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.

21

SUPPLEMENTARY ACT.

AN ACT

To amend an act entitled "An act to facilitate the determination of existing suits in the courts of this State."

Passed April 11, 1849.

The People of the State of New-York, represented in Senate and Assembly, do enact as follows:

The act entitled "An act to facilitate the determination of existing suits in the courts of this State," passed April 12, 1848, is hereby amended so as to read as follows:

1. The act to simplify and abridge the practice, pleadings, and proceedings of the courts of this State, passed April 12, 1848, and amended at the present session of the Legislature, is herein designated as the "Code of Procedure."

TITLE I.

Provisions relating to the Courts in general.

CHAPTER I. Sections of the Code of Procedure referred to and applied to existing suits.

II. Other provisions relating to existing suits.

CHAPTER I.

Sections of the Code of Procedure referred to and applied to existing suits.

2. The provisions of the Code of Procedure, contained in the following sections thereof, are hereby applied, so far as

the same are applicable, to future proceedings in civil suits, whether at law or in equity, pending on the first day of July, 1848, as follows:

(A writ of error held to be a "suit" within this section. Grover v. Coon, 3 Pr. R., 341.)

1. Sections seventy-two, one hundred and twenty-one, one hundred and sixty-nine to one hundred and seventy-six, both inclusive, three hundred and fifteen, and three hundred and eighty-eight, to proceedings in actions in the supreme court, in the county courts, in the superior court of the city of New-York, in the court of common pleas for the city of NewYork, in the mayors' courts of the cities of Albany, Hudson, Troy, and Rochester, and in the recorders' courts in the cities of Buffalo and Utica.

2. Sections two hundred and ninety-two to three hundred and two, both inclusive, to executions on a judgment or decree in any of those courts, hereafter issued, against any person to the sheriff of the county where he resides, or if he reside out of the State, to the sheriff of the county where the record of judgment is filed or the decree enrolled; the word "judgment" in these sections being taken to include a decree.

(The words" hereafter issued" in this section mean after July 1, 1848. Dunham v. Nicholson, 2 Sand. S. C. R., 636.)

3. Sections three hundred and twenty-three to three hundred and thirty-one, both inclusive, three hundred and thirtythree to three hundred and forty-seven, both inclusive, and three hundred and fifty-one to three hundred and seventyone, both inclusive, to the review of judgments, decrees, and final orders, from which no writ of error or appeal shall have been already taken, the word "judgment" being taken to include a decree, and "judgment roll" to include the record of judgment and enrollment of decree.

(Farmers' Loan and Trust Co. v. Carroll. 4 Pr. R., 211. 1 Code Rep., 112.)

4. Sections three hundred and ninety to three hundred and ninety-nine, both inclusive, four hundred and six to four hundred and fifteen, both inclusive, four hundred and seventeen, and four hundred and eighteen, to proceedings in actions. in all the courts of civil jurisdiction in the State.

5. Section four hundred and two, to non-enumerated motions in the courts mentioned in the first subdivision of this section.

See notes to sections 401, 402, 403.

This section does not authorize an appeal where the suit was terminated by judgment before the code took effect.

The "final orders" from which that section authorizes an appeal to this court, are, it seeins, orders made in special proceedings, or upon summary application after judgment—and in the latter case the application, it seems, must concede the validity of the judgment, and seek relief upon matter arising subsequently. Dunlop v. Edwards, 3 Code Rep., 197.

A final decree, regularly entered, (not enrolled,) cannot be corrected on special motion; it must be by a re-hearing, or if enrolled, by bill of review. Picabia v. Everard, 4 Pr. R., 113. 2 Code Rep., 69.

CHAPTER II.

Other provisions relating to existing suits.*

§ 3. Suits referred by consent.-Reference to take testimony.— Any suit in equity now pending in the supreme court, or which may be there pending before the first day of July next, or any issue therein, whether of fact or of law, or both, may be referred upon the written consent of the parties concerned; and upon the like consent, a reference may be ordered to take testimony, or to report facts, or to execute any order or de

cree.

§ 4. Reference when directed by court.-Where the parties do not consent, as in the last section mentioned, the court may, upon the application of either, or of its own motion, direct a reference in such suit, in the following cases:

1. Where the determination of an issue of fact shall require the examination of a long account on either side; in

See note to Trial by Referees, p. 218.

A reference as to surplus moneys in a suit pending in the late court of chancery, is not a reference under this act. Rogers v. Mouncey, 1 Code Rep., 63. A reference to take testimony in an equity suit at issue upon the pleadings, cannot be directed under this act unless by consent. Flagg v. Munger, 2 Code Rep., 17.

On a reference to hear and determine, under code of 1848, an order to examine a co-defendant, was necessary. Roberts v. Thompson, 1 Code Rep., 113.

Where the examination of a long account is not necessarily involved, a reference will not be ordered. Sheldon v. Weeks, 7 Leg. Obs., 57.

What exceptions to a reference may be reviewed in the court of appeals. Wilson v. Allen, 2 Code Rep., 26.

What proceedings are to be had on reports of referees in suits pending July 1, 1848, and how such reports may be reviewed, see Mucklethwaite v. Weiser, 1 Code Rep., 61.

which case the reference may be to hear and decide the whole issue, or to report upon any specific question of fact involved therein; or,

2. Where the taking of an account shall be necessary for the information of the court, before decree, or for carrying an order or decree into effect; or,

3. Where a question of fact, other than upon the pleadings, shall arise, upon motion or otherwise, in any stage of the suit.

§ 5. Report of referee to stand as decision. The report of the referee or referees upon the whole cause, or upon the whole of any issue therein, shall stand as the decision of the court, in the same manner as if the cause or issue had been determined by the court at a special term, and may be reviewed in like manner.

See section 278 of Code.

6. Referees, how appointed.-The referee or referees shall be appointed in the manner provided in section two hundred and seventy-three of the Code of Procedure, and shall have the powers specified in section four hundred and twenty-one, and the compensation specified in section three hundred and thirteen of that code.

$7. Re-hearing. Security to be given. Notice of re-hearing. -No re-hearing shall take place at a general term of the su preme court, of an order or decree made at a special term, unless the same involve the merits of the suit or proceeding, or some part thereof. And further proceedings upon the order or decree shall not be stayed, unless security be given in the same manner, and to the same extent, as would be required if an appeal were taken to the court of appeals from the same. order or decree, made or confirmed at a general term. Nor shall such re-hearing be had, unless notice of the same be given within ten days after notice of the order or decree reheard, with the security thus required.*

* Under this section it was held, in Schermerhorn v. Mayor, &c. of New-York, (3 How, Pr., 254,) that the proceedings to obtain a re-hearing were to be governed by this act, and that security must be given in all cases on a re-hearing, in nonenumerated motions in equity, as well as final decrees. That where no stay of proceedings was sought, the security must be in conformity to 2 R. S., 605, s. 80,