, J., in Watson v. Brigham, 3 Pr. R., 290, 291. 1 Code Rep., 67. The following is a list of the matters excepted from the operation of the code by this section. "Provisions for the better security of mechanics and others erecting buildings, and furnishing materials therefor, in the several cities of this State, and in certain villages." 2 R. S., 558. "Writs of habeas, corpus, and certiorari, in certain cases." Ib. 559. "Attachments against absconding, concealed and non-resident debtors." Ib., 1. "Custody and disposition of the estates of idiots, lunatics, persons of unsound mind and habitual drunkards." Ib. "Tresspass on lands." Ib. 388. Proceedings to discover the death of persons upon whose lives any particular estate may depend." Ib. 343. Bring ag and maintaining suits by poor persons." Ib. 444. Suits by and against executors, and administrators, and against heirs, devisees and legatees." Ib. 447. "Proceedings by and against corporations, and public bodies, having certain corporate powers, and by and against officers representing them." Ib. 457. "Suits against sheriffs, surrogates and other officers on their official bonds." Ib. 476. "Actions for penalties, and forfeitures; and provisions for the collection and remission of forfeited recognizances, and fines imposed by courts." Ib. 480. "Proceedings for the admeasurement of dower." Ib. 488. "Proceedings for the collection of demands against ships and vessels." Ib. 493. "Proceedings for the recovery of rent and of demised premises." Ib. 500. "Summary proceedings to recover the possession of land in certain cases." Ib. 507. "Distraining cattle and other chattels doing damage, and of distraining in other cases." Ib. 517. "Proceedings, as for contempts, to enforce civil remedies, and to protect the rights of parties in civil actions." Ib. 534. 548. "Arbitrations." Ib. 541. "Foreclosure of mortagages by advertisement." Ib. 545. "Proceedings for the draining of swamps, marshes, and other low lands." Ib. "General miscellaneous provisions concerning suits and proceedings in civil actions." Ib. 550. This section preserves the petition for admeasurement of dower, but a party may either adopt the petition or the summons and complaint. Townsend v. Townsend, 2 Sand. S. C. R., 713, and sections 24 and 25, of 2 R. S. 617, are retained by this section. Murray v. Haskins, 4 Pr. R., 263, but see note to section 303, and 2 R. S., 252, § 74 75, is retained by the code. McGowan v. Morrow, 3 Code Rep., 9. The true principles applicable to the titles named in this section, are: Where the title creates the proceeding and contains full directions as to the form and mode of conducting it, or where the title modifies a common law remedy, so as to make it essentially new and statutory; in such cases the right and remedy remain unseparated and unaltered. But where the titles merely provide for proceedings preliminary to an action, or establish certaiu principles of law or rules of evidence, to govern suits between certain parties, under certain circumstances, without materially affecting the form of the action or manner of conducting it in other respects; there the proceedings are retained and applied to the new system, and the action, not depending upon the old statute, is to be conducted in conformity with the code. In the latter class may be placed the statutes in relation to suits by poor persons, by and against administrators, fixing the damages for trespass in certain cases, &c.; which do not seriously affect the forms of action, but are as applicable to the new system as to the old. In the former class may be placed proceedings in partition; proceedings against corporations in courts of law; admeasurement of dower; proceedings for the collection of demands against ships and vessels; forcible entries and detainers; writ of nuisance, and actions of waste; all of which are either entirely creatures of the statute, by which the right and remedy are made inseparable, or are common law actions, so far modified by the statute, as to be inconsistent with any other general form of remedy. Per Barculo, J., in Traver v. Traver, 1 Code Rep., 112. See also sections 108 109, and supreme court rule, 92. $472. Certain parts of revised and other statutes not repealed. -Nothing in this act contained shall be taken to repeal section 23 of article 2 of title 5 of chapter 6, part 3d of the Revised Statutes, or to repeal an act to extend the exemption of house hold furniture and working tools from distress for rent and sale under execution, passed April 11, 1842. § 473. [391.] This act when to take effect.-This act shall take effect on the first day of July, 1848; except that sections 22, 23, 24 and 25 shall take effect immediately. The code, (passed 11th April, 1849,) took effect twenty days after its passage. The last [this] section of the code should be considered as a portion of the original code, and applicable to such portions of the amended code as existed prior to April, 11, 1849. But considering the amended code as a substitute for the original, to take effect on 1st of July, 1848, would be to give it a retrospective effect, contrary to the settled principles applicable to the construction of statutes. Gamble v. Beattie, 4 Pr. R., 41. .1 |